Papers by Melanie J Murchison
The challenge of designing institutions to manage ethno-national conflict is one of the enduring ... more The challenge of designing institutions to manage ethno-national conflict is one of the enduring concerns of political science. One important but relatively understudied aspect of this challenge is the design of constitutional courts. Courts are likely to play a key role in the maintenence of a constitutional settlement. But this role can be especially onerous in a deeply divided and post-conflict setting where the rule of law is weak and judges have ethno-national affiliations that may undermine the appearance of judicial neutrality. In such contexts, a court’s authority (including compliance with its decisions) cannot be taken for granted.With reference the Constitutional Court of Bosnia-Herzegovina, and using an original dataset of the Court's non-unanimous plenary decisions, we test several hypotheses about the degree to which ethno-national affiliation influences judicial behavior. We find that (1) judges on the Constitutional Court do in fact divide predictably along ethno-national lines, (2) that these patterns are robust to changes in the tenure system, and (3) are independent of party political background.
Law & Society Review, Nov 7, 2016
The role of constitutional courts in deeply divided societies is complicated by the danger that t... more The role of constitutional courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision-making and, consequently, undermine judicial impartiality and independence. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-national affiliation on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court's decisions, we find that the judges do in fact divide predictably along ethno-national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long-term tenure does little to dampen the influence of ethno-national affiliation on judicial behaviour. Moreover, our findings suggest that this influence may actually increase as a judge acclimates to the dynamics of a divided court. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem. The challenge of designing institutions to manage ethno-national conflict is a long-running topic of academic inquiry and dispute (see Horowitz 1985;. Generally speaking, the focus is on how legislatures, executives, and electoral systems can be organized to accommodate the politics of deeply divided societies (Choudhry 2008).
The author has granted a non exclusive license allowing Library and Archives Canada to reproduce,... more The author has granted a non exclusive license allowing Library and Archives Canada to reproduce, publish, archive, preserve, conserve, communicate to the public by telecommunication or on the Internet, loan, distrbute and sell theses worldwide, for commercial or non commercial purposes, in microform, paper, electronic and/or any other formats. L'auteur a accorde une licence non exclusive permettant a la Bibliotheque et Archives Canada de reproduire, publier, archiver, sauvegarder, conserver, transmettre au public par telecommunication ou par I'lnternet, preter, distribuer et vendre des theses partout dans le monde, a des fins commerciales ou autres, sur support microforme, papier, electronique et/ou autres formats. The author retains copyright ownership and moral rights in this thesis. Neither the thesis nor substantial extracts from it may be printed or otherwise reproduced without the author's permission. L'auteur conserve la propriete du droit d'auteur et des droits moraux qui protege cette these. Ni la these ni des extraits substantiels de celle-ci ne doivent etre imprimes ou autrement reproduits sans son autorisation. In compliance with the Canadian Privacy Act some supporting forms may have been removed from this thesis. W hile these forms may be included in the document page count, their removal does not represent any loss of content from the thesis. Conform em ent a la loi canadienne sur la protection de la vie privee, quelques formulaires secondaires ont ete enleves de cette these. Bien que ces formulaires aient inclus dans la pagination, il n'y aura aucun contenu manquant.
Social Science Research Network, 2017
In his essay responding to our 2015 article "Canadian Exclusion of Evidence under Section 24(2) o... more In his essay responding to our 2015 article "Canadian Exclusion of Evidence under Section 24(2) of the Charter" (Riddell 2016; citing Murchison and Jochelson 2015), Troy Riddell critiques our methodology, exaggerates our claims, creates several straw persons, and ultimately concludes by proffering his own study, which in our view, is unrelated to the stream of literature and research agenda that generated our original paper. 1
The role of Constitutional Courts in deeply divided societies is complicated by the danger that t... more The role of Constitutional Courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision-making and, consequently, undermine judicial independence and impartiality. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-nationalism on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court’s decisions, we find that the judges do in fact divide predictably along ethno-national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long-term tenure does little to dampen the influence of ethno-nationalism on judicial behaviour. Moreover, our findings suggest that the longer a judge serves on the Court the more ethno-national affiliation seems to influence her decision-making. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.
SSRN Electronic Journal, 2019
We are thrilled to bring you the latest edition of the Criminal Law Special Edition of the Manito... more We are thrilled to bring you the latest edition of the Criminal Law Special Edition of the Manitoba Law Journal. Academics, students and the practicing bench and bar continue to access this publication and contribute to it their knowledge and experience in the criminal law. The fact that we have, once again, elected to publish a double volume is a testament to the quality of submissions we have received over the last twelve months. We present twenty-five articles from twenty-nine authors, highlighting the work of some of Canada’s leading criminal law, criminological and criminal justice academics. The Manitoba Law Journal remains one of the most important legal scholarship platforms in Canada with a rich history of hosting criminal law analyses.1 With the help of our contributors, the Manitoba Law Journal was recently ranked second out of thirty-one entries in the Law, Government and Politics category of the Social Sciences and Humanities Research Council (SSHRC). We continue to be committed to open access scholarship and our readership grows with each Criminal Law Special Edition released.
Law & Society Review, 2016
The role of constitutional courts in deeply divided societies is complicated by the danger that t... more The role of constitutional courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision‐making and, consequently, undermine judicial impartiality and independence. With reference to the decisions of the Constitutional Court of Bosnia‐Herzegovina, this article investigates the influence of ethno‐national affiliation on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court's decisions, we find that the judges do in fact divide predictably along ethno‐national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long‐term tenure does little to dampen the influence of ethno‐national affiliation on judicial behaviour. Moreover, our findi...
SSRN Electronic Journal, 2015
This paper reviews the development of a multidimensional approach to the study of judicial activi... more This paper reviews the development of a multidimensional approach to the study of judicial activism as conceived by Cohn and Kremnitzer in 2005. The paper explores the meaning of judicial activism briefly before exploring the development of the Cohn/Kremnitzer model. The authors propose a methodological shift that repositions the activism analysis more broadly as an analysis of judicial discourse. The authors contend that this methodological shift would allow for more rigorous empiricism in the literature and for an analysis that would open up the activist project to all constitutional court cases, whether impugned legislation is under scrutiny or not. The authors conclude that the Cohn/Kremnitzer model provides the requisite indicia to inspire a new descriptive language in judicial activism studies, and to pave the way for empirical theorizing of justice in the context of judicial activism
Dalhousie Law Journal, Apr 1, 2012
In 2010 the Ontario Superior Court of Justice struck down substantial provisions of the laws gove... more In 2010 the Ontario Superior Court of Justice struck down substantial provisions of the laws governing prostitution, ruling that they were unconstitutional. This case (Bedford v. Canada) does not go far enough in recognising the rights of sex trade workers in Canada. The battle for individual autonomy and agency for female sex trade workers still has a long way to go. It is argued that this is largely because sex trade workers are still being represented as victims yet continue to be held responsible for their actions. This article illustrates the competing feminist discourses which shape the way prostitution is understood in Canada, analyses the Bedford decision and examines the decision through a process of what Foucault and other governmentality scholars call self-responsibilisation and self-governance.
Canadian Journal of Criminology and Criminal Justice, 2015
Margit Cohn and Mordechai Kremnitzer developed a multidimensional 17-parameter model, in 2005, to... more Margit Cohn and Mordechai Kremnitzer developed a multidimensional 17-parameter model, in 2005, to measure the judicial discourse in the decisions of constitutional courts. A court rendered a decision that was activist when it made a decision outside the traditional scope of judicial constraints on government action and that was restrained when they adhered to the principles of traditional adjudication roles. Previously, this model was successfully operationalized, by Jochelson et al. (2012), to analyse significant changes in the interpretation of search and seizure law in the judicial discourse of the Supreme Court of Canada, before and after 9/11. We now use the model to expand that analysis to section 24(2) exclusion of evidence cases under the Charter. By using a 1–10 Likert scale for each Cohn/Kremnitzer indicium of analysis, a value was assigned to each variable of every case and then the pre-9/11 case group were compared to the post-9/11 one. Our data analysis shows increased ...
SSRN Electronic Journal, 2013
The author has granted a non exclusive license allowing Library and Archives Canada to reproduce,... more The author has granted a non exclusive license allowing Library and Archives Canada to reproduce, publish, archive, preserve, conserve, communicate to the public by telecommunication or on the Internet, loan, distrbute and sell theses worldwide, for commercial or non commercial purposes, in microform, paper, electronic and/or any other formats. L'auteur a accorde une licence non exclusive permettant a la Bibliotheque et Archives Canada de reproduire, publier, archiver, sauvegarder, conserver, transmettre au public par telecommunication ou par I'lnternet, preter, distribuer et vendre des theses partout dans le monde, a des fins commerciales ou autres, sur support microforme, papier, electronique et/ou autres formats. The author retains copyright ownership and moral rights in this thesis. Neither the thesis nor substantial extracts from it may be printed or otherwise reproduced without the author's permission. L'auteur conserve la propriete du droit d'auteur et des droits moraux qui protege cette these. Ni la these ni des extraits substantiels de celle-ci ne doivent etre imprimes ou autrement reproduits sans son autorisation. In compliance with the Canadian Privacy Act some supporting forms may have been removed from this thesis. W hile these forms may be included in the document page count, their removal does not represent any loss of content from the thesis. Conform em ent a la loi canadienne sur la protection de la vie privee, quelques formulaires secondaires ont ete enleves de cette these. Bien que ces formulaires aient inclus dans la pagination, il n'y aura aucun contenu manquant.
Canadian Journal of Criminology and Criminal Justice, 2016
In his essay responding to our 2015 article "Canadian Exclusion of Evidence under Section 24(2) o... more In his essay responding to our 2015 article "Canadian Exclusion of Evidence under Section 24(2) of the Charter" (Riddell 2016; citing Murchison and Jochelson 2015), Troy Riddell critiques our methodology, exaggerates our claims, creates several straw persons, and ultimately concludes by proffering his own study, which in our view, is unrelated to the stream of literature and research agenda that generated our original paper. 1
Canadian Journal of Criminology and Criminal Justice, 2016
The graduate law students' society of the University of British Columbia hosted, for the... more The graduate law students' society of the University of British Columbia hosted, for the sixteenth year, a legal studies graduate student conference held on May 13 and 14, 2011. The conference is well known, largely as a result of its interdisciplinary approach, for ...
Canadian Journal of Criminology and Criminal Justice, 2015
Margit Cohn and Mordechai Kremnitzer developed a multidimensional 17-
parameter model, in 2005, t... more Margit Cohn and Mordechai Kremnitzer developed a multidimensional 17-
parameter model, in 2005, to measure the judicial discourse in the decisions of
constitutional courts.Acourt rendered a decision that was activist when it made
a decision outside the traditional scope of judicial constraints on government
action and that was restrained when they adhered to the principles of traditional
adjudication roles. Previously, this model was successfully operationalized, by
Jochelson et al. (2012), to analyse significant changes in the interpretation of
search and seizure law in the judicial discourse of the Supreme Court of Canada,
before and after 9/11. We now use the model to expand that analysis to section
24(2) exclusion of evidence cases under the Charter. By using a 1–10 Likert
scale for each Cohn/Kremnitzer indicium of analysis, a value was assigned to
each variable of every case and then the pre-9/11 case group were compared to
the post-9/11 one. Our data analysis shows increased restraint on the part of the
Supreme Court in 7 of the 13 variables of judicial discourse measured after 9/11,
even when factoring in the landmark decision in R v Grant (2009). These
changes are consistent with the post-9/11 literature on securitization: 9/11 was
a moment when the state was given excuses to control, using security as
justification for precautionary and risk-averse actions. While we cannot assert
any causal relationships between these changes and 9/11, the caveats still permit
significant findings, the most intriguing being that the Court has shifted, in its
discourse on the exclusion of evidence, toward an ethic of more restraint. These
findings stand alongside other studies that have found similarly in the area of
search and seizure law.
In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicia... more In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia by which to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The authors attempt to determine whether or not there were significant changes in the levels of measurable judicial discourse after 9/11. They explain how the model can be adapted into a Canadian context and justify the adapted model. The last part of the paper undertakes the application of the model to all Supreme Court cases since 1982 that explored Charter-based search and seizure issues. Ultimately, the paper finds significant changes in judicial discourse for certain types of judicial output, which indicate a more conservative approach to judicial decision making in the period after 9/11. The adapted model serves as a reminder that courts exercise their decision making through discourse that moves in numerous directions in any given era and that likely does so differently in alternate areas of law. Future research applying the Cohn/Kremnitzer model promises rich, complex analysis that will serve to enrich our understandings of law and society.
Abstract
Margit Cohn and Mordechai Kremnitzer developed a multidimensional seventeen parameter mo... more Abstract
Margit Cohn and Mordechai Kremnitzer developed a multidimensional seventeen parameter model in 2005 to measure the judicial discourse within the decisions of Constitutional courts. A court rendered a decision that was activist when it made a decision outside of the traditional scope of judicial constraints and was restrained when they adhered to the principles of traditional adjudication roles. Previously, this model was successfully operationalized to analyse significant changes in the interpretation of search and seizure law in the judicial discourse of the Supreme Court of Canada before and after 9/11 by Jochelson et al (2012). We now use the model to expand that analysis to s.24(2) exclusion of evidence cases under the Charter. By using a 1-10 Likert scale for each Cohn and Kremnitzer indicia of analysis a value was assigned to each variable of every case and then the pre 9/11 case group were compared to the post 9/11 one. Our data analysis shows increased restraint on the part of the Supreme Court in seven of the thirteen variables of judicial discourse measured after 9/11 even when factoring in the landmark decision in R v. Grant (2009). These changes are consistent with the post 9/11 literature on securitization: a moment where the state was provided with excuses to govern using security as justification for precautionary and risk averse actions. While we cannot assert any causal relationships between these changes and 9/11, these caveats still render significant findings; the most intriguing being that the Court has shifted in its use of discourse in exclusion of evidence towards a more restrained ethic. These findings stand alongside other studies which have found similarly in the area of search and seizure law.
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Papers by Melanie J Murchison
parameter model, in 2005, to measure the judicial discourse in the decisions of
constitutional courts.Acourt rendered a decision that was activist when it made
a decision outside the traditional scope of judicial constraints on government
action and that was restrained when they adhered to the principles of traditional
adjudication roles. Previously, this model was successfully operationalized, by
Jochelson et al. (2012), to analyse significant changes in the interpretation of
search and seizure law in the judicial discourse of the Supreme Court of Canada,
before and after 9/11. We now use the model to expand that analysis to section
24(2) exclusion of evidence cases under the Charter. By using a 1–10 Likert
scale for each Cohn/Kremnitzer indicium of analysis, a value was assigned to
each variable of every case and then the pre-9/11 case group were compared to
the post-9/11 one. Our data analysis shows increased restraint on the part of the
Supreme Court in 7 of the 13 variables of judicial discourse measured after 9/11,
even when factoring in the landmark decision in R v Grant (2009). These
changes are consistent with the post-9/11 literature on securitization: 9/11 was
a moment when the state was given excuses to control, using security as
justification for precautionary and risk-averse actions. While we cannot assert
any causal relationships between these changes and 9/11, the caveats still permit
significant findings, the most intriguing being that the Court has shifted, in its
discourse on the exclusion of evidence, toward an ethic of more restraint. These
findings stand alongside other studies that have found similarly in the area of
search and seizure law.
Margit Cohn and Mordechai Kremnitzer developed a multidimensional seventeen parameter model in 2005 to measure the judicial discourse within the decisions of Constitutional courts. A court rendered a decision that was activist when it made a decision outside of the traditional scope of judicial constraints and was restrained when they adhered to the principles of traditional adjudication roles. Previously, this model was successfully operationalized to analyse significant changes in the interpretation of search and seizure law in the judicial discourse of the Supreme Court of Canada before and after 9/11 by Jochelson et al (2012). We now use the model to expand that analysis to s.24(2) exclusion of evidence cases under the Charter. By using a 1-10 Likert scale for each Cohn and Kremnitzer indicia of analysis a value was assigned to each variable of every case and then the pre 9/11 case group were compared to the post 9/11 one. Our data analysis shows increased restraint on the part of the Supreme Court in seven of the thirteen variables of judicial discourse measured after 9/11 even when factoring in the landmark decision in R v. Grant (2009). These changes are consistent with the post 9/11 literature on securitization: a moment where the state was provided with excuses to govern using security as justification for precautionary and risk averse actions. While we cannot assert any causal relationships between these changes and 9/11, these caveats still render significant findings; the most intriguing being that the Court has shifted in its use of discourse in exclusion of evidence towards a more restrained ethic. These findings stand alongside other studies which have found similarly in the area of search and seizure law.
parameter model, in 2005, to measure the judicial discourse in the decisions of
constitutional courts.Acourt rendered a decision that was activist when it made
a decision outside the traditional scope of judicial constraints on government
action and that was restrained when they adhered to the principles of traditional
adjudication roles. Previously, this model was successfully operationalized, by
Jochelson et al. (2012), to analyse significant changes in the interpretation of
search and seizure law in the judicial discourse of the Supreme Court of Canada,
before and after 9/11. We now use the model to expand that analysis to section
24(2) exclusion of evidence cases under the Charter. By using a 1–10 Likert
scale for each Cohn/Kremnitzer indicium of analysis, a value was assigned to
each variable of every case and then the pre-9/11 case group were compared to
the post-9/11 one. Our data analysis shows increased restraint on the part of the
Supreme Court in 7 of the 13 variables of judicial discourse measured after 9/11,
even when factoring in the landmark decision in R v Grant (2009). These
changes are consistent with the post-9/11 literature on securitization: 9/11 was
a moment when the state was given excuses to control, using security as
justification for precautionary and risk-averse actions. While we cannot assert
any causal relationships between these changes and 9/11, the caveats still permit
significant findings, the most intriguing being that the Court has shifted, in its
discourse on the exclusion of evidence, toward an ethic of more restraint. These
findings stand alongside other studies that have found similarly in the area of
search and seizure law.
Margit Cohn and Mordechai Kremnitzer developed a multidimensional seventeen parameter model in 2005 to measure the judicial discourse within the decisions of Constitutional courts. A court rendered a decision that was activist when it made a decision outside of the traditional scope of judicial constraints and was restrained when they adhered to the principles of traditional adjudication roles. Previously, this model was successfully operationalized to analyse significant changes in the interpretation of search and seizure law in the judicial discourse of the Supreme Court of Canada before and after 9/11 by Jochelson et al (2012). We now use the model to expand that analysis to s.24(2) exclusion of evidence cases under the Charter. By using a 1-10 Likert scale for each Cohn and Kremnitzer indicia of analysis a value was assigned to each variable of every case and then the pre 9/11 case group were compared to the post 9/11 one. Our data analysis shows increased restraint on the part of the Supreme Court in seven of the thirteen variables of judicial discourse measured after 9/11 even when factoring in the landmark decision in R v. Grant (2009). These changes are consistent with the post 9/11 literature on securitization: a moment where the state was provided with excuses to govern using security as justification for precautionary and risk averse actions. While we cannot assert any causal relationships between these changes and 9/11, these caveats still render significant findings; the most intriguing being that the Court has shifted in its use of discourse in exclusion of evidence towards a more restrained ethic. These findings stand alongside other studies which have found similarly in the area of search and seizure law.
Othering or Protecting? The Discursive Practice of Saving Youth Prostitutes, Kelly Gorkoff
Remorse and Reconciliation in the Courtroom: An Exploratory Survey of Judicial Discourse on Apologies, Neil Funk Unrau
Finding a Theory of Justice for Canada’s Truth and Reconciliation Commision, Amanda Nelund
Barriers to Leaving the Gang: An Exploratory Analysis, Caitlyn Cassell, Michael Weinrath
Colliding Intersections in Law: Culture, Race and Mental Health, Ruby Dhand
Multidimensional Analysis of Judicial Decision-Making: Reframing Judicial Activism as the Study of Judicial Discourse (or taking the judgment out of the Judgment), Richard Jochelson, Michael Weinrath, Melanie Murchison
An Evaluation of the Truth and Reconciliation Commission of Canada through the Lens of Restorative Justice, Konstantin Petoukhov
Juvenile Detention Reform in the United States: From a Punitive Measure to Helping Youth, Courtney A. Waid-Lindberg
The Construction of Risk and Need in Community Classification Schemes, Christina Reinke
Questioning Justice: Kenyan Ethnopolitical Violence and Truth, Justice, and Reconciliation Commission, Peter Karari