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The Peter A. Allard School of Law

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Articles 1 - 22 of 22

Full-Text Articles in Legal History

The Patriation Of Canadian Corporate Law, Camden Hutchison Jan 2020

The Patriation Of Canadian Corporate Law, Camden Hutchison

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Canadian corporate law belongs within a broader Anglo-American legal tradition, sharing many of the features of other common law jurisdictions, most notably England and the United States. Prior to Confederation, Canadian corporate law first emerged from nineteenth-century English legislation and continued to resemble English law – at least superficially – well into the twentieth century. Legislation is only one source of corporate law, however. Just as important is the creation of legal rules through the common law adjudicatory process. Thus, examining case law raises an important empirical question distinct from, though relevant to, the issue of legislative influence – namely, …

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Corporate Law Federalism In Historical Context: Comparing Canada And The United States, Camden Hutchison Jan 2018

Corporate Law Federalism In Historical Context: Comparing Canada And The United States, Camden Hutchison

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Although American and Canadian corporate law share many similarities, they are also marked by important institutional differences. Among the most notable are the differing roles of federal versus state/provincial policymaking in the two countries: While American corporate law has been deeply influenced by jurisdictional competition among the states, Canadian law has instead been shaped by federal legislative activity, as seen today in the standardizing influence of the Canada Business Corporations Act. These different institutional histories have led to distinct evolutionary paths, with important substantive consequences for contemporary corporate law. Despite considerable academic attention to the subject of corporate law federalism, …

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Law And Economics Scholarship And Supreme Court Antitrust Jurisprudence, 1950–2010, Camden Hutchison Jan 2017

Law And Economics Scholarship And Supreme Court Antitrust Jurisprudence, 1950–2010, Camden Hutchison

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Although law and economics has influenced nearly every area of American law, few have been as deeply and as thoroughly "economized" as antitrust. Beginning in the 1970s, antitrust law—traditionally informed by populist hostility to economic concentration—was dramatically transformed by a new and overriding focus on economic efficiency. This transformation was associated with a provocative new wave of antitrust scholarship, which claimed that economic efficiency (or "consumer welfare") was the sole legitimate aim of antitrust policy. The U.S. Supreme Court seemingly agreed, issuing decision after decision rejecting traditional antitrust values and adopting the efficiency norm of the law and economics movement. …

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Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison Jan 2017

Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison

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Despite the economic integration of the several states and the broad regulatory authority of the federal government, the internal affairs of business corporations remain primarily governed by state law. The origins of this system are closely tied to the decentralized history of the United States, but the reasons for its continued persistence—in the face of significant federalization pressures—are not obvious. Indeed, federalization of corporate law was a major political goal during the Progressive Era, a period which witnessed significant expansion of federal involvement in the national economy. By examining the historical record of Progressive Era policy debates, this Article bridges …

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Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris Jan 2017

Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris

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Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada, Indigenous …

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Maori Preserved Heads: A Legal History, Robert K. Paterson Jan 2017

Maori Preserved Heads: A Legal History, Robert K. Paterson

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For the first three decades of the nineteenth century New Zealand remained untouched by outside law. Foreign contacts mostly involved visits by traders, whalers, and missionaries. The latter sought to discourage the Maori practice of tattooing (ta moko), while the former quite soon began to see opportunities for trade in preserved tattooed heads. Early accounts of New Zealand described these heads and their mode of preservation. Ob-servers noted that both the heads of enemy warriors slain in battle, along with those of deceased chiefs and others of high rank, were preserved. The process involved the removal of interior soft tissue …

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The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani Jan 2017

The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani

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International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal …

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The Strangely Familiar History Of The Unitary Theory Of Perpetration, James G. Stewart Jan 2016

The Strangely Familiar History Of The Unitary Theory Of Perpetration, James G. Stewart

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A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, this Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. …

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Lawyers' Empire And The Great Transformation, Douglas C. Harris Jan 2016

Lawyers' Empire And The Great Transformation, Douglas C. Harris

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Writing through the years of World War II and attempting to understand its horrors, the carnage of World War I, the great depression, and the rise of communist and fascist regimes, Karl Polanyi posited that Western Europe had undergone The Great Transformation through the nineteenth century. Built around policies of economic liberalism and the gospel of the self-regulating market, this transformation had produced a century of unparalleled peace and material wealth in Europe, but the unmooring of the market from other social forces, and the remaking of land and labour as commodities, would unleash, when the buttressing pillars faltered, the …

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The Historical Origins Of The Debt-Equity Distinction, Camden Hutchison Jan 2015

The Historical Origins Of The Debt-Equity Distinction, Camden Hutchison

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The U.S. tax code favors corporate debt over corporate equity, a distinction long criticized by economists, legal scholars, and other tax commentators as both theoretically and practically unsound. For decades, academics and policymakers from a variety of disciplinary and political backgrounds have argued that this so-called “debt-equity distinction” distorts corporate financing decisions, encourages excess borrowing, and invites troublesome tax-avoidance behavior. Surprisingly, despite widespread critical attention, the origins of this policy remain a mystery. Primarily focused on its contemporary significance, scholars have disregarded the distinction’s past. This article uses historical evidence to trace the debt-equity distinction’s origins, development, and continuing evolution. …

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A Railway, A City, And The Public Regulation Of Private Property: Cpr V. City Of Vancouver, Douglas C. Harris Jan 2012

A Railway, A City, And The Public Regulation Of Private Property: Cpr V. City Of Vancouver, Douglas C. Harris

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The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city …

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Book Review: Martin Chanock, The Making Of South African Legal Culture, 1902-1936: Fear, Favour And Prejudice, W. Wesley Pue Jan 2009

Book Review: Martin Chanock, The Making Of South African Legal Culture, 1902-1936: Fear, Favour And Prejudice, W. Wesley Pue

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This review of Martin Chanock's work on South African legal culture, locates the work in the context of international scholarship on law and society, legal history, and law and colonialism. It appeared in 18:1 Canadian Journal of Law & Society, 177-181.

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Banned From Lawyering: Gordon Martin, Communist, W. Wesley Pue Jan 2009

Banned From Lawyering: Gordon Martin, Communist, W. Wesley Pue

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This paper assesses the exclusion of Gordon Martin from the practice of law in 1948 solely on the grounds that his communist political commitment was inconsistent with the role of a lawyer. In so doing it canvasses understandings of the day regarding communism, constitutionalism, and American social thought (as embodied in Oliver Wendell Holmes, John Dewey, Charles Beard, James Harvey Robinson, and Thorstein Veblen). Issues relating to self-governance of the legal profession, character, and statutory interpretation under then-current administrative law doctrine are reviewed.

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Cowboy Jurists & The Making Of Legal Professionalism, W. Wesley Pue Jan 2009

Cowboy Jurists & The Making Of Legal Professionalism, W. Wesley Pue

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This paper identifies the origins of modern Canadian legal professionalism in the prairie west during the early twentieth century, arguing for the importance of human agency and emphasizing contingency where others assert trans-historical processes. Lawyers combined agendas which were explicitly moral and reforming with a profound restructuring of their profession. Their efforts to reform the curriculum of formal legal education was part of a cultural project, but so too was their desire to attain self-regulation, monopoly, professional independence, and plenary disciplinary powers. The substantive findings documented here direct our attention to questions of cultural agency and structural revolution that are …

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Introduction To Lawyers In Canadian History, W. Wesley Pue Jan 2009

Introduction To Lawyers In Canadian History, W. Wesley Pue

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This paper "frames" the study of lawyers in Canadian history against major interpretations of the legal profession and legal professionalism including the historical self-understandings of organized legal professions in the common law world, market-control theorists, institutional, and cultural history approaches. The article serves as the introduction to a new book on The Promise And Perils Of Law: Lawyers In Canadian History, which includes essays on the history of legal education, the practice of law, Quebec's legal distinctiveness, constitutionalism and the rule of law, and issues in race, gender, and diversity.

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Educating The Total Jurist?, W. Wesley Pue Jan 2006

Educating The Total Jurist?, W. Wesley Pue

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This paper discusses a discontinuity between the ways in which legal education has historically sought to reconstruct the soul of lawyers-in-training and the contemporary conceit that legal education can be value-free. It identifies a gap between early 21st century narrowly technocratic approaches to legal professionalism - epitomized by Enron professionalism and earlier conceptions of lawyering. A desire to instill a moral sensibility in apprentice lawyers weighed heavily in an earlier generation's thinking about legal education everywhere in the common law world, giving rise to the programmes, schemes, and imaginings that provided templates for contemporary university legal training. With surprising consistency, …

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Death Squads Or 'Directions Over Lunch': A Comparative Review Of The Independence Of The Bar, W. Wesley Pue Jan 2006

Death Squads Or 'Directions Over Lunch': A Comparative Review Of The Independence Of The Bar, W. Wesley Pue

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Periodic crises around the conduct of lawyers provoke moves in the direction of constituting the organized legal profession as a regulated industry, much like any other. Such proposals, whether for regulation through Legal Services Commissions or other structures, abruptly confront the historically embedded constitutional notion that liberty itself rests on the independence of the bar. This paper engages in a comparative review of the notion of an independent legal profession. Its particular focus is on widely agreed international standards and on the experience of Commonwealth countries and especially Australia, Canada, and the United Kingdom. The paper draws on literatures from …

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Cultural Projects And Structural Transformation In The Legal Profession, W. Wesley Pue Jan 2003

Cultural Projects And Structural Transformation In The Legal Profession, W. Wesley Pue

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This paper explores the history of professional formation amongst lawyers, pointing to the surprising conclusions that contemporary legal professionalism bears little continuity with supposed roots in British professionalism and that one of the major motors driving professionalism was related to a project of cultural transformation in state and society at large. Whilst legal professions appear exclusionary and xenophobic from an outside perspective, the desire to control difference has deeper, more fully cultural roots, than arguments from self-interest per se might suggest.

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Globalization And Legal Education: Views From The Outside-In, W. Wesley Pue Jan 2001

Globalization And Legal Education: Views From The Outside-In, W. Wesley Pue

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During the past two decades a new, global, legal professionalism has manifested itself in the field of legal education through a variety of programmes seeking to produce globally-aware or globally-connected lawyers. This paper explores the diverse meanings of globalization and legal education with particular attention to the differential effects of globalization and the varied experiences of it in different parts of the world. Taking its starting point from a Nigerian graduate student's insight that globalization means 'The White Man is Coming again'. What does he want this time?, he explores both American and international perspectives.

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A History Of British Columbia Legal Education, W. Wesley Pue Jan 2000

A History Of British Columbia Legal Education, W. Wesley Pue

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This paper explores the history of legal education in twentieth century British Columbia. The period covers the transition from qualification by apprenticeship to the foundation of Canada's first post-WWII Faculty of Law - the beginning of modern legal education in Canada. Issues addressed include the moral vision of legal education, gender and the legal profession (the admission of women lawyers), race-based exclusions, the question of whether communists could be qualified as lawyers, and the evolution of legal curriculum from the age of moral reform to the era of narrowly technocratic notions of legal knowledge.

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British Masculinities, Canadian Lawyers, W. Wesley Pue Jan 1999

British Masculinities, Canadian Lawyers, W. Wesley Pue

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This paper explores the construction of early twentieth century Canadian legal professionalism as the workings-out of Britishness understood through the lenses of cultural history, cultures of imperialism, and gender relations. It provides a case study in the histories of professionalism in a settler colony.

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Book Review Of A Radical Lawyer In Victorian England: W. P. Roberts And The Struggle For Workers' Rights By Raymond Challinor, W. Wesley Pue Jan 1991

Book Review Of A Radical Lawyer In Victorian England: W. P. Roberts And The Struggle For Workers' Rights By Raymond Challinor, W. Wesley Pue

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This essay assesses the history of one of Britain's most important lawyers for the working class through a critical review of Raymond Challinor's ground-breaking work. The life of W. P. Roberts spanned crucial decades of the nineteenth Century. Admitted to the lower branch of the legal profession in Bath in 1827 W. P. Roberts converted from Toryism in the first decade of his professional life to emerge as a leading figure in the Bath Working Men's Association by 1837. Apparently motivated by a deeply-held Christian belief in an essential human dignity, Roberts' consistently employed the law as a shield in …

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