Law Commons^™

Volume 86, Issue 7 (2013)

Obiter Dicta

No abstract provided.

Time For Lawyers To Confront Anti-Roma Stereotypes, Sean Rehaag

Editorials and Commentaries

No abstract provided.

Volume 86, Issue 6 (2013)

Obiter Dicta

No abstract provided.

Fuller And Godel: Prophets Against The Evils Of Positivism: How The Natural Law Is Necessary To Provide Legal Meaning And Consistency, Henry James Garon

LLM Theses

Gödel showed that formal systems which discuss natural numbers cannot be complete or prove their own consistency. Incompleteness in this sense is limited to formal systems, and so is not applicable to law by it own terms.

Looking to the philosophy behind the Incompleteness Theorem, Gödel intended to show that positivism was a bankrupt world-view, and this resonates strongly with Lon Fuller. Fuller is analogous to Gödel in his condemnation of the positivist philosophy because he showed that a system of rules, by itself, was not capable of rendering judgments. A legal system is dependent upon an external morality, but …

Volume 86, Issue 5 (2013)

Obiter Dicta

No abstract provided.

Volume 86, Issue 4 (2013)

Obiter Dicta

No abstract provided.

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 …

Access To Civil & Family Justice: A Roadmap For Change, Action Committee On Access To Justice In Civil And Family Matters

Canadian Forum on Civil Justice

There is a serious access to justice problem in Canada. The civil and family justice system is too complex, too slow and too expensive. It is too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve. While there are many dedicated people trying hard to make it work and there have been many reform efforts, the system continues to lack coherent leadership, institutional structures that can design and implement change, and appropriate coordination to ensure consistent and cost effective reform. Major …

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 …

Grounding Equality In Social Relationships: Suspect Classification, Grounds Of Discrimination, And Relational Theory, Jessica Nichol Eisen

LLM Theses

This thesis considers the implications of relational theory for doctrinal debates in Canadian and American constitutional equality law, with a focus on grounds of discrimination and suspect classification. Chapter 1 sets out the fundamentals of feminist relational theory, emphasizing relational approaches to difference, equality, and rights. Chapter 2 considers the methodological implications of applying relational theory to doctrinal problems. Chapter 3 sets out the basic structure and evolution of the suspect classification inquiry in American equal protection law. Chapter 4 does the same in respect of the Canadian doctrinal approach to grounds of unconstitutional discrimination. Finally Chapter 5 ties together …

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 …

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

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

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 …

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 …

Volume 86, Issue 3 (2013)

Obiter Dicta

No abstract provided.

Volume 86, Issue 2 (2013)

Obiter Dicta

No abstract provided.

Volume 86, Issue 1 (2013)

Obiter Dicta

No abstract provided.

Limited Admissibility And Its Limitations, Lisa Dufraimont

Articles & Book Chapters

Among the challenges facing juries and judges in adjudicating cases is the obligation to use evidence for limited purposes. Evidence inadmissible for one purpose is frequently admissible for other purposes, a situation known as "limited admissibility". Where limited admissibility arises in jury trials, courts generally deliver limiting instructions outlining the inferences that can legitimately be drawn from the evidence and identifying prohibited lines of reasoning to be avoided. Limiting instructions represent an expedient solution to limited-admissibility problems, but they create obvious problems of their own. A thoughtful observer might suspect-as psychological studies confirm-that limiting instructions are likely to fail in …

Slow Violence, Law, And History, Doug Hay

All Papers

I read Rob Nixon’s engrossing and appalling book from the perspective of an historian who works on law. It opened to me an immense range of scholarship and activism of which I was only tangentially aware. But it also has themes that resonated, on almost every page, with things I study. Law certainly appears in the book. Here I want here to emphasize its importance to his argument, and to widen the discussion of chronologies.

Book Review: Visualizing Law In The Age Of The Digital Baroque: Arabesques And Entanglements, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

Meaningful Change For Family Justice: Beyond Wise Words: Final Report Of The Family Justice Working Group, Action Committee On Access To Justice In Civil And Family Matters

Canadian Forum on Civil Justice

Canadians do not have adequate access to family justice. For many years now reports have been telling us that cost, delay, complexity and other barriers are making it impossible for many Canadians to exercise their legal rights. More recently, a growing body of research has begun to quantify the extent of unmet legal need in our communities and to describe the disquieting individual and social consequences of failing to respond adequately to family legal problems.

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 …

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 …

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, …

Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker

Osgoode Hall Law Journal

No abstract provided.

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 …

“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 …

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 …

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.