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This article proposes a new interpretation of section 52 of the Constitution Act, 1982. It argues that the legal effect of this provision depends on the type of unconstitutionality at issue. On the one hand, subsection 52(1) governs substantive conflicts between constitutional and legislative norms by rendering inoperative legislation that is incompatible with the supreme law. On the other hand, subsection 52(3) requires the observance of the procedural rules prescribed by the Constitution. Legislative measures that contravene this procedural criterion are ultra vires and, as a result, invalid. This article further attempts to clarify the effects of declarations of unconstitutionality on third parties as well as their temporal operation. It contends that declaratory judgments of unconstitutionality are in rem in nature. Such declarations bind parties to the litigation and third parties alike by virtue of the principle of res judicata, subject to rare exceptions. The general scope of declarations of unconstitutionality allows courts to adjust the temporal operation of the law deemed unconstitutional, notably to maintain the security and stability of legal relationships.
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The dominant philosophy in family court emphasizes cooperative solutions between separating parents who are encouraged to put their conflicts behind them. For the majority of separating families, this collaborative approach will best serve their children. However, cases involving domestic violence require a paradigm shift, with a greater focus on making a parenting plan that protects victims and children, and less emphasis on speedy, cooperative outcomes. This paper presents a framework for addressing domestic violence through a tiered assessment strategy and an accompanying intervention framework depicted by off-ramps from a freeway (as an analogy in this case to the substantial momentum towards collaborative settlements). These off-ramps for domestic violence and high-conflict cases do not suggest a one-size-fits-all solution within these categories; rather, they mark a departure point from which a wide range of solutions may be considered. Policy and practice implications of this paradigm shift are highlighted.
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Research Summary By taking advantage of data published by the Sentencing Project to analyze whether states that use life without parole (LWOP) more often experience lower violent crime rates or greater reductions in violent crime, this study is the first to empirically assess the crime-reducing potential of LWOP sentences. The results suggest that LWOP might produce a small absolute reduction in violent crime but that it is no more effective than life with parole. Policy Implications Despite reductions in the use of the death penalty, LWOP has expanded dramatically—and at a much faster rate—over the last quarter century. This expansion has come at great financial and human costs and has not been distributed equally throughout the population. As such, the public policy debate over the use of LWOP is likely to intensify. Yet, to date, there have been no empirical assessments of LWOP's efficacy to inform this debate. This study begins to fill this gap in our knowledge, and the results, if replicated, suggest that the use of LWOP should be either scaled back or eliminated.
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