Grace Nosek
Doctor of Philosophy in Law (PhD)
Research Topic
Restorying the Climate Crisis
Joel Conrad Bakan
Professor
Relevant Degree Programs
Graduate Student Supervision
Doctoral Student Supervision
Dissertations completed in 2010 or later are listed below. Please note that there is a 6-12 month delay to add the latest dissertations.
Towards a theory of deference in Canadian proportionality jurisprudence (2022)
This thesis develops a theory of curial deference in proportionality analysis under section 1 of the Charter, one of the most undertheorized and doctrinally confused areas of Canadian constitutional law. By drawing, among other things, on insights from Robert Alexy’s theory of epistemic (knowledge-related) discretion, the work outlines the conceptual topology of deference, sketches out the ways in which deference ought to inform judicial review of the proportionality of legislatively chosen measures in achieving legislatively sought objectives, and offers a novel, rule-of-law-based theoretical justification for deference that departs in significant respects from existing justifications based on democratic legitimacy and institutional expertise. In particular, the theory of deference proposed herein carries to a higher level of abstraction the rule of law’s capacity to constrain the political nature of judicial function by fettering the excesses of epistemic discretion inherent in dispensing justice (as explored in the works of Joseph Raz and Judith Schklar, among others). In explaining why the rule-of-law rationale for curial restraint is normatively superior to traditional, competence-based rationales, this thesis re-situates the discussion on deference within the debate over the proper role of judiciary in reviewing the soundness of impugned policy measures. To this end, the work draws on the philosophical, normative, and institutional commitments of Hans Kelsen’s theory of constitutional review and upgrades Kelsen’s insights into the limits of judicial discretionary law-making with reference to modern formal notions of rule of law.Having justified deference on normative and epistemic grounds, this dissertation shows how the doctrine can be brought to bear on the analytical framework for section 1 proportionality reasoning. These proposals offer a course-correction away from currently flawed trends in deference jurisprudence and develop principled solutions to the epistemic difficulties in rights reasoning. Moreover, the suggested corrections incorporate awareness of institutional, doctrinal, and epistemic realities of adjudicating rights disputes under conditions of empirical and normative uncertainty.
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Master's Student Supervision
Theses completed in 2010 or later are listed below. Please note that there is a 6-12 month delay to add the latest theses.
Proper Proportions of Law: Justifying Democratic Credentials of Proportionality Analysis in Constitutional Adjudication (2013)
When scholars speak of proportionality, they most likely speak of the multi-pronged analytical frame for norm-based argumentation — which it certainly is. Indeed, be it the Canadian Oakes test or European “fair balance,” proportionality is deemed to be “the best possible” discursive technique to achieve “a positive partnership” between conflicting constitutional rights and laudable legislative objectives. However, there is more to proportionality than a formulaic framework: as canvassed throughout the thesis, there exist notorious puzzles regarding the concepts and vocabularies involved in the proportionality rhetoric; there is likewise a need to critically analyze the assumptions and presuppositions underlying modern proportionality discourse. Last but not least, the very invocation of proportionality into rights adjudication calls for doctrinal — as well as legal and democratic — justification. From the European Union to Canada, from South Africa to Brazil, constitutional jurisprudence is currently filled with proportionality formulaic parlance, whereas — and this last point is of particular significance — very few Constitutions explicitly speak of proportionality, not to mention the multi-pronged tests. In this thesis, I take a wider view of the matter and propose a new paradigm for bridging the epistemological gap between the constitutional need to reconcile competing private and public interests, on one hand, and invocation of proportionality formula into constitutional jurisprudence, on the other.
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