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Courts, Judicial Review, Rights and Democracy

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All-Powerful Leaders?: The Concentration of Power in Modern Executives
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Canadian Intergovernmental Structures and Operating Processes
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Courts, Judicial Review, Rights and Democracy
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Weber: Rationalization and Bureaucracy
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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:

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9.

Green, Andrew. 2012. Discretion, Judicial Review and Environmental Policy: Does the Federal Court Constrain Decisions under CEAA?

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.


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