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Articles 1 - 15 of 15
Full-Text Articles in Legal History
Pillars Of Justice: Lawyers And The Liberal Tradition, By Owen Fiss, Saba Samanian
Pillars Of Justice: Lawyers And The Liberal Tradition, By Owen Fiss, Saba Samanian
Osgoode Hall Law Journal
AT TIMES, IT IS POSSIBLE TO UNDERESTIMATE, or perhaps momentarily forget, the individuals who have been instrumental in shaping the evolution of the justice system. Thankfully, Pillars of Justice by Owen Fiss serves as a reminder of the resilience and the triumph of such individuals. Each chapter of the book is dedicated to someone who he considers to have made a significant contribution to justice, and, as such, has become a personal hero.
Canada’S First Malpractice Crisis: Medical Negligence In The Late Nineteenth Century, R. Blake Brown
Canada’S First Malpractice Crisis: Medical Negligence In The Late Nineteenth Century, R. Blake Brown
Osgoode Hall Law Journal
This article describes and explains the first Canadian medical malpractice crisis. While malpractice had emerged as a prominent legal issue in the United States by the mid nineteenth century, Canadian doctors first began to express concerns with a growth in malpractice litigation in the late nineteenth century. Physicians claimed that lawsuits damaged reputations and forced them to spend lavishly on defending themselves. Doctors blamed lawyers for drumming up spurious lawsuits and argued that ignorant or malicious jurors tended to side with plaintiffs. Evidence, however, points to additional factors that contributed to litigation. Medical professionals in rural areas sometimes avoided lengthy …
Sex, Race, And Motel Guests: Another Look At King V Barclay, Sarah E. Hamill
Sex, Race, And Motel Guests: Another Look At King V Barclay, Sarah E. Hamill
Osgoode Hall Law Journal
The 1961 case of King v Barclay is something of a footnote in the history of discrimination against Black Canadians. If it is cited at all, it is usually cited alongside the more famous racism cases, such as Christie v York, as proof of the widespread nature of racism in Canada. In this paper, I re-read the trial decision and examine the original case file to show that the facts of King and the racism in the case are more complex than usually realized. King emerged out of a series of errors from both King and Barclay’s Motel which resulted …
Pardon And Parole In Prohibition-Era New York: Discretionary Justice In The Administrative State, Carolyn Strange
Pardon And Parole In Prohibition-Era New York: Discretionary Justice In The Administrative State, Carolyn Strange
Osgoode Hall Law Journal
Historians of early-modern England and British colonies have productively applied Douglas Hay’s germinal study of mercy. In contrast, historians of the United States have overlooked the utility of the conceptual tools Hay provided to prize open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. This article …
When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker
When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker
Osgoode Hall Law Journal
In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935, Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that …
Promises Of Law: The Unlawful Dispossession Of Japanese Canadians, Eric M. Adams, Jordan Stanger-Ross
Promises Of Law: The Unlawful Dispossession Of Japanese Canadians, Eric M. Adams, Jordan Stanger-Ross
Osgoode Hall Law Journal
This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of over twenty-one thousand Canadians of Japanese descent, the Canadian government enacted orders in council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese-Canadian community and concern from within the corridors of government resulted in amendments to those orders stipulating that the Custodian held that property as a “protective” trust and would return it to Japanese Canadians at the conclusion of the …
Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker
Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker
Osgoode Hall Law Journal
This article focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode’s late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of British justice to the colonies. It concludes that this role was limited, mostly by Osgoode’s greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.
The Brussels Peace Conference Of 1874 And The Modern Laws Of Belligerent Qualification, Tracey Leigh Dowdeswell
The Brussels Peace Conference Of 1874 And The Modern Laws Of Belligerent Qualification, Tracey Leigh Dowdeswell
Osgoode Hall Law Journal
The Brussels Conference of 1874 was convened after the Franco-Prussian War (1870-71). At stake was not only the restoration of the fragile balance of power in Europe, but also the articulation of a new ideal of warfare and its role in the European state system. This article discusses the Conference in relation to the “new war” thesis put forth by Mary Kaldor in New and Old Wars (1999). It was at Brussels that the “old war” crystalized as a political ideal: war would be a tournament, fought by professional armies, organized by nation states; civilians who refrained from participation would …
Let The Facts Speak For Themselves: The Empiricist Origins Of The Right To Remain Silent, Randa Helfield
Let The Facts Speak For Themselves: The Empiricist Origins Of The Right To Remain Silent, Randa Helfield
Osgoode Hall Law Journal
Historians have traced the right to silence to early canon law, the political conflicts of the sixteenth and seventeenth centuries, and even The Prisoner’s Counsel Act, which effectively silenced the accused by allowing his lawyer to speak for him. This article argues that changes in philosophical notions of truth best explain how, given the importance of the accused’s testimony at the altercation trial, her silence could ever have been tolerated and ultimately enforced as a right. By the mid-eighteenth century, the rise of empiricism had shifted the trial’s reliance on testimony to a preference for facts, which seemed more immediately …
Black Man, White Justice: The Extradition Of Matthew Bullock, An African-American Residing In Ontario, 1922, John C. Weaver
Black Man, White Justice: The Extradition Of Matthew Bullock, An African-American Residing In Ontario, 1922, John C. Weaver
Osgoode Hall Law Journal
Canadian extradition law uncomfortably combines common law precepts with compromises deemed necessary for carrying out treaty obligations. In this context, for example, the substitution of affidavits for parol evidence has been an area where international courtesy has clashed with a valued means of testing an allegation, namely the cross-examination of witnesses. To reject an application for extradition because only documentary evidence is provided can amount to a censure of judicial proceedings in the state making the request; rejection may suggest that a fair trial cannot be secured. In 1922, in a sensational but hitherto uncited case, an Ontario extradition judge …
Mohegan Indians V. Connecticut (1705-1773) And The Legal Status Of Aboriginal Customary Laws And Government In British North America, Mark D. Walters
Mohegan Indians V. Connecticut (1705-1773) And The Legal Status Of Aboriginal Customary Laws And Government In British North America, Mark D. Walters
Osgoode Hall Law Journal
This article examines the eighteenth century case of Mohegan Indians v. Connecticut in order to determine its significance for arguments about the legal status of Aboriginal customary law and government in British North America. The article concludes that the Mohegan case confirms that in certain circumstances native nations on reserved lands in British colonies were subject, not to colonial jurisdictions established for settlers, but to their own traditional customs and institutions. It also concludes that the case is less clear than some recent commentators have suggested about whether British law recognized such nations as having rights of sovereignty.
The Evolution Of Coordinate Precedential Authority In Canada: Interprovincial Citations Of Judicial Authority, 1922-92, Peter Mccormick
The Evolution Of Coordinate Precedential Authority In Canada: Interprovincial Citations Of Judicial Authority, 1922-92, Peter Mccormick
Osgoode Hall Law Journal
It comes as no surprise that the provincial courts of appeal frequently cite as authority the decisions of the Supreme Court of Canada or the prior decisions of the court of appeal itself. However, the citation practices of these courts also show (emerging before, and persisting after, 1970) a striking reliance on their counterparts in other provinces. Both the simple existence of this interprovincial conversation and the details of its provenance-such as the dominance of Ontario, the persistent isolation of Quebec, the recent emergence of British Columbia-constitute an important and distinctive element of judicial decision making in Canada.
"Artificial Conscience": Professional Elites And Professional Discipline From 1920 To 1950, James A. Smith
"Artificial Conscience": Professional Elites And Professional Discipline From 1920 To 1950, James A. Smith
Osgoode Hall Law Journal
Recent historical studies of the British and American Bars have identified their professional elites' willingness to define and enforce a concept of legal ethics which restricted less fortunate members' ability to practice and less fortunate individuals' ability to obtain legal assistance. This essay applies the thesis to the Canadian Bar's and especially the Law Society of Upper Canada's use of their increasing control over professional discipline from 1920 to 1950. Identifying similar trends in the Canadian profession's evolution, while emphasizing effects rather than intentions, it makes similar conclusions about the Canadian professional elite's use of such powers during this period.
Apostolat Juridique: Teaching Everyday Law In The Life Of Marie Lacoste Gérin-Lajoie (1867-1945), Nicholas Kasirer
Apostolat Juridique: Teaching Everyday Law In The Life Of Marie Lacoste Gérin-Lajoie (1867-1945), Nicholas Kasirer
Osgoode Hall Law Journal
Based on a reading of archival material stored in a convent in east-end Montreal, the author describes the career of Marie Lacoste Gérin-Lajoie, a self-trained jurist who taught and wrote about law for women in convent schools, teachers' colleges, study circles, temperance union meetings and the like over a forty-year period in Quebec at the beginning of this century. Her career as a law teacher is presented as a sign of a less visible facet of the history of legal education in Quebec-beyond the formal institutions of law teaching-that was closely tied to the home and the private world of …
While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, And Upper Canada's Missing Court, John C. Weaver
While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, And Upper Canada's Missing Court, John C. Weaver
Osgoode Hall Law Journal
Until 1837, Upper Canada had no Court of Chancery. This omission forced stop-gap measures which in the area of mortgages produced a muddle. The confusion introduced into the land market led to protracted controversies among politicians and jurists during the 1820s and 1830s. The many complex principles and motives raised by the lack of an equitable jurisdiction generated much legislative controversy and experimentation. John Beverley Robinson often was central to vital discussions where he revealed both his intelligence and social biases favouring gentlemen of capital. Extremely complicated issues have deflected attention from the central issue: whether the colony needed equity, …