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Articles 1 - 26 of 26
Full-Text Articles in Law
Thoughtful Practitioners And An Engaged Legal Community: The Impact Of The Teaching Of Procedure On The Legal Profession And On Civil Justice Reform, Janet Walker, Andrew Higgins, Thomas D. Rowe Jr., Carla Crifò
Thoughtful Practitioners And An Engaged Legal Community: The Impact Of The Teaching Of Procedure On The Legal Profession And On Civil Justice Reform, Janet Walker, Andrew Higgins, Thomas D. Rowe Jr., Carla Crifò
Osgoode Hall Law Journal
What difference does the teaching of civil procedure as an academic subject make to the practice of law, to the professional community in which lawyers practice, and to civil justice reform? In this article, proceduralists from Canada, England and Wales, the United States and Australia analyze the broader implications of teaching civil procedure as an integral feature of an academic legal education rather than as a part of vocational training. They consider ways in which the approach taken to the teaching of procedure in their legal system has influenced the evolution of the profession during a decade of increased public …
Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood
Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood
Osgoode Hall Law Journal
This article addresses the Supreme Court of Canada’s theory of democracy and the right to vote. After setting forth the Court’s general approach to democracy, I develop a new conceptual framework for the Court’s approach to democratic rights. First, I argue that the Court has adopted a “bundle of democratic rights” approach to the right to vote. By this I mean that the Court has interpreted the right to vote as consisting of multiple democratic rights, each of which is concerned with a particular facet of democratic governance. Second, I claim that the democratic rights recognized by the Court are …
A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Beth Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron
A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Beth Thornburg, Erik S. Knutsen, Carla Crifò, Camille Cameron
Osgoode Hall Law Journal
This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree—and in which procedure is recognized as a legitimate academic subject—have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support systems that …
The Teaching Of Procedure Across Common Law Systems, Erik S. Knutsen, Thomas D. Rowe Jr., David Bamford, Shirley Shipman
The Teaching Of Procedure Across Common Law Systems, Erik S. Knutsen, Thomas D. Rowe Jr., David Bamford, Shirley Shipman
Osgoode Hall Law Journal
What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems— the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained re flection has been carried out as to the import and impact of this longstanding …
Making Matters Worse: The Safe Streets And Communities Act And The Ongoing Crisis Of Indigenous Over-Incarceration, Ryan Newell
Making Matters Worse: The Safe Streets And Communities Act And The Ongoing Crisis Of Indigenous Over-Incarceration, Ryan Newell
Osgoode Hall Law Journal
The Safe Streets and Communities Act (SSCA), a recent and wide-reaching piece of the Conservative Party of Canada’s tough-on-crime agenda, will exacerbate the ongoing crisis of Indigenous over-incarceration. In this article, I review the extensive literature that addresses the causes of Indigenous over-representation in the Canadian criminal justice system before assessing the impact of R v Gladue, nearly fifteen years after the Supreme Court of Canada’s decision. I analyze how the SSCA will restrict courts’ resort to Gladue, thus resulting in the incarceration of increasing numbers of Indigenous people. I then develop one avenue of constitutional challenge to the SSCA’s …
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Osgoode Hall Law Journal
Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic …
Learning The 'How' Of The Law: Teaching Procedure And Legal Education, David Bamford, Trevor C. W. Farrow, Michael Karayanni, Erik S. Knutsen
Learning The 'How' Of The Law: Teaching Procedure And Legal Education, David Bamford, Trevor C. W. Farrow, Michael Karayanni, Erik S. Knutsen
Osgoode Hall Law Journal
This article examines the approaches to teaching civil procedure in five common law jurisdictions (Canada, Australia, United States, Israel, and England). The paper demonstrates the important transition of civil procedure from a vocational oriented subject to a rigorous intellectual study of policies, processes, and values underpinning our civil justice system, and analysis of how that system operates. The advantages and disadvantages of where civil procedure fits within the curriculum are discussed and the significant opportunities for ‘active’ learning are highlighted. The inclusion of England where civil procedure is not taught to any significant degree in the law degree provides a …
Solving The Problem From Hell: Tripartism As A Strategy For Addressing Labour Standards Non-Compliance In The United States, Janice Fine
Osgoode Hall Law Journal
The crises of wage theft and industrial accidents in low-wage America reflect erosion of the social contract but they also reflect a crisis in labour standards enforcement. This article draws upon archival material, case studies, and interviews to make the case for tripartism—an enforcement regime that partners workers’ organizations with government inspectors to patrol workers’ industries and labour markets for unfair competition. It extends to the federal level previous work in which Jennifer Gordon and i have documented dynamic contemporary examples of tripartism at the state and local levels. The article explores historical precedents for tripartist collaboration on the federal …
The German Abortion Decisions And The Protective Function In German And Canadian Constitutional Law, Vanessa Macdonnell, Jula Hughes
The German Abortion Decisions And The Protective Function In German And Canadian Constitutional Law, Vanessa Macdonnell, Jula Hughes
Osgoode Hall Law Journal
In the First and Second Abortion decisions, the German Constitutional Court drew on earlier jurisprudence to hold that the state was under a constitutional duty to protect the fetus from deprivations of its interest in life by the pregnant woman. In this article, we suggest that Canadian constitutional law scholars and reproductive rights advocates would benefit from examining the German abortion decisions despite their highly controversial nature. In our view, the benefits are twofold. First, the German cases demonstrate that recognizing the protective function can help clarify constitutional doctrine by revealing the tensions that underlie many difficult constitutional cases. Second, …
Employee Self-Representation And The Law In The United States, Matthew W. Finkin
Employee Self-Representation And The Law In The United States, Matthew W. Finkin
Osgoode Hall Law Journal
Collective representation has been a legal focal point in the United States for nearly a century. Little attention has been paid to the law in the obverse situation: individual self-representation. This essay explores how, on some issues, the law supports a regime of individual bargaining while, on others, is antithetical to it. In other words, US law is incoherent on the matter. By reference to law in Australia and New Zealand, this paper argues that more legal space can be created for employees to represent themselves.
The Limits Of Voice: Are Workers Afraid To Express Their Health And Safety Rights?, Wayne Lewchuk
The Limits Of Voice: Are Workers Afraid To Express Their Health And Safety Rights?, Wayne Lewchuk
Osgoode Hall Law Journal
This article reconsiders the shift in Canada from an exclusively government-regulated occupational health and safety system to the Internal Responsibility System (IRS). The IRS gives workers rights, or “voice,” to manage, know about, and refuse unsafe working conditions. I present new evidence that worker voice and the IRS have weakened with the decline of unions and the rise of precarious employment. Survey data are analyzed from Ontario workers who rated the likelihood that raising a health and safety concern with their current employer would negatively affect their future employment. My analysis models how workers’ sex, race, unionization, sector, and degree …
Attacks On Public-Sector Bargaining As Attacks On Employee Voice: A (Partial) Defence Of The Wagner Act Model, Joseph Slater
Attacks On Public-Sector Bargaining As Attacks On Employee Voice: A (Partial) Defence Of The Wagner Act Model, Joseph Slater
Osgoode Hall Law Journal
The attacks on public-sector union rights in the United States that began in 2011 are one of the most important developments in labour law in recent memory. These events shed light on employee voice issues, and on the continuing viability of the “Wagner Act” model. While declining union density rates in the private sector have prompted some to question this model, high-density rates in the public sector show that unions can flourish under it. This article gives an overview of public-sector unions in the US and summarizes the recent attacks on their rights. It then addresses rulings in both Missouri …
“Rights Without Remedies”: Enforcing Employment Standards In Ontario By Maximizing Voice Among Workers In Precarious Jobs, Leah F. Vosko
“Rights Without Remedies”: Enforcing Employment Standards In Ontario By Maximizing Voice Among Workers In Precarious Jobs, Leah F. Vosko
Osgoode Hall Law Journal
Workers in Ontario, Canada are on the edge of a crisis in the enforcement of their minimum employment standards (ES). This crisis is shaped not only by well-documented deficiencies in the scope of labour protection but by the fact that the administration of the ES system has not kept pace with the increasing number of workers and workplaces requiring protection under the province’s employment standards act. Coupled with an outmoded complaint-based system, the dearth of support for ES enforcement is cultivating a situation in which an unprecedented number of workers are bearers of rights without genuine opportunities for redress. Responding …
Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker
Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker
Osgoode Hall Law Journal
No abstract provided.
Collective Representation And Employee Voice In The Us Public Sector Workplace: Looking North For Solutions?, Martin Malin
Collective Representation And Employee Voice In The Us Public Sector Workplace: Looking North For Solutions?, Martin Malin
Osgoode Hall Law Journal
Legislation enacted in many states following the 2010 elections in the United States strengthened unilateral public employer control and weakened employee voice. This rebalancing of power occurred in the context of state public employee labour relations acts modeled on the National Labor Relations Act (NLRA), but with a narrower scope of bargaining than in the private sector. This narrow scope channels unions’ voice away from the quality of public services and towards protecting members from the effects of decisions unilaterally imposed by management. The Supreme Court of Canada has held that the freedom of association guaranteed by the Charter of …
Workplace Voice And Civic Engagement: What Theory And Data Tell Us About Unions And Their Relationship To The Democratic Process, Alex Bryson, Rafael Gomez, Tobias Kretschmer, Paul Willman
Workplace Voice And Civic Engagement: What Theory And Data Tell Us About Unions And Their Relationship To The Democratic Process, Alex Bryson, Rafael Gomez, Tobias Kretschmer, Paul Willman
Osgoode Hall Law Journal
We offer an explanation for the phenomenon of declining democratic engagement by assuming that what happens at work is the primary driver of what occurs outside of the workplace. If workers are exposed to the formalities of collective bargaining and union representation, they also perhaps increase their attachment to, and willingness to participate in, structures of democratic governance outside of the workplace as well. In order for this argument to hold, one first needs to test whether individual union members are more prone to vote and participate in civil society than non-members: other research refers to this as the union …
The Supreme Court Of Canada And Constitutional (Equality) Baselines, Rosalind Dixon
The Supreme Court Of Canada And Constitutional (Equality) Baselines, Rosalind Dixon
Osgoode Hall Law Journal
In its approach to defining “analogous grounds” for the purposes of subsection 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. This article argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15. Heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct, “multi-pronged,” or a more synthetic, “common denominator,” approach to the question of analogical development. The Court, over time, has implicitly shifted …
Rights In The Age Of Identity Politics, Avigail Eisenberg
Rights In The Age Of Identity Politics, Avigail Eisenberg
Osgoode Hall Law Journal
In 1982, the Charter of Rights and Freedoms was entrenched in the Constitution at the height of what has come to be known as an era of identity politics. The influence of identity politics on Canadian jurisprudence is evident both in some of the specific rights entrenched in the Charter and in the manner these rights have been interpreted. This paper examines two approaches to Charter interpretation that use the resources of identity politics. On the identity approach, claims individuals and groups make about their identities in the course of advancing rights claims are treated as immutable, non-negotiable facts, rather …
Aboriginal And Treaty Rights And Violence Against Women, John Borrows
Aboriginal And Treaty Rights And Violence Against Women, John Borrows
Osgoode Hall Law Journal
Violence against Indigenous women is a crisis of national proportions. Unfortunately, Indigenous peoples have been prevented from arguing that Indigenous communities are a constitutional site of activity for dealing with such violence. This article suggests that Aboriginal and treaty rights under section 35 of the Constitution could play a significant role in ensuring that all levels of government are seized with the responsibility for dealing with violence against women. This article explores how section 35 could be reinterpreted in ways that place issues of gender and violence at the heart of its analysis.
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Osgoode Hall Law Journal
This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates …
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Osgoode Hall Law Journal
No abstract provided.
Social Justice And The Charter: Comparison And Choice, Margot Young
Social Justice And The Charter: Comparison And Choice, Margot Young
Osgoode Hall Law Journal
At a time of radical inequality, the changes sought by social justice advocacy are urgently needed. Yet repeatedly, courts fail to respond adequately to this challenge. A core issue plagues social justice jurisprudence under sections 7 and 15: the difficulty inevitable in the contemplation and expression of the social and political forms in which oppression and social injustice occur. This problem manifests doctrinally in ways specific to the rights at issue. In section 15 cases, the casting of comparator groups has been deeply problematic, and in both section 15 and section 7 cases, the courts fail to deliver a nuanced …
The Charter At Thirty, Michael Ignatieff
The Charter At Thirty, Michael Ignatieff
Osgoode Hall Law Journal
No abstract provided.
The Charter's Influence Around The World, Mark Tushnet
The Charter's Influence Around The World, Mark Tushnet
Osgoode Hall Law Journal
Over the past several decades, the influence of the United States Constitution and Supreme Court around the world has waned while that of the Canadian Charter and Supreme Court has increased. This article examines several reasons for these changes, including: the relative ages of the constitutions; the US Supreme Court’s recent conservatism; the Canadian Supreme Court’s role in developing the doctrine of proportionality; the US Supreme Court’s interest in originalism; differing structures of constitutional review and judicial supremacy; and the two Courts’ relative openness to transnational influences.
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Osgoode Hall Law Journal
A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on …
The New Borders Of The Constitutional, Gavin W. Anderson
The New Borders Of The Constitutional, Gavin W. Anderson
Osgoode Hall Law Journal
The key critical constitutional debates of the future are likely—and need—to be very different from those that animated the Charter’s first thirty years. Since 1982, the borders between law and politics, rights and utility, and the public and the private have staked out the main territory contested by critical scholarship. However, these borders now demarcate a restricted landscape, drawing critics onto the ground of normative debate preferred by liberal theory, and leading them to propose, at best, a form of moderate pragmatism. A more promising approach lies in reconnecting constitutional debate to the socio-historical strand of critical theory, as represented …