Anthony Sangiuliano (University of Toronto – Faculty of Law; York University – Faculty of Liberal Arts & Professional Studies) have posted Causation and Exposition on SSRN. Here is the abstract:
Theoretical accounts of legal causation have traditionally emerged from tort or criminal law scholarship, only occasionally surfacing in commentary on constitutional law. Given their potential to migrate across jurisdictions to influence debates globally, the role of causation is apt to become a distinctive field of inquiry in comparative constitutional theory. Yet there have been few attempts to draw comparisons between jurisdictions or formulate general theoretical principles capable of unifying the varying global instances of causation in public law. The Supreme Court of Canada incidentally rendered two recent high-profile decisions involving disputes under the Canadian Charter of Rights and Freedoms wherein questions of causation featured prominently, and just as there has been a dearth of comparative scholarly coverage of causation in constitutional law, there has been little written on the concept of causation in Canadian constitutional law. In this article, I address these lacunae in the hopes of stimulating new conversations in a fledgling field of inquiry. To do so, I introduce a novel methodological device for interpreting statements about causation in judicial opinions in constitutional cases that I call "exposition." This device instructs us to scrutinize a court's seemingly factual causal conclusion in a constitutional judgment, say, that an impugned law causes a breach of constitutional rights, and peel back the factual veneer to expose the more basic normative claim about justice or public policy that the court tacitly endorses while encoding it within the factual claim. I illustrate exposition by invoking it to draw out insights from the recent Canadian decisions involving causation. But its availability for a diverse range of purposes when thinking about the role of causation in constitutional law is the wider lesson for comparative scholars I seek to develop.