People who are committed to religious freedom are generally also committed to protecting the conditions for the cultivation of religious life. Because of the deep linkages between religious belief and practice and religious institutions, it can seem natural and straightforward to move from championing religious freedom to championing religious freedom for religious institutions themselves. Members of the Supreme Court of Canada indicated their readiness to make this move in a 2015 case involving a Catholic secondary school in Quebec. In this article, I challenge the idea that according religious institutions section 2(a) protection in their own right is either a natural or a straightforward consequence of a commitment to collective religious freedom. I describe the intellectual history and characteristics of religious institutionalism and summarize the claims of its principal Canadian proponent. I then outline several ways in which religious institutionalism clashes with our basic constitutional commitments. Finally, I develop several prongs of a feminist response to religious institutionalism. I highlight the normative character of questions about the constitutional status of religious institutions, the gendered nature of the relationship between religious institutions and individual rights-holders, and the organic and dynamic features of religious institutions. I argue that we must approach institutional religious freedom claims cautiously and resist any interpretation of section 2(a) that would entrench and shield from internal resistance a singular, institutional religious voice.

The Charter’s notwithstanding clause makes exception to something, but what is that something? Received readings of the notwithstanding clause err in assuming that the clause makes exception to rights or to judicial review. It is argued, instead, that the clause makes exception to the remedy that follows from a finding that legislation is inconsistent with targeted rights and freedoms. That remedy is the one outlined in the Constitution’s supremacy clause: legislation is of ‘no force or effect’ to ‘the extent of the inconsistency’ with such rights and freedoms. By reviewing how the expression ‘no force or effect’ is equivalent to the expression ‘inoperable,’ it is argued that the notwithstanding clause empowers a legislature to affirm that legislation ‘shall have such operation as it would have but for’ targeted rights and freedoms. Such affirmation does not suspend rights and it does not block judicial review. Rather, it secures the operation of legislation even if such legislation is held by a court to be inconsistent with constitutional rights and freedoms. It follows that legislation invoking the notwithstanding clause may be challenged in judicial review and that a court may declare such legislation to be inconsistent with targeted rights and freedoms.

Our legal regimes are crafted in a way that asserts control over a certain physical three-dimensional space. Some property regimes assert dominion over a vertical three-dimensional column, such as ownership of land that includes certain resources that are vertically related to it above and below the ground. Other property regimes, however, control resources on the horizontal axis. For example, legal control over a footpath exerts a kind of horizontal dominion over the space of and around the footpath. This article offers a conceptual framework for unpacking the spatial geometry of our property regimes and underscores its significance for policy and institutional design. It shows, importantly, that the compatibility between the space over which a regime holds control, and the space that is occupied by a particular resource, has profound implications. A misalignment between the two – for example, when a vertical regime is applied to a horizontal resource – implicates how well the regime functions. After laying out the conceptual framework, the article illustrates its application to a contemporary problem of extracting wind energy.

In spite of its name, economic analysis of law is mostly unconcerned with money and markets. In a recently published book, Law and Macroeconomics: Legal Remedies to Recessions, Yair Listokin challenges this doubtful convention. He advocates ‘expansionary legal policies’ to stimulate the economy when monetary policy reaches the zero lower bound and becomes ineffective. This proposal is presented as a straightforward application of mainstream economic views, not a heterodox deviation. My review considers how the book’s main arguments depart from established views in economic analysis of law and discusses how its applications fare in light of the Keynesian perspective that the book purports to uphold.

Private law theories tend to narrowly delineate their ambitions: many theories limit private law’s normative aspirations to a circumscribed set of liberalism’s core commitments, restrict its horizons to the boundaries of the state, and marry its norms with only one type of legal institution (courts). These limited ambitions, we argue in this article, are normatively unwarranted. Each of these (often implicit) limitations distorts our understanding of the law governing people’s interpersonal relationships in their capacity as private individuals. Each of them improperly marginalizes, and, at times, renders normatively dubious, legal doctrines that give effect to the liberal commitment that captures the moral centre of private law – namely, reciprocal respect for self-determination and substantive equality.

The future of Canadian labour law will not come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the Wagner model which has governed since the 1940s. Instead, change will come first in the form of smaller foreshocks. Clues as to what those foreshocks may be are found in two important debates that took place during the 1980s. The first debate, led by Paul Weiler, explored comparative labour law and the intersection between the US and Canadian versions of the Wagner model. Weiler’s vision of a hybrid Wagner model that drew upon features of both versions to advance worker access to a collective voice at work is instructive of the direction we may be headed in Canada. The second debate related to the potential impact of the Canadian Charter of Rights and Freedoms on the future of Canadian labour law. David Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner model and its replacement with a new model that emphasized equality of individual liberty and that extended the reach of collective bargaining. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty’s normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence since 2001 may be catching up to that vision even if the Supreme Court has not often formally adopted his arguments. It is therefore important to revisit his ideas to find clues as to where we may be headed in labour law. The article concludes with some predictions about the changes that will come to Canadian labour law drawn from these debates of some forty years ago.

Drawing on the work of Jean Bodin, this article seeks to re-establish the central place of the official in constitutional thought and thus to constitutionally ground administrative law. It argues that the official not only needs to be responsive to the sovereign but also, being a creature of law, is subject to fundamental legal side constraints and additionally has a critical constitutional duty to remonstrate against unjust law. In this way, the official moderates between the sovereign and the subject and militates against direct rule which leads to tyranny.

A statement like ‘a person who commits a crime can be prosecuted, convicted, and punished by the government’ is comprehensible only with a host of assumptions, each of which may be questioned. For instance, why does there have to be a response at all by anyone to the crime? Why is it that the government – and not a private individual or individuals – does the responding? Why is it a particular government and not some other one? Why is it that this particular process is called the criminal process, and why does it look the way it does? Why is it that this particular response is called ‘punishment,’ and why does it look the way it does? And is there another way altogether? Can we imagine changes, both big and small? How should we go about thinking about such changes? None of these questions are easy to answer. There are many different ways to go about answering them, and fierce disagreements are to be expected. However, there are few works out there that are as intelligent, coherent, and comprehensive at addressing these questions as R.A. Duff’s The Realm of Criminal Law. This review essay describes the main argumentative thread of the book, raises some questions, offers a few remarks, and ends with the suggestion that the book may be fairly read as an abolitionist text.

If the right-remedy gap is an inevitable feature of constitutional law, it is all the more so for constitutional economic and social rights. Yet such rights – to have access, for example, to health care, education, social security, housing, food, water, sanitation, or other good or service or opportunity deemed fundamental to human freedom and dignity – are not uniform in the remedial gaps that occur. This article introduces the orientations of holism and separability to demarcate the distinctive challenges of rights adjudication across different policy domains. A holistic understanding of economic and social rights points to the institutional challenges faced by courts in reviewing socio-economic laws and policies in general. A separable analysis of discrete economic and social rights helps to clarify the remedial constraints of each. These effects are demonstrated by the remedies ordered by courts with respect to identified infringements of South Africa’s constitutional rights to housing, health care, social security, and education.

Chapter 9 of the South African Constitution refers to ‘institutions protecting constitutional democracy’ (IPDs). Contemporary constitution designers have written into new constitutions numerous such institutions, and scholars have begun to identify them as a fourth branch of government alongside the traditional legislative, executive, and judicial branches. This article explores some of the conceptual issues associated with the new fourth branch: what justifies the creation of these IPDs (the short answer: a particular type of conflict of interest); what are their generic characteristics (the short answer: they are reasonably permanent institutions rather than ad hoc or statutory ones, unlike their antecedents); what is their relation to a constitutional court – another twentieth-century innovation; and why should they be understood to be a ‘branch’ of government rather than a congeries of useful innovations (the short answer: like the traditional branches, they perform distinctive function not readily performed by institutions located within those branches)?