Judicial Capacity and the Conditional Spending Paradox
This Article examines the spending power and anti-commandeering principle through the lens of the author's judicial capacity model of Supreme Court decision-making. Taking the Court's recent decision in NFIB v. Sebelius as a jumping off point, this examination yields three important payoffs: First, it helps to explain the Court's historically broad interpretation of the spending power. Second, it refutes the conventional wisdom that this broad interpretation cannot be reconciled with the anti-commandeering principle -- a view the Article dubs the "conditional spending paradox." Third, it offers a rigorous theoretical basis for predicting that NFIB's spending power holding will be short-lived. This account obviously has significant implications for the spending power and anti-commandeering doctrine. It also contributes to a broader understanding of the influence of judicial capacity on the substance of constitutional law.
Beyond Umpire and Arbiter: Courts as Facilitators of Intergovernmental Dialogue in Division of Powers Cases in Canada
Beyond Umpire and Arbiter: Courts as Facilitators of Intergovernmental Dialogue in Division of Powers Cases in Canada Wade Kenneth Wright The courts in Canada have often been cast, by both courts and legal scholars, as ‘umpires’ or ‘arbiters’ of the federal-provincial division of powers – umpires or arbiters that have the exclusive, or at least decisive, authority to clarify and enforce, and resolve disputes about, ‘who does what’ in the federal system. However, the image conveyed by these metaphors underestimates the role that the federal and provincial political branches play in the federal system, by working out their own solutions, in the intergovernmental arena, both directly and indirectly, where questions and disputes arise about how jurisdiction is and should be allocated. The image conveyed by the umpire or arbiter metaphors also sits uncomfortably with the facilitative role that the Supreme Court of Canada has carved out for itself in its recent division of powers decisions, a role that casts the courts as facilitators of these instances of intergovernmental dialogue. This doctoral dissertation challenges, and moves beyond, the umpire and arbiter metaphors. It examines the political safeguards available to the provinces in Canada to prevent, or limit, perceived federal encroachments on provincial jurisdiction, in the process highlighting the role that the political branches play in Canada in working out their own allocations of jurisdiction, outside of the courts. It describes, and critically evaluates, the facilitative role carved out by the Court in its recent division of powers decisions, identifying various reasons to be skeptical of a facilitative role that casts the courts as facilitators of intergovernmental dialogue. Finally, and with an eye to future research, it briefly outlines an alternative facilitative role that focuses on facilitating deliberation about the division of powers implications of particular initiatives, arguing that it would be premature to dismiss facilitative approaches to judicial review altogether.
The costs of identifying undiagnosed prostate cancer in asymptomatic men in New Zealand general practice
Background. Screening for prostate cancer (PCa) using the prostate-specific antigen (PSA) test is widespread in New Zealand. 3 informed testing history in 2007–09 were NZ$8887 compared to NZ$13 870 if the men had PSA tests in 2007–09. If we assumed a PSA test involved a full 15-minute general practice consultation, the estimated costs increased to NZ$26 877 per PCa identified. Conclusions. Screening of asymptomatic men for PCa is widely practiced. Most of the costs of screening were incurred in general practice. Calls for men to receive increased information on the harms and benefits of screening will substantially increase the costs. The current costs could be reduced by better targeting of screening.