Law's Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law

Abstract:     
This article argues that there is a link between one's theory of constitutional law and one's judgments about style in judicial opinion writing. It identifies several special functions of the constitutional opinion, including the democratic function of responding to the counter-majoritarian difficulty through an act of public justification, and the inter-generational function of provoking a temporally extended dialogue about constitutional values. Drawing on these functions, it argues for an opinion writing style dubbed open-textured minimalism, which seeks to resolve cases narrowly, articulate fundamental values and principles, and spark long-term debates about the underlying values supporting each decision. The article then applies these lessons to the Canadian Supreme Court's rulings on freedom of expression, arguing that the Court's rulings on this subject in the first two decades of the Canadian Charter of Rights and Freedom suffered from their length and technicality, and that the Court should have taken a more open-textured minimalist approach. Although the article addresses Canadian law specifically, its attempt to draw connections between constitutional theory and opinion style, and its advocacy of an open-textured minimalist approach, should be of interest to readers in the United States and elsewhere - particularly lawyers in countries whose constitutional jurisprudence is still relatively young.

Number of Pages in PDF File: 42

JEL Classification: K10, K40

Accepted Paper Series