Abstract

http://ssrn.com/abstract=944624
 
 

Citations (1)



 


 



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


Paul Horwitz


University of Alabama School of Law


Osgoode Hall Law Journal, Vol. 38, No. 101, 2000

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


Download This Paper

Date posted: November 16, 2006  

Suggested Citation

Horwitz, Paul, Law's Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law. Osgoode Hall Law Journal, Vol. 38, No. 101, 2000. Available at SSRN: http://ssrn.com/abstract=944624

Contact Information

Paul Horwitz (Contact Author)
University of Alabama School of Law ( email )
P.O. Box 870382
Tuscaloosa, AL 35487
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,200
Downloads: 109
Download Rank: 148,323
Citations:  1

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.406 seconds