The judicial role in a diverse federation : lessons from the Supreme Court of Canada / Robert Schertzer.

Format:

Book

Author/Creator:

Schertzer, Robert, 1981- author.

Language:

English

Subjects (All):

Canada. Supreme Court.

Canada.

Federal government--Canada--Cases.

Federal government.

Genre:

Trials, litigation, etc.

Physical Description:

vi, 338 pages ; 24 cm

Place of Publication:

Toronto ; Buffalo ; London : University of Toronto Press, 2016.

Summary:

"In The Judicial Role in a Diverse Federation, Robert Schertzer uses the example of the Supreme Court of Canada to examine how apex courts manage diversity and conflict in federal states. Schertzer argues that in a diverse federation where the nature of the federal system is contested the courts should facilitate negotiation between conflicting parties, rather than impose their own vision of the federal system. Drawing on a comprehensive review of the Supreme Court federalism jurisprudence between 1980 and 2010, he demonstrates that the court has increasingly adopted this approach of facilitating negotiation by acknowledging the legitimacy of different understandings of the Canadian federation. This book will be required reading both for those interested in Canada's Supreme Court and for those engaged in broader debates about the use of federalism in multinational states."-- Provided by publisher.

Contents:

Part 1 The Theory and Practice of Managing Diversity via Federalism

1 The "Problem" of National Minorities and the "Solution" of Federalism 27

The "Problem" of National Minorities 28

The "Solution" of Federalism 35

The Contested Federation 47

Conclusion 58

2 The Role of the Federal Arbiter in a Diverse Federation 62

Conflict over the Federation and the Forums of Management 63

The Judiciary as Federal Arbiter 68

A Dynamic Federal Theory and the Judiciary as Facilitator and Fair Arbiter 83

Part 2 The SCC's Federalism Jurisprudence, 1980 to 2010

3 Investigating the SCC's Federalism Jurisprudence 101

The Scope of the Study 102

The Analytical Framework 119

Situating the Study 134

Conclusion 138

4 The Exemplar of the Secession Reference 139

Context 140

Depiction of the Federation 144

Use of Legal Argument 150

Outcome 155

Role of the Court 159

An Approach Focusing on Legitimacy and Conflict Management 163

5 The SCC's Imposing Federalism Jurisprudence 169

Context 172

Imposing Depictions 179

Framing the Depiction through Legal Argument 191

Imposing Outcomes 198

An Imposing Role 203

The Problem with This Imposing Jurisprudence 208

6 A Federalism Jurisprudence of Recognition 220

Context 223

An Inclusive Understanding of the Federation 227

Framing the Inclusive Understanding through Legal Argument 242

Rejecting Zero-Sum Outcomes 248

A Positive Role Model 255

A Turn towards Conflict Management 259.

Notes:

Includes bibliographical references and index.

ISBN:

9781487500283

1487500289

OCLC:

928487589