Osgoode Society for Canadian Legal History

Call for Papers

2012-03-04T11:58:00.002-05:00

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

2012-03-03T10:59:00.001-05:00

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.

The Case for an Aboriginal Film Commission

2012-02-28T12:12:00.004-05:00

I received an email the other day from Troy D. Hunter, J.D. as a comment to my post on Jennifer Reid's article on the Doctrine of Discovery. But I think it is better as a stand-alone post.

A member of the Ktunaxa first nation, Troy is a graduate of Osgoode Hall Law School articling as Aboriginal Rights and Title Coordinator at Secwpemc Nation Tribal Council. He is a proponent of extending the tradition of aboriginal histories in the form of story telling to other dramatic formats. (He is currently working on a play.)

Troy sent me a .pdf called "The Case for an Aboriginal Film Commission: An Education Revolution." I couldn't copy and paste the whole thing, but here are two excerpts:

...[T]he original peoples of Turtle Island (North America) have passed on their traditional knowledge from generation to generation through such means of an oral culture. However, that is but one method and there are many other methods such as the re-creation of an event as portrayed in song and dance in the west coast big houses. Likewise, in the prairies, we have a transference of history and knowledge which is remembered each year as sun dances are held with original teachings from the most-sacred, White Buffalo Calf Pipe Woman. It would be fair to say that it is an Aboriginal right to tell stories, to teach history, to transfer knowledge, to share ceremonies, not only within the distinctive society from whence knowledge originated from but also to other societies as a natural and normal progression of Indigenous law. Evidence of this cross-cultural connection of transference of knowledge that took place across Turtle Island over thousands of years can be found in our common Indian sign language, in our cultural practices that each took on their own distinctive ways, in our archaeological sites, in our rock art, in our grease trails, in our rivers and streams, and in our creation stories and oral histories, we have commonalities which could only have occurred by transferring knowledge from one cultural group to another....

... [I]t would only then be a natural progression of Aboriginal rights to use modern technology and formulas so as to pass on knowledge and wisdom to the future generations. This is also important because of the messages told from an original people’s perspective will be transferred to the hearts and minds of future generations and in doing so, our world will be richer for it.

Troy can be reached at kitunaha@hotmail.com if you would like to receive the entire document.

Mumme on Charter-like Claims Under Human Rights Codes on SSRN

2012-02-28T09:23:00.003-05:00

Claire Mumme of Osgoode Hall Law School has posted "The Strange History of Charter-Like Claims Against Legislated Government Services Under the Human Rights Codes in Canada" on SSRN. The article will appear in the Journal of Law and Equality.

Here's the abstract:

In Tranchemontagne v. Ontario (Director, Disability Support Program), the Ontario Court of Appeal entered onto the most recent battleground in the world of statutory human rights law: a challenge to the content of a statutorily-created government program under the auspices of the Human Rights Code instead of under section 15(1) of the Canadian Charter of Rights and Freedoms. In recent years government services claims under the Codes, of the sort exemplified by Tranchemontagne, have gained increasing visibility. In government services claims a challenge is brought under the Human Rights Codes to the substantive content of a statute that creates a government program, or discretionary decision-making under the statute’s terms.
These claims are almost identical to ones that would otherwise be brought under the section 15(1) constitutional equality provision, and the Codes provide an almost identical remedy. They do so in a much more accessible manner, because the Tribunals are faster and less expensive. And it can be argued, the analytical framework for determining a violation of the Human Rights Codes is significantly friendlier to claimants than is the constitutional test. A government service claim under the Codes thus allows claimants to effectively bypass a constitutional claim altogether. The availability of the lower burden of proof and the more accessible human rights framework is under increasing pressure, however. Government lawyers have recently begun arguing, as they did in Tranchemontagne 2, that the same jurisprudential test ought to apply under the Codes and under the Charter. But, as this article will seek to demonstrate, the relatively straightforward question of which jurisprudential standard should apply masks the complicated history of the role of statutory government services claims within Canadian equality law.
In this paper I explore the history of government services claims under the Human Rights Codes and their relationship to Bill of Rights and Charter equality claims. I argue that, much like section 15(1) claims, there is a tension in statutory government services claims between the courts’ ability to sit in judgment over the political decisions of elected officials, and the need for counter-majoritarian protection against state decisions that violate fundamental rights. Concerns over how to balance this tension has led the Supreme Court of Canada to narrow the constitutional equality provision in claims against state spending. This indeed is a significant part of the reasons why government services claims have become more prominent under the Codes. Yet, as the history presented here demonstrates, this democratic tension has not been explicitly examined in regards to government services claims under the Human Rights Statutes. And it is because of this absence, I argue, that the issue is now starting to creep towards the surface in the current debate over the appropriate jurisprudential standard in government services cases under the Codes. Indeed, at the core of the recent trend towards merging the constitutional and statutory standards appears to be a growing judicial unease over the differences between private and public sector discrimination.

Sykes on History of Animals on Trial

2012-02-26T15:02:00.002-05:00

Katie Sykes of the Schulich School of Law, Dalhousie University has posted "Human Drama, Animal Trials: What the Medieval Animal Trials Can Teach Us About Justice for Animals" on SSRN. The article appears in the second issue of volume 17 of the Animal Law Review.

Here's the abstract:

The legal system generally does little to protect animals, and one aspect of its inadequacy is a matter of formal structure: under United States and Canadian law, animals are not legal “persons” with an independent right to the protections of the legal system. There are calls to expand the status of animals in the law by providing them with legal standing, the right to be represented by a lawyer, and other formal protections. But, in a way, some of this has happened before. There is a long history, primarily from the medieval and early modern periods, of animals being tried for offenses such as attacking humans and destroying crops. These animals were formally prosecuted in elaborate trials that included counsel to represent their interests. The history of the animal trials demonstrates how, in a human-created legal system, legal “rights” for animals can be used for human purposes that have little to do with the interests of the animals. This history shows us that formal legal rights for animals are only tools, rather than an end in themselves, and highlights the importance not just of expanding formal protections, but of putting them to work with empathy, in a way that strives (despite the inevitable limitations of a human justice system in this respect) to incorporate the animals’ own interests and own point of view.

Toronto Legal History Group

2012-02-26T09:24:00.003-05:00

Although I am listed as a founder of this blog (thanks Mary), I am embarrassed to say that I have never posted. It's time I started.

People in the Toronto area interested in legal history are welcome to attend meetings of the Toronto Legal History group. We meet every other Wednesday at 6.30 at the U of T law School (Flavelle Room, Flavelle House) to discuss a paper. Most presenters are from the local area but a few are guests brought in from outside. If you want to be added to the email list and to receive the papers, please contact me at j.phillips@utoronto.ca

Our next session is on February 29th, and will feature a paper by Coel Kirkby, a Canadian graduate student doing his doctorate at Cambridge. It is entitled "'Indian Enfranchisement' and the Imperial Origins of the Canadian Constitution."

Submissions sought for Peter Oliver Prize

2012-02-17T10:18:00.000-05:00

Peter Oliver Prize in Canadian Legal History

The Osgoode Society for Canadian Legal History invites nominations for the Peter Oliver Prize in Canadian Legal History. The prize, named for Professor Peter Oliver, the Society's founding editor-in-chief, is awarded annually for published work (journal article, book chapter, book) in Canadian legal history written by a student. Students in any discipline at any stage of their careers are eligible. The Society takes a broad view of legal history, one that includes work in socio-legal history, legal culture, etc., as well as work on the history of legal institutions, legal personnel, and substantive law.

Faculty members are encouraged to nominate student work of which they are aware, and the Society will also be pleased to accept self-nominations. Those nominating their own work should send a copy of it to the Society. The deadline for nominations for the 2012 Prize, to be awarded for work published in 2011, is April 30, 2012.

Please send nominations to Professor Jim Phillips, Editor-in-Chief, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto ON M5H 2N6, or by email to j.phillips@utoronto.ca

Applications sought for McMurtry Fellowship

2012-02-17T10:16:00.003-05:00

R. Roy McMurtry Fellowship in Canadian Legal History
The R. Roy McMurtry Fellowship in Canadian Legal History was created on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry. It honours the contribution to Canadian legal history of Roy McMurtry, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President. The fellowship was established by Chief Justice McMurtry's friends and colleagues, and endowed by private donations and the Law Foundation of Ontario.
The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University. The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow in Canadian legal history. The selection committee may take financial need into consideration.
The fellowship will be awarded in June 2012, and will have a value of $16,000. Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History and consisting of Society Directors and academics. Those interested should apply by sending:
A full curriculum vitae
A statement of the research, not exceeding 1,000 words, that they would conduct as a McMurtry fellow. The statement should clearly convey the nature of the project, the research to be carried out, and the relationship, if any, between the project and previous work done by the applicant.
The names and addresses (including email addresses) of two academic referees. Please do not ask your referees to write; the Society will contact them if necessary.
For persons not currently connected with an Ontario University, an indication of how and when they intend to obtain such a connection.
Please send applications to Marilyn Macfarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline for applications is April 30, 2012. For more information contact mmacfarl@lsuc.on.ca.

Updated: Harris on Condominiums and Property Law in Vancouver

2012-02-13T14:31:00.001-05:00

Update: I have been informed that the link to Doug Harris's paper was broken. I have fixed it (I hope.) Thanks to Chris Jaglowitz for pointing this out.

Doug Harris of the Faculty of Law at UBC has posted "Condominium and the City: The Rise of Property in Vancouver" on SSRN. The article will appear in volume 36 issue 3 of Law & Social Inquiry.

The abstract:

Condominium is a form of land ownership that combines private ownership of an individual unit in a multi-unit building with an undivided share of the common property in the building and a right to participate in the collective governance of the private and common property. Introduced by statute across North America in the 1960s, condominium facilitated the vertical subdivision of land and enabled a massive increase in the density of private interests. This article describes condominium and considers the justifications that were offered for this rearrangement of property. It then chronicles the introduction of condominium to the city of Vancouver and maps its spread across the city from 1970 to 2010. In doing so, the article reveals that condominium, a legal innovation without peer in its capacity to increase the density of private ownership in land, has provided the legal architecture of ownership for the remaking of Vancouver.

Mazzacano on Puritanism and Politices in Boston's General Court

2012-02-13T13:55:00.001-05:00

Peter Mazzacano of Osgoode Hall Law School has posted "Puritanism, Godliness, and Political Development in Boston and the General Court (1630-1640)" on SSRN. The article also appears in The Journal Jurisprudence, vol. 12, 2011.

Abstract:

The goal of this article is to examine the degree to which Puritanism influenced early American political culture. That is, how did Puritan values and practices facilitate the development of an exceptional political culture during the formative years of Massachusetts Bay? Utilizing a case-study method of analysis, this article examines the political developments in the General Court and the town of Boston during the decade 1630 to 1640. The research methods used are primarily the writings of leading Puritans, and concomitant town, church, and colonial records. The main finding is that the Puritans paid little heed to notions of democracy, theocracy, oligarchy, or British political traditions; instead, Puritan institutions and practices were based on the primary Puritan ideal of godliness. However, the formative influence of the godly ideal inadvertently reinforced democratic and republican ideals. The conclusion is that the focus on godliness provides a comprehensive and multiple explanations for the course of political developments in early Massachusetts Bay.

Reid on Doctrine of Discovery

2012-02-13T10:48:00.000-05:00

"The Doctrine of Discovery and Canadian Law" by Jennifer Reid appears in Canadian Journal of Native Studies, 2010, Vol. 30 Issue 2.

Here's the abstract (proposal):

This article will focus on a set of fifteenth-century assumptions regarding sovereignty known as the Doctrine of Discovery. The doctrine was the "legal" means by which Europeans claimed preemptive rights in the New World, and it underlies the relationship between Indigenous and non-Indigenous peoples to this day. This article will explore the Doctrine's development from its inception to its integration into Canadian law. By demonstrating continuity between fifteenth century papal bulls, the Royal Proclamation, the Constitution Act, 1982, and Supreme Court holdings, I will argue that Aboriginal title in Canada was—and continues to be—entrenched in the Doctrine of Discovery.

Phillips and Miller on Judicial Reform in Nova Scotia

2012-02-13T10:20:00.001-05:00

“Too Many Courts and Too Much Law”: The Politics of Judicial Reform in Nova Scotia, 1830–1841" by Jim Phillips and Bradley Miller appears in the current issue of the Law & History Review.

Here's the abstract:

The 1830s was Nova Scotia's “Age of Reform.” Although historians have documented the growing tensions between elected Assembly and appointed lieutenant governor and Council, the concomitant attacks on the established economic elite, and the rise of a distinct party in colonial politics, little attention has been paid to the role played by the colony's courts and judges in this crucial decade. This lacuna is surprising, because reformers were convinced that the judges of the Nova Scotia Supreme Court (NSSC) were bulwarks of the old order and barriers to progress, and as their movement gained influence in the 1830s it brought the judges and the court system to the fore. This period saw numerous proposals for reform to the colony's laws and legal system, some effected and others not. Here we examine those aspects of the reform platform that were most hotly contested precisely because they exemplified the ways in which controversies about the legal system both reflected and exacerbated broader political and social change. The most important issues were judicial fees and the role of the chief justice as head of the Tory-dominated lieutenant governor's Council. We also examine two other matters in which the judicial system was directly linked to reformers' general demands for a system of government more responsive to the needs of ordinary Nova Scotians: judicial salaries and the role of the lower civil courts

Congratulations (again) to Brad Miller..

2012-02-08T12:21:00.002-05:00

...who has been appointed to a tenure track position at the UBC Department of History.
Hat tip to Jim Phillips for the news.

Dedek on Medieval Scholastic Jurisprudence

2012-02-07T15:34:00.001-05:00

Recently posted on SSRN, "The Splendour of Form: Scholastic Jurisprudence and 'Irrational Formality'" by Helge Dedek of McGill University Faculty of Law. The article will appear in the second issue of volume 5 of Law and Humanities.
Here's the abstract:

The Western legal tradition portrays itself as a tradition of rationality. Although this tradition has its roots in the academic treatment of law at the medieval university, the medieval juridical mannerisms seem to be anathema to the Weberian ‘formal rationality.’ Scholasticism has become the synecdoche for the problems we moderns have when trying to access medieval thought. Medieval Scholastic jurisprudence seems prima facie strangely formalistic, guided by ambitions that are incomprehensible to the ‘modern mind’. Yet medieval jurisprudence is not as remote from us as it might seem at first glance. This paper aims to demonstrate that what connects the medieval and the modern jurist are aspects of legal discourse that cannot be explained in ‘rational’ terms. To this end, the paper focuses on the ‘legal aesthetics’ of the Scholastic jurists, exemplified by an inquiry into the doctrine of ‘interesse’, one of the most controversial areas of the law of damages

ANZLHS Conference Call for Papers: "Receiving Laws/Giving Laws"

2012-02-07T09:06:00.000-05:00

From Shaunnagh Dorsett, a call for papers for the 31st Annual Conference of the Australia New Zealand Law and History Society to be held at the University of Technology, Sydney (UTS), 10-12 December 2012 (update: website here.)No doubt Philip Girard will be providing some Canadian perspective in his keynote address; but I am sure he would like plenty of company from compatriots.

The conference theme is “Receiving Laws/Giving Laws”. It is orientated towards the movement, transmission and transformation of laws and their histories – across Empire, through time, in and between genres and disciplines. The receiving and giving of laws could be addressed in a broad range of ways. How do laws and histories translocate? By what means (doctrinal, processual, cultural) are laws transmitted and received in new places? What transformations happen as a result of this movement? Whose histories, cultures and laws appear and disappear through these transformations? What kinds of interventions can bring about ways of transforming, perceiving and transmitting the law and its histories/cultures?

The keynote speaker is Professor Philip Girard, University Research Professor and Professor of Law, History & Canadian Studies, Schulich School of Law, Dalhousie University. There will also be a plenary panel in which three scholars will address the theme of the conference, each through a different genre of legal history: Professor Anne Orford, Melbourne Law School; Dr Katherine Biber, School of Law, UTS; Dr Damen Ward, Crown Law Office, Wellington.

The organising committee would welcome interest from historians from any jurisdiction. The call for papers will be open until late June. Inquiries or paper proposals - including a title, brief abstract and brief biography - should be sent to shaunnagh.dorsett@uts.edu.au

Ziff on Cave Wars on SSRN

2012-02-06T16:05:00.000-05:00

Bruce Ziff of the U of A has posted a working paper on SSRN which looks fascinating (as we expect from Bruce Ziff. I wish I could hear him present on it. I bet he has great pictures.)
It's called "The Great Onyx Cave Cases--A Micro-History." Thanks to Eric Adams for the tip.

Here's the abstract:

Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?

Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.

Conference Programme available for Legal Histories of the British Empire Conference

2012-02-01T12:34:00.001-05:00

To be held in Singapore this summer, with an impressive number of Canadians presenting.
The programme is not yet posted on theconference website, but will no doubt be soon. Anyone wanting an advanced copy should contact Jim Phillips at j.phillips@utoronto.ca.

Deadline of call for papers extended for CLSA Congress 2012

2012-01-29T16:26:00.001-05:00

Procrastinators rejoice (that includes me, this time). Take note of the possiblility of joint panels with the Canadian Sociological Association and Canadian Historical Association. The CLSA takes interdisciplinarity seriously:

The deadline for submissions to the annual meeting of the Canadian Law and Society Association (CLSA) has been extended to February 3. Please see the Call for Papers, below.
L'échéance de présentation des résumés pour la conférence annuelle de l’Association canadienne droit et société (ACDS) est maintenant le 3 février. SVP voyez l'appel à communication.

2012 Canadian Law and Society Association Annual Meeting
Crossroads: Scholarship for an Uncertain World
81st Congress of the Humanities and Social Sciences
Call for Papers
The program committee of the Canadian Law and Society Association invites submissions for the Congress of the Humanities and Social Sciences to be held at the University of Waterloo and Wilfrid Laurier University in Waterloo, Ontario. The theme of Congress 2012, Crossroads: Scholarship for an Uncertain World is an opportunity for socio-legal scholars to explore law’s place in the contingencies of world events, past, present and future. We welcome proposals for papers in any area of law and society scholarship. We encourage participants to submit suggestions for complete panels and roundtables but also welcome individual submissions. Graduate student events and workshops will be an integral part of CLSA 2012.
We are open to having a number of panels that focus on particular themes, such as critical criminology, gender & sexuality and indigenous legal knowledge. As well, we are attempting some measure of coordination between our meeting and those of the Canadian Sociological Association and the Canadian Historical Association, so if you are planning to participate in or even just attend either of those meetings, please do feel free indicate that on your submission.
Where: Wilfrid Laurier University and the University of Waterloo, Waterloo, Ontario
When: 27-29 May 2012
Deadline: January 27, 2012 (early expressions of interest are encouraged and appreciated)
Submission information: Please forward panel and paper proposals by email attachment to Lyndsay Campbell, Chair, CLSA Programme Committee, lyndsay@iii.ca. Presenters must be members of the CLSA. They must also pay the Congress’s fees, including the society fee for the CLSA.
Please supply the following information in a Word file (.docx, .doc, or .rtf) attached to your email:
Name
Position (if you are a graduate student, please specify)
Department/Unit
Institution
Other presenters, their institutional affiliations and their contact information
Panel theme (if you are submitting a proposal for a full panel)
Paper title (or titles, if a full panel is being submitted)
Abstract(s) (150-250 words each)
Keywords describing your topic (to be used in coordinating papers on panels)
Technological needs (PowerPoint/projector, accessibility requirements etc.)
Are you willing to act as a Chair for another panel?
Information on registration, accommodation and other Congress activities will be available through the websites of the Federation, the University of Waterloo, and Wilfrid Laurier University. A registration guide should be available in January 2012.
*******************************************************************
Conférence 2012 de l’Association Canadienne Droit et Société
À la croisée des chemins: le savoir face à un monde incertain
81e Congrès des sciences humaines
Appel à communication
La conférence annuelle de l’Association canadienne droit et société (ACDS) aura lieu à l’Université de Waterloo et l’Université Wilfred Laurier les 27 au 29 mai 2012. Le comité de programme de l’ACDS vous invite à soumettre vos communications. Toutes présentations portant sur des recherches sociojuridiques en cours sont bienvenues, mais nous accueillerons avec un intérêt particulier des propositions relatives aux travaux interdisciplinaires et nous encourageons les propositions en rapport avec la thématique de la conférence, À la croisée des chemins: le savoir face à un monde incertain. Cette thématique nous interpelle d’explorer la place du droit dans les actualités mondiales du passé, du présent, et dans l’avenir. Bien que l’Association accueille favorablement les propositions de présentation individuelle, elle encourage aussi les propositions sous forme de table ronde.
L’ACDS accueille cette année des projets de propositions de recherche à l’intersection du droit, de la sociologie et de l’histoire. Nous espérons donc coordonner notre conférence annuelle avec celles de la Société canadienne de sociologie et la Société historique du Canada. Veuillez, svp, nous aviser si vous croyez ou aimiez participer à ces réunions.
Lieu: l’Université Wilfrid-Laurier et l’Université Waterloo
Dates du Congrès: 27-29 mai 2012
Échéance de présentation des résumés: 27 jan 2012
Format: Toutes les communications doivent être soumises sous une forme électronique. Veuillez envoyer les détails de votre présentation à Lyndsay Campbell, présidente du comité de programme : lyndsay@iii.ca.
Inscription: Plus ample information concernant l’inscription, le logement, le programme, la date limite de l’inscription à tarif réduit et les événements suivront sous peu aux sites web du Congrès et de l’ACDS qui seront développés dans les prochains mois (et sûrement au mois de janvier): http://www.fedcan.ca/content/fr/320/accueil.html
Notez que vous devrez être membre en règle de l’ACDS. Vous
devez aussi avoir réglé vos frais d’adhésion. Ce faisant, assurez-vous de compléter votre inscription en visitant le site de l’Association : http://www.acds-clsa.org/ ainsi qu’avec la fédération : http://www.fedcan.ca/content/fr/320/accueil.html. Les étudiant(e)s des cycles supérieurs sont encouragés de devenir membre de l’ACDS et d’assister au Congrès.
Veuillez fournir les renseignements suivants dans un fichier Word (.docx, .doc ou .rtf) annexé à votre courriel :
Nom
Poste (si vous êtes étudiant des cycles supérieurs, veuillez le préciser)
Département ou unité
Établissement
Les autres conférenciers, les établissements avec lesquels ils ont des liens et leurs coordonnées
Thème du groupe de discussion (si vous présentez une proposition pour un groupe de discussion complet)
Titre du mémoire (ou titres des mémoires, si vous présentez une proposition pour un groupe de discussion complet)
Résumé(s) (de 150 à 250 mots chacun)
Mots clés décrivant votre sujet (pour coordonner les mémoires des groupes de discussion)
Besoins technologiques (PowerPoint/projecteur, besoins en matière d’accessibilité, etc.)
Acceptez vous de présider un autre groupe de discussion?

Call for contributions on history of blasphemy

2012-01-29T16:20:00.000-05:00

Also via H-Law, open to Canadian legal historians who have an eye for the bigger picture, inter-disciplinarity, volume coherence and a non-specialist audience:

Looking for a legal historian to join a distinguished list of international scholars in contributing to an interdisciplinary volume of essays. The volume addresses the theme of blasphemy or sacrilegious expression in historical and contemporary contexts. One, perhaps two, slots remain. Geographical and chronological specialization is open, but the contribution should offer insightful perspective with implications transcending a particular time and place. The contribution should be accessible to non-specialists and the contributor willing to work with editors to ensure dialogue between essays in the volume. Please send C.V. and 500-750 word abstract to Christopher S. Grenda at csgmd1@aol.com

Call for legal history syllabi

2012-01-29T15:46:00.000-05:00

From John Wertheimer via H-Law:

The American Society for Legal History's Graduate Student Outreach Committee seeks your legal history syllabi. If you have taught a legal history course, please send me a copy of your syllabus. All fields (U.S., non-U.S., ancient, modern) and all levels (graduate, undergraduate, law school, advanced seminar, introductory survey) accepted. Please send syllabi as e-mail attachments to: John Wertheimer, Davidson College, jowertheimer@davidson.edu.

Note the inclusion of non-U.S. as an invited field. Most of these collections are confined to American centric courses, which also tend to exclude non-Americanists by their heavy emphasis on the U.S. constitution and Supreme Court. It would be nice to have an all-Canadian collection, and I believe the new Osgoode Society website will attempt this, but in the meantime, send your syllabus to John W.!

New book by Ben Geva on the legal history of payment order

2012-01-13T15:56:00.000-05:00

And people think my interest in municipal taxation is esoteric.... (Actually they think it's weird, but esoteric sounds better.)

Benjamin Geva of Osgoode Hall Law School has just published The Payment Order of Antiquity and the Middle Ages: A Legal History, number 6 in Hart Monographs in Transnational and International Law (under the editorship of Canada's newest NDP candidate.)

It could use a catchier title, but the cover illustration is lovely, and the book itself sounds intriguing. Amazon lists it as temporarily out of stock, so to order go to the Hart website. Caveat: at $160.51 and L95.00 it's a lot pricier than most legal histories. Also a little lengthier than the usual, at 784 pages.

Here's the publisher's blurb:

Examining the legal history of the order to pay money initiating a funds transfer, the author tracks basic principles of modern law to those that governed the payment order of Antiquity and the Middle Ages. Exploring the legal nature of the payment order and its underpinning in light of contemporary institutions and payment mechanisms, the book traces the evolution of money, payment mechanisms and the law that governs them, from developments in Ancient Mesopotamia, Ancient Greece, Rome, and Greco-Roman Egypt, through medieval Europe and post-medieval England. Doctrine is examined in Jewish, Islamic, Roman, common and civil laws.

Investigating such diverse legal systems and doctrines at the intersection of laws governing bank deposits, obligations, the assignment of debts, and negotiable instruments, the author identifies the common denominator for the evolving legal principles and speculates on possible reciprocity. At the same time he challenges the idea of 'law merchant' as a mercantile creation.

The book provides an account of the evolution of payment law as a distinct cohesive body of legal doctrine applicable to funds transfers. It shows how principles of law developed in tandem with the evolution of banking and in response to changing circumstances and proposes a redefinition of 'law merchant'.

The author points to deposit banking and emerging technologies as embodying a great potential for future non-cash payment system growth. However, he recommends caution in predicting both the future of deposit banking and the overall impact of technology. At the same time he expresses confidence in the durability of legal doctrine to continue to evolve and accommodate future payment system developments.

Montreal group to explore the legal in the historical and vice versa

2012-01-04T16:10:00.000-05:00

Colour me jealous. First time I wished I lived in Montreal.

A legal history reading group is to be hosted by McGill's Institute for the Public Life of Arts and Ideas beginning January 17: LEGAL HISTORY: EXPLORING THE LEGAL IN THE HISTORICAL & THE HISTORICAL IN THE LEGAL.

According to my source, Charles Hoffman, Richard H. Tomlinson Doctoral Fellow
McGill University Institute of Comparative Law (whom I thank for the info):

Over the course of seven sessions, this reading group will explore how historians and legal scholars specifically, and other scholars generally, approach legal history. The goal is to provide a forum in which scholars from a variety of disciplines can come together to discuss legal historical issues and questions. In particular, this reading group will serve as a venue for those interested in legal history to learn from one another and discuss their common research interests. We will begin by asking what “legal history” is, and then explore how legal scholars utilize history and how historians utilize the law. For most sessions, we will read and contrast an article written by a Professor of History with an article written by a Professor of Law on a related topic. Topics will include the study of legal cases, legal biographies, labour conflict, urban pigkeeping, “monstrous births”, and the use of fiction in legal history.

PLACE: 3610 McTavish St., Room 21-6
TIME: 2:00-4:00pm
DATES: 17 January, 31 January, 14 February, 28 February, 13 March, 27 March, 3 April

For more information, visit http://www.mcgill.ca/iplai/reading-groups/legal-history (which provides a pdf seting out the themes and readings, with pictures no less!) or email charles.hoffman@mail.mcgill.ca .

It would be wonderful if one or more of the participants could report on one or more of these sessions for this blog. No need for live-blogging; after the fact reflections would be great. Send them along at I will post them verbatim or edited, your choice!

Legal History of the British Empire Conference in Singapore

2012-01-04T10:58:00.001-05:00

Happy 2012 to all!

From Shaunnagh Dorsett of the Faculty of Law, University of Technology, Sydney NSW, a call for registrations for the Legal History of the British Empire Conference (title: Law, Spaces, Cultures & Empire: Engagements & Legacies) to be held in Singapore, July 5-7, 2012. The keynote is Professor Catherine Hall of University College London. The plenary speaker is the Hon, Justice Andrew Phang of theSingapore Court of Appeal. In addition, there is a Blue Ribbon Panel consisting of our own John Weaver of McMaster University along with Martin Wiener of Rice University, and Bridget Brereton of University of the West Indies. For more info, see the conference website. While the call for papers is closed (a draft program will soon be available on the website,) registrations are open for non-presenters.

If you happen to be in the area this summer, or have travel money to spend, this looks like a good one.

More kind words for Sharpe's The Last Day,The Last Hour: The Currie Libel Trial

2011-12-08T14:25:00.001-05:00

From Gary P. Rodrigues at Slaw.

Says Gary:

"My suggestion, if you haven’t already done so, is to check it out. The Last Day, The Last Hour is a good read and a valuable contribution to Canada’s legal, political and military history. You will like it."

Mr. Justice Sharpe's new book, The Lazier Murder: Prince Edward County, 1884, the Osgoode Society's book of the year for 2011, is just as good a read. Either of these books would make a good Christmas present....

Philip Girard new legal history columnist at Law Times

2011-12-05T14:47:00.001-05:00

Astute readers of the Law Times will have noticed that Philip Girard has succeeded Christopher Moore as the legal history columnist.

Here's the link to the November 21st issue. Philip's column is on page 6.

Chris did a great job with this gig--accessible yet scholarly--and fans of legal history will no doubt find Philip's efforts excellent as well. Caveat lector: the digital version of the Law Times is not easy to navigate. But the print version is fine--just turn the pages.

MacLaren to speak on Comparative Turn at Griffith Legal History Seminar

2011-12-05T13:50:00.001-05:00

Readers in the vicinity of Griffith Law School (South Bank Campus, Brisbane, Queensland, Australia) may be interested in hearing John MacLaren at the Legal History Seminar Series on Tuesday, December 13, 2011, 5:30 for 6 pm. Registration required (classy, I guess?) Professor MacLaren will speak and answer questions about the 'Comparative Turn in Legal History,' for which task no-one is more qualified. More information here.

Schneiderman review of Vaughan biography of Haldane

2011-11-30T21:20:00.001-05:00

We get requests!

David Schneiderman of the U of T Faculty of Law and Department of Political Science has sent along a note about his review of Frederick Vaughan's biography, Viscount Haldane: 'The Wicked Stepfather of the Canadian Constitution.' 'Haldane unrevealed' will appear in the McGill Law Journal and is currently available on SSRN.

Suffice it to say Schneiderman is not a fan of the book. Here's the abstract:

When historians proffer historical truths they "must not merely tell truths," they must "demonstrate their truthfulness as well," observes Hackett Fisher. As against this standard, Frederick Vaughan's intellectual biography of Richard Burdon Haldane does not fare so well. Vaughan argues that Viscount Haldane's jurisprudential tilt, which favoured the provinces in Canadian federalism cases before the Judicial Committee of the Privy Council (JCPC), was rooted in Haldane's philosophizing about Hegel. He does so, however, without much reference to the political and legal currents within which Haldane thought, wrote, and thrived. More remarkably, Vaughan does not derive from his reading of Haldane and Hegel any clear preference for the local over the national. We are left to look elsewhere for an explanation for Haldane's favouring of the provincial side in division-of-powers cases. Vaughan additionally speculates about why Haldane's predecessor Lord Watson took a similar judicial path, yet offers only tired and unconvincing rationales. Vaughan, lastly, rips Haldane out of historical context for the purpose of condemning contemporary Supreme Court of Canada decision-making under the Charter. Under the guise of purposive interpretation, Vaughan claims that the justices are guilty of constitutionalizing a "historical relativism" that Vaughan wrongly alleges Hegel to have propounded. While passing judgment on the book's merits, the purpose of this review essay is to evaluate the book by situating it in the historiographic record, a record that Vaughan ignores at his peril.

Constance Backhouse wins SSHRCC Gold Medal

2011-11-26T05:23:00.001-05:00

Breaking news from IFLS: Constance Backhouse has been awarded a Gold Medal from the Social Science and Humanities Research Council of Canada for her achievement in interdisciplinary research in law.

Congratulations yet again, Constance!

From the press release:

Since Backhouse began her career in the study of law more than 30 years ago, her chosen topics have been issues of major importance in Canada’s legal history: the legal status of women, the role of women in the legal profession, and racism in the legal system. Her research and analysis of these topics have highlighted an important part of our legal and societal history, which, in turn, has helped enrich our understanding of our current legal framework.

Throughout her career, Backhouse has received high acclaim for her research from both academic and non-academic communities. Among her many awards and honours are the Killam Prize (2008), a Trudeau Fellowship (2006-09), the Order of Canada (2008), and the Order of Ontario (2010). In 2007, she became the first non-American historian to be elected president of the American Society for Legal History.

Backhouse has authored numerous critically acclaimed books, including Legal history of Racism in Canada, which was awarded the 2002 Joseph Brant award by the Ontario Historical Society as the “best book in multicultural history published within the past three years.” Carnal Crimes: Sexual Assault Law in Canada, 1900-1975, published in 2009, was lauded as one of the most important texts ever published on sexual assault law. In honour of her distinguished contribution to law and letters in Canada, Backhouse was awarded the David W. Mundell Medal by the attorney general of Ontario this past spring

.Not least of her many achievements is putting Canadian Legal History on the map (and keeping it there) and her encourgement and support for legal historians, for which there is no reward but our continued thanks and appreciation.

Call for Legal History papers for Congress 2012

2011-11-25T09:05:00.001-05:00

And other socio-legal subjects...

The important thing: Lyndsay Campbell is to be commended for reaching out to the Canadian Historical Association to co-ordinate Canadian legal history panels with the Canadian Law and Society Association, and I hope lots of us take her up on this initiative.

Here's the CFP: (It's long, so I didn't include the French version which is, or will be shortly, available at the CLSA/ACDS website. Information on Congress 2012 is here.)

The program committee of the Canadian Law and Society Association invites submissions for the Congress of the Humanities and Social Sciences to be held at the University of Waterloo and Wilfrid Laurier University in Waterloo, Ontario. The theme of Congress 2012, Crossroads: Scholarship for an Uncertain World is an opportunity for socio-legal scholars to explore law’s place in the contingencies of world events, past, present and future. We welcome proposals for papers in any area of law and society scholarship. We encourage participants to submit suggestions for complete panels and roundtables but also welcome individual submissions. Graduate student events and workshops will be an integral part of CLSA 2012.
We are open to having a number of panels that focus on particular themes, such as critical criminology, gender & sexuality and indigenous legal knowledge. As well, we are attempting some measure of coordination between our meeting and those of the Canadian Sociological Association and the Canadian Historical Association, so if you are planning to participate in or even just attend either of those meetings, please do feel free indicate that on your submission.

Where: Wilfrid Laurier University and the University of Waterloo, Waterloo, Ontario
When: 27-29 May 2012
Deadline: January 27, 2012 (early expressions of interest are encouraged and appreciated)
Submission information: Please forward panel and paper proposals by email attachment to Lyndsay Campbell, Chair, CLSA Programme Committee, lyndsay@iii.ca. Presenters must be members of the CLSA. They must also pay the Congress’s fees, including the society fee for the CLSA.
Please supply the following information in a Word file (.docx, .doc, or .rtf) attached to your email:

Name
Position (if you are a graduate student, please specify)
Department/Unit
Institution
Other presenters, their institutional affiliations and their contact information

Panel theme (if you are submitting a proposal for a full panel)

Paper title (or titles, if a full panel is being submitted)

Abstract(s) (150-250 words each)

Keywords describing your topic (to be used in coordinating papers on panels)

Technological needs (PowerPoint/projector, accessibility requirements etc.)

Are you willing to act as a Chair for another panel?

Information on registration, accommodation and other Congress activities will be available through the websites of the Federation, the University of Waterloo, and Wilfrid Laurier University. A registration guide should be available in January 2012.

M.A. Thesis on Legal Practice in New France

2011-11-15T14:42:00.001-05:00

A thesis by Alexandra Havrylyshyn of the Department of History at McGill (available on Proquest Theses & Dissertations ) focusses on ancien regime low law. The title is "Troublesome Trials in New France: The Itinerary of an Ancien Regime Legal Practitioner, 1740--1743."

Here's the abstract:

This microhistory on one legal practitioner seeks to begin to fill the lacunae in the understanding of legal practice in New France by relying on the richness of Québec's archives. Jacques Nouette de la Poufellerie originated in France but practiced in the colony of Canada between the years 1740-1743. In this short time span, over 100 parties hired him as their legal proxy. A collective biography of Nouette's professional network of practitioners, as well as his clientèle, is first performed. The more socially controversial among Nouette's cases, including the only freedom suit to take place in the Ancien Régime period in early Canada, are then examined in detail. Finally, Nouette's precarious social standing and his eventual expulsion from the colony are investigated. By focusing on the itinerary of one of the agents who shuttled between people and the courts of New France, this thesis also contributes to a re-conceptualization of black-letter legal history as "legality" contingent on its socio-historical context.

Nouette's story sounds fascinating. But legality contingent on its socio-historical context? Who knew? :)

Symposium on Law and the French Atlantic

2011-11-08T16:12:00.001-05:00

Allan Greer of McGill University is one of the organizers of the Symposium on Comparative Early Modern Legal History, to be held at the Newberry Library in Chicago from 9-5 on Friday, October 5, 2012 entitled Law and the French Atlantic.

The announcement:

The French Atlantic has not yet received the sustained attention given to the British and Spanish Atlantic, particularly where the topic of law is concerned. This conference will explore the legal dimension (broadly conceived) of the French Atlantic empire in the early modern period. The variegated and rapidly evolving juridical order of ancien régime France was deeply implicated in the expansion of overseas commerce, the founding of colonies, and the creation of imperial administrations. Participants may explore topics such as: legal discourse and imperial ideologies; the establishment of colonial jurisdictions in Canada, Louisiana, and the French West Indies; the regulation of slavery; indigenous peoples and the law; the emergence of colonial land tenures; and the legal framework for trade and business enterprise. The organizers wish particularly to encourage comparative approaches that consider more than one French colony and that examine contrasts and convergences with the British, Spanish and Portuguese empires. In according due attention to the distinctive features of French law and the French New World empire, we hope to enrich understandings of Atlantic history generally.

Chen on Legal Specialists and Judicial Administration in Late Imperial China, 1651-1911

2011-11-08T15:50:00.000-05:00

Li Chen of the University of Toronto has posted "Legal Specialists and Judicial Administration in Late Imperial China, 1651-1911" on SSRN. The article will appear in the journal Late Imperial China, Vol. 33, No. 2, June 2012.

Here's the abstract:

This article studies the historical origin, legal training, career patterns, professional identity and ethics, judicial philosophy, and scale of professionalization of thousands of legal specialists in late imperial China from about 1651 to 1911. It is the first serious, extensive study in English of these early modern Chinese jurists and legal professionals who were the de facto judges in probably most of the 1650 Chinese local governments/courts for more than two centuries. For the first time, it uses archival sources to offer an estimate of about 3,000 such trained legal specialists working in local Chinese governments in any given year from roughly 1711 to 1911, which means an estimated total of 30,000 for that period as a whole, assuming an average tenure of 20 years of full employment for them. This study calls for a rethinking of much of the received wisdom on late imperial Chinese law and society, judicial administration, culture and politics, as well as their legacy on modern China's drive for the rule of law. It will also be of value to scholars of comparative law, legal philosophy, professionalism, and Asian legal cultures

Archivists plead to keep records of gun registry

2011-11-03T17:25:00.001-04:00

Three cheers for the Association of Canadian Archivists, and former national chief archivist Ian Wilson, pointing out the ways in which the Conservative Government's intent to destroy the registry records is short-sighted (at best) since the current LAC staff are unable to protest by reason of bureaucratic confidentiality and neutrality.

As the National Post article (!) points out, not only will future Blake Browns be deprived of valuable information, but it sets a very bad precedent for the maintenance of public data (although the change in the census law kind of did that already.)

Join the CLSA/ACDS!

2011-11-03T16:56:00.000-04:00

While the Osgoode Society is a great book club and virtual meeting place for Canadian legal history buffs from all walks of life (and everyone who reads this blog should be a member), legal historians from the Canadian academy (current and retired faculty and graduate students) have no real dedicated associational home. Many of us are members of the American Society for Legal History, an organization which is dominated by Americans but is not confined to that breed. And joining the ASLH is a great idea.

So is joining the Canadian Law and Society Association. As the name suggests, this is a group for scholars whose interests can broadly be described as socio-legal. Many teach in law schools, others hail from the disciplines of criminology, sociology, anthropology and political science. The society is a big tent; the association's board has traditionally included legal historians and their conference programmers ensure that legal history panels are included in conference agendas. The CLSA is also consciously grad student friendly. It is true that the association's journal, the Canadian Journal of Law and Society, has not been over-burdened with legal history pieces, but this is not editorial policy--there are several historians on the current editorial board (including me). This lacuna is probably due to the practice of legal historians submitting to history or legal journals in a kind of path dependence.

All of which is to say: join or renew your membership, attend the annual conferences and consider submitting your articles to the CJLS!

Osgoode Society launches four books

2011-10-27T12:04:00.002-04:00

Yesterday evening the Osgoode Society launched its four books for 2011. The reception was addressed by R. Roy McMurtry, the society's founder and current president, Jim Phillips, society editor-in-chief and the four authors.

The 2011 'member's book' (included with the $45 annual membership) is "The Lazier Murder: Prince Edward County, 1884" by Mr. Justice Robert J. Sharpe of the Ontario Court of Appeal. The book is a case study of a notorious but legally insigificant murder trial in rural Ontario, the impact of the murder on the community, the impact of the community on the investigation and judicial process, and the lasting effects of these events on local culture.

The 'optional extras' for the year are:

"Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax" by Professor Philip Girard of the Schulich Law School, Dalhousie University;

Westward Bound: Sex Violence, the Law and the Making of a Settler Society by Professor Lesley Erickson of the Department of History, University of Calgary;

and hot off the presses, "Dewigged, Bothered & Bewildered: British Colonial Judges on Trial, 1800-1900", a collection of case studies of Judges whose behaviour and activites landed them in hot water across the British Empire, by John McLaren, Emeritus Professor, University of Victoria Faculty of Law.

For more information on membership in the Osgoode Society or to inquire about purchasing any or all of these books, please contact Marilyn MacFarlane, society administrator at MMacFarl@lsuc.on.ca.

Legal History Panels for CLSA 2012

2011-10-20T09:33:00.001-04:00

EXPRESSION OF INTEREST: Legal History Panels for CLSA 2012 / DÉCLARATIONS D’INTÉRÊT: Sessions de l’histoire et du droit 2012

The 2012 Canadian Law and Society Association meeting, to be held on 27-29 May, will overlap with the meeting of the Canadian Historical Association, to be held 28-30 May. Both meetings will be part of Congress 2012, to be hosted by the University of Waterloo and Wilfrid Laurier University. Although the theme for the general CLSA program has not been set and the call for papers has not yet been issued, it seems like a good opportunity to create some bridges between these two associations. There may be a possibility of arranging the CLSA programme on 27 May so as to make it easier for those planning to attend the CHA meeting to participate in the CLSA meeting as well. It also might be possible to offer sessions co-hosted by the two associations.
The CHA recently called for papers with a deadline of 19 October. It has been CLSA’s practice not to require paper proposals until the end of January, when the CHA’s program will already be fixed. Given this situation, it would be very helpful if those who are contemplating submitting legal history proposals to the CLSA meeting were to send early expressions of interest, so that we can try to coordinate the two programmes. Therefore, if you are interested in a) submitting a legal history paper or a full panel to the CLSA meeting; or b) participating in a session co-hosted by CLSA and CHA (which might occur any time between 27 and 30 May), would you please advise the CLSA’s programme coordinator of your intentions before 31 October. Please do indicate as well whether you plan to attend the CLSA meeting, the CHA meeting, or both.
Again, to be clear, this is a call for expressions of interest in finding some points for connection between the CLSA annual meeting program and the CHA's annual meeting. The call for papers for the CLSA annual meeting will appear in November.
The CLSA’s programme coordinator for 2012 is [legal historian] Lyndsay Campbell (University of Calgary), who may be reached at lyndsay@iii.ca or 403.220.8889.

*********

La conférence annuelle de l’Association canadienne droit et société (ACDS) aura lieu à l’Université de Waterloo et l’Université Wilfred Laurier les 27 au 29 mai 2012. Cette année, il y aura un chevauchement entre cette conférence et celle de la Société historique du Canada (SHC). Le thème du programme n’ayant pas encore été déterminé et l’appel à communication n’a pas encore été circuler. Nous le considérons donc cette conférence comme un moment propice de créer des liens entre ces deux organismes. Ce serait possible, par exemple, d’organiser une journée ou une série de sessions consacrée au ‘droit et histoire.’ Ceci permettrait aux participants et participantes des deux organisations d’assister toutes les sessions qui s’adressent aux chercheur-E-s qui travaillent à l’intersection du droit et de l’histoire.
Noter, svp, que ce n’est qu’une demande de déclaration d’intérêt pour forger des ponts entre l’ACDS et la SHC durant leurs réunions annuelles respectives.
L’appel à communication générale pour l’ACDS sera circulé d’ici la mi-novembre.
En bref (1) si vous croyez soumettre à l’ACDS une proposition individuelle ou un panel entier, qui se situe aux points de rencontre de l’histoire et du droit, ou (2) si vous aimeriez participer aux sessions de l’ACDS et de la SHC comme hôtes conjoints (qui se dérouleront entre le 27 et le 30 mai), veuillez, svp, aviser Lyndsay Campbell (University of Calgary) au <mailto:lyndsay@iii.ca%3Elyndsay@iii.ca ou au 403.220.8889. En effet, pour toutes questions concernant les réunions de l’ACDS, veuillez contacter Lyndsay, qui est la coordonnatrice du programme cette année.

Toronto Legal History Group Winter/Spring Schedule

2011-10-17T11:37:00.000-04:00

The schedule for next term's legal history group presentations was sent out today:

January 11 - Paul Craven, York University: "Low Crimes and Misdemeanours."
January 25 - Marisha Caswell, Queen's University: "Married Women and the Criminal Law in Seventeenth- and Eighteenth-Century England"
February 1- Douglas Hay, York University: "The Misdemeanour/Felony Distinction in the 18th and 19th centuries."
February 15 - Jed Shugerman, Harvard University: "The Origins of the US Department of Justice"
February 29 - Li Chen, University of Toronto: "Legal Knowledge and Justice in Late Imperial China, 1651-1911
March 14 - Coel Kirkby, Cambridge University: "The Imperial Origins of the Canadian Constitution."
March 28 - Michael Kogan, University of Toronto: "Soviet Legal Professionals and the Administration of Justice, 1945-1953".
April 11 - Jeff McNairn, Queen's University: "A Just and Obvious Distinction: The Meaning of Imprisonment for Debt and the Criminal Law in Upper Canada's Age of Reform"

Meetings take place in Flavelle House, U of T (Museum subway stop), at 6:30 p.m. If you aren't on the distribution list and would like to be, please email j.phillips@utoronto.ca.

Canada Gazette (1841-1997) searchable online

2011-10-15T09:36:00.000-04:00

Catching up with Slaw (Canada's award winning online legal magazine) today, I noticed this blog post of interest to legal (and other) historians who may have missed the LAC announcement. Thanks, Simon.

Smith on North-West Transportation Co. v. Beatty (1887)

2011-10-14T19:13:00.002-04:00

McGill/Oxford Equity guru Lionel Smith has posted "A Selfish Loyalty: North-West Transportation Co. Ltd v. Beatty" on SSRN. The essay will be published in Landmark Cases in Equity, C. Mitchell and P. Mitchell, eds., Oxford: Hart, 2012.

Here's the abstract:

North-West Transportation Co. Ltd. v. Beatty (1887), 12 App. Cas. 589 (P.C.) is well known throughout the Commonwealth as a foundational decision regarding the ability of corporate directors to contract with their own corporation, and in particular their ability to vote as shareholders for the approval of such conflict-affected contracts. The background to the case reveals a young nation in which enormous numbers of immigrants were seeking to start new lives on the western prairies. Before the trans-Canada railroad was completed in 1885, and long before a full road network was in place, shipping lines on the Great Lakes provided the only feasible way to reach the continental interior (the “North-West”).

The dispute in Beatty was about a contract by which one of the directors of a company, who was also its majority shareholder, sold a steamship to the company over the objections of minority shareholders. In giving its advice, the Privy Council arguably misunderstood the nature of the corporate entity involved in the case, and produced a solution that has puzzled and divided commentators and legislators ever since.

This paper traces the story of the Beattys and their influence in late-19th century Canada, and examines how the dispute arose and how it was resolved by four levels of courts. It goes on to assess the decision against the principles of corporate and fiduciary law, and to show how Canadian legislators have reacted against the Privy Council's decision with the result that in modern Canadian law, shareholder approval is often necessary for certain corporate decisions, but it is never sufficient to insulate such decisions from judicial review.

Foster on Appeals and the B.C. Court of Appeal

2011-10-13T16:40:00.003-04:00

Hamar Foster of the University of Victoria Faculty of Law has posted "Appeals and the British Columbia Court of Appeal" on SSRN. This "short essay on the history and procedures of the British Columbia Court of Appeal on the occasion of its 100th anniversary" appears in print in volume 68 of The Advocate (2010) at pp. 821-839.

Osgoode Society Announcement

2011-10-13T10:35:00.000-04:00

The Osgoode Society for Canadian Legal History is pleased to announce the appointment of Philip Girard of the Schulich School of Law, Dalhousie University as associate editor, a new position with the Society. Professor Girard, who is currently a visiting professor at Osgoode Hall Law School, will work with editor-in-chief Jim Phillips in the production of Osgoode Society publications.

Fadel posts review essay on Hallaq on Islamic Law

2011-10-05T16:35:00.000-04:00

In the latest edition of the Legal History E-Journal, links to a review essay by Mohammad Fadel of the U of T Faculty of Law. The essay will also appear in the Journal of the American Oriental Society (also available online at Questia.com), but you can also download it from SSRN. The abstract does not make the historical aspect of the piece explicit, but I would think that calling something 'anti-modernist' probably includes 'non-historicized' (as a lesser included offence.)

Here's the abstract:

It has been almost 50 years since Joseph Schacht and Noel Coulson published their respective introductions to Islamic law. Both works have served as standard introductions to Islamic law to countless students ever since. The last generation of Islamic law scholarship, however, beginning in the 1980s, has produced a body of research that systematically surpassed the contents of both these books without, however, producing a new introductory survey to the topic. This gap in scholarship left the teacher of Islamic law in somewhat of a bind: the most accessible introductions to his subject did not reflect the current state of research, but current scholarship had not produced a suitable work that could replace either Coulson or Schacht. Wael Hallaq, in his work, "Shari'a: Theory, Practice, Transformations," attempts to fill this gap in the literature. This review essay argues that Shari'a does its job admirably, and will undoubtedly succeed as a worthy replacement for the earlier, but now largely superseded, works of Schacht and Coulson. Nevertheless, this review essay also argues that the book will also prove to be very controversial, given what appears to be its polemical, and in many cases, overtly anti-modernist tone. In particular, this review essays argues that Hallaq's work suffers from a systematic failure to provide a normative account of the political from an Islamic perspective and the normative relationship of Islamic law to politics. As a result of this absence, the case he presents for his principal thesis, that modern Islamic law is essentially illegitimate if not an outright oxymoron, is ultimately unpersuasive, and risks reinforcing already well-entrenched western stereotypes about Islam, Muslims and Islamic law

Blaine Baker corrects the record/Toronto Legal History Group

2011-09-28T21:36:00.001-04:00

At a Toronto Legal History Group meeting this evening* (an excellent, well-attended presentation by Philip Girard on the legal history of women's citizenship in interwar Canada), Blaine Baker pointed out to me some errors in my earlier post on the project to establish a scholarship in his name at McGill. My post refers to Blaine as being retired, which is true only in a very technical sense. He is an emeritus professor at the McGill Faculty of Law, and teaches there three days a week. In addition, he did not teach at Osgoode and U of T prior to his appointment at McGill--rather, he was a visiting professor at those schools during his tenure at McGill, which was his first and only appointment. Hey, these things are important!

Actually, Blaine was very nice about it, which is always his way, and one of the reasons his former students want to fund the scholarship in the first place. But I guess his reputation as an internetphobe is greatly exaggerated (although he did wait for the chance to see me, rather than setting me to rights by email, so some parts of the Baker legend are still true.) Once again, for more information or to pledge, email ipilar@bu.edu.

*For info on the Toronto Legal History Group, which meets at 6:30 pm in Flavelle House in the U of T Faculty of Law on alternate Wednesdays (usually), to receive the schedule of presentations or to be put on the mailing list to receive the draft papers--which are not for quotation or citation unless otherwise stated--please email Jim Phillips (j.phillips@utoronto.ca). The group includes faculty from universities in the GTA and beyond, graduate and undergraduate students, lawyers and anyone with an interest in legal history (often, but not always Canadian) as an academic subdiscipline of law and history. Every session has a different mix of attendees, depending on the subject and speaker, so feel free to email Jim and drop in as your interests and schedule allow.

Deadline to register for conference on patriation of the constitition looms

2011-09-28T17:49:00.000-04:00

Eric Adams of the Faculty of Law at the University of Alberta has asked me to notify/remind readers about the Centre for Constitutional Studies' upcoming Patriation Negotiations Conference.

Eric writes:

The conference will include extensive historical reflections on a key moment in Canadian constitutional history.

The date to take advantage of the early registration fee is about to pass. Students interested in attending should contact Patricia Paradis, Executive Director of the Centre for Constitutional Studies at pparadis@law.ualberta.ca asap regarding a special student conference rate.

Student Research Assistants sought for History of Ontario Court of Appeal Project

2011-09-23T15:25:00.000-04:00

The Osgoode Society has a grant to produce a history of the Ontario Court of Appeal. Historian Christopher Moore has been engaged to do the research and writing. He will need some research assistants to do some basic digging in case reports. The project would like to hire RAs from all Ontario law schools.

Here's the call for applications:

Ontario Court of Appeal History
Research Assistantships in Ontario Legal History
October 2011-March 2012

The Osgoode Society for Canadian Legal History is supporting a research and publication program on the history of the Ontario Court of Appeal. Up to twenty Ontario law students may be hired to contribute to the research effort in 2011-12

Work Assignment: To research published Law Reports on cases heard in the Ontario Court of Appeal, 1870s to date. Using a reporting form (provided) to assemble quantitative legal/historical data on the cases. To write Case Briefs summarizing issues in each case. To assess the historical interest/significance of the cases. Other legal-historical research as needed. Student contributions will be credited in publications that result.

Supervision: General direction will be by historian Christopher Moore of Toronto, principally through email and/or a web-based network. Completed reporting forms and statements of hours worked will be expected regularly by email.

Hours of Work and Pay: About 120 hours (6 hours weekly) in the October 2011-March 2012 academic term, at $20.00/hour including benefits.

Eligibility: Students should be enrolled in an Ontario Faculty of Law for the 2011-12 year. If there are more applications than places, preference will be given to students who have some experience with Canadian history. However, this is not a pre-requisite.

Application Deadline: Priority will be given to applications received by Friday, October 7, 2011.

To Apply: Email a short statement of interest with an attached brief CV to Christopher Moore <mailto:cmed@sympatico.ca%3Ecmed@sympatico.ca

Proposal for scholarship honouring Blaine Baker

2011-09-17T15:16:00.000-04:00

McGill emeritus professor G. Blaine Baker

Many (most? all?) readers of this blog will have received a letter from Jim Phillips advising them of a proposal to honour renowned Canadian legal historian Blaine Baker, who is admired by everyone who knows him and/or his work. Blaine retired recently from the faculty of the McGill Law School, where he taught administrative law, contracts and legal history and also served as associate dean. Prior to coming to McGill he taught at Osgoode Hall Law School and U of T. Some of his former students have begun to organize fundraising for an entrance scholarship to the law school to recognize his exemplary teaching and scholarship. For more details or to contribute please contact Ian Pilarczyk of Boston University Law at ipilar@bu.edu .

Millman online review of Sharpe on Currie Trial

2011-09-09T12:23:00.000-04:00

Military historian Brock Millman of UWO has published on H-Law, (for which it was commissioned) a review of Justice Robert Sharpe's The Last Day, the Last Hour: The Currie Libel Trial, recently republished by the Osgoode Society. Here's the link to the review: a positive one, not surprisingly. As Millman points out, Sharpe's book deserves to be better known among military history scholars and Canadianists generally. So spread the word.

Philip Girard to be honoured at ASLH conference in Atlanta--be there!

2011-09-02T21:57:00.003-04:00

Philip Girard of the Schulich School of Law, Dalhousie University, and the Lewtas visiting scholar at Osgoode Hall Law School for the 2011-12 academic year, is well-known to all of us as one of our finest legal historians, a terrific teacher and colleague, the quintessential scholar and gentleman. (And if he's not known to all readers of this blog he should be--time to get cracking!)

Appropriately enough given Philip's interest in comparative legal history he is about to be celebrated outside our borders, when he is to be made an Honorary Fellow of the American Society for Legal History at this year's annual conference in Atanta, Georgia, November 10-12--the first Canadian ever to be so honoured.

Constance Backhouse, current president of the ASLH (and also a pre-eminent Canadian legal historian for the hypothetical few who do not know), would very much like Philip's many friends and fans to think seriously about coming to the conference to join in the tribute.

The first panel of the programme, (which will be announced this week via the society's website) will be held on November 10th from 2-3:45 and will focus on Philip's accomplishments. Constance will chair the panel and introduce Philip and his work. She will be followed by three panellists, Jim Phillips, Jean-Philippe Garneau and I, each of whom will focus on one or more aspects of Philip's extremely wide-ranging historiographic interests and influence, with time allocated for questions and discussion and for Philip to respond if he wishes.

The formal announcement of the honourary fellowship will be made at the Annual Luncheon on Saturday, Nov. 12. So those who are able to attend should try to stay for the entire conference.

This promises to be a terrific opportunity for the Canadian legal history community to get together to honour and support one of our brightest stars and have a wonderful time in the process.

Constance, Jim, Jean-Philippe and I (and I'm sure Philip as well!) would be thrilled to see you there.

Dissertation on the rise of the Canadian Penitentiary

2011-08-18T11:03:00.000-04:00

Proquest Theses & Dissertations has a new dissertation on "The rise of the modern Canadian penitentiary, 1835--1900" by Ted McCoy of Trent University"s Canadian Studies Program.

Here's the abstract:

The penitentiary is an indelible feature of Canadian modernity. Yet the rise of the modern penitentiary was fraught with struggle, uncertainty, and contradictions that underscored its difficult gestation in Canadian society. This dissertation seeks to address how the penitentiary developed, the influences that drove its evolution, and the effect of the institution on the men and women it touched. It explores three thematic concerns running through this-history, between 1835 and 1900. The dissertation addresses the penitentiary's political economy, cultural history, and discursive contributions to the idea of criminality.
Chapter One introduces and outlines the dissertation's theoretical influences and contributions. It identifies the key secondary literatures on which the research draws and suggests a new revisionist direction that combines the insights of both political economy and social history. The remainder of the dissertation is split into two main parts. The first section provides historical context. Chapter Two establishes the boundaries of the political economy that influenced the early history of Canadian penitentiaries. It addresses both American and British influences and details the economic underpinnings of the first penitentiary at Kingston. Chapter Three explores the cultural history of the prison reform movements that played a major role in how the penitentiary developed. In particular, it details the scandals that beset the early institution to explain how reform gained a foothold in Canadian penitentiary administration. Chapter Four introduces the combined with new understandings of the criminal individual.
The second part of the dissertation combines all three thematic approaches. Chapter Five looks at the penitentiary experience to uncover the workings of power and exploitation in prison life. Chapter Six examines penitentiary medicine through the lens of political economy to underscore the influence of labour and its attendant moral ideology upon the lives of sick and disabled prisoners. Chapter Seven further explores the construction of criminality by investigating methods of punishment and isolation. Finally, the conclusion steps back from the two main sections to ask critical questions about how history can make meaningful contributions to our search for answers about the penitentiary.

The abstract doesn't really provide much support for the claim of a "new revisionist direction" on the subject, but chapters 6 and 7 in particular sound novel and intriguing.

When is unabashed presentism legal history?

2011-07-26T14:59:00.000-04:00

I guess when it's tagged as such when uploaded to SSRN and included in the Legal History e-Journal, like this:

"Consultation Paper on Accounting and Contribution between Co-Owners of Land"
BRITISH COLUMBIA LAW INSTITUTE, British Columbia Law Institute (BCLI)
Email: bcli@bcli.org
Ownership of land is associated with many expenses: property taxes, utility charges, mortgage pages, and insurance premiums to name a few. It can also yield economic returns such as rental income and profits from growing crops. When land is held in co-ownership (joint tenancy or tenancy in common), expenses may not always be borne and economic benefits may not be received in proportion to the co-owners’ interests, or in another manner that is equitable in the particular circumstances. The body of law that governs rights with respect to accounting and contribution between co-owners is surprisingly unclear and archaic. It is also deficient in a number of ways.

Commutation of Prison Sentences

2011-07-25T10:25:00.000-04:00

Via H-Canada today, a query from Veronica Strong-Boag (veronica.strong-boag@UBC.CA)

I've discovered a reference in La Minerve to Lord Aberdeen's commutation of a
14 year prison sentence for Austin Reynolds of Montreal in 1895. He was
sentenced for murder in 1891. Does anyone know more of this case? thanks!

Nikki Strong-Boag

I was talking to a legal historian about this quite recently--commutation of prison sentences, rather than death sentences. I think it was Lyndsay Campbell. I told her I recalled Carolyn Strange had been researching prison commutations in New York State.

Nikki, Lyndsay and Carolyn--you may want to compare notes.

Dissertation on Mackenzie Valley Pipeline Inquiry

2011-07-15T08:34:00.000-04:00

Now available at Proquest Theses & Dissertation, a doctoral dissertation by Kim Stanton of the U of T faculty of law (and the Toronto Group for the Study of International, Transnational and Comparative Law, a great initiative of U of T and Osgoode grad students who understand the importance of historicizing) entitled "Truth commissions and public inquiries: Addressing historical injustices in established democracies." Stanton uses the Mackenzie Valley Pipeline Inquiry of the 1970s as a case-study.

Here's the abstract:

In recent decades, the truth commission has become a mechanism used by states to address historical injustices. However, truth commissions are rarely used in established democracies, where the commission of inquiry model is favoured. I argue that established democracies may be more amenable to addressing historical injustices that continue to divide their populations if they see the truth commission mechanism not as a unique mechanism particular to the transitional justice setting, but as a specialized form of a familiar mechanism, the commission of inquiry. In this framework, truth commissions are distinguished from other commissions of inquiry by their symbolic acknowledgement of historical injustices, and their explicit "social function" to educate the public about those injustices in order to prevent their recurrence. Given that Canada has established a Truth and Reconciliation Commission (TRC) on the Indian Residential Schools legacy, I consider the TRC's mandate, structure and ability to fulfill its social function, particularly the daunting challenge of engaging the non-indigenous public in its work. I also provide a legal history of a landmark Canadian public inquiry, the Mackenzie Valley Pipeline Inquiry, run by Tom Berger. As his Inquiry demonstrated, with visionary leadership and an effective process, a public inquiry can be a pedagogical tool that promotes social accountability for historical injustices. Conceiving of the truth commission as a form of public inquiry provides a way to consider the transitional justice literature on truth commissions internationally along with the experiences of domestic commissions of inquiry to assemble strategies that may assist the current TRC in its journey.

Links to resources for Western Legal History

2011-06-30T11:24:00.000-04:00

Things are a bit slow news-wise for Canadian Legal History, as for other types of history, and it's not even the dog-days of summer. Puppy days, I guess.

So a good time to do a post on some links sent me a while ago by Sarah Hamill of the University of Alberta Faculty of Law (thanks again, Sarah!)

Hi Mary,

Here are some links that might be of interest for you in regard to western legal history
http://www.ourfutureourpast.ca/index.html
Particularly: http://www.ourfutureourpast.ca/law/
http://peel.library.ualberta.ca/aboutus.html

This is a subscription site but perhaps you could mention it to a librarian! http://www.newspaperarchive.com/

I checked out the sites she suggests. The law section of Our Future Our Past is great--much better than Early Canadiana Online (though kudos to the latter, which has improved of late. Still a ways to go, unfortunately.)

The other sites are not law-focused, but that is just as well for the purposes of students of legal pluralism--since legal pluralists find law everywhere, the more ostensibly non-legal the sources the better. I was quite impressed by the digital images available through the Our Future Our Past site. And the Peel Library site which Sarah recommends is even more drool-worthy, especially for Ontario-ists. The images seem of excellent quality and very searchable, unlike the Globe and Mail Heritage site, for example.

Osgoode Society AGM (with pictures!)

2011-06-23T13:49:00.003-04:00

Prizewinners!

Jonathan Penney and Jim Phillips

Daniel Rueck and Jim Phillips

Doug Harris and Jim Phillips

The AGM of the Osgoode Society for Canadian Legal History, held at Osgoode Hall in Toronto Tuesday evening, was as always, an entertaining and convivial experience. Here are some highlights of the event. (Thanks to Trish McMahon for providing some of the pics.)

Jim Phillips (in a tie, no less) handed out prizes on behalf of the society:

Doug Harris of UBC ws awarded the John T. Saywell Prize for Constitutional Legal History (awarded in alternate years) for Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925 (UBC Press, 2008) He spoke about the similarities between his work and that of the late Professor Saywell.

The R.Roy McMurtry Fellowship was awarded to Daniel Rueck, a McGill University Ph.D. candidate who will soon be a visiting scholar at the University of Western Ontario. During the fellowship, Mr. Rueck will continue researching Mohawk systems of land tenure and land use. He spoke of the funding gap for students completing their studies which the Fellowship attempts to redress.

The Peter Oliver Prize for best published student writing was awarded to Jonathan Penney, a doctoral student at Balliol College, Oxford for his article Ivan Rand’s Ancient Constitutionalism, published in 2010 (University of New Brunswick Law Journal Vol. 61 No. 1). Mr. Rueck spoke about being inspired by researching Rand's jurisprudence.

Justice Robert Sharpe

Mr. Justice Robert Sharpe of the Ontario Court of Appeal then addressed the meeting on the subject of his forthcoming book, The Lazier Murder: Prince Edward County, 1884. This is the Osgoode Society member's book for the coming year. The book will be an intensive examination of a murder investigation and trial--a "non-leading" case--which speaks to themes of the influence of the community on criminal justice in the nineteenth century, and in turn the impact of the trial and its outcome on the community.

Mitchell dissertation on the Persons Case

2011-06-15T08:36:00.000-04:00

I was excited to discover that a dissertation on the Persons' Case had been posted on the Proquest Theses & Dissertations database. Wow, thought I, we now have a case with historiography, complete with revisionism! But while we have the former, it sounds as though Kelly L. Mitchell's doctoral dissertation Missing persons: The contested legacy of First Wave Feminism, the Famous Five, and the Persons Case of 1929 does not challenge the Sharpe/MacMahon account, but rather takes the tack of looking at the case as a social-political rather than legal/constitutional phenomenon, and extending the story past the JCPC judgment. Still an exciting contribution to the history of Canadian feminism:

Here's the abstract:

On October 18, 1929, Canadian women were legally recognized as "persons" by the Judicial Committee of the Privy Council in England. This auspicious decision had been the result of a decade-long struggle led by five women from Alberta. Henrietta Muir Edwards, Nellie McClung, Louise McKinney, Emily Murphy, and Irene Parlby, better known simply as the Famous Five, were suffragists, authors, and political activists in the First Wave of the Women's Movement in Canada. This dissertation examines the story of the Famous Five and the Persons Case and charts the process by which women's struggle for personhood has been recognized as a defining moment in the history of Canadian women.

By making use of sources in both feminist and legal history as well as discussing the case's legal precursors and legacy, this study broadens the context in which the Persons Case has traditionally been examined. Unlike other works which situate the case in Canadian constitutional history, this dissertation portrays the Persons Case as a pivotal part of women's struggle for equality. By pointing to the ways that women's organizations have been using the stories of the Famous Five to inspire women and call attention to ongoing feminist concerns since the 1930s, this dissertation explains why the struggle for personhood, unlike other initiatives in the Women's Movement, continues to resonate so strongly with Canadian women.

Osgoode Society award winners announced

2011-06-13T22:16:00.001-04:00

From the news release today:

The Osgoode Society for Canadian Legal History is honouring three academics at a special ceremony on June 21, in recognition of the recent contributions they have made to furthering Canadians' understanding of the country's legal history.

At the Osgoode Society’s annual meeting, the following three awards will be presented: the R. Roy McMurtry Fellowship in Legal History, the Peter Oliver Prize in Canadian Legal History and the John T. Saywell Prize for Canadian Constitutional Legal History.

The 2011 winner of the R. Roy McMurtry Fellowship in Legal History is Daniel Rueck, a McGill University Ph.D. candidate who will soon be a visiting scholar at the University of Western Ontario. During the fellowship, Mr. Rueck will continue researching Mohawk systems of land tenure and land use in Kahnawake during the nineteenth century. Mr. Rueck’s research project is of both great historical and contemporary interest, given current debates surrounding the privatization of Aboriginal land.

The 2011 winner of the Peter Oliver Prize in Canadian Legal History is Jonathon Penney, a doctoral student at Balliol College, Oxford. Mr. Penney is recognized for his article Ivan Rand’s Ancient Constitutionalism, published in 2010 (University of New Brunswick Law Journal Vol. 61 No. 1). The article provides considerable context and insight about Justice Ivan Rand’s groundbreaking civil rights decisions of the 1950s.

The 2011 winner of the John T. Saywell Prize for Canadian Constitutional Legal History is Douglas Harris of the University of British Columbia. Professor Harris is recognized for his book, Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925, published by the University of British Columbia Press. Professor Harris’ writing draws on an impressive range of sources to demonstrate the unique and crucial relationship between reserves and fishing rights in British Columbia. Through his book, Professor Harris furthers understanding around Aboriginal rights, federalism and the intra-agency conflicts that exist between federal government officials concerned with Indian affairs and those concerned with fisheries.

The annual meeting will also feature a talk by The Honourable Robert Sharpe on his forthcoming book to be published by the Osgoode Society The Lazier Murder: Prince Edward County, 1884.
For more information, please contact: Marilyn MacFarlane, Administrator, The Osgoode Society for Canadian Legal History at (416) 947- 3321 or mmacfarl@lsuc.on.ca

Mackenzie on the History of Indian Act in Newfoundland

2011-06-11T10:00:00.000-04:00

David Mackenzie of the Department of History, Ryerson University has published "The Indian Act and the Aboriginal Peoples of Newfoundland at the Time of Confederation," in Newfoundland & Labrador Studies Fall 2010, Vol. 25 Issue 2.

The Abstract:

The article presents an in-depth examination into the legal history and status of North American Indian tribes in Newfoundland. Contextual details are given describing the legal actions of the Mi'kmaq Nation in 1989 to gain recognition. Discussion is then offered evaluating why the tribe was not formally recognized at the province's entrance to the Confederation in 1948. Additional analysis is offered examining the status and legal provisions of Native Americans based in the 1867 Constitution. Conclusions are provided explaining why Indian's rights were not more prominent in the province's constitutional history.

Reid on the Doctrine of Discovery (not the procedure)

2011-06-11T09:51:00.001-04:00

Also in the Canadian Journal of Native Studies; 2010, Vol. 30 Issue 2 ,"The Doctrine of Discovery in Canadian Law" by Jennifer Reid:

This article will focus on a set of fifteenth-century assumptions regarding sovereignty known as the Doctrine of Discovery. The doctrine was the "legal" means by which Europeans claimed preemptive rights in the New World, and it underlies the relationship between Indigenous and non-Indigenous peoples to this day. This article will explore the Doctrine's development from its inception to its integration into Canadian law. By demonstrating continuity between fifteenth century papal bulls, the Royal Proclamation, the Constitution Act, 1982, and Supreme Court holdings, I will argue that Aboriginal title in Canada was—and continues to be—entrenched in the Doctrine of Discovery.

Luby on Crown and Anishinaabe Understandings of Treaty 3

2011-06-11T09:32:00.001-04:00

"The Department is going back on these Promises: An examination of Anishinaabe and Crown Understandings of Treaty" by Brittany Luby (another former classmate of mine) in Canadian Journal of Native Studies (2010) Vol. 30 Issue 2 (no on-line link available.) Here's the abstract:

Indigenous interpretations of treaty are often gleaned from Euro-Canadian documents like Crown publications and correspondence. In her analysis of Treaty #3, Brittany Luby challenges the assumption that Anishinaabe sources are strictly oral and that engaging Anishinaabe perspectives requires an ethnographic (re) reading of Euro-Canadian documents. Using Anishinaabe written sources like Paypom Treaty and petitions to the Crown, Luby examines the Anishinaabe as legal agents and active writers. She highlights that Anishinaabe negotiators-much like Euro-Canadian Commissioners-participated in Treaty #3 to maintain fisheries, protect mineral deposits, and guarantee territorial sovereignty. By explicating treaty participants' conflicting understandings of "rights" and "use," Luby demonstrates that no single document accurately outlines the terms and conditions of Treaty #3.

CFP: White Settler Colonialism and Indigeneity in the Canadian Context

2011-06-10T23:20:00.000-04:00

The Canadian Journal of Women and Law (CJWL) is seeking submissions for a special issue 25(1) to be published in Spring 2013 in honour of Patricia Monture, to be guest edited by Sherene Razack. The CFP doesn't mention history specifically, but it seems like an included concept.

White Settler Colonialism and Indigeneity in the Canadian Context

Some time ago Patricia Monture told us that in her thinking equality was not a high enough goal. A feminism that failed to recognize the destructiveness of settler colonialism and to work towards Indigenous sovereignty and well-being was too small a feminism for Patricia. This issue of the Canadian Journal of Women and the Law is dedicated to Patricia Monture, a courageous scholar who led the way for so many of us over the last two decades. To honour her, we invite contributions on white settler colonialism. This issue seeks to profile the work of Indigenous scholars and scholars of colour. In keeping with Patricia Monture’s own contributions, we are especially interested in receiving articles that offer a feminist, anti-racist reading of Canadian settler colonialism in the areas of criminal justice, Aboriginal youth, education, and economic empowerment.

Marquis review of Leyton-Brown

2011-06-08T09:31:00.000-04:00

The Legal History Blog has a post today by Karen Tami on Greg Marquis' review of The Practice of Execution by Ken Leyton-Brown in Law & Politics Book Reviews.. You can read the post here. But the link in the post to the full review is broken, so I am re-linking to it here.

Congratulations (again) to Brad Miller

2011-06-07T20:02:00.000-04:00

More prize news from Congress: At the Canadian Historical Association conference, the Political History Group gave its inaugural award for best article to Brad Miller for "A carnival of crime on our border?: International Law, Imperial Power, and Extradition in Canada, 1865-1883," which was published in the Canadian Historical Review vol. 90 no. 4 (December 2009). Brad won the Peter Oliver prize for best article by a student for this article in 2010.

More info on the political history group prizes here.

In related news, Michel Ducharme of UBC won the Sir John A. Macdonald prize for best academic writing in Canadian History for his book Le concept de liberté au Canada a l’époque des Révolutions atlantiques (1776-1838). Ducharme's differentiation of attitudes toward individual and political rights by American revolutionaries and Canadian loyalists will inform Canadian legal as well as general historiography.

Promotion for Wes Pue

2011-06-07T12:36:00.000-04:00

Newsflash:
Eminent Canadian Legal HistorianWes Pue has been appointed Provost of UBC Okanagan.

Stern on the Analytical Turn in c19th Legal Thought

2011-06-07T11:42:00.000-04:00

Simon Stern of the U of T Faculty of Law continues his breakneck pace of published research with The Analytical Turn in Nineteenth-Century Legal Thought, just posted on SSRN. Here's the abstract:

This essay seeks to account for the introduction of the analytical method into Anglo-American legal thinking in the 19th century and to identify some of the doctrinal consequences of this mode of problem-solving. I focus on a particular sense of analysis – the disaggregation into components of seemingly unified entities, not previously seen as composites. On this view, a discussion of U.S. law as involving federal law and state law does not involve analysis, but a discussion of privacy as including decisional and spatial aspects would involve analysis. The term "analysis" long predates the nineteenth century, but had previously been used by lawyers to mean "investigation" or "classification" rather than disaggregation. Drawing on research by John Pickstone, I show that the technique, though not unheard of before the 19th century, was taken up in a wide array of scientific disciplines circa 1780-1840, particularly in chemistry. This helps to explain its diffusion into other intellectual spheres, including law.

The nineteenth-century analytical revolution had a profound effect on the Anglo-American legal system, its doctrines, and its approach to problem-solving, to such an extent that modern lawyers’ views about their professional competences, and their beliefs about what constitutes a persuasive legal argument, would be radically different without this feature. The analytical approach is evident in contemporary thinking about statutory drafting and interpretation, constitutional law, and administrative law, as well as the common law. Because it is beyond the scope of a single essay to delineate these effects fully, I focus here on the changes associated with the introduction of elements into nineteenth-century jurisprudence, in a pattern that reveals some of the most visible results of the analytical approach.

Part I discusses the rise of analysis in science and the law around the beginning of the nineteenth century. Part II shows how issue preclusion (in res judicata) was reconceived in the course of the nineteenth century, morphing from a doctrine focused on the relitigation of particular facts, to a doctrine concerned with legal issues, now understood as involving legal conclusions based on facts. Part III addresses the reconceptualization of criminal offenses as consisting of "elements," a development that led to new ways of thinking about burdens of proof and the role of mens rea in criminal liability. A concluding section reflects briefly on the implications of this approach to legal science. The argument shows that legal science may be profitably studied not only by looking at the statements of lawyers such as David Hoffman, Simon Greenleaf, and George Sharswood, who took pains to insist that they were being scientific, but also by looking to particular instances in which lawyers adopt scientific methods, even if they do not call attention to this practice, and even if they make no claims about legal science

Legal History at Political History Conference

2011-06-07T09:54:00.000-04:00

Thanks to Brad Miller for drawing my attention to the many legal history and legal histor-ish (his term, a good one) papers in the programme of the Political History Conference "Transformation: State, Nation, and Citizenship/Transformation: l’État, la nation et la citoyenneté" to be held October 13-15 at York University.

It's often hard to distinguish what is legal history from what is not in the political history context, but among the papers which would be of particular interest to legal historians are (in no particular order):

Blake Brown, Saint Mary’s University – “We are gradually getting like Chicago”: Gun Control in Interwar Canada

J.L. McNairn, Queen’s University - Roads to Modernity: Trust and Financing the Public Good in Upper Canada

E.A. Heaman, McGill University - Revisiting the Single Tax

S.M. Tillotson, Dalhousie University - Tax Politics and Public Opinion in the Age of Easy Money, 1947-1966

Todd Stubbs, Lakehead University, Orillia - A “Stake in the Country”: Wage-Earning Men and the Income Franchise Debate in Ontario, 1866-1874

Bradley Miller, University of Toronto - Sovereignty, Self-Defence, and International Law in the Rebellion Period Borderlands, 1837-1843

Ashleigh Androsoff, University of Toronto - “The Days of Fooling Around with the Unlawful Doukhobors Are Over”: Solving British Columbia’s ‘Doukhobor Problem’ in the 1950s and 1960s

Gregory P. Marchildon, University of Regina and Nicole O’Byrne, University of New Brunswick - The Last One Aboard: New Brunswick and the Implementation of Medicare

Mark Gulla, McMaster University - The Unemployment Insurance Commission and the Expansion of the Right to Benefit, 1940-1971

John Hillhouse, McMaster University - The Role of the Federal Government in Canada’s Life Insurance Industry

Anthony Hampton, University of Guelph - The Implications of Ad Hoc Activism: The Feminist Citizens' Response to the Meech Lake Accord and its Historiographic Importance

Valerie Lapointe Gagnon, Université Laval - La consécration de l’expertise et la Commission royale d’enquête sur le bilinguisme et le biculturalisme, 1963-1971

P. E. Bryden, University of Victoria - Intimacy and the Administrative Body: The Federal Civil Service in the Pearson Era

Also of interest to legal historians (and crimnologists):

Round Table/ Table ronde RCMP: What we know, what we don’t know and what we would like to know/ La GRC: ce que nous savons, ce que nous ne savons pas et ce que nous aimerions savoir

Participants/ Participants et participantes

Steve Hewitt, American and Canadian Studies, University of Birmingham

Gary Kinsman, department of sociology, Laurentian University

Christabelle Sethna, Institute of Women’s Studies, University of Ottawa

Freedom's Conditions in the Borderlands

2011-06-06T10:03:00.000-04:00

One of the highlights of the CLSA conference last week in Frederiction for me was hearing and chatting with University of Calgary legal historian Lyndsay Campbell.

Lyndsay's paper on Oliver Dawsey, member of a gang of thugs who operated in the Hamilton-Dundas area in Canada West (yes, contrary to previous claims we had criminal gangs pre-confederation), was fascinating, (as were the other papers on her panel, the other legal history panel and random history papers on non-history panels.) I can't wait to hear more about this guy and his partners in crime.

Talking with her, I was surprised to hear that the collection of essays on the US-Canada border and borderlands she was editing with Tony Freyer had been published without setting off any of the alerts I have set up so that new Canadian legal history does not escape my notice. I guess the cyber-gremlins have not categorized this as Canadian, and (so far) the bloggers at the American Legal History Blog have not noticed it either. Maybe their cyber-gremlins are also confused.

The collection is called Freedom's Conditions in the U. S.- Canadian Borderlands in the Age of Emancipation and is published by the the Carolina Academic Press. Here's how the publishers describe it.

In Freedom's Conditions in the U.S.-Canadian Borderlands in the Age of Emancipation, American and Canadian legal historians explore the operation of race in the borderlands in the mid-nineteenth century. The contributors Tony Freyer, Lyndsay Campbell, Aviam Soifer, Gautham Rao, John Wertheimer, Stephen Middleton, and Bradley Miller examine the shadows that legal regimes cast upon each other, as people of African descent, and others, made decisions to move from one place to another in search of better, freer conditions under which to live, work, and raise their families. Legal institutions struggled with commitments to preserving states' rights to govern their own people, to popular sovereignty, to freedom of contract, to liberal ideals of equality and comity, and of course to white supremacy. Tensions ran high among different levels of government - federal-state-local in the United States and imperial-colonial-local in British North America. On the ground, practices of governance, such as policing and slave-catching, were unevenly professionalized: on both sides of the international border, low-level officials without much legal training and vested with considerable discretion were essential state actors. This collection is aimed at both American and Canadian readers interested in the histories of race, inter-state relations, and the development of legal institutions. The introduction and conclusion, by Freyer and Campbell, frame the essays and identify unifying themes and overlapping conclusions. As a whole, the essays in this collection make clear the hope that Canadian legal institutions offered to African Americans: formal equality, though in practice discrimination took place in the implementation of law, through racializing habits that affected exercises of discretion by various state officials. In the United States, the Fugitive Slave Act of 1850, combined with the influx of Irish immigrants in the late 1840s, provoked sharp, tense conflicts over the racialized governance of human mobility in the northern states, conflicts that, ironically, carved out a space for greater rights and autonomy for African Americans even as the fault lines in American federalism deepened. These essays also cast light on the fundamental instabilities in a legal system that accommodated slavery and explicitly entrenched white supremacy.

As well as collaborating on the Introduction and Conclusion, Lyndsay has contributed two chapters to the collection: "Governance in the Borderlands: Upper Canadian Legal Institutions" and "The Northern Borderlands: Canada West." Brad Miller's chapter is entitled "British Rights and Liberal Law in Canada's Fugitive Slave Debate, 1833-1843."

Full disclosure: Lyndsay offered to send me a comp copy, which offer I enthusiastically accepted. Presumably this was on account of my allowing her to use a couple of my yet-unpublished papers on local government in Canada West, and not because I said I planned to blog about the book.

McLaren and Backhouse featured speakers at Legal History Conference in Brisbane

2011-06-05T21:30:00.004-04:00

Here's the announcement and call for papers via Andrew Buck on H-Law:

CFP: Law and History conference

*30th Annual Conference of the Australia and New Zealand Law and History Society*

CFP: The 30th annual conference of the Australia and New Zealand Law and History will be held in Brisbane, Australia, 12-13 December 2011. The 2011 conference theme – “Private Law, Public Lives” - examines the social dimensions of private law in history. Proposals are invited from scholars in the fields of law, history and related disciplines. Proposals from all jurisdictions are welcome. Proposals on non-theme related topics in legal history also welcomed.

Highlights of this year’s conference include twin keynote speakers: Professor John McLaren, professor emeritus of the Law School, University of Victoria, BC, Canada, and author of the forthcoming *Dewigged, Bothered and Bewildered: British Colonial Judges on Trial *(University of Toronto Press,2011 [ed. note: for the Osgoode Society for Canadian Legal History]), and Professor Rosalind Croucher, President of the Australian Law Reform Commission.

Also, by special arrangement with the American Society for Legal History, we will be including a panel from the ASLH, including, among others, Professor Contance Backhouse, Distinguished University of Professor, University of Ottawa President of the ASLH and Professor Chris Tomlins, chancellor’s Professor of Law, University of California, Irvine.

Further information including expression of interest for proposals is available from the conference website:
www.law.uq.edu.au/anz-law-and-history-conference

Paper proposals, including paper title, abstract (300 words max.) and brief author bio, should be sent by email to the Conference Committee at lawhistconf@uq.edu.au by 14 July 2011.

Rotman on Fusion of Law and Equity in Canada

2011-06-02T10:20:00.000-04:00

Leonard Rotman of the Faculty of Law, University of Windsor, has posted a working paper on SSRN entitled "The Fusion of Law and Equity: A Canadian Perspective."

This paper looks far more law than legal history, despite the author's keyword choices, but I'm including the abstract here because your mileage may vary, and because of my love for all things equity. Here it is:

Equity, in its broad understanding, has long been a fundamental part of law. Its history may be traced through principles illustrated in the Old Testament and, in various formulations, through Ancient Greek and Roman legal constructs, as well as in Natural Law and Canon Law. While the historic presence of Equity within various systems of law is unquestioned, the jurisdiction of Equity within contemporary legal systems has been a matter of significant debate and confusion. Facilitating a better understanding of the contemporary role of Equity requires knowledge of its meaning and the implications of the historic merger of legal and equitable jurisdictions. This paper establishes a framework for appreciating the contemporary challenges faced by Equity by examining the Supreme Court of Canada’s analysis of the merger of legal and equitable jurisdictions in two major cases involving allegations of breaches of fiduciary duty: Canson Enterprises Ltd. v. Boughton & Co. and Hodgkinson v. Simms. The inconsistent application of equitable principles in these cases demonstrates the court’s confusion over the effects of the historic merger of law and Equity and offers a valuable perspective for the administration of justice in contemporary law.

Legal Historians win prizes at CLSA conference

2011-05-30T21:20:00.001-04:00

The Canadian Law and Society Association announced its annual publishing prizes in Fredericton today.

Lori Chambers of the Departments of Women's Studies and History at Lakehead University won the prize for best article in English published in the Canadian Journal of Law and Society in the past year for “Women’s Work, Relationship Breakdown and the Division of Farm Property.”

Ken Leyton-Brown of the Department History, University of Regina won the runner-up prize for best socio-legal book for The Practice of Execution in Canada, published by the UBC press.

Congratulations Lori and Ken! Keep making us look good.

Canadian Legal History in Google Books

2011-05-26T10:05:00.003-04:00

Recently I have been getting alerts for Osgoode Society books added to Google Books. I have found Google books to be an invaluable resource in my research on nineteenth century municipal law, allowing me to find electronic copies of municipal manuals copied from the Stanford University library, for example. But I hadn't used it to check out more modern stuff, so I decided to give it a try today.

My first surprise: I typed in Canadian Legal History and got back "about 215,000" results. Most of these, are books that include the search phrase or parts thereof, including those which include citations to Osgoode Society books. Nice to know there are so many, of course.

Second surprise: as well as all the expected Osgoode Society and Law and Society titles, there were cases and materials type books going back to the 1970s. Now these aren't all searchable, sorry to say, even for their tables of contents, and in fact many of the more recent ones, including the Risk festschrift for instance, aren't searchable either. But the ones that are could be very useful, I think.

For example, I searched in James Walker's "'Race,' Rights and the Law" for 'Backhouse,' and got nine hits. You could look in the index to the book (if you own it, as you should) but you wouldn't find any entry for Constance or her work. (No offense to the publisher, indices have to be selective, especially about footnotes.) But still, how wonderful to be able to think--hmm, I seem to remember a footnote in Walker about Backhouse that might be helpful, now I know I can find it. And without the hassle and time involved of finding the damn thing on my bookshelf (my partner seemed to think it was helpful to remove the dust jackets on at least half my books, and no, they aren't organized beyond this is a Canadian Legal History section,) and scouring the footnotes.

Third surprise: the "G." in "G. Blaine Baker" stands for George. And all these years I thought it was Gordon.

Milligan on the Spadina Expressway Challenge before the OMB

2011-05-18T11:25:00.001-04:00

My former classmate from Paul Craven's graduate history class, 'Low Law and Petty Justice' at York University, Ian Milligan, has just published a paper he started in that class, "'This Board Has a Duty to Intervene': Challenging the Spadina Expressway through the Ontario Municipal Board, 1963-1971." The piece appears in the Spring 2011 issue of the Urban History Review.

Ian, who was the 2011-2012 Avie Bennett Historica Dominion Institute Scholarship winner and is one of the bloggers at Active History, is also on the list of the Toronto Legal History Group, and has attended a time or two, but didn't present this paper there, I'm sorry to say. It would have been a good fit.

Chilton on Managing Migrants

2011-05-16T18:28:00.000-04:00

Another article, again not specifically legal history, but which speaks to important issues in the history of regulation is Lisa Chilton's "Managing Migrants: Toronto, 1820–1880," which appears in the June 2011 issue of the Canadian Historical Review. (Online, but not free, sadly--fortunately most readers of this blog will have access through their institutional affiliations.) Her discussion of the pluralistic, inter-jurisdictional aspects of the regulation of immigrants promises to be particularly interesting.

Here's the relevant (for legal history) part of the abstract:

This article uses Toronto as a case study to trace the evolution of the state's interaction with migrants from a different starting point. It emphasizes the importance of the 1820–80 period – a period in which major state initiatives were put in place to regulate the flow of immigration more effectively. It underlines the fact that the state consisted of multiple, frequently competing layers of authority and power during the period of transition from colonies to nation. Finally, the study of Toronto highlights that the intersections of different state levels (municipal, provincial, imperial, federal) did not constitute an especially monolithic state regulatory response during this period, but rather more of a labyrinth whose changing features could radically affect the individual experiences of migrants during these years.

Goldberg on teacher misconduct hearings in 19th century Ontario

2011-05-15T11:59:00.002-04:00

Fans of the (indirect) history of administrative law in the context of the education system (I know you're out there) will be interested in an article by Jennifer Anne Goldberg, “I thought the people wanted to get rid of the teacher:” Educational Authority in Late-Nineteenth Century Ontario," which appears in the spring 2011 issue of Historical Studies in Education. Law and process are not the primary focus of the article, but you can read between the lines.(It's free and online--once again thank whatever deities there be for open access journals and the Public Knowledge Project!)

Here's the abstract:

By the late-nineteenth century, Ontario’s educational state was firmly established. However, the rise of provincial bureaucracy did not preclude the continuing influence of community authorities and expectations. This complex relationship between central and local spheres of power is a difficult one to assess, particularly because school board-level records are perfunctory in their coverage of such issues. However, during the 1870s and 1880s, the secretary of the Lambton Board of Education was unusually fastidious, and so this cache of records offers a view of school management rare in its detail and nuance. This paper will use Lambton County as a case study to illuminate local-provincial educational power relations. Specifically, it will examine the contested space of teacher authority, through close study of the four cases of teacher misconduct brought before the board in the late 1800s.

Ray on Native History in Court

2011-05-10T18:50:00.000-04:00

The new McGill-Queen's University Press catalogue (for Fall 2011) is out. Not much legal history this time (and they don't have a category for legal history per se in their website index, which is a fail.) But this, classified under History, looks great.

Telling It to the Judge

Taking Native History to Court

Arthur J. Ray

Ray, Professor Emeritus at UBC (where the history department website is currently wonky) draws on his own extensive experience as an expert witness to provide what sounds like a fascinating and illuminating view of the intersection of history, aboriginal rights and the litigation process. This will be a great teaching tool for law, law-and-society and Indigenous studies courses.

From the publishers' blurb:

In 1973, the Supreme Court's historic Calder decision on the Nisga'a community's title suit in British Columbia launched the Native rights litigation era in Canada. Legal claims have raised questions with significant historical implications, such as, "What treaty rights have survived in various parts of Canada? What is the scope of Aboriginal title? Who are the Métis, where do they live, and what is the nature of their culture and their rights?"

Arthur Ray's extensive knowledge in the history of the fur trade and Native economic history brought him into the courts as an expert witness in the mid-1980s. For over twenty-five years he has been a part of landmark litigation concerning treaty rights, Aboriginal title, and Métis rights. In Telling It to the Judge, Ray recalls lengthy courtroom battles over lines of evidence, historical interpretation, and philosophies of history, reflecting on the problems inherent in teaching history in the adversarial courtroom setting.

Legal History at the CHA at Congress

2011-05-05T12:43:00.001-04:00

Not a lot of legal history at the CHA conference this year--of 81 panels, one is devoted to regulation in Canada and one to British eighteenth century law. A few law themed papers scattered through out, and a roundtable on John Weaver's award winning The Great Land Rush and the Making of the Modern World, which those who have read it will know focuses a great deal on comparative property law.

I would be disappointed by the lack of legal history if I were going to the CHA this year. I am a member, but the conference dates overlap with the CLSA, which has first claim on my attendance this year. In past years I have tried to juggle both conferences, but ended up remembering very little of what I'd heard.

The panel on eighteenth century English law (no. 64) does look fascinating, though. It includes James Moran of the University of PEI, "Bordering on Madness: Law, Lunacy Commissions and Indefinite Mental States," Jennine Hurl-Eamon of Trent, "Did Unwed Mothers Really Charge Innocent Men with Fathering their Babies? A Closer Look at Malicious Prosecution in London Bastardy Cases" and Susan Brown of UPEI, "Actor's Equity: Theatrical Working Conditions as Revealed in Eighteenth Century Chancery Suits."

For the rest of the programme, look here.

Cavanagh on Sovereignty and the HBC

2011-05-02T16:05:00.000-04:00

The new issue of the Canadian Journal of Law and Society includes an interesting article by Edward Cavanagh of the University of the Witwatersrand, Johannesburg, on the constitutional apects of the Hudsons' Bay Company in the 17th and 18th century. Cavanagh (not to be confused with Edward D. Cavanagh of St. John's University in New York), is a research postgraduate affiliated with the University of the Witwatersrand’s History Project. He studied history at the Australian National University and the University of Alberta, and is a member of editorial board of the brand new journal, Settler Colonial Studies. In this article "A Company with Sovereignty and Subjects of Its Own? The Case of the Hudson's Bay Company, 1670–1763," Cavanagh makes use of the state-like aspects of the HBC to reflect on the legal theory of sovereignty. If you think it sounds familiar, that may be because it was also recently posted on SSRN. But everyone should subsribe to the CJLS. Just saying.

Here's the abstract:

Questions about the ways in which colonial subjects were acquired and maintained, and how it was that multiple and often contradictory sovereignties came to overlap in history, may not be purely academic. We raise them today because they spring from issues that remain unresolved, concerning rights to land, resources, and selfdetermination. Following recent scholarship on the English East India Company, the author redefines the Hudson's Bay Company, during the period before widespread settler colonialism, as a state (or "company-state"), and in this way argues that the HBC-state possessed its own kind of sovereignty. The article make three main arguments: that it was up to the HBC, not the Crown, to found Rupert's Land, defend its establishments, make alliances with locals, and challenge intruders; that HBC rule extended to cover not only the company's employees but, eventually, an indigenous "home guard" population; and that the HBC welfare regime transformed the relationship between ruler and ruled.

Résumé:
Nous nous intéressons aux façons dont les colonies furent acquises et maintenues en sujétion ainsi qu'aux raisons pour lesquelles des souverainetés souvent contradictoires se sont chevauchées au fil du temps. Nous soulevons ces questions, à présent, puisqu'elles abordent des problèmes concrets et irrésolus, à savoir les droits territoriaux, les ressources ainsi que l'autodétermination. Suivant les écrits récents sur la Compagnie anglaise des Indes orientales, je redéfinirai la Compagnie de la Baie d'Hudson (CBH), à l'époque qui précède l'établissement répandu de colonies, comme un état (ou Compagnie-état), c'est-à-dire un régime qui possédait une souveraineté particulière. J'avancerai trois points : 1) que c'était à l'état de la Compagnie de la Baie d'Hudson, plutôt qu'à la couronne, d'établir la Terre de Rupert, de défendre ses établissements, de s'allier avec les locaux et de se défendre contre les intrus ; 2) que les lois de la Compagnie s'appliquaient non seulement aux employésde la CBH mais aussi, éventuellement, à la population autochtone ; et 3) que le régime de bien-être social de la CBH a eu pour conséquence de transformer la relation entre maître et sujets.

John T. Saywell, 1921-2011

2011-04-26T19:12:00.002-04:00

The death of John T. Saywell is very sad news for his many fans--former students, colleagues and readers of his acclaimed works on Canadian political, constitutional and legal history. Professor Saywell had a long and distinguished academic career and touched the lives of many. He will be missed.

From his obit in the Globe today:

Throughout his long and distinguished career, he took 'many roads less travelled.' In the process, he deepened Canada's knowledge and understanding of itself, from the constitution and federalism to the offices of the Lieutenant-Governor and the Governor-General. He also chronicled Canadian history, economics, politics, culture and society as Editor of the Canadian Historical Review (1957 - 1963), and as Editor of the Canadian Annual Review (1960 - 1979), reviving and revitalizing these two journals. John's ground-breaking scholarship was recognized through a number of major awards. His 1957 book, The Office of Lieutenant-Governor: A Study in Canadian Government and Politics, won the Delancey K. Jay Prize at Harvard University. Another, the 1991 'Just Call Me Mitch': The Life of Mitchell F. Hepburn, won the Floyd Chalmers Award for the best book on Ontario history. His 2002 study of the Supreme Court of Canada, entitled The Lawmakers: Judicial Power and the Shaping of Canadian Federalism, won the John W. Dafoe Prize for 'distinguished writing on Canada and/or Canada's place in the world'....

A private family cremation... was held on April 23rd. In lieu of flowers, the family requests that a donation in John's memory be made to the John T. Saywell Prize for Canadian Legal History (c/o the Osgoode Society for Canadian Legal History (www.osgoodesociety.ca), to the Toronto East General Hospital (www.tegh.on.ca), or to a charity of choice. Friends and colleagues are invited to 'The Way It Was: Remembering Jack', a celebration of his life, to be held on Father's Day, Sunday, June 19th from 11:30 A.M. at the Japanese-Canadian Cultural Centre, 6 Garamond Court (off Wynford Drive, west of the Don Valley Parkway) in North York, 416.441.2345. Condolences www.rskane.ca. R.S. Kane 416-221-1159.

Helge Dedek on the Role of Rights in Blackstone's Commentaries

2011-04-25T09:31:00.001-04:00

The venerable Blackstone seems to be attracting a lot of interest these days. Dr. Helge Dedek, who teaches Roman Law and Legal Traditions (among other things) at the McGill University Faculty of Law, has just posted "Of Rights Superstructural, Inchoate and Triangular: Some Remarks on the Role of Rights in Blackstone’s Commentaries" on SSRN as part of the accepted paper series. You can read it there, or as part of THE RIGHTS OF PRIVATE LAW, A. Robertson, D. Nolan, eds., Hart Publishing, 2011 eventually.

Here's the abstract:

Peter Birks has famously described the way in which rights operate in Blackstone’s legal cosmos as “superstructural.” In order to fully understand what this assessment entails, we will have to take a closer look at how the elements of Blackstone’s conceptual mechanism – right/wrong, rights, wrongs, and remedies – interact and complement each other. This “juridical” analysis, however, will inevitably take us back to the more foundational aspects of Blackstone’s vision of private law. In a formalist jurisprudence, Ernest J. Weinrib has explained, conceptual constructions and philosophical foundations are closely and intrinsically linked in the sense that the former are the expression of the latter – an insight particularly helpful, I believe, in Blackstone’s case, where the explicit verbalization of philosophical underpinnings remains fragmentary and basic theoretical assumptions have to be gleaned from doctrinal construction and categorization. As we shall see, the rights-remedies division in Blackstone’s organizational scheme is the expression of a “dualist” conception of the rights-remedies relationship: Blackstone’s perception of private law is not a Weinribian vision of a coherent, transactional unit, defined by the correlativity of right and duty. The “rights” that come into existence when a “wrong” is committed are of such nature that they can only be perceived as a triangular relationship that necessarily involves plaintiff, defendant and the state.

Mélanie Brunet online

2011-04-24T16:02:00.028-04:00

As part of my work with the Osgoode History and Archives Project, I have been reading up on the history of the profession and legal education in Ontario. A week or so ago I started on Melanie Brunet's excellent doctoral dissertation, "Becoming Lawyers: Gender, Legal Education and Professional Identity Formation in Canada, 1920-1980" (U of T, Department of History, 2006). Melanie was the original project coordinator of OHAP, and uploaded the dissertation with some other secondary sources to a drive on the law school server to which I have recently been given access, so I have been reading it there.

Just today I discovered that Melanie has uploaded a very readable copy free to all online at Academia.edu. Also on her page is a link to a fantastic report she wrote in 2000 for the Department of Justice, "Out of the Shadows: The Civil Law Tradition in the Department of Justice, Canada, 1868–2000." Like many anglophone legal academics, I know far too little about the civil law in Canada, and I'm looking forward to starting to redress that a bit by reading the report this summer.

Note: I know there is supposed to be an accent aigu on the first e in Melanie, but I can't figure out a way to do that on Blogger.

We've been noticed!

2011-04-21T13:10:00.000-04:00

The list of our betters in the legal, historical and legal-historical blogospheres who have publicized this blog continues to grow!
In chronological order: Christopher Moore's History News (self-explanatory), The Legal History Blog (Mary Dudziak, Dan Ernst and entourage in the U.S.),The Idea File (Political Scientist Janet Ajzenstat), IFLS (Professor Sonia Lawrence, Director of the Institute of Feminist Legal Studies of Osgoode Hall Law School), and most recently the online Canadian legal magazine Slaw (uber-blogger and Osgoode emeritus professor Simon Fodden). We have officially arrived! Thanks to everyone. I read you all faithfully: yes, suspiciously backscratching, but true nonetheless! If I've missed anyone, please let me know.

Philip Girard to be James L. Lewtas Visting Professor at Osgoode in 2011-2012

2011-04-17T21:52:00.001-04:00

More good news for Osgoode Hall Law School: Philip Girard, who has been a visitor at the Centre of Criminology and Sociolegal Studies at the University of Toronto while on sabbatical leave this year from the Schulich School of Law at Dalhousie University, will spend next year as the James L. Lewtas Visiting Professor at Osgoode. His book Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax will be launched by the Osgoode Society in August. Philip, Jim Phillips and Blake Brown are continuing work on their major project "Canadian Legal History, 1500-2000." Philip and Jim's piece "Rethinking 'the Nation' in National Legal History: A Canadian Perspective" will appear in the upcoming spring issue of the Law and History Review.

Editor's Note: Yes, I know that the blog has been more than a bit Osgoode and Toronto-centric. We would be happy to publish news from all over--email us at the addresses in the right hand column!

J.L. Granatstein on employment discrimination on religious grounds in the Canadian armed forces

2011-04-13T22:57:00.002-04:00

Military historian J.L.Granatstein has published "The Problem of Religion in Canadian Forces Postings" in
the autumn 2010 issue of Canadian Military History ( Vol. 19 Issue 4). This short (7 page) article presents a charter challenge in historical context.

Here's the abstract:

The article presents a legal brief which was used in a Canadian court case in March 1998 wherein the plaintiff, Canadian Navy Lieutenant Andrew S. Liebmann, was dismissed from an appointed position during the Gulf War in 1991 due to the fact that he practiced the religion of Judaism. It examines the history of discriminatory practices in enlistment procedures for the Canadian Forces beginning with the First World War and describes how the screening of Liebmann for his religious and ethnic practices prior to peacekeeping mission in the Middle East were [sic] a violation of the rights provided by the Canadian Charter of Rights and Freedoms.

More submissions requested

2011-04-13T12:19:00.000-04:00

For the Oliver Prize (best published paper by a student.)
And the McMurtry Fellowship, (to support research in legal history by a doctoral or post-doctoral student.)

Please distribute widely.

Simon Stern on case law and detective fiction

2011-04-07T10:07:00.001-04:00

When we launched this blog, Jim stated that our mission was to highlight Canadian legal history. Which leads to the question of today--is legal history by Canadians, but not specifically about Canada, 'Canadian'? TV, movie and book awards have this problem in determining eligibility as well. They tend to err on the side of inclusiveness, so I will too (until vetoed by my co-editor--we haven't discussed this.)

Simon Stern's recent paper, "Detecting Doctrines: The Case Method and the Detective Story," posted on SSRN in the accepted paper series (and forthcoming in the Yale Journal of Law and the Humanities, vol. 2, no. 2, 2011, complicates the 'Canadian' criterion. Simon, as many of our readers know, is on the Faculty of Law at the U of T, where he teaches legal process, ethics, and the legal profession, as well as legal history. He also co-chairs the Law and Humanities Workshop. His legal historical interests tend to the historical aspects of the Law & Literature subfield (or vice versa).

Intellectual history, and certainly Simon's research, tends to the transnational, but is often relevant to Canadianists, even if indirectly, as extrapolating on the traditions of the common law world to which our jurisdictions belonged. This paper fits that category, and is interesting to boot.

Here's the abstract:

Many scholars have compared legal judgments with detective stories, and have suggested that law professors should teach cases in a way that reflects the structure of detective fiction. This essay explores that analogy, arguing that detective fiction’s asserted concern with the logical analysis of clues helps to show why exponents of legal doctrine would look to this genre as a model. Detective stories changed in the late nineteenth century, for the first time organizing their narrative structure around the use of clues, and hence claiming to promote logical reasoning in a way that allowed the reader to compete with the detective in solving the mystery. This explanation echoes the rationales offered by the advocates of the case method when it was first being endorsed around the same time. Law teaching changed similarly, moving from the methods of lecture and memorization to an approach that required students to navigate a narrative medium (the case) and to discover its essential components on their own. These two developments, in literature and law, stem from a common source - the emergence of new scientific methods aimed at tracing visible effects back to their hidden causes, exemplified by Charles Lyell’s work in geology and Charles Darwin’s work in evolution. When the early advocates of the case method talked about legal science, they emphasized scientific values such as coherence, clarity, and consistency, but an equally important aspect of the enterprise received much less rhetorical emphasis - namely, the method itself, which reflected the forms of scientific inquiry exemplified by Lyell and Darwin.

This essay explores those connections by considering various historical and structural analogies between the case method and the detective story. Part I takes up the changes in legal education associated with Christopher Columbus Langdell at Harvard, and discusses the intellectual roots of the case method, the justifications offered in its support, and the narrative tendencies that it relies on and promotes. Part II turns to the origins of the modern detective story near the end of the nineteenth century, and shows how the genre developed from the same scientific background as the case method. This section then examines in greater detail some of the ways in which case-method pedagogy may be said to cultivate the same habits as detective fiction, and concludes with some examples in which courts have expressly invoked the analogy to describe their own procedures or have crafted doctrines with the aid of propositions borrowed from detective stories. Part III considers some examples of detective fiction, pursuing the analogy further by asking why lawyers often figure as detectives in these stories. Finally, in a short conclusion, I discuss the analogy’s implications by considering the emergence, around the turn of the nineteenth century, of a doctrinal approach that discovered underlying rights behind express constitutional guarantees.

New website on Chinese-Canadian legal history

2011-04-05T17:41:00.001-04:00

Kew Dock Yip, first Chinese Canadian Lawyer

I got an email yesterday from Christopher Moore, history blogger, ~~lawyer~~, (ed. oops, sorry!) legal journalist and independent legal and Canadian historian extraordinaire, suggesting Road to Justice, a new public history website, as suitable topic for blogging. (Thanks, Chris!)

I had actually seen an announcement for this website, but the page that came up was the quiz section, which looked a bit middle school. But after Chris said the interview clips were great, I took a second look, and not surprisingly, he was right.

Here's an excerpt from the descriptive blurb:

Road to Justice is an account of the historical use of law by governments in Canada as a tool to exclude, restrict or otherwise control the lives of people of Chinese descent. Road to Justice is undertaken by the Metro Toronto Chinese and Southeast Asian Legal Clinic with the support of the Government of Canada through the Community Historical Recognition Program.

Road to Justice will be a great resource for those teaching legal history or law and society at the high school or undergraduate level.

Benjamin Berger to move to Osgoode

2011-04-04T16:28:00.000-04:00

It was announced today that Benjamin Berger, currently an associate professor at the University of Victoria, has been appointed to the faculty at Osgoode Hall Law School (subject to University approval.) UVic's loss is definitely Osgoode's gain.

Ben is a member of the board of the Canadian Law and Society Association, and the editorial board of the Canadian Journal of Law and Society, who includes legal history among his research interests. Ben's latest legal history publication is "Judges, Juries, and the History of Criminal Appeals" which appeared in the February 2011 issue of the Law and History Review (Vol. 29 no.1).

Feminized Justice: Update

2011-04-02T08:58:00.000-04:00

Angela Fernandez of the University of Toronto has drawn my attention to her recent review of Feminized Justice, the book by Amanda Glasbeek I profiled here last week, on Jotwell, the Journal of Things We Like (Lots.) The "We" is legal scholars: the online journal is designed to fill "a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship."

One of the rubrics of legal scholarship Jotwell celebrates is legal history. Angela is a regular contributing editor for this section (and the only Canadian.)

Her review begins by highlighting the bright pink background on the book jacket in contrast with the somber black and white male-dominated photograph:

This terrific book, coloured hot pink, has a black-and-whiite photograph of the Toronto Women’s Court on its cover. The photograph is filled with a lot of men, at least a dozen, all wearing suits, and only two women. Where were the women lawyers, women judges, women clerks and bailiffs, not to mention the female defendants who occasioned the gathering of all this officialdom? The court had a male judge for its first eight years. The small number of women in the photograph and the initial lack of a female judge points to the same kind of contradiction Amanda Glasbeek’s book is most concerned to highlight, namely, the way that this movement to create a female-friendly space for the “right” kind of woman (young ones who had temporarily lost their moral compass and needed to be protected) ended up mostly coercing, disciplining, and punishing a very different kind of woman (e.g. older veterans with persistent drinking problems who were deemed effectively non-reformable).

I won't reproduce the rest of the review (you can follow the link to read it yourself), but here's an enlarged image of the cover again so you can see what she is talking about.

Brad Miller recieves SSHRC post-doc for study of international law in 19th century Canada

2011-04-01T17:10:00.000-04:00

Congratulations to Bradley J. Miller, a current PHD student at U of T, who has just been given a SSHRC post doctoral fellowship to study the history of international law in Canada! Brad, a previous McMurtry Scholar and Oliver Prize winner, who is completing his doctoral research on the history of extradition under the supervision of Jim Phillips, will take up his post-doc in the history department at Queen's University with Jeff McNairn as supervisor.

Here's Brad's description of the project, which is titled "Lapped in Universal Law?": British North America and International Law, 1815-1896:

[F]rom legislative debates, court decisions, and government records it is apparent that international law was a key force in nineteenth century British North America. Everyone from colonial officials writing legislation to religious minorities claiming rights invoked its protections and relied on its ideas. International law took a central role in debates over the colonization of aboriginal lands, in boundary disputes with the United States, and in controversies over national security and the use of military force. Ideas about global legal order were similarly important both to the ideology of free trade and to the lingering power of the British Empire over Canada, as imperial authorities ushered the colonies into systems of law which were enveloping much of the world. In short, British North Americans worked within a legal regime which stretched beyond their colonies and even beyond British sovereignty. They understood law to be a key part not simply of British justice, but of world order.

Using targeted case studies, I want to examine how ideas of international legal order shaped statecraft and legal thought from the end of the War of 1812 until Wilfrid Laurier's retreat from free trade ideology in the 1896 election campaign. Specifically, I will look at the influence of international law on relations with the United States, the ways in which it guided legal and political attitudes towards aboriginal people and religious minorities inside colonial and later Canadian borders, and how it shaped imperialism and international political economy.

Legal History at CLSA annual conference

2011-03-29T22:12:00.001-04:00

As usual, a number of legal history papers will be presented at the Canadian Law and Society Association annual conference at Congress in Fredericton, May 29-June 2.

Two panels dedicated to legal history are planned. The schedule is still preliminary, but it looks as though the first panel (Legal History 1: Constructing Subjects ) will feature Blake Brown, "Too many foreigners
[are] carrying weapons and something will have to be done: Canadian Gun Control and the World Wars", Michael Boudreau, “The condition of things…where you have lived…is a fearful one”: The Executions of
George Gee and Bennie Swim in New Brunswick', and Sarah Hamill, "The Liquor Control Act and the Construction of the Masculine Ideal in Alberta, 1924-1930".

The second panel (Legal History 2: Criminologies) will include Joel Kropf, "Denouncing ‘the System’: Dr. O.C.J. Withrow, the Toronto Globe, and Penal-Reform Advocacy in the 1930s," Soren Frederiksen, "Fingerprinting in Canada from 1902-1911: An Exercise in Translation," and Chandra Murdoch, The Indian Agent as Justice of the Peace: Law and Regulation on Indian Reserves in Canada, 1876-1907."

Additional legal histories will be dispersed throughout the other panels. These include Lyndsay Campbell, "Oliver Dawsey and the Operation of Race in the Criminal Justice System in Canada West,"George Pavlich," Law and Sovereignty at the Cape Colony,1795-1803," Dwight Newman, "Aboriginal Law and Privaten International Law: A New Historical and Theoretical Nexus," Janna Promislow, "'It would only be just': A study of territoriality in the northwest in 19th century British North America," Susan Boyd, "Abolishing Illegitimacy: The Contradictions of Law Reform," Karen Pearlston, "Theorizing Coverture: Transformations in the Gender Order," and Christiane Wilke, "Becoming Responsible? Ascriptions and Performances of Responsibility in the Causa ESMA, 1983-1987."

Confederation Debates revisited

2011-03-28T09:36:00.000-04:00

University of Alberta Faculty of Law professors James Muir and Peter Carver have introduced a historical role-playing element to a course in constitutional law, whereby students negotiate the BNA act and its successor, the Constitution Act, 1982 (including the Charter.)

The innovative course was inspired by a similar exercise conducted in American Universities, and supported by the Teaching and Learning Enhancement Fund at the U of A. You can read more about it here.

Thanks to legal historian Sarah Hamill, the U of A Faculty of Law's first doctoral student, for the head's up on this. Keep those cards and letters (and emails) coming in--we would love to pass on any news of legal-history related teaching, research, writing and public history projects.

(Fairly Recent) Book of the Week

2011-03-24T11:00:00.000-04:00

Although we are publishing this blog with the imprimatur of the Osgoode Society, we are well aware that Canadian Legal History does not begin and end with the Society. There are many excellent publishers and promoters of legal history out there, and one of them is the Law & Society series of the University of British Columbia Press, under the general supervision of legal historian Wes Pue.

One of the series' books from 2009 which deserves wide readership is Feminized Justice: The Toronto Women's Court, 1913-34 by York University socio-legal scholar, Canadian Law and Society Association board member and website manager (English) and all-round nice person Amanda Glasbeek.

Here's the publisher's blurb:

In 1913, Toronto launched an experiment in feminist ideals: a woman’s police court. The court offered a separate venue to hear cases that involved women and became a forum where criminalized women and feminists met and struggled with the meaning of justice.

The court was run by and for women, but was it a great achievement? Amanda Glasbeek’s multifaceted portrait of the cases, defendants, and officials that graced its halls reveals a fundamental contradiction at the experiment’s core: the Toronto Women’s Police Court was both a site for feminist adaptations of justice and a court empowered to punish women.

Reconstructed from case files and newspaper accounts, this engrossing portrait of the trials and tribulations that accompanied an early experiment in feminized justice sheds new light on maternal feminist politics, women and crime, and the role of resistance, agency, and experience in the criminal justice system.

Two recent articles on legal aspects of education history

2011-03-23T15:35:00.002-04:00

Paul Axelrod of York University's Faculty of Education and Anthony Di Mascio, a doctoral student in history at the University of Ottawa, have recently published articles dealing with different legal aspects of education law in Ontario in the 20th and 19th centuries respectively.

Axelrod's "No Longer a ‘Last Resort’:The End of Corporal Punishment in the Schools of Toronto" appeared in the June 1910 issue (vol.91 no.2) of the Canadian Historical Review. Here's the abstract:

In 1971, following a protracted and tumultuous debate, the Toronto Board of Education formally abolished the use of corporal punishment in its schools – the first Ontario board to do so. Corporal punishment continued to be employed elsewhere in Ontario and throughout Canada well into the 1980s, and the use of physical discipline was prohibited in all Canadian schools only in 2004, following a ruling of the Supreme Court of Canada. Why did educators and legislators defend corporal punishment for so long, and why did the tide turn in the last part of the twentieth century? Concentrating on legal and political dynamics, this article explores the ways in which the Toronto Board of Education grappled with the issue of corporal punishment in the three decades before its abolition. It seeks to situate the story of Toronto's approach to school discipline on the broader social landscape on which the battle over corporal punishment was conducted. It concludes that the particular configuration of the Toronto Board of Education following trustee elections in 1969 strongly affected the shape and outcome of the corporal punishment debate.
En 1971, après un long débat tumultueux, le Conseil scolaire de Toronto a officiellement aboli l'utilisation du châtiment corporel dans ses écoles, le premier conseil scolaire à prendre une telle décision. Le châtiment corporel est demeuré employé ailleurs en Ontario et au Canada jusqu'au milieu des années 1980. La correction physique n'a été interdite dans l'ensemble des écoles canadiennes qu'en 2004, à la suite d'une décision de la Cour suprême du Canada. Pourquoi les éducateurs et les législateurs ont-ils voulu conserver le châtiment corporel durant si longtemps, et pourquoi le vent a-t-il tourné au cours de la dernière partie du XX siècle? Le présent article est axé sur la dynamique légale et politique et examine comment le Conseil scolaire de Toronto s'est accommodé de cet épineux problème du châtiment corporel au cours des trois décennies qui ont précédé son abolition. L'auteur cherche à situer l'histoire de la méthode torontoise envers la discipline scolaire dans un contexte historique plus vaste où s'est déroulé la lutte ayant trait au châtiment corporel. Il en vient à la conclusion que la configuration particulière du Conseil scolaire de Toronto après l'élection des fiduciaires en 1969 a eu une importante influence sur la forme et le résultat du débat sur le châtiment corporel.

Di Mascio's focus in "Educational Discourse and the Making of Educational Legislation in Early Upper Canada," which appeared in the Februrary 2010 issue (vol.50 no.2) of History of Education Quarterly, also deals with the 'high law' of legislation and the inter-relationship of public opinion and legal change. The abstract:

The article presents a re-examination into the history of education in Upper Canada during the late 18th- and early 19th-centuries, challenging academic discourse relating to the popular support and impetus behind its first waves of advocacy in the contemporary government administrations. The article focuses on the preparations leading up to and the consequences of the 1816 Common School Act. Questions are raised addressing the level of government enthusiasm for expanding the educational system of the region. Conclusions are offered defining the scope of the popular pressure which led to improvements in the educational system.

Christopher Anderson on restricting rights of asylum seekers in Canada, 1951-1989 in CJPS

2011-03-22T13:10:00.002-04:00

Christopher G. Anderson has published a paper in the Canadian Journal of Political Science which will be of interest to Canadian legal historians of the 20th century. "Restricting Rights, Losing Control: The Politics of Control over Asylum Seekers in Liberal-Democratic States—Lessons from the Canadian Case, 1951–1989" appeared in Vol. 43 Issue 4, at pages 937-959.

Here's the abstract:

Since the 1990s, a prevalent theme in the comparative literature on liberal–democratic state responses to increasing international migration holds that the expansion of rights protections for non-citizens has undermined restrictive border control policies. The argument presented in this article suggests that this is too partial an understanding of the ways in which control and rights intersect—the control–rights nexus. Accordingly, it analyzes Canadian policies towards asylum seekers from the 1950s to the 1980s to explore the ways in which the restriction of rights can undermine state control policies by generating rights-based politics, encouraging the circumvention of control policies and creating administrative inefficiencies. Altogether, the analysis provides an important refinement of the study of the control–rights nexus and allows for a more complete understanding of control policies and politics in liberal–democratic states.

Abstract (French):

Depuis les années 1990, un thème répandu dans la littérature comparative sur les réponses des États libéraux démocratiques à la croissance de la migration internationale soutient que l'extension de la protection des droits des non-citoyens a compromis les politiques restrictives de contrôle des frontières. L'argument présenté dans cet article suggère que ce thème offre une compréhension trop partielle de la dynamique d'intersection du contrôle et des droits - le control-rights nexus. En conséquence, il analyse les politiques canadiennes envers les demandeurs d'asile depuis les années 1950 jusqu'aux années 1980 pour explorer les manières dont la restriction des droits peut miner les politiques de contrôle de l'État en générant des politiques de droits, en encourageant le contournement des politiques de contrôle et en créant des lourdeurs administratives. En somme, l'analyse apporte une mise au point importante à l'étude de cet enjeu et permet une compréhension plus complète des politiques de contrôle et de la politique dans les États libéraux démocratiques.

Call for Papers: Canadian State Trials, vol.4

2011-03-18T09:21:00.000-04:00

The editors of the Canadian State Trials project announce that work is beginning on Volume 4 and invite potential contributors to submit preliminary proposals for a chapter in the volume.

The volumes in the State Trials series consist of studies of security threats to the state in a given historical period in Canada. The published volumes so far are:

Volume 1 Law, Politics and Security Measures, 1608-1837 (1996)

Volume 2 Rebellion and Invasion in the Canadas, 1837-1839 (2002)

Volume 3 Political Trials and Security Measures, 1840-1914 (2009)

The fourth volume will cover the period 1914 to 1939. As with previous volumes, it will focus on the use of law and legal institutions to respond to real and perceived state security threats including the management of public dissent and disorder. Examples of potential topics for chapters include (but are not limited to): accounts of trial(s) for treason and for sedition (including in military courts); suspension of habeas corpus during World War I; responses to the Winnipeg General Strike and to other incidents of labour unrest during the 1920s and 1930s; and prosecutions of, or legal measures against, ethnic, religious, political and other groups in the name of state security.

Those interested in contributing should contact both editors with a relevant topic and a brief description of the proposed treatment, along with a short CV, by August 1, 2011.

Barry Wright (b_wright@carleton.ca)

Susan Binnie (wsbinnie@sympatico.ca)

Mundell Medal awarded to Constance Backhouse

2011-03-17T13:27:00.001-04:00

Friends,

Every year the Ministry of the Attorney general for Ontario awards the David Walter Mundell Medal, which honours those who have made a distinguished contribution to law and letters through their legal writing. I am delighted to be able to tell you that the 2010 recipient is our legal history colleague Constance Backhouse. This is deserving recognition, and is especially pleasing because the Mundell Medal is not for legal history alone, but all areas of legal writing.

Jim Phillips

Dissertation on the judiciary in historical and sociological context

2011-03-15T14:24:00.010-04:00

Martine Valois' doctoral dissertation, "Evolution du droit et de la fonction de juger dans la tradition juridique occidentale. Une etude sociohistorique de l'independance judiciaire" (Universite de Montreal, 2009) is now available on Proquest.

Here's the abstract in English:

This thesis examines the function of the judiciary in the legal system in a historical and sociological perspective. Through the lens of history and sociology, the author reviews and considers the changes in the role of the judge in the development of law. The heuristic benefit of this approach borrowed from history and systemic theory, is invaluable. Firstly, it demonstrates that the place reserved for the judicial creation of law in the legal system is tributary to what is considered as the source and legitimacy of law. Secondly, it sets in an evolutionary perspective the significant changes that occurred in the development of law and the judicial function. The characterization of the
judicial function evolves from a political science's viewpoint to a legal perspective. Through this reappropriation by the legal science, the judicial production of law can now be examined in its systemic function. As well, exploration of the sources of the function of justice renders possible and understanding of the rationale used by judges throughout history to legitimize their position in the legal system.

The thesis supports the proposition that, along with legal conditions relating to the status of judges, a set of sociological conditions must exist in order for judicial independence to be fully protected and the rule of law upheld. These conditions are social differentiation, a structure of conditional programs for law, and limitation in
the social system of the responsibility and accountability of judges following
the fulfillment of their judicial function.

Finally, in the final stage of her socio-historical research, the author demonstrates how the current judicial interpretation of the conditions for judicial independence enhances the theoretical foundations that situate the judicial function at the centre of the legal system.

Oliver Prize Announcement

2011-03-12T18:03:00.002-05:00

And here's another one..

Peter Oliver Prize in Canadian Legal History

The Osgoode Society for Canadian Legal History invites nominations
for the Peter Oliver Prize in Canadian Legal History. The prize,
named for Professor Peter Oliver, the Society's founding
editor-in-chief, is awarded annually for published work (journal
article, book chapter, book) in Canadian legal history written by a
student. Students in any discipline at any stage of their careers are
eligible. The Society takes a broad view of legal history, one that
includes work in socio-legal history, legal culture, etc., as well as
work on the history of legal institutions, legal personnel, and
substantive law.

Faculty members are encouraged to nominate student work of which they
are aware, and the Society will also be pleased to accept
self-nominations. Those nominating their own work should send a copy
of it to the Society. The deadline for nominations for the 2011
Prize, to be awarded for work published in 2010, is April 30, 2011.

Please send nominations to Professor Jim Phillips, Editor-in-Chief,
Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen
Street West, Toronto ON M5H 2N6, or by email to j.phillips@utoronto.ca

Call for applications--R.Roy McMurtry Fellowship in Canadian Legal History

2011-03-12T17:59:00.003-05:00

Many of you will already have had this announcement via email. And here it is as a post on the blog!

R. Roy McMurtry Fellowship in Canadian Legal History

The R. Roy McMurtry Fellowship in Canadian Legal History was created
on the occasion of the retirement as Chief Justice of Ontario of the
Hon. R. Roy McMurtry. It honours the contribution to Canadian legal
history of Roy McMurtry, Attorney-General and Chief Justice of
Ontario, founder of the Osgoode Society for Canadian Legal History
and for many years (and currently) the Society's President. The
fellowship was established by Chief Justice McMurtry's friends and
colleagues, and endowed by private donations and the Law Foundation
of Ontario.

The fellowship is to support graduate (preferably doctoral) students
or those with a recently completed doctorate, to conduct research in
Canadian legal history, for one year. Scholars working on any topic
in the field of Canadian legal history are eligible. Applicants
should be in a graduate programme at an Ontario University or, if
they have a completed doctorate, be affiliated with an Ontario
University. The fellowship may be held concurrently with other
awards for graduate study. Eligibility is not limited to history and
law programmes; persons in cognate disciplines such as criminology or
political science may apply, provided the subject of the research
they will conduct as a McMurtry fellow in Canadian legal history. The
selection committee may take financial need into consideration.

The fellowship will be awarded in July 2011, and will have a value of
at least $16,000. Applications will be assessed by a committee
appointed by the Osgoode Society for Canadian Legal History and
consisting of Society Directors and academics. Those interested
should apply by sending:

A full curriculum vitae
A statement of the research, not exceeding 1,000 words, that they
would conduct as a McMurtry fellow. The statement should clearly
convey the nature of the project, the research to be carried out, and
the relationship, if any, between the project and previous work done
by the applicant.
The names and addresses (including email addresses) of two academic
referees. Please do not ask your referees to write; the Society will
contact them if necessary.
For persons not currently connected with an Ontario University, an
indication of how and when they intend to obtain such a connection.

Please send applications to Marilyn Macfarlane, McMurtry Fellowship
Selection Committee, Osgoode Society for Canadian Legal History,
Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline
for applications is April 30, 2010. For more information
contact mmacfarl@lsuc.on.ca.

New Blog on Canadian Legal History

2011-03-12T11:39:00.002-05:00

Welcome to the new canadian legal history blog. The blog is the brainchild of Mary Stokes, on behalf of the Osgoode Society. We are curently running it on blogspot but we hope to move it to the Osgoode Society's new website when that site gets going this summer.

We hope the blog will prove a useful place for the wonderful community of legal historians we have in Canada. It won't be the place to go to discuss the meaning of the second amendment of the US constitution, or medieval pleading and practice, but we want it to be where we discuss aspects of the unique and exciting legal history of our country.

Jim Phillips