Adams on Christie v. York on SSRN

Eric Adams of the University of Alberta Faculty of Law has posted "Errors of Fact and Law: Race, Space, and Hockey in Christie v. York" on SSRN. The article will appear in the U of T Law Journal. Thanks for the early notice, Eric!

I've read a draft of this article, heard Eric speak on it, and witnessed Philip Girard use it in his course in Canadian Legal History for first year law students. It is a terrific read, and perfect for teaching race and the law (the hockey/boxing helps!)

Here's the abstract:

  

Christie v. York has pride of place among decisions wrongly decided in Canadian legal history. Fred Christie and two friends had been on their way to a hockey game when they entered the York Tavern at the Montreal Forum seeking a beer before the game when the York denied them service on the grounds of race. Or so the facts tell us. As it turns out, a significant error has long been woven into the story of Christie v. York. What were Christie and his friends doing that night at the Forum? This article reveals that they were not attending a hockey game. And yet, even in error, hockey matters in the case, especially in Justice Henry Davis’s famous dissent. Recasting Christie as a case that turns on the judicial construction of facts, this article highlights the importance of real space and circumstance in creating notions of identity, belonging, and equality. While Christie’s errors of law have been the principal source of interest among legal scholars to date, this article argues that Christie’s facts, both real and imagined, provide a far richer contribution to the legal history of the complex relationship between race and space and law.

There is  new book out on Arbitration prior to and after the Conquest in Quebec, by Michel Morin and two colleagues. For a long time, it has been assumed that after the Conquest of 1760 and the establishment of British Courts in Quebec, French Canadians used arbitration to boycott British Courts in family affairs (i.e., issues concerning inheritance and matrimonial property, etc.). This boycott theory has more recently been challenged by historians, This book attempts to provide a comprehensive view of the relationship between arbitrators and the courts in France, England, the British colonies, New France and the Province of Quebec. It concludes that arbitration was generally used to resolve factual issues such as the value of goods or the partitioning of land, often with the active support of judges after a lawsuit was initiated. This was true from 1764 to 1784 in Quebec, when arbitrators were often appointed by the court. There are important fluctuations in the number of arbitrations found in judicial archives and notarized documents, but there is no apparent correlation with the introduction of English Law by the Royal Proclamation of 1763 or its repeal by the Quebec Act of 1774.

For more information see: http://www.editionsthemis.com/livres/livre-4821-les-tribunaux-et-l-arbitrage-en-nouvelle-france-et-au-quebec-de-1740-a-1784.html

Jim Phillips

Two legal history reviews in CJLS/RCDS

In the final (third) issue of volume 26 (2011) of the Canadian Journal of Law and Society/Revue Canadienne Droit et Societe (now at Project Muse) there are two book reviews of interest to legal historians.

Bobby Noble of English and Sexuality Studies at York University reviews (at pp. 672-674) U of A political scientist Catherine Kellogg's, Law’s Trace: From Hegel to Derrida (New York: Routledge, 2010, 184 p.) Noble finds Kellogg's work  "of tremendous significance for legal practitioners, theorists, and scholars of law, gender studies, philosophy, political science, queer theory, and cultural studies alike, " a stunningly rigourous deconstruction...."

Laure Blévis, MCF Sociologie, Université Paris Ouest Nanterre, France, reviews (at pp.680-682) Nicolas Mariot and Claire Zalc's Face à la persécution: 991 Juifs dans la guerre (Paris, Odile Jacob, 2010, 304 p.) 

Blévis is impressed by the work:

L’ouvrage de Nicolas Mariot et Claire Zalc est original à plus d’un titre. Adoptant une approche résolument micro-historique et monographique, les auteurs se proposent de suivre sur toute la durée de la seconde guerre mondiale les trajectoires et le destin souvent tragique de la population des Juifs de la ville de Lens. Ce faisant, il s’agit de mesurer au plus près des vies individuelles de ces Juifs lensois dont le lecteur découvre les noms, les familles, les occupations ou les adresses, les effets et les conséquences concrètes de la politique d’exclusion antisémite dans la France occupée.

Events this week.

There are two legal history seminars in Toronto this week. On Wednesday at 6.30, Li Chen of the University of Toronto will present to the Legal History Group his paper on 'Legal Knowledge and Justice in Late Imperial China, 1651-1911.' The seminar is in the Flavelle Room, Flavelle House, Faculty of Law. For a copy of the paper email j.phillips@utoronto.ca

On Thursday the Early Canada Seminar will feature Paul Craven of York University, on 'Dispensing Low Law in Pre-Confederation New Brunswick: Charles Reid Hatheway's Civil Docket.' The discussant is Jim Phillips of the University of Toronto. The seminar meets at 6  in Room 3041 of the Sidney Smith Building, University of Toronto. For a copy of the paper email ec.seminar@gmail.com

Jim Phillips

Harris on the CPR as property owner in Vancouver

Doug Harris of the UBC Faculty of Law has posted "A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver" on SSRN. This essay will appear in Canadian Property Law Stories, edited by James Muir, Eric Tucker and Bruce Ziff, The Osgoode Society for Canadian Legal History/Irwin Law, 2012.

Here's the abstract:

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.

Call for Papers

Followers of this blog may be interested in this call for papers

Jim Phillips

Special Issue "Gender and the Law in Nineteenth-Century England" (Summer 2012) Deadline for Submissions: May 15, 2012The nineteenth century was a period rife with watershed moments in the history of law and gender in England. It is also a period marked by contradictions: legislation that granted women greater rights under the law took place in fits and starts, and was never unaccompanied by cultural and social backlash. The period began, in 1801, with a national census that revealed women outnumbered men by 400,000, and ended with the repeal of the discriminatory Contagious Diseases Acts (1866) and the passage of the First Married Woman's Property Act (1870). Debates about the relationship between women and the law, and their attendant questions (e.g. Were women legal persons? Could they be?), permeated the legislation, court cases, newspapers, serials, and novels of the day. The roles, and legal power, of English men were also in flux during the period. The rise of industrialism, as well as the middle class, challenged the masculinity of the landed and leisured male aristocrat. Laws that! granted women greater rights in marriage, divorce, and ownership of earnings and property served to challenge the centrality of the male patriarch in traditional family structures. In turn, masculinity became increasingly defined by both state-sponsored and independent imperial ventures in the colonies. And by the end of the nineteenth century, a new version of manhood came into being. The rise of the aesthetes, as represented by the publicity surrounding Oscar Wilde, and the criticism of the aesthetes, as symbolized by his rather public trial, serve as the most infamous example of events that brought to light growing anxieties about masculinity, sexuality, and the law.This special issue of NCGS invites scholars from across the arts and humanities to contribute their work on the intersections between law, gender, femininity, masculinity, and sexuality. Topics that might be addressed include:* Queen Victoria* Marriage, Motherhood, and/or Families (including the Child Custody Act, the Matrimonial Causes Act, and the Married Woman's Property Act)* Governesses and their relationship to legal families* Property and inheritance* Authorship and the International Copyright Act* Education (including the establishment of Queen's College, London; Bedford College; and Girton College)* The "odd" women (singletons)* Women and reform movements (including the Voting Act and the Equal Franchise Act)* Labor laws (including the Ashley's Mines Act and the Factory Acts)* Health Care and the Contagious Diseases Act* Criminal Justice (including Prostitution, Sodomy Trials, and Prisons)* Imperialism, colonialism, and gender* Masculinities* Performance

Please send complete papers (of between 5,000 and 8,000 words) electronically for consideration to the guest editors of the special issue (Prof. Katherine Gilbert and Prof. Julia Chavez)

Deadline for submissions: May 15, 2012Nineteenth-Century Gender Studies is a peer-reviewed, online journal committed to publishing insightful and innovative scholarship on gender studies and nineteenth-century British literature, art and culture. The journal is a collaborative effort that brings together scholars from a variety of universities to create a unique voice in the field. We endorse a broad definition of gender studies and welcome submissions that consider gender and sexuality in conjunction with race, class, place and nationality. Nineteenth-Century Gender Studies publishes two regular issues a year, in addition to a specially-themed summer issue, and accepts submissions year-round.

Foster and McLaren on BC Court of Appeal

This article is a few years old now. While I usually stick to breaking news, I have been asked by a couple of people to include "useful" pieces from time to time, especially those which deal with 'background" issues of procedure and process or which appeared in journals which might not be at the top of legal historians' to-read lists.

"For the Better Administration of Justice: The Court of Appeal for British Columbia, 1910-2010," by Hamar Foster and John McLaren, was published in the Summer 2009 issue of BC Studies (at p. 5). It deals not only with the founding of the BC appeals court, but also Anglo-Canadian appeals generally, as well as BCCA bibliography.