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The Legal Realists on Political Economy
No full textAlongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an “attack on the legitimacy of the market.” Other scholars challenged this view and argued that there was no significant connection between legal realism and political economic ideas. I offer a corrective to both views. I first consider the work of five legal realists (Karl Llewellyn, Adolf Berle, William O. Douglas, Jerome Frank, and Thurman Arnold) and show that all held views that were well within the political-economic mainstream of their era, which did not challenge the legitimacy of market capitalism but wanted to see markets better regulated. I also show that for many of these realists, there were important connections between their jurisprudential and political-economic ideas. I then turn to some neglected writings of Felix Cohen to show that he too saw a direct link between his legal and economic ideas. However, unlike the other legal realists discussed here, he was a radical critic of market capitalism. I use his political-economic writings for a reconsideration of his better-known jurisprudential works
Luck of the Draw III: Using Al to Extract Data About Decision-Making in Federal Court Stays of Removal
No full textThis article examines decision-making in Federal Court of Canada immigration law applications for stays of removal, focusing on how the rates at which stays are granted depend on which justice decides the case. The article deploys a form of computational natural language processing, using a large-language model machine learning process (GPT-3) to extract data from online Federal Court dockets. The article reviews patterns in outcomes in thousands of stay of removal applications identified through this process and reveals a wide range in stay grant rates across many justices. The article argues that the Federal Court should take measures to encourage more consistency in stay decision-making and cautions against relying heavily on stays of removal to ensure that deportation complies with constitutional procedural justice protections. The article is also a demonstration of how machine learning can be used to pursue empirical legal research projects that would have been cost prohibitive or technically challenging only a few years ago-and shows how technology that is increasingly used to enhance the power of the state at the expense of marginalized migrants can instead be used to scrutinize legal decision-making in the immigration law field, hopefully in ways that enhance the rights of migrants. The article also contributes to the broader field of computational legal research in Canada by making available to other non-commercial researchers the code used for the project, as well as a dataset of several thousand Federal Court dockets that can be used for future research
How the Settler State Continues to Dispossess: Infrastructural (Dis)Entitlement on the Critical Minerals Frontier
No full textThe scramble for critical minerals to fuel the energy transition is driving new extractive frontiers across the globe. In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amidst a growing polarization in positions of Indigenous leadership. There is both a surging resistance to, and a resigned acceptance of, critical minerals mining by First Nations. Drawing on years of community-engaged research, I detail here the contemporary state tactics of infrastructural (dis)entitlement; infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is it politically or institutionally organized. But infrastructural entitlement is strategic and aggressive: Indigenous prosperity and inclusion are key elements of the contemporary justification for critical minerals extraction. Out of these dynamics, we can notice patterns of places towards which resources are flowing, and places out of which they are draining. The chronic lack of community-focused infrastructure in some remote First Nations – characterized as a form of ‘letting die’ -- creates an attritional force that means that their populations on the land are dwindling. In this context, debates about legal rights and entitlements in theory -- to consultation or even consent -- are secondary in importance to the actual capacity of Indigenous communities to deny access to the minerals on the ground. Presence on the landscape is thus a crucial factor in the struggle, and infrastructural (dis)entitlement is a key driver of ongoing dispossession
The Comprehensive Guide to Legal Research, Writing & Analysis
No full textThe Comprehensive Guide to Legal Research, Writing & Analysis, 4th Edition comes with free access to Casebook+, a digital student supplements package to enhance your learning and support your success.
The Comprehensive Guide to Legal Research, Writing & Analysis, 4th Edition offers an in-depth, comprehensive, and up-to-date resource to help readers develop the practical competencies required by the Federation of Law Societies of Canada. The text provides coverage on provincial, territorial, and federal research tools and processes. It places a keen emphasis on applying research techniques in both academic and professional settings.
The text is designed to help readers build key skills, such as analyzing issues and facts, researching legal statutes and cases from various levels of court, creating and maintaining research plans, developing legal arguments, and transitioning their legal writing skills from classroom to courtroom. The newest edition also features a brand new chapter dedicated to Indigenous legal research, written by the Indigenous Law Research Unit at the University of Victoria.https://digitalcommons.osgoode.yorku.ca/faculty_books/1414/thumbnail.jp
After Beaver: Reviving a Unified Test for Section 24 Charter Exclusion
Get PDFExclusion under section 24(2) of the Charter is an important part of every criminal judge’s remedial toolkit. But in Beaver, the Supreme Court significantly constrained access to section 24(2) by endorsing the “fresh start” doctrine. Evidence will not be “obtained in a manner” that infringed the Charter — and thus will be put beyond the remedial reach of section 24(2) — where police conduct following a breach “severs” its temporal, contextual or causal connection to the evidence sought to be excluded. In my view, this doctrine will deprive worthy claimants of proportionate remedies. In this paper, I explore whether claimants and concerned trial judges can turn to section 24(1) for help. Mining a rich jurisprudential vein extending back to the earliest days of the Charter, I argue that trial judges retain a discretion to exclude evidence under section 24(1), even where it was not obtained in a manner that infringed the Charter, where necessary to preserve the integrity of the justice system. My hope is that this discretionary power helps to fill the remedial gaps left after Beaver
Families and the Law : Cases and Commentary, 4th ed.
No full textFamilies and the Law, Fourth Edition continues its ongoing discourse in family law aiming to address three main questions - what constitutes a family, what role law plays in different types of families, and how families and family law evolved in the recent years.
Whilst addressing these questions, the fourth edition suggests a need to refocus on an “access to justice” for “families” and “law”. In continuation to exploring how families experience law in relation to family formation, interventions in intact families, and family dissolution, the authors continue to focus on issues of diversity among families and to explore critical and interdisciplinary literature about families and family law accordingly along with new developments. - From publisher websitehttps://digitalcommons.osgoode.yorku.ca/faculty_books/1431/thumbnail.jp
Is the Canada Disability Benefits Program Consistent with the Social Model of Disablement? The Perils and Promises of Equality Rights Through Income Support Programs
Get PDFThe social model of disablement stands for the proposition that it is structural barriers that impede the lives of people with disabilities. Disabled people should be included in all spheres of life, including employment, through the removal and eradication of barriers. At first glance, the expansion of disability benefits appears to contradict the goal of inclusion of people with disabilities in employment. In this article, I argue that the passage of the Canada Disability Benefit Act is fully consonant with the social model of disability. Using the work of disability rights scholar Marta Russell and the philosopher Cornelius Castoriadis, as well as selected findings from my study on the experiences of workers with disabilities concerning disability accommodations, I suggest that reducing poverty among people with disabilities will enable people with disabilities to flourish in a manner consistent with the social model
Pt 2B Peter in Court - His Brilliant Legacy: A Conference in Honour of Peter W. Hogg
No full textHis Brilliant Legacy: A Conference in Honour of Peter W. Hogg was held on January 10, 2024 at Osgoode Professional Development and co-hosted by Osgoode Hall Law School and Blake, Cassels & Graydon LLP.
This session includes:
Peter in Court: Lawyer and Advocate
This panel will cover the legal advocacy contributions of Dean Hogg, and will include a close inspection of Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79 and other cases in which Peter worked as advocate including Re Anti-Inflation Act [1978] 2 S.C.R. 373) and Hill v Church of Scientology.
Chair: Ms. Laura Dougan, Blakes LLP
Speakers: Ms. Cathy Beagan Flood, Blakes LLP, Mr. Michael Morris, Senior General Counsel, Department of Justice, The Hon. Justice Paul Schabas, Ontario Superior Court, Ms. Gail Sinclair, General Counsel, Department of Justice Canad