Judicial Power and Procedure in Modern Public Law
Date of Award
Spring 2024
Document Type
Dissertation
Degree Name
Doctor of Philosophy (PhD)
Department
Law
First Advisor
Balkin, Jack
Abstract
This dissertation consists of three essays exploring the scope and limits of judicial power in public law. It covers both Canadian and American law. Through close studies of procedural, jurisdictional, remedial, and institutional doctrines in litigation with the government, it shows how technical rules of adjudication inform courts’ functions in public law relative to other decision-makers and institutions. It further demonstrates how those rules and functions have evolved as courts have adapted to the scale and complexity of modern governance. Emphasizing pluralism and process, each essay seeks to clarify doctrines and challenge misconceptions about the contemporary law of judicial power. The first essay, Section 52(1) and the Courts: A Reassessment, concerns constitutional remedies in Canada and the judicial functions they involve. Current doctrine maintains that whereas s. 24(1) of the Charter authorizes personal remedies for individual litigants, s. 52(1) of the Constitution Act, 1982 provides for general declarations that render legislation itself invalid, subject to rules regarding which courts can grant those declarations and the procedures that apply. This essay revises that framing of s. 52(1)’s role. It argues that s. 52(1) itself renders legislation of no force or effect, leaving courts to determine if the impugned legislation conflicts with the Constitution and, if so, simply not apply it in the proceeding. That framing best describes s. 52(1)’s historical background, modern judicial practice with declaratory relief under s. 52(1), and R. v. Sullivan. While claiming to strike down laws generally, even superior courts enforce s. 52(1) declarations in the proceeding before them, relying on stare decisis and enforcement by other institutions to give declarations their systemic impact. After exploring the theoretical implications of this reframing, the essay revisits remedial and procedural doctrines governing s. 52(1)’s role in constitutional litigation. The second essay, The Use and Limits of Longstanding Practice in Constitutional Law, concerns a newly prominent form of constitutional argument rooted in the relation between judicial and non-judicial engagement with the Constitution. That argument focuses on the legal significance of longstanding, non-judicial practices, yet the jurisprudence reveals fundamental inconsistencies over what that significance is. After identifying three conflicting uses of longevity across constitutional law, the essay argues that a longstanding practice is legally significant because non-judicial entities interpret the Constitution with different competencies and inputs than courts. Longevity strengthens these features and justifies incorporating the practice to correct certain institutional limits arising from the context of adjudication. Yet the same logic weighs against using longevity to prevent the continued construction of constitutional practices. In short, courts can generally use longevity to support a longstanding and deliberate practice but not to stop new practices from developing — analogous to the “Commonwealth approach” to constitutional conventions. Based on these principles and the institutional roles they reflect, the essay evaluates the three uses of longevity in court. The final essay, Officer Injunctions and the Tradition of Public Law Remedies, grapples with the vastly different doctrines for whether Article III courts may create officer injunctions versus damages actions. Defenders of the difference claim that preventing officers from acting unlawfully is a traditional practice in Anglo-American law, which federal courts recently and improperly supplemented with damages actions. This essay rebuts that theory and provides a stronger one. Far from traditional, injunctions entered public law at the end of the 19th century as administrative power increased, becoming primary over legal remedies only with the New Deal’s expansion of non-judicial adjudication. Drawing on this history, the essay argues that the officer injunction is a recent remedy that courts and Congress jointly fashioned to facilitate the declaratory role that federal courts occupy in a world of complex administration, where most dispute resolution happens outside the federal judiciary. It also argues that accepting this evolution is the best case for today’s remedial landscape. If there is any tradition of public law remedies, it is this tradition of redefining the judicial role to keep pace with an evolving government.
Recommended Citation
Livingstone, Spencer, "Judicial Power and Procedure in Modern Public Law" (2024). Yale Graduate School of Arts and Sciences Dissertations. 1415.
https://elischolar.library.yale.edu/gsas_dissertations/1415
