Common Law Commons^™

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

Articles, Book Chapters, & Popular Press

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

Common Law Police Powers And The Rule Of Law, Steve Coughlan

Articles, Book Chapters, & Popular Press

Common law police powers have long been a source of some dispute in the Canadian criminal justice system. On the one hand, their existence is difficult to reconcile with predictability in the law, since in any individual case where a new power is created (generally referred to as use of the "ancillary powers doctrine"), it would not have been possible to know in advance that the police were actually acting legally. On the other hand the benefit for society purchased with that ambiguity is a more tailored response to the particular problem, which might also lead to better results in …

Bodies Of Law, Moira Mcconnell

Dalhousie Law Journal

"Don't judge a book by its cover" is a maxim most frequently recited to children by adults to explain the idea that one should not judge people on the basis of appearance. This maxim captures the gist of the topic explored in Alan Hyde's Bodies of Law. Bodies of Law seeks to expose the fact that we simultaneously view a person as an entity distinct from her or his physical manifestation while our understanding and response to a person is affected by our perceptions and judgments regarding their physical characteristics.

Public Housing And Equality Rights - Dartmouth/Halifax County Regional Housing Authority V. Irma Sparks, Stephen G. Coughlan

Dalhousie Law Journal

In Dartmouth/HalifaxCounty Regional Housing Authority v. Sparks, courts in Nova Scotia are once again called upon to consider whether tenants in public housing are entitled to the same protection as private tenants. The Supreme Court Appeal Division decided in Bernard v. Dartmouth Housing Authority that shorter notice periods for public housing tenants were not objectionable, under either s. 7 or s. 15 of the Charter. The issue will now return to the Court of Appeal, but in the meantime the County Court has held that Bernard still sets the standard in Nova Scotia.

Possibilities Of Reverter And Rights Of Re-Entry For Condition Broken: The Modern Context For Determinable And Conditional Interests In Land, Peter Devonshire

Dalhousie Law Journal

The transfer of ownership in real property is usually characterised by an outright grant of the fee simple which operates to vest an absolute interest in the grantee. Sometimes, however, land is conveyed in circumstances where the grantor purports to reserve a right to recover the property if a stipulated event occurs or if the grantee does, or abstains from doing, a particular thing. Depending upon the form of the instrument, this may give rise to a determinable fee simple or a fee simple upon condition subsequent.

Perestroika, Glasnost And Law Reform In The Soviet Union Today, V K. Zabigailo

Dalhousie Law Journal

Three years have passed since the elaboration, on the initiative of the Communist Party of the Soviet Union, of a new strategy of action for Soviet society - the acceleration of the country's social-economic development. Today this strategy is finding wide implementation in the policy of perestroika, the revolutionary renewal of society and profound changes in every sphere of its life - political, economical, social and spiritual. Formulated at the April Plenary Session of the Central Committee of the Communist Party of the Soviet Union in 1985 and the 27th Party Congress in 1986, the concept ofperestroika is based on …

A Shorn Beard, Tim Quigley

Dalhousie Law Journal

One of the prominent features of the common law is the concept of stare decisis. As a mechanism to provide certainty and predictability in the law, it is invaluable. Nonetheless, the doctrine of binding precedent, essential though it is to the orderly development of the law, can be misused. At times, the disingenuous application of stare decisis can lead to severe distortion of the law from what was actually meant in the case being cited as authority. Such, I submit, is the case with the intoxication rules.

Crossing The Lines In Dolphin Delivery: Some Thoughts On The Parameters Of The Charter Application - Unpublished, Dianne Potheier

Dianne Pothier Collection

A threatened picket line which never materialized turned into the unlikely setting out of which the Supreme Court of Canada drew the demarcation lines between litigation to which the Charter does and does not apply. I use the description "unlikely setting" not because it is odd that labour picketing was the context for debating the issue of Charter application. The considerable extent to which Canadian law leaves labour picketing to the common law makes it an obvious place to assess the Charter's application to the common law. But it could not have been less planned than Retail, Wholesale and Department …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

The Changing Common Law, Morton J. Horwitz

Dalhousie Law Journal

I am very pleased and honoured to have been asked to participate in this centennial celebration. For me, it underlines the common bonds between the people of Canada and of the United States, who, in spite of various stresses and strains, manage to live side by side in peace and mutual respect. May we continue to set an example for the rest of the world. Until I read John Willis' very interesting history of Dalhousie Law School, I had not fully realized that I am here simply as another link in a long-standing relationship between Dalhousie and Harvard Law Schools. …

The Future Of The Common Law Tradition, Alan Watson

Dalhousie Law Journal

The majority of Western systems of private law is habitually divided by scholars into civil law systems and common law systems. Eastern Canada fortunately partakes of both traditions - the civil law in Quebec and common law in the other provinces. One difference between the two traditions is the greater and earlier emphasis that was placed on the teaching of civil law in universities. In conformity to this, Quebec had three university law schools before the common law provinces had any; they were McGill (established in 1848), Laval (established in 1854), and Laval in Montreal (in 1878). But Dalhousie was …

The Common Law In The Twentieth Century, A. J. Stone Q.C.

Dalhousie Law Journal

Comparing the judicial with the legislative approach to law-making is the stuff of academic debate. I do not propose to enter upon that debate in this short discussion, except to concede that each approach has its strengths, each its weaknesses, and each its separate role. My purpose is, rather, to examine the making of law by the judiciary as it illustrates the inherent capacity of the common law for change and for growth in a dynamic society. This century has seen several extraordinary developments of the common law in Canada, England, and the United States, the leading example of which …

Law Reform In Quebec: A Cautionary Note, Philip Slayton

Dalhousie Law Journal

Law reform is everywhere in Canada. On all sides substantial changes in diverse areas of the law are constantly being proposed by government organizations whose only purpose is to make such proposals. The reforms mooted by these bodies (these reforms are typically described as "long overdue") are generally welcomed as correcting deficiencies in law and as signalling the legal system's responsiveness to changing social and other standards. Is the law reform pace, if not furious, too fast? What is the most appropriate forum for initiating change in law? Such questions seem reasonable enough, and yet a traditionalist might well argue …

In The Last Resort: A Critical Study Of The Supreme Court Of Canada, L. C. Green

Dalhousie Law Journal

Paul Weiler has given us a book which can help end the sterile debate between the analytical school and those who advocate a policy-oriented approach to legal analysis. Weiler demonstrates that each of these groups is making a valid claim on our legal system in terms of the common law tradition, and that an appropriate style of legal reasoning in the Supreme Court of Canada requires a blending of legal policy and doctrinal analysis. The interesting thing to discover is that the style of reasoning urged by Weiler looks like the tradition of the common law at its best, as …

"Appropriate And Just": Section 24 Of The Canadian Charter Of Rights And Freedoms And The Question Of Judicial Legitimacy, W A. Bogart

Dalhousie Law Journal

At the heart of procedural law lie questions concerning the role of courts in a liberal democratic state. What is the essence of their function? What is the proper relationship between the judiciary and other governmental institutions? What is the well-spring for values with which courts can make law? The questions are perennials and will be asked so long as there is interest in the workings and malfunctions of all aspects of government. Courts, like all institutions of government, are continually being assessed on their own terms and in relation to other branches. In Canada this examination has received a …

Developments In Legal Education, Faculty Of Law, Civil Law Section, University Of Ottawa, Raymond A. Landry

Dalhousie Law Journal

The present Faculty of Law of the University of Ottawa was inaugurated in 1953, although law had been taught at the Institution from 1887 to shortly before the First World War. This first venture in the teaching of the law was addressed to students both from Ontario and Quebec and the objective of the Faculty, at that time, was to teach both legal systems and to prepare students for the practice of law in both provinces. We will endeavour to present the developments in legal education from the perspective of the Civil Law Section although, unavoidably, the presence of the …

Equity 1900-1901 3rd Year, Donald Frank Matheson

Thompson Rare Book Collection

This notebook was used by D. Frank Matheson, an alumnus of Dalhousie Law School, Class of 1901, in his third year Equity Law class.

The Matheson Notebooks are a collection of seven bound notebooks used by Frank Matheson during his time at Dalhousie School of Law between 1898 and 1901. In 2018, they were found in the basement of a Lunenburg law firm and donated to Schulich School of Law. There are two or three notebooks from each year of Matheson’s studies, ranging slightly in size and style. The notebooks have pages made from linen rags, are bound with paper …

Equity: 1899-1900 Second Year, Donald Frank Matheson

Thompson Rare Book Collection

This notebook was used by D. Frank Matheson, an alumnus of Dalhousie Law School, Class of 1901, in his second year Equity Law class.

The Matheson Notebooks are a collection of seven bound notebooks used by Frank Matheson during his time at Dalhousie School of Law between 1898 and 1901. In 2018, they were found in the basement of a Lunenburg law firm and donated to Schulich School of Law. There are two or three notebooks from each year of Matheson’s studies, ranging slightly in size and style. The notebooks have pages made from linen rags, are bound with paper …