Legal Writing and Research Commons^™

Introduction, Kim Brooks, Jamie Irvine

Dalhousie Law Journal

The dream for the Dalhousie Law Journal, included in the Foreword of the Journal’s first issue in 1973, was typically Dalhousie-modest: to have a “long and reasonably useful career.”1 As we celebrate our 50th anniversary, it’s clear that we have delivered on duration and over-delivered on purpose.

Law Society Regulation And The Lawyer-Academic, Andrew Flavelle Martin

Dalhousie Law Journal

Can, and should, law societies regulate and discipline lawyers for their teaching and research? This article explores these largely overlooked but critically important questions in order to establish a foundation for further debate and discussion by lawyers, legislators, and law societies. It argues that professionalism precludes only low-value teaching and research—teaching and research with little pedagogical or epistemic value such that it is unlikely or unworthy to be protected by academic freedom—and that any chilling effect on lawyer-academics comes as much from uncertainty as from actual danger of regulatory consequences. The author concludes that law societies and other stakeholders should …

Guthrie's Guide To Better Legal Writing, 2nd Ed, Hannah Steeves

Articles, Book Chapters, & Popular Press

The second edition of Guthrie’s Guide to Better Legal Writing is Neil Guthrie’s revised anthology of email queries and blog posts. The scope of the book is in its title: it offers practical tips and advice to legal writers. Guthrie’s definition of “legal writing” addresses written communication between lawyers, law students, and the layperson, although legal drafting is addressed intermittently. The book is not intended to be a comprehensive review of grammar and punctuation. Instead, it has an approximate agenda that is enhanced by the author’s personal narrative.

The author follows their own advice as outlined in the suggestions for …

Foreword: Legal Essays: A Checklist, Reagan Seidler, Sarah Macleod

Dalhousie Journal of Legal Studies

Good legal writing is more science than art. It persuades not by its rhetoric but by the impregnability of its research method. It answers its question using a testable, falsifiable, and repeatable method, so that others would choose to follow the same steps and come to the same conclusion.

At the Dalhousie Journal of Legal Studies (DJLS), we read scores of papers each year from law schools across the country. They show us that, nationwide, many authors misunderstand the purpose of a research paper. It is not a memo, nor is it an op-ed. The goal is to use a …

Tim Edgar: The Accidental Comparatist, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper focuses on the contributions of Tim Edgar as a major comparative law scholar. It reviews the major debates and theoretical directions in comparative law scholarship and offers a case study of Edgar's contributions in the light of the major debates in comparative law. Edgar's development as a comparatist is traced through three defined phases. His identification of the policy problem to be resolved is highlighted as a major feature of his contribution.

Portrait Of A Transplant Artist, Kim Brooks

Articles, Book Chapters, & Popular Press

This article explores the process of norm migration through the study of one tax expert, Victor Thuronyi. It situates the literature on the role of experts in tax norm migration and identifies core themes and gaps in the tax transplant literature; explores five themes, connected to the literature on the role of tax experts and tax transplants, that arise from a study of Victor Thuronyi’s contributions to tax transplantation; and concludes with some reflections on the benefits and challenges of having highly specialized, non-insider tax experts engaged in the exercise of drafting tax laws.

An Intellectual History Of Comparative Tax Law, Kim Brooks

Articles, Book Chapters, & Popular Press

In this article, the author argues that comparative tax law has an intellectual history. More specifically, the author claims that history reveals there is a distinguishable comparative tax law scholarship where tax scholars engage in common debates. The author then offers a description of method, highlighting the difficulty of identifying the work that might be considered “comparative tax law.” Next, the author conceptualizes and clusters contributions from scholars who have framed the comparative tax law field. The author argues that our national boundedness, combined with the lack of an explicit network of scholars, has masked the rich intellectual history in …

Implementing User Rights For Research In The Field Of Artificial Intelligence: A Call For International Action, Sean Flynn, Christophe Geiger, Joao Pedro Quintais, Thomas Margoni, Matthew Sag, Lucie Guibault, Michael W. Carroll

Articles, Book Chapters, & Popular Press

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, …

Feminist Statutory Interpretation, Kim Brooks

Articles, Book Chapters, & Popular Press

Leading Canadian scholar Ruth Sullivan describes the act of statutory interpretation as a mix of art and archeology. The collection, Feminist Judgments: Rewritten Tax Opinions, affirms her assessment. If the act of statutory interpretation requires us to deploy our interdisciplinary talents, at least somewhat unmoored from the constraints of formal expressions of legal doctrine, why haven’t feminists been more inclined to write about statutory interpretation? Put another way, some scholars acknowledge that judges “are subtly influenced by preconceptions, endemic privilegings and power hierarchies, and prevailing social norms and ‘conventional’ wisdom.” Those influences become the background for how judges read legislation. …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Social Science Evidence In Charter Litigation: Lessons From Carter V Canada (Attorney General), Jocelyn Downie

Articles, Book Chapters, & Popular Press

In this paper, I offer the reflections of an academic who wandered well out of her wheelhouse. While I have graduate training in both philosophy and law, I am not an expert on the use of social science and humanities evidence in litigation. But, through the course of working on Carter v Canada (Attorney General), I had the opportunity to participate directly in the process of marshalling, preparing, analyzing, and critiquing the evidence. My hope is that, through this paper, I can bring a perspective that may be useful both for practitioners who might (or, I would say, should) be …

Judicial Audiences: A Case Study Of Justice David Watt's Literary Judgments, Elaine Craig

Articles, Book Chapters, & Popular Press

Applicants to the federal judiciary identify three main audiences for their decisions: the involved and affected parties, the public, and the legal profession. This case study examines a set of decisions authored by Justice David Watt of the Ontario Court of Appeal, involving the rape, torture, murder or attempted murder of women, in which he attempts humour or uses puns, parody, stark imagery and highly stylized and colloquial language to introduce the violence, or factual circumstances surrounding the violence, in these cases. It assess these introductions in relation to the audiences judges have identified as important for their decisions. The …

Away From The Library, David H. Michels

Articles, Book Chapters, & Popular Press

"I use Google for my research, I don't use the library." "Can you teach my students to do legal research only with tools they can access after they leave University?" This paper is about me, the librarian, irritated by the assertion and puzzled by the request. It captures just two of many events on a long and incomplete journey of reimagining librarianship and my changing role as librarian. I would test the assertion, plan the classes, and share those experiences. However, I would be dishonest if I did not also share that I am apprehensive about the results of my …

Sailing Through Law School: Assessing Legal Research Skills Within The Information Literacy Framework, David H. Michels

Articles, Book Chapters, & Popular Press

In this study I ask the question: Can standardized information literacy tests help assess and benchmark the learning of information skills by Canadian law students? This study replicates an earlier study that found that a standardized test of information literacy competencies, SAILS, was not an effective measure of law student information literacy levels. By applying the same test under similar conditions to another group of law students, I found that while the test did not measure legal research competencies, it was effective in measuring basic information literacy skills in law students with often surprising results. I argue that legal research …

Is Europe Falling Behind In Data Mining? Copyright's Impact On Data Mining In Academic Research, Christian Handke, Lucie Guibault, Joan-Josep Vallbé

Articles, Book Chapters, & Popular Press

This empirical paper discusses how copyright affects data mining (DM) by academic researchers. Based on bibliometric data, we show that where DM for academic research requires the express consent of rights holders: (1) DM makes up a significantly lower share of total research output; and (2) stronger rule-of-law is associated with less DM research. To our knowledge, this is the first time that an empirical study bears out a significant negative association between copyright protection and innovation.

The Past, Present, And Future Of Canadian Environmental Law: A Critical Dialogue, Jason Maclean, Meinhard Doelle, Chris Tollefson

Articles, Book Chapters, & Popular Press

In the critical dialogue that follows, Jason MacLean, an assistant professor at the Bora Laskin Faculty of Law at Lakehead University whose research focuses on environmental law, explores some of the most salient aspects of the past, present, and future of Canadian environmental law with two of Canada’s leading environmental scholars and practitioners: Meinhard Doelle, professor of law and associate dean of research at the Schulich School of Law and director of the Marine & Environmental Law Institute at Dalhousie University; and Chris Tollefson, professor and Hakai Chair in Environmental Law and Sustainability and executive director of the Environmental Law …

A Retrospective On The Contributions Of Neil Brooks: So Far, Kim Brooks

Articles, Book Chapters, & Popular Press

This introduction to a symposium in honour of Neil Brooks originated in opening remarks at a workshop held on 10-11 May 2013.

Oscola, The Oxford Standard For Citation Of Legal Authorities, John Kleefeld

Dalhousie Law Journal

With the publication of the fourth edition of OSCOLA (the first being in 2000), the Oscolites, if I may adopt such a term, have issued an implicit challenge to other contenders in the world of legal citation. I suggest that the challenge has four prongs. The first aims at what may be called the "hegemony of uniformity."' The second, at a tendency to what Judge Posner has declaimed as "hypertrophy" in the size of legal citation manuals. The third, at barriers to accessing such manuals. And the fourth prong, gentler and more tentative than the other three, at the notion …

Safe To Be Open: Study On The Protection Of Research Data And Recommendations For Access And Usage, Lucie Guibault, Andreas Wiebe

Books

Openness has become a common concept in a growing number of scientific and academic fields. Expressions such as Open Access (OA) or Open Content (OC) are often employed for publications of papers and research results, or are contained as conditions in tenders issued by a number of funding agencies. More recently the concept of Open Data (OD) is of growing interest in some fields, particularly those that produce large amounts of data – which are not usually protected by standard legal tools such as copyright. However, a thorough understanding of the meaning of Openness – especially its legal implications – …

Jacques De Werra (Ed.), Research Handbook On Intellectual Property Licensing, Lucie Guibault

Articles, Book Chapters, & Popular Press

In the laws of most jurisdictions in the world, IP licenses are an unnamed form of contract, most often of a hybride nature, for which no specific legal framework exists, save for rare exceptions. As a result, the formation, content and interpretation of IP licences call for the application of relevant norms from numerous other fields of the law, such as contract law, property law, commercial law, consumer law etc. Despite efforts of harmonisation at the international and regional levels, these related areas of the law remain to a large extent nationally determined, influenced by the legal tradition of each …

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

Confusion Worse Confounded: A Comment On 'Withdrawl Of Clinical Trials Policy By Canadian Research Institute Is A 'Lost Opportunity For Increased Transparency', Jocelyn Downie, Francoise Baylis

Articles, Book Chapters, & Popular Press

According to a recent BMJ article on CIHR's decision to "disappear" its policy on clinical trial registration, "Ian Graham, CIHR's vice president Knowledge Translation and Public Outreach, stated the CIHR policy was removed 'as the overlap [with Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (TCPS 2)] will cause confusion and inconsistent application of the requirements.'"

Ironically, this explanation is itself confusing and inconsistent with previous decisions made by CIHR. There are at least three areas in which CIHR policy/guidelines overlapped with TCPS 2 (registration and results disclosure of trials, research involving Aboriginal People, and research involving human pluripotent …

The Changing Shape Of Legal Information, David H. Michels, Mark Lewis

Articles, Book Chapters, & Popular Press

As IT, Reference and Instruction librarians, we have experienced significant changes to the shape of legal information over the past five years. The changes are to both the very nature of legal information and how we perceive it. This can be illustrated by our use of the phrase "legal information". Depending on your age and life situation, the words "legal information" will have created specific images in your mind. These changes in perception challenge how we develop our programs of legal research instruction.

Safety First: Recognizing And Managing The Risks To Child Participants In Magnetic Resonance Imaging Research, Matthias Schmidt, Jocelyn Downie

Articles, Book Chapters, & Popular Press

Specialized and up-to-date knowledge is required to identify and manage the risks associated with advanced biomedical research. Additional complexities need to be considered when the research involves infants or young children. In this article, we focus on recent information about the physical risks of pediatric magnetic resonance imaging research and highlight information gaps. With an eye to assisting institutional review boards and researchers, we consider strategies for the management of these risks and formulate key questions aimed at exposing hidden hazards. Institutional review boards should ask these questions, and researchers should bear them in mind as they develop research protocols.

C. English, Ed., Essays In The History Of Canadian Law, Volume Ix: Two Islands: Newfoundland And Prince Edward Island, R Blake Brown

Dalhousie Law Journal

The Osgoode Society for Canadian Legal History has played a vital role in encouraging legal history research in Canada, and one of its most important programs has been the Essays in the History of Canadian Law series. Canada lacks a legal history journal, but since 1981 the Osgoode Society has provided an opportunity for scholars to publish their work in one of its collections. Two Islands is the ninth such edited volume by the Osgoode Society that bears the title Essays in the History of Canadian Law. The first two volumes, published in 1981 and 1983, were general collections containing …

Guiding Patrons To Online Health Information: Can Librarians Be Found Liable?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The amount of health information available on the Internet is growing rapidly and information intermediaries are increasingly being asked to help information seekers find and make sense of this information. This activity is for the most part benign from a legal perspective. However, there is a small possibility that, should the intermediary steer an information seeker to information that proves harmful to the seeker, the intermediary may be found liable for injuries incurred. In this paper, we examine the theoretical underpinnings of the relevant laws, clarify the risks, and recommend ways to minimize risk.

Reflections On The Commercialization Of Research Conducted In Public Institutions In Canada, Jocelyn Downie, Matthew Herder

Articles, Book Chapters, & Popular Press

We are presently witnessing a remarkable emphasis upon the commercialization of research in public institutions around the world. The issue is polarizing within the academic community, but the commercialization of research in public institutions has, in itself, largely failed to capture the public imagination. Nothing suggests that a large-scale debate on this issue is forthcoming in Canada or elsewhere. The purpose of this paper is therefore to build the case for why large-scale debate is necessary and to set the stage for that debate by providing an account of all of the alleged benefits and harms of commercialization. Our review …

On Letters Of Reference As Frames Of Reference, Roderick A. Macdonald, Alexandra Law

Dalhousie Law Journal

Requesting, writing and reading letters of reference are everyday features of academic life. Yet they are neglected as a matter of professorial training and their pedagogical importance is rarely acknowledged. This paper reviews various practical aspects of the reference process, with emphasis on its politics and ethics. It argues that letters of reference frame the lived experience of candidate, writer, reader and community-both for the present and the future.

A Brave New World Of Criminal Justice: Neil Gerlach's Genetic Imaginary, Stephen Coughlan

Articles, Book Chapters, & Popular Press

In this well written and intriguing book, Neil Gerlach asks why the criminal justice system has accepted DNA evidence in much the same way that our Anglo-Saxon predecessors accepted trial by ordeal. Why have we not instead shown the same caution we show polygraph evidence? To be sure, he does not present the issue in those terms, and might shudder at the analogy. Still, the central issue he pursues in the book is the question of how DNA evidence has managed to assume its current aura of infallibility, as evidence which is somehow uniquely objective and "true": how it has …

Queering Legal Education: A Project Of Theoretical Discovery, Kim Brooks, Debra Parkes

Articles, Book Chapters, & Popular Press

The article has two parts. Part II discusses the materials we reviewed to inform the development of a queer legal pedagogy. In particular, it examines the categories of queer legal scholarship and highlights the contributions of other outsider scholars to legal education debates. Early in our research, we found limited material on queer legal pedagogy, and we discovered nothing that posited a theoretical approach. We did, however, find rich resources written by other outsiders to law from which some design principles for queer legal pedagogy might be drawn. We should note at the outset that our goal in this Part …