Why Does the Federal Government Appeal to the Supreme Court of Canada in Charter of Rights Cases? A Strategic Explanation

By Hennigar, Matthew A. | Law & Society Review, March 2007 | Go to article overview

Why Does the Federal Government Appeal to the Supreme Court of Canada in Charter of Rights Cases? A Strategic Explanation


Hennigar, Matthew A., Law & Society Review


Despite the impressive body of scholarship dedicated to analyzing litigation involving the Charter of Rights and Freedoms in the Supreme Court of Canada, there remains an incomplete understanding of why these cases come to the Court. Notably absent from the literature is sustained analysis of why governments, the most frequent class of appellant, bring Charter cases to the Supreme Court. Recent work has addressed the decision to appeal by the U.S. federal government and state attorneys general and provides an excellent theoretical starting point. I use case data collected from interviews with federal government lawyers and law reports to test whether the Canadian federal government's decisions to appeal to the Supreme Court of Canada in Charter cases are also "procedurally rational." I conclude that these decisions are primarily shaped by strategic considerations related to policy costs, case importance, reviewability, and the prospect of winning on appeal, regardless of the party in power. In the process, the article further extends the application of strategic decisionmaking theory with regard to law and courts beyond judicial behavior, and beyond the U.S. context.

The key insight of the institutionalist stream of rational choice theory is that institutional rules and structures provide incentives and disincentives for behavior, forming a context within which rational agents act strategically to achieve their goals as fully as possible (Hall & Taylor 1996; Immergut 1998; Tsebelis 1990). This insight has been applied fruitfully to the study of courts, as most notably exemplified by Murphy's seminal 1964 work, The Elements of Judicial Strategy, and more recently, Epstein and Knight's (1998) The Choices Justices Make and Maltzman et alia's (2000) Crafting Law on the Supreme Court.1 These works illustrate that justices of the U.S. Supreme Court pursue their policy preferences when they render decisions, but they are constrained by structural factors, including the internal rules of the Court (voting rules, for example) and the external social and political context of public opinion and the likely reaction of other state actors (Congress, the president) to judicial rulings. Applications of the strategic theory of judicial behavior have begun to emerge beyond the U.S. context: for example, Flanagan's (2002) and Manfredi's (2002) work on the relationship between an explicit legislative override provision in the Canadian Charter of Rights and Freedoms and judicial activism by the Supreme Court of Canada (SCC).

As these examples suggest, strategic explanations of decision-making within the context of law and courts have been overwhelmingly concerned with explaining judicial behavior (for an exception, see Songer et al. 1995). By comparison, the behavior of the most important and frequently appearing class of "repeat player" litigants (Galanter 1974)-what Kritzer (2003) calls "the Government Gorilla"-has been largely ignored. Recently, however, this has begun to change, with studies by Waltenburg and Swinford (1999a, 1999b), Zorn (2002), and Pacelle (2003) of what motivates governments to appeal to the U.S. Supreme Court. Although Pacelle's qualitative study provides useful insights into how the U.S. solicitor general's multiple and overlapping institutional roles and responsibilities constrain that office, Waltenburg and Swinford's and, to a greater extent, Zorn's work are noteworthy for their use of multivariate quantitative analysis to test models of government litigant decisionmaking in the context of constrained judicial and governmental institutional capacity. Waltenburg and Swinford find that U.S. state governments are '"procedurally rational' when they decide to interact with the Court" (1999a:55), and that they "are more likely to engage the Court when the issue at stake is one of importance and they estimate their chances of success are relatively great" (1999a:52; emphasis in original). Similarly, Zorn's (2002) quantitative analysis of the U. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Why Does the Federal Government Appeal to the Supreme Court of Canada in Charter of Rights Cases? A Strategic Explanation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.