Skip to main content

Courts, Judicial Review, Rights and Democracy

Go Search
Home
About
New Atlas
Atlas, A-Z
Atlas Maps
MPP/MPA Programs
Subjects
Core Topics
Illustrative Courses
Topic Encyclopedia
Concept Dictionary
Competencies
Career Tips
IGOs
Best Practices Project

TEACHING TOPICS IN DEMOCRATIC INSTITUTINS AND POLICY PROCESS
Actors, Interests and Lobbying
Administration and Governance
Administrative Law and Constitutional Checks on the Executive
All-Powerful Leaders?: The Concentration of Power in Modern Executives
Bureaucracy and the Formulation of Public Policy
Canadian Intergovernmental Structures and Operating Processes
Conceptual and Theoretical Foundations of Third Sector Governance and Management
Courts, Judicial Review, Rights and Democracy
Democracy
Emergence of the Nation State
Executive Authority, Cabinet and Leadership
Executive Leadership in Government
Executive-Legislative Relations
Federalism
Federal-Provincial Fiscal Relations
Federal-Provincial-Municipal Relations
Game Theory and Rational Institutionalism
Indigenous Rights and Institutions
Institutional Architecture: Federalism
Institutional Designs and Paths
Machinery of Government
Media, Framing and Agenda Setting
New Public Management
Parliamentary, Presidential and Decentralized Unitary Systems
Political and Administrative Responsibilities
Political and Administrative Responsibilities
Political Parties and Elections
Probing the Accuracy of Rational Decision Making Models: Alternative Accounts
Public and Para-Public Institutions
Public Institutions, Organizing Principles and Democratic Control
Public Opinion, Ideas and Policy Frames
Representation and Accountability
Representation and Responsiveness
Representation, Accountability and Policy
The Architecture of the Canadian State
The Bureaucracy and Bureaucratic Behaviour
The Changing Role of the State
The Democratic Deficit: Ethics, Responsiveness and Performance
The International Context of Domestic Institutions
The Policy Cycle
The Political Context of Policy Making
Weber: Rationalization and Bureaucracy
Westminster Parliamentary Systems
Who are the Players in the Policy Process?

 

A Teaching Topic in Democratic Institutions and Policy Process 

Courts, Judicial Review, Rights and Democracy

This topic examines the role of legal institutions (such as courts and tribunals) in policymaking and administration. It studies the relationship between the judiciary and other branches of government. It discusses the impact of the Supreme Court on public policy, and considers the extent to which judicial review constrains the actions of the democratically elected branches of government in Canada and the United States. This topic invokes debate on the degree to which law constrains and empowers policymaking; when and how specific rules should be set; how much discretion government officials should have to make case-by-case decisions; and how such discretion should be controlled. Materials include court decisions, legislation, administrative regulations, and academic articles. Students learn how to read and analyze legal materials, and students learn the different approaches courts take to such materials (Toronto PPG 2001H).

Topic Learning Outcome:  Upon mastering this topic, students will understand the role of the courts in the policy process, and will be able to define the concept of judicial review, using examples. Students will understand the function the Charter of Rights and Freedoms, and will understand key similarities and differences between the constitutional orders that exist in Canada and the United States.

Core Concepts Associated With This Topic:  Stare DecisisJudicial ActivismJudicial IndependenceJudicial ReviewJudiciary

Recommended Reading

UCLA: PP 202 American Political Institutions and Processes

Syllabus Section: Courts as Policy Makers: I and II

Deborah A. Stone. Policy Paradox: The Art of Political Decision Making . New York: W.W. Norton, 1997. Chapter 14, Rights.

R. Shep Melnick. Between the Lines: Interpreting Welfare Rights . Washington, D.C.: Brookings, 1994. Chapters 1, “Statutory Interpretation in Amer ican Politics,” pp. 3 – 22.

Jeb Barnes, Overruled? Legislative Overrides, Pluralism, and Contemporary Court - Congress Relations. Stanford: Stanford University Press, 2004.

American Government (CliffsQuickReview) – Chapter 5 , The Judiciary

Peter D. Jacobson and Kenneth E. Warner, “Litigation and Public Health Policy Making: The Case of Tobacco Control,” Journal of Health Politics, Policy and Law 24 (August 1999): 769 – 804.

Syllabus Section: A Republic Established

Declaration of Independence

The Constitution of the United States (including the Bill of Rights and Amendments)

Alexander Hamilton, John Jay, and James Madison. The Federalist: A Commentary on the Constitution of the United States. New York: Modern Library, 1947. Nos. 10, 14, 37, 47, 49, 51, and 70

Alexis de Tocqueville. Democracy in America. Chicago: University of Chicago Press, 2000.

Part I, Chapter 3, Social State of the Anglo-Americans, pp. 45-53

Part I, Chapter 4, On the Principle of the Sovereignty of the People in America, pp. 53-55

Part I, Chapter 5, Section – General Ideas about Administration, pp. 75-79; and Section – On the Political Effects of Administrative Decentralization, pp. 82-93

Part I, Chapter 6, On the Judicial Power in the United States, pp. 93-99

Part II, Chapter 5, On the Use that the Americans Make of Association in Civil Life, pp. 489-492

American Government (CliffsQuickReview) – Chapter 1, The Constitution; and Chapter 12, Civil Liberties

American: PUAD 616 The Legal Basis of Public Administration

D. Rosenbloom, J. Carroll, and J. Carroll, Constitutional Competence for Public Managers: Cases and Commentary. Thomson Custom Publishing, 2010.

D. Rosenbloom, Administrative Law for Public Managers (Boulder, CO: Westview, 2003). ISBN 0-8133-9805-3.

Agency for International Development v. Alliance for Open Society International 570 U.S.– (2013); (133 S.Ct. 2321)

Federal Communications Commission v. Fox TV 566 U.S. 502 (2009)

Toronto: PPG2001H The Law and Policy of Protecting the Environment (Using environmental law as an example)

Syllabus Section: Assessing Environmental Effects of the Oil Sands: The Courts v the Executive in Interpreting Statutes

Doelle, Meinhard, CEAA 2012: The End of Federal EA as We Know It? (July 10, 2012). (2012) 24 Journal of Environmental Law and Practice 1. Available at SSRN: http://ssrn.com/abstract=2104336

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2408/index.do

Green, Andrew. 2012. Discretion, Judicial Review and Environmental Policy: Does the Federal Court Constrain Decisions under CEAA? www.canlecon.org/index.php/CLEA/CLEA2012/
paper/view/196

Sullivan, Ruth. 2008. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis. Chapter 1: Driedger’s Modern Principle.

Syllabi Cited

UCLA: PP 202 American Political Institutions and Processes, Winter 2014

American: PUAD 616 The Legal Basis of Public Administration, Fall 2013

Toronto: PPG2001H The Law and Policy of Protecting the Environment, Winter 2014

Possible Assessment Questions:

  1. What is Judicial Review?
  2. Provide one example of a case where the judicial review process resulted in the overturning of a law that was enacted by the elected branches of government.
  3. Some have argued that the enactment of the Charter of Rights and Freedoms “Americanized” Canada’s constitutional order and the role of judicial review. Explain what is meant by this claim.

Page created by: Ben Eisen; last updated by Sean Goertzen on 23 October 2014.

 


Important Notices
© University of Toronto 2008
School of Public Policy and Governance