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Articles 1 - 23 of 23
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On Contracting, R. A. Samek
On Contracting, R. A. Samek
Dalhousie Law Journal
Twelve years ago I drew attention in a paper to the importance of the discovery of performative utterances by the well known Oxford linguistic philosopher, John Austin, for a better understanding of the legal concept of contract.' In The Legal Point of View, I developed this concept into what I called the performative function of discourse,2 and in a recent paper I applied it to rebut an attack on the objective theory of contract. 3 My main aim in the present paper is to compare Austin's classification of infelicities, to which performative utterances are subject, with their legal analogues. Although …
Capacity To Marry In The Conflict Of Laws: Some Variations On A Theme, H. Patrick Glenn
Capacity To Marry In The Conflict Of Laws: Some Variations On A Theme, H. Patrick Glenn
Dalhousie Law Journal
Problems of matrimonial capacity in the conflict of laws have traditionally been said to be resolved through a distributive application of the two personal laws in presence - to each his or her own law.' Yet the proponents of this "dual domicile doctrine" have met strong opposition from those who would recognize a paramount interest on the part of the State wherein the marriage is to be fixed, rather than that from which the parties may have come, in determining its validity. Savigny in Germany, 2 Bartin in France, 3 Cook in the U.S.A., 4 and Cheshire5 in England have …
Sex Discrimination In Pension Plans, David Brown
Sex Discrimination In Pension Plans, David Brown
Dalhousie Law Journal
Legal problems involved in pension plans and the statutory regulation of pensions have been the subject of two recent articles in the Dalhousie Law Journal; Pensions: A Primer for Lawyers by Joel Fichaud' and Anne Malick's comment, Private Pensions - A Legislative Response - Nova Scotia Pension Benefits Act. 2 Sex discrimination in employment has also been well canvassed in this Journal in Elizabeth Lennon's article, Sex Discrimination in Employment: The Nova Scotia Human Rights Act. 3 The purpose of this note is to examine an issue at the nexus of these two subjects: sex discrimination in pension plans, principally …
Criminal Conspiracy In Canada, Terence Arnold
Criminal Conspiracy In Canada, Terence Arnold
Dalhousie Law Journal
Criminal Conspiracy in Canada "is primarily intended to provide the practitioner of criminal law in Canada with a guide through the maze of law surrounding the inchoate crime called criminal conspiracy"(p.iii). This intention has been realized. Professor Goode has presented a thorough, clear and well-documented account of the intricacies of his subject as they are likely to affect a conspiracy trial. And intricate the subject is, because the nature of the offence is difficult to define, and because the evidentiary and procedural problems which attend the conspiracy trial are easily susceptible to misunderstanding and confusion. Following a brief overview of …
The New Principle Of Law Reform In Australia, Alex. C. Castles
The New Principle Of Law Reform In Australia, Alex. C. Castles
Dalhousie Law Journal
Until comparatively recent times, continuous, systematic law reform has not been favoured with strong support in those countries nurtured in the common law tradition. In particular, many lawyers in Australia, as elsewhere in the common law world, have tended, for the most part,' to be suspicious and perhaps, subconsciously, more than a little fearful of legal evolution through legislative action rather than judge-made law. This state of mind has belied the realities of the twentieth century life of the law and in many ways as well, the thrust of the law as it evolved in common law countries in the …
Legal And Diplomatic Developments In The Northwest Atlantic Fisheries, Douglas M. Johnston
Legal And Diplomatic Developments In The Northwest Atlantic Fisheries, Douglas M. Johnston
Dalhousie Law Journal
Within the astonishingly brief timespan of five or six years, a fundamental change has been wrought in the international law of fisheries. Even to those only fleetingly familiar with current developments in the law of the sea, it is apparent that the establishment of 200-mile fishing zones in many parts of the world must signify a major legal change in the world of fishing. Indeed many of us have already become sufficiently accustomed to the new order that it may be useful to remind ourselves of the old order which has now yielded place to it. The classical approach to …
Distributive And Retributive Justice In Canada, Patrick Kerans
Distributive And Retributive Justice In Canada, Patrick Kerans
Dalhousie Law Journal
The publications of the Law Reform Commission raise many ethical issues. One question - how distributive justice affects the working of retributive justice - is raised in several of their studies but not yet explicitly faced. This paper' approaches the question by way of a reflection on Paul Weiler's lucid and balanced argument, presented in "The Reform of Punishment". 2 1 fully agree with the polemic thrust of Weiler's essay, namely, that the rehabilitative model of corrections, which views crime as a disease, is inadequate and leads to injustice. What I aim to do here is to analyse and subject …
Seat Belts And Contributory Negligence, Frans F. Slatter
Seat Belts And Contributory Negligence, Frans F. Slatter
Dalhousie Law Journal
There are now thirty-six cases mentioned in the Canadian and English reports where it has been argued that the failure to wear a seat belt amounts to contributory negligence. I The defence was successfully made out in only ten of these cases, with damages being reduced by five per cent to thirty-three and a third per cent under the applicable contributory negligence statutes. 2 This volume of litigation would not provoke comment were it not for the division of judicial opinion and the confusion of judicial thinking to be found in these conflicting decisions. Even in England where it was …
Lobster Fishery Licensing: Injustice And Muddling Through, Rod Snow
Lobster Fishery Licensing: Injustice And Muddling Through, Rod Snow
Dalhousie Law Journal
Lobster means different things to different people: for some it is the ultimate in gourmet dining; for the lobster fisherman it is the object of his labour and investment and the key to his lifestyle. There are over 20,000 lobster fishermen in Atlantic Canada who land approximately 36 million pounds of lobster at an annual landed value of about $40 million.' Lobster is Atlantic Canada's single most valuable fishery, more valuable than cod or herring. 2 Management of the lobster fishery is entrusted to the Fisheries and Marine Service of Environment Canada. A central aspect of their management programme has …
Radical Criminology And The Law Reform Commission Of Canada – A Reply To Professor M. R. Goode, John Barnes, Randal Marlin
Radical Criminology And The Law Reform Commission Of Canada – A Reply To Professor M. R. Goode, John Barnes, Randal Marlin
Dalhousie Law Journal
Professor M. R. Goode' has recently attacked the criminal law work of the Law Reform Commission of Canada as "profoundly unsatisfactory" ' because the Commission has apparently adopted an outmoded theory of the criminal process. He maintains that the approach of the Commission has been vitiated by ... what may be loosely called a liberal-positivist ideology, which fails to question the most fundamental bases of the criminal process in a democratic capitalist society and the faiths which underlie them. This failing to question or to-give written consideration to current criticisms of this ideology has led, in Goode's view, to "the …
Multilingualism And The Cbc Mandate: An Example Of Ineffectual Regulation, William Charland
Multilingualism And The Cbc Mandate: An Example Of Ineffectual Regulation, William Charland
Dalhousie Law Journal
The control of broadcasting, more than any other field subjected to regulation, demands, by its very nature, political neutrality. Given that control is deemed necessary,1 almost total delegation of that control must be made to an independent tribunal in order to avoid charges of political interference with the freedoms of speech and expression. The presence of the CBC as apublic corporation, however, raises questions as to the source and substance of the CBC mandate. What body is responsible for creating the goals or objects of this corporation? Who bears the responsibility initially to interpret and shape programming to meet these …
Comment On Ontario's Bill 110 "An Act To Provide For Warranties In The Sale Of Consumer Products, Nadine Cooper Mont
Comment On Ontario's Bill 110 "An Act To Provide For Warranties In The Sale Of Consumer Products, Nadine Cooper Mont
Dalhousie Law Journal
The government of Nova Scotia has recently made some limited improvements to the law of products liability1 . Merchant sellers are no longer permitted to contract out of the three basic obligations or "implied warranties" contained in the old Sale of Goods Act: to deliver a merchantable article, 2 fit for the buyer's purpose 3 which corresponds to the description under which it was sold. 4 The reformulation of these old common law obligations which first received statutory recognition in 18935, was done in a somewhat ambiguous and unsatisfactory manner. 6 Of far greater consequence to consumers however, is the …
Declaratory Judgments In Theoretical Cases: The Reality Of The Dispute, A. H. Hudson
Declaratory Judgments In Theoretical Cases: The Reality Of The Dispute, A. H. Hudson
Dalhousie Law Journal
It has long been recognised that a declaratory judgment may have special advantages in many contexts. Bailhache J. once went so far as to describe the power to grant declarations as one of the most useful functions of the Commercial Court in England,1 and, when the case went on appeal, Atkin L.J. described the declaration as "'one of the most valuable contributions that the courts have made to the commercial life of this country". 2 Despite the unqualified warmth of dicta such as these, the courts in England and Canada have stressed that there are limits to the availability of …
Parodoxes Of Canadian Legal Education, H. W. Arthurs
Parodoxes Of Canadian Legal Education, H. W. Arthurs
Dalhousie Law Journal
If the history of Canadian legal education should ever be written, these years of the mid-1970s will surely be viewed as a period of critical significance. For at least a quarter-century, growth has been the predominant theme: growth in student numbers and faculty complements; growth in democratic decision-making by both faculty and students, but also - inevitably - in the bureaucratic structures of faculties; growth of physical facilities and indeed, of whole new faculties; growth of libraries and of the pace and variety of research; growth of curricula and of teaching methods; growth in professional esteem and in public contribution; …
An Examination Of Some Of The Recent Amendments To The Ontario Landlord And Tenant Act, Morley Gorsky
An Examination Of Some Of The Recent Amendments To The Ontario Landlord And Tenant Act, Morley Gorsky
Dalhousie Law Journal
Ontario's was the first Canadian legislature to attempt to overcome certain anomalies in the law applicable to residential tenancies.' The effect of many of the Act's provisions remained uncertain until authoritative court decisions were rendered. Would the courts view the Act as intending to overcome the traditional orientation of landlord and tenant law towards land law doctrine? Sufficient time has now passed for many of the most important provisions of the Act to have been adjudicated upon by the superior courts, and it would be safe to say that the Act usually has been given a liberal interpretation. Many of …
Equality Before The Law And The Indian Act: In Defence Of The Supreme Court, Patrick N. Mcdonald
Equality Before The Law And The Indian Act: In Defence Of The Supreme Court, Patrick N. Mcdonald
Dalhousie Law Journal
The British North America Act' declares in section 91(24) that the exclusive legislative authority of Parliament extends to "Indians, and Lands reserved for the Indians". The Canadian Bill of Rights provides that no law of Canada shall be applied so as to abridge the right of the individual to equality before the law without discrimination by reason of race, national origin, colour, religion or sex. Three recent decisions of the Supreme Court of Canada have grappled with the reconciliation of constitutional authorization and statutory proscription. The trilogy has evoked a virtually unprecedented volume of critical comment, the common feature of …
The Halifax North End Project, Jim Ortego
The Halifax North End Project, Jim Ortego
Dalhousie Law Journal
Criminology is the unhappiest ship afloat in the sea of social science research. No one has been able to find the answer to the two simple questions that are a permanent plague: Why do people commit crime? How do you persuade them not to do it again? Each generation or so, any number of experts from diverse disciplines and political philosophies burst upon criminology with the answer to the crime problem. In the last fifty years they have taken the discipline, such as it is, through borstal training, open institutions, guided group interaction, open ended research designs and any number …
Compensation On Expropriation: The Effect Of Zoning And Other Land Use Restrictions On The Award, Daniel F. Potter
Compensation On Expropriation: The Effect Of Zoning And Other Land Use Restrictions On The Award, Daniel F. Potter
Dalhousie Law Journal
The purpose of this article is to ascertain the extent to which the existence of publicly-imposed land use restrictions affects the quantum of compensation payable on expropriation. As yet, this matter has not arisen in the case law of Nova Scotia. However, if the events which surrounded the plans for the now abandoned Sackville landfill site project, discussed below, are any precursor of things to come, the effect of use restrictions on compensation awards will not much longer be a moot issue. The problem has, of course, come before the courts and compensation tribunals in other Canadian jurisdictions where the …
The Department Of Law, Carleton University, Ottawa, John Barnes
The Department Of Law, Carleton University, Ottawa, John Barnes
Dalhousie Law Journal
The purpose of this article is to describe how one undergraduate law program is operating, the objects of that program and the problems faced in offering law courses outside the professional schools. The extent of legal activity at Carleton will be outlined first, followed by an explanation of the reasons for the development of the particular calendar content. Different approaches to the teaching of law in the context of a general university program will be considered, discussing particularly the application of the techniques of the social sciences. The role of undergraduate law and the possible professional applications of a B.A. …
The Faculty Of Law At The University Of Victoria, F. M. Fraser
The Faculty Of Law At The University Of Victoria, F. M. Fraser
Dalhousie Law Journal
No abstract provided.
The Right To Life Of Potential Persons, E. H. W. Kluge
The Right To Life Of Potential Persons, E. H. W. Kluge
Dalhousie Law Journal
The law accords an individual the right to sue for damages sustained in utero when these damages are the result of what would otherwise be described as criminally negligent treatment. Recent court actions involving children subjected to the influence of thalidomide during certain critical stages of their fetal development 1 make this only too clear. 2 At the same time, however, the law also permits abortion: the deliberate and intentional killing of fetuses at precisely those stages of their development at which thalidomide damage would be sustained were the drug to be administered. 3 In adopting these two stances, the …
Delanoy V. Public Service Commission Appeal Board, R. A. Macdonald
Delanoy V. Public Service Commission Appeal Board, R. A. Macdonald
Dalhousie Law Journal
Rarely does an Administrative Law decision raise the issue of the proper relationship between boards and courts as starkly as the recent Federal Court of Appeal judgment in Delanoy v. Public Service Commission Appeal Board.1 Generally, judicial review tends to focus upon the limits of natural justice (i.e. procedural questions) rather than the problems of formal (non-procedural) jurisdiction and therefore permits courts to assert legalistic values under the guise of "due process". However, almost as if impelled by the favourable comments that their incursions into this field have drawn from academics, the courts have manifested in recent years an almost …
Canada In Question: Federalism In The Seventies, David Covert
Canada In Question: Federalism In The Seventies, David Covert
Dalhousie Law Journal
Canada in Question is an apt title for D. V. Smiley's book discussing federalism in the seventies and the future of the Canadian federalist system. In this second edition, not only does he incorporate recent developments but he expands and re-casts several chapters in order to provide the reader with a more comprehensive coverage of the Canadian federal system. Smiley, in the first seven chapters, deals almost exclusively with the structures and processes of Canadian federalism, whereas the final three chapters are devoted to what he terms a more "speculative analysis of the relations between these structures and processes" (p. …