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Bills of Rights in the Common Law

$113.00 (P)

Part of Cambridge Studies in Constitutional Law

  • Date Published: June 2015
  • availability: Available
  • format: Hardback
  • isbn: 9781107038530

$ 113.00 (P)

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About the Authors
  • Scholars have addressed at length the 'what' of judicial review under a bill of rights - scrutinizing legislation and striking it down - but neglected the 'how'. Adopting an internal legal perspective, Robert Leckey addresses that gap by reporting on the processes and activities of judges of the highest courts of Canada, South Africa and the United Kingdom as they apply their relatively new bills of rights. Rejecting the tendency to view rights adjudication as novel and unique, he connects it to the tradition of judging and judicial review in the Commonwealth and identifies respects in which judges' activities in rights cases genuinely are novel - and problematic. Highlighting inventiveness in rights adjudication, including creative remedies and guidance to legislative drafters, he challenges classifications of review as strong or weak. Disputing claims that it is modest and dialogic, he also argues that remedial discretion denies justice to individuals and undermines constitutional supremacy.

    • Compares judges' application of bills of rights in Canada, South Africa, and the United Kingdom in order to identify common patterns and heighten appreciation of what is distinct about each country
    • Resists the tendency to view judging under a bill of rights as distinct from ordinary judging in favour of highlighting the potential for continuity in rights cases and ordinary cases
    • Studies procedure and technique under a bill of rights using the baseline of prior practice, thereby avoiding the methodological problems associated with 'judicial activism' and judicial-review literature based on subjective ideals
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    Product details

    • Date Published: June 2015
    • format: Hardback
    • isbn: 9781107038530
    • length: 258 pages
    • dimensions: 229 x 152 x 16 mm
    • weight: 0.5kg
    • availability: Available
  • Table of Contents

    1. Against Bill of Rights exceptionalism
    2. The common law, judging, and three Bills of Rights
    3. Judicial review of legislation before Bills of Rights
    4. Bills of Rights and other means of accessing judgment
    5. Putting the strike-down in its place
    6. Remedies from text to practice
    7. Improving the system and engaging the legislature
    8. Rethinking remedies and constitutional supremacy

  • Author

    Robert Leckey, McGill University, Montréal
    Robert Leckey is an associate professor and William Dawson Scholar in the Faculty of Law and director of the Paul-André Crépeau Centre for Private and Comparative Law at McGill University, where he researches in comparative law, constitutional law and family law.

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