Jun 4, 2025 Leonid SirotaConstitutional Law
Preston Jordan Lim
, The Great Depression and Canada’s Major Originalist Decade, __
Osgoode Hall L.J. __ (forthcoming). available at
SSRN. (November 22, 2024).
If, as Adam Dodek once put it, originalism was long a “dirty word” in Canadian constitutional law, one reason for that was its perceived foreignness. Another was politics. As Colin Feasby has observed, for the judges and academics of the formative period after the enactment of the Canadian Charter of Rights and Freedoms in 1982, originalism was “a tool of conservative United States legal thinkers.” Preston Jordan Lim shows that they were quite wrong—and ignorant of their own history. Long before it was a gleam in Paul Brest’s eye, originalism was the method by which Great Depression-era Canadian scholars hoped to take their constitution back from the courts—or, more precisely, from the Judicial Committee of the Privy Council (effectively the British Empire’s supreme court, staffed mostly by the United Kingdom’s most senior judges), then the court of last resort for Canada.
Lim shows that “originalism constituted the primary theory of constitutional interpretation through which legal reformers” argued about the interpretation of what today is known as the Constitution Act, 1867—the text that contains most of the Canadian constitution’s key structural provisions. Admittedly, they did not have an especially clear theory of originalism. But it was their practice just the same. And one hardly needs to have parsed the interpretation-construction distinction or pondered whether there is something that interpretation just is to be an originalist—as the development of originalism in American law itself shows. Continue reading "Originalism, Eh?"
Jun 3, 2025 Allan ErbsenCourts Law
Civil Protection Orders (CPOs) empower targets of domestic violence to enlist the state as an ally. Streamlined procedures enable plaintiffs to avert abuse that public institutions might otherwise be unable to address. In contrast to criminal remedies, civil remedies focus on protecting victims rather than punishing abusers, rely on robed magistrates rather than armed officers, and require proof by a preponderance of the evidence rather than beyond a reasonable doubt. Despite creating only a parchment barrier, CPOs often have sufficient gravitas to deter abusers. When deterrence fails, CPOs facilitate arrest and prosecution.
Inadequate public knowledge about CPOs blunts their utility. Virtually all victims of domestic violence know that they can dial 911. Fewer know that they can apply for a CPO. Reformers seeking to protect victims while reducing dependence on the criminal justice system have therefore considered how to expand awareness of civil remedies.
Lisa Martin’s The Importance of Civil Pathways to Protection Orders provides valuable insight into the underuse of CPOs. The article reports the results of an empirical study reviewing nearly every CPO application filed in South Carolina’s family courts in 2019. Martin analyzed more than 3,400 files from forty-five of the state’s forty-six counties, coding for more than forty variables. Continue reading "Expanding Access to Civil Remedies for Domestic Violence"
Jun 2, 2025 Jodi ShortAdministrative Law
Julie E. Cohen,
Oligarchy, State, and Cryptopia, available at
SSRN. (March 10, 2025).
In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.
Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat. Continue reading "Re-theorizing Administrative Law in the Great Unsettling"
