Amitpal C. Singh (Yale Law School) has posted Declarations of Invalidity and the Metaphysics of Judicial Review (University of British Columbia Law Review 58:1 (forthcoming, 2025)) on SSRN. Here is the abstract:
What happens when a court makes a declaration of invalidity because a statute is unconstitutional? One intuitive and familiar answer is that the court will issue a declaration of invalidity to "wipe the law from the books" or "strike it down", rendering it null and void across the country. In R v Sullivan, 2022 SCC 19, the Supreme Court of Canada rejected this view. A court's finding that legislation is unconstitutional must now be understood through the prism of stare decisis, just like any "ordinary" judicial finding. This article argues that present law distorts venerable conceptual categories that underpin the very nature of constitutional adjudication. More specifically, by locating the juridical force of a declaration of invalidity in a court's reasons, Sullivan collapses the distinction between judicial reasons and orders. Contrary to Sullivan, a declaration of invalidity is a remedial order rather than a judicial finding. Sullivan's conceptual error generates a series of downstream problems, including effacing the Court's own precedents concerning suspended declarations of invalidity, long-standing principles about the role of superior courts in our constitutional architecture, and distorting the distinction between reference opinions and ordinary judgments. The paper sketches a superior, positive account of declarations of invalidity with a focus on what I call the "metaphysics" of judicial review, i.e., what actually happens when a court determines that a statute is unconstitutional.
Highly recommended.
