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New issue is now available online! University of Toronto Law Journal Volume 69, No. 2, Spring 2019 UTLJ Online: http://bit.ly/utlj692 Articles Same-Sex Marriage Beyond Charter Dialogue: Charter Cases and Contestation Within Government Brenda Cossman In this article, I argue that the dialogue debate has obscured a much richer story that can be told about Halpern v Canada, same-sex marriage, and the complex relationship between courts and legislatures. The federal government was deeply divided on same-sex marriage. Parliament, the Liberal government, the federal Cabinet, and the liberal caucus were all deeply divided. From the outside, it may have appeared as a 'courts versus government' battle, with the federal government defending the opposite-sex definition of marriage right up until the Ontario Court of Appeal struck it down as unconstitutional in Halpern. But a closer look shows that the federal government's about-face after Halpern had been in the making for years, with supporters trying to use court decisions as well as changing public opinion to wedge open the marriage issue. The same-sex marriage case study can be retold as a story not of dialogue between courts and Parliament but, rather, as a contestation within government. I argue that this story - of conflict and contestation within government and the use of court decisions by proponents of same-sex marriage - can provide a richer account of the evolution of the federal government and the adoption of the Civil Marriage Act. Read it at UTLJ online >>> <http://bit.ly/utlj692a> http://bit.ly/utlj692a The Hydraulics of Constitutional Claims: Multiplicity of Actors in Constitutional Interpretation Athanasios Psygkas Who makes constitutional claims? This article argues that on both sides of the Atlantic a multiplicity of constitutional actors outside the courts participate in the elaboration of constitutional principles. I map out these constitutional actors by using as a case study the legal recognition of same-sex marriage in the United States, Spain, the United Kingdom, and Ireland. In all four country cases, there are common functional demands for democratic involvement in shaping constitutional meaning. Even though these demands may take various institutional and procedural forms owing to diverse political, institutional, and cultural contexts, I argue that the same overarching hydraulics effect is at play across jurisdictions. When social movements are shut out of one forum, they channel their constitutional claims through different institutional avenues. The four systems represent distinctive models of formal recognition of same-sex marriage, with different actors taking the lead and appearing to have the final say on this contested issue. However, I explain that in all four cases we can detect the voices of multiple actors, including, notably, the people themselves, in a process of legal contestation around the interpretation of fundamental constitutional principles. These voices can take different forms, and the article proposes institutional, historical, political, and cultural factors that may account for this. Thus, the article tells a story of legal development arising from inclusive interpretive communities in the context of a democratic constitutional theory. This framework facilitates dynamic constitutional interpretation that reflects evolving political and social demands instead of top-down delivery of constitutional meaning. Read it at UTLJ online >>> http://bit.ly/utlj692b Constructing the Global Constitutional Canon: Between Authority and Criticism Michaela Hailbronner The future of global law seems currently in doubt. Despite this development, and indeed partly because of it, comparative constitutional law and human rights are blossoming as academic disciplines. This makes it a good moment to ask if global constitutional law (by which I mean to refer both to comparative constitutional law and international human rights law) has a canon and whether it needs one. I argue that we do not as yet have much in the way of a canon but that we need one or, at least, a debate about one. I begin by offering a first and tentative assessment of the state of the debate and then discuss in more detail what type of canon might fit global constitutional law. I reject the more traditional, religious conception of a canon as an assembly of normatively authoritative texts as incompatible with comparative law. I argue instead that a canon of global constitutional law should fulfil three key functions: (a) serving as a disciplinary platform establishing the foundations of a shared discourse among comparative constitutionalists and human rights lawyers; (b) encouraging self-reflection by making room for different voices and criticism as well as giving us a sense of the historical development of our fields; and (c) supporting the normative agenda of human rights and democratic constitutionalism. From this, I draw four factors relevant to the canonical status of individual judicial decisions in global constitutional law. Finally, I examine the famous US decision Obergefell v Hodges as a candidate for a global canon as compared to other decisions on same-sex marriage, thus applying my previous arguments to a concrete case. Read it at UTLJ online >>> http://bit.ly/utlj692c Review Essay How Institutions Structure Judicial Behaviour: An Analysis of Alarie and Green's Commitment and Cooperation on High Courts: A Cross-Country Examination of Institutional Constraints on Judges Lee Epstein No theory of judicial behaviour ignores institutions, but, all too often, their role in structuring judges' choices goes assumed rather than directly evaluated. For this reason alone, we should applaud Benjamin Alarie and Andrew J. Green. Not only do they take institutions seriously; they attempt cross-national assessments of their effect on judging. This is their book's overarching contribution, but there are many others along the way - so many that Commitment and Cooperation on High Courts is bound to take its place among the classics in the ever-growing field of judicial behaviour. My aim is to bring Alarie and Green's contributions into relief by highlighting their key arguments and empirical results. Along the way, I integrate some of the existing literature if only to show where and how the authors advance our understanding of judging. All of this amounts to Parts I and II. But a simple summary of Commitment and Cooperation will not suffice because Alarie and Green invite the reader to think about extensions. In that spirit, Part III offers some suggestions for forward movement. Read it at UTLJ online >>> http://bit.ly/utlj692d Founded in 1935, UTLJ is the oldest university law journal in Canada. UTLJ publishes the work of internationally known scholars, not only in law but also in a broad range of disciplines relating to law, such as economics, political science, philosophy, sociology, and history. UTLJ is available in print and online. 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