Suspended declarations of invalidity

[Daniel Hoffman]

Would the Court's deferral of a remedy in Brown v. Board pendinng further argument be a functional equivalent?
Daniel Hoffman

--- On Sun, 6/20/10, Tara Melish <tmelish at aya.yale.edu> wrote:


From: Tara Melish <tmelish at aya.yale.edu>
Subject: Re: Suspended declarations of invalidity
To: "Sanford Levinson" <SLevinson at law.utexas.edu>
Cc: "CONLAWPROF at lists.ucla.edu" <CONLAWPROF at lists.ucla.edu>
Date: Sunday, June 20, 2010, 2:27 PM



The practice of issuing suspended (or "delayed") declarations of invalidity was, as I understand it, substantially innovated by courts in Canada. (South Africa drew from the Canadian experience in providing for such declarations in its 1996 Constitution.) A key case in which the Supreme Court of Canada explained the practice and set certain restrictions for its use is Schachter v. Canada, [1992] 2 S.C.R. 679 (involving alleged discrimination between adoptive and natural parents with respect to parental leave legislation), 
 
The Court has issued such suspended declarations in several cases, although it often does so in response to applications of appeal (and thus are not always discussed in the underlying opinion). A good example of this is the important 2005 Chaoulli v. Quebec case, in which the Court found Quebec's policy of banning private health insurance for medical services provided for in the government health plan to violate the guarantee of personal security in the Quebec Charter. It subsequently granted the government's application for suspension, allowing the government to try to remedy the Charter defect through alternative means. 
 
Best wishes,
Tara
-- 
Tara J. Melish
Associate Professor of Law
Director, Human Rights Center
University at Buffalo Law School, SUNY 
525 O'Brian Hall
Buffalo, NY 14260-1100
Office: (716) 645-2257
SSRN author page: http://ssrn.com/author=339807



 
On Sun, Jun 20, 2010 at 1:12 PM, Sanford Levinson <SLevinson at law.utexas.edu> wrote:


I just read an interesting paper by David Fontana on comparative constitutional law in which he discusses, as I recall, the option in the German constitutional court, between invalidating an act and simply suggesting, in effect, that it raises grave constititional problems.

Sandy


From: conlawprof-bounces at lists.ucla.edu <conlawprof-bounces at lists.ucla.edu> 
To: CONLAWPROF at lists.ucla.edu <CONLAWPROF at lists.ucla.edu> 
Sent: Sun Jun 20 11:29:14 2010
Subject: Suspended declarations of invalidity 







For my comparative constitutional law seminar I am looking for a judgment that suspends (or refuses to suspend) the court's declaration that a law is unconstitutional for some period. Naturally I need something in English (originally or translated) and that discusses the basis of such declarations. I also hope to get something from a jurisdiction that doesn't explicitly provide for such a result in its constitution-- as does South Africa, for example. Any suggestions very gratefully received.


Thanks.


Rick
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