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The Value of Dissent in Constitutional Adjudication: A Context-Specific Analysis
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In this paper, a context-specific analysis for assessing the value of dissent in constitutional adjudication is presented, which considers several contextual factors including: the jurisdiction's tradition, legal history, and culture; the credibility, function, and procedure of its court; and the background and training of the court's members.Abstract:
This paper addresses the long-standing international debate over whether the publication of dissenting opinions should be permitted in constitutional courts of last resort. It argues in response to this debate that a conclusion of general application is futile. Courts are not identical: their jurisdictions have unique legal histories, traditions, and cultures; they serve different functions and speak to different audiences; and, they are composed of members with fundamentally dissimilar training and backgrounds. This paper contributes to the debate by setting out a context-specific analysis for assessing the value of dissent in constitutional adjudication. It considers several contextual factors including: the jurisdiction's tradition, legal history, and culture; the credibility, function, and procedure of its court; and the background and training of its court's members. Applying this contextual analysis to Canada, this paper concludes that presently the publication of dissenting opinions is a valuable component of constitutional adjudication in the Supreme Court of Canada.read more
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Dissertation
The Politics of Compliance with International Human Rights Court Judgments
TL;DR: In this paper, the authors investigated how need for legislative changes influenced compliance with European Court of Human Rights (ECtHR) judgments and found that the need for such changes tends to delay compliance, but does not increase the risk of long-term defiance.
Journal ArticleDOI
The Dilemma of Dissent: Split Judicial Decisions and Compliance With Judgments From the International Human Rights Judiciary:
Daniel Naurin,Øyvind Stiansen +1 more
TL;DR: The mutual dependence between courts and their compliance constituency is a fundamental feature of judicial power as discussed by the authors, and actors whose rights and interests are reinforced by court decisions may use the court decisions to defend their interests.
Journal ArticleDOI
Communicating Dissent in Judicial Opinions: A Comparative, Genre-Based Analysis
TL;DR: This article examined the institution of votum separatum from a comparative, cross-language perspective using a linguistic methodology and found that judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances.
Journal ArticleDOI
Exploring dissent in the Supreme Court of Argentina
TL;DR: The authors studied the effect of different types of dissents in the Supreme Court of Argentina and found that more important cases have a lower likelihood of carrying a dissenting opinion, but only in cases of reasoned dissents.
Journal ArticleDOI
Human rights and the political: Assessing the allegation of human rights overreach in migration matters
TL;DR: In this article , the authors address the question of whether the expansion of migrants' human rights and State responsibility bear features of human rights overreach, in the sense that human rights encroach too much on State sovereignty, which may ultimately decrease the acceptance of human Rights themselves.
References
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Book
The Transformation of the Supreme Court of Canada: An Empirical Examination
TL;DR: Songer as discussed by the authors examined the impact of institutional changes on the proceedings and decisions of the Supreme Court of Canada from 1970 to 2003 and found that the Court has remained a politically moderate and democratic institution despite its considerable power and influence.
Journal ArticleDOI
Explaining Dissent on the Supreme Court of Canada
TL;DR: This paper found that the likelihood of dissension is strongly related to four broad factors that appear to exert independent influence on whether the Court is consensual or divided: political conflict, institutional structure, legal ambiguity in the law and variations in the leadership style of the chief justice.
Journal Article
Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada
TL;DR: The authors examines the notion of disagreement, suggests a conceptual framework in which the various disagreement formats can be located, applies that framework to the Court's performance over the past thirty years, and concludes with some speculation as to why the Supreme Court of Canada and the United States Supreme Court should exhibit such different patterns of behaviour in this regard.