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Monday, November 26, 2018

Hutchison, "Corporate Law Federalism in Historical Context: Comparing Canada and the United States" on SSRN

Camden Hutchison of the Peter A. Allard School of Law, University of British Columbia, has posted "Corporate Law Federalism in Historical Context: Comparing Canada and the United States" on SSRN (forthcoming in the McGill Law Journal.)

Although American and Canadian corporate law share many similarities, they are also marked by important institutional differences. Among the most notable are the differing roles of federal versus state/provincial policymaking in the two countries: While American corporate law has been deeply influenced by jurisdictional competition among the states, Canadian law has instead been shaped by federal legislative activity, as seen today in the standardizing influence of the Canada Business Corporations Act. These different institutional histories have led to distinct evolutionary paths, with important substantive consequences for contemporary corporate law.

Despite considerable academic attention to the subject of corporate law federalism, these historical differences between Canada and the United States are not well understood. Drawing on historical evidence, this article explains why jurisdictional competition arose in the United States but not Canada by examining the "Great Merger Movement" of the late nineteenth and early twentieth centuries. Specifically, this article makes three related arguments: (1) In the United States, the rise of jurisdictional competition was driven not by corporate governance issues, as is often assumed, but rather by the desire to avoid state and federal antitrust restrictions; (2) For a variety of reasons, cartelization and price fixing were more viable in Canada than the United States, delaying the onset of consolidative mergers; and (3) When the Canadian merger movement finally arrived, Canadian federal company law readily facilitated industrial consolidation, reducing the incentives for individual provinces to compete to attract company charters.

Given the permissiveness of Canadian company law and the availability of a federal statute, there was little demand for provincial governments to liberalize their own companies acts. In this respect, the different experiences of Canada and the United States reveal an intriguing historical irony — while Canadian corporate law is sometimes criticized as lacking in competitive responsiveness, the roots of this complacency are closely tied to the turn-of-the-century merger movement, in which Canadian law was more permissive than its traditional American counterpart.

Wednesday, November 21, 2018

Spitz, "More or Less Human: Colonialism, Common Law, and the Social Construction of Humanity on Vancouver Island, 1849-1864" on SSRN

Laura Spitz, of the University of New Mexico School of Law, has posted 
"More or Less Human: Colonialism, Common Law, and the Social Construction of Humanity on Vancouver Island, 1849-1864" on SSRN.

Focusing on the colony of Vancouver Island in the mid-nineteenth century and the colonization efforts of James Douglas, this paper seeks to make three separate but related points about the meaning and relevance of being “human” in that place, at that time. First, practices of humanization and dehumanization were used in the construction of a consequential set of legal categories, including alien, Indian, corporation, white and citizen. In some sense, this period marked the beginning of colonial legal ‘sorting’ or ‘ordering’ in the region. Many of the most visible categorical contests surfaced through or in connection to contests about land and citizenship, but there was another story there, too: a much more basic story about who counted as fully human in the nascent colony. Second, notwithstanding colonial/settler practices of dehumanizing Indigenous people in the process of colonization, James Douglas believed that they were in fact human, and this was evident in his land policies and practices, including treaty-making. While Douglas is sometimes valorized for having recognized Aboriginal title in unceded land, however, the underlying assumption that Indigenous people were in fact human does not reveal a robust and nuanced view of humanity, nor was it especially progressive except in contrast to the even more discriminatory views of others. Rather, it was fundamentally liberal in the sense that it recognized that Indigenous people could be legal persons, capable of holding and exercising rights in property. Conceived thus, human being was a status which entitled the status-holder to something like membership in humankind; and humanity was essentially the totality of human beings. Finally, this conception of what it meant to be human would likely not have made sense in the context of Coast Salish justice systems and other traditions. Being human was not so much a status to which legal rights attached, as a largely relational way of being in the world, and even then, potentially transitional or temporary, and invariably subordinate to more powerful, nonhuman forces. In that view, humanity was not so much the totality of human beings, or at least not just that, but something one expressed towards others, both human and nonhuman. Ultimately, this disconnect between Douglas’s and Coast Salish understandings not only complicated treaty-making, it had lasting impact on the evolution of laws in the territory we now call British Columbia.

Tuesday, November 20, 2018

Legal History Workshop schedule Winter 2019


Wednesday January 16: Nicholas Rogers, York University: 'Murder on the Middle Passage: The trial of Captain Kimber 1792.'

Wednesday January 30: AVAILABLE

Wednesday February 13: Jackson Tait, Osgoode Hall Law School: 'In Search of the Lex Mercatoria:  Canadian Legal Interpretation of Atlantic Marine Insurance Contracts, 1860 - 1924'

Wednesday February 27: Eric Reiter, Concordia University: ‘Robinson v. CPR (1882-92):  Law, Society and Wrongful Death in Quebec’  [tentative title]

Wednesday March 13: Mark Walters, McGill Law School: TBA

Wednesday March 27: Colin Grittner, University of British Columbia: ‘Elective Legislative Councils and the Privileges of Property across Mid-Nineteenth-Century British North America’

Wednesday April 3: Patricia McMahon, Torys: TBA

Monday, November 19, 2018

Berger, "Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom" on SSRN

Benjamin Berger of Osgoode Hall Law School has posted "Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom" on SSRN. The article is forthcoming in the National Journal of Constitutional Law. 

Abstract: This article approaches Adler v Ontario as a distinctively useful perch from which to survey the history and future of the constitutional interaction of law and religion. The case is positioned at a provocative place in the arc of the development of this interaction and the article uses the reasons in Adler to expose and explore some themes that shape not only our religion jurisprudence, but Canadian constitutionalism more generally. The article begins by examining what the majority’s heavy reliance on religion’s place in constitutional history suggests about the competing logics at work in Canadian constitutional life. That discussion leads to a reflection on the central role that religion has played in Canadian nation-building and federalism, a role that is abiding, not just historical. The article then looks forward from Adler, exploring the central place of issues surrounding the education of children in the development of law and religion jurisprudence in the years after Adler, before turning to consider the question of the group or community aspect of religion — a point that was exposed in Adler, but that, after a period of relative abeyance, has reemerged as a central question for the future of law and religion in Canada. The article concludes by suggesting that, in addition to serving as an entry point into understanding key elements of the history and development of law and religion in Canada, reassessing the holding in Adler might itself be part of our constitutional future.

Thursday, November 8, 2018

Gilding, "The Silent Framers of British North American Union: the Colonial Office and Canadian Confederation, 1851-67"

Note: currently open access

Ben Gilding of Cambridge University has published "The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67" in the Canadian Historical Review.


One hundred and fifty years after the creation of the “Dominion” of Canada, it is notable that historians have often downplayed the role of the British Colonial Office in initiating and guiding the process that brought about the union of the colonies of British North America. In the traditional narrative, the British government and Colonial Office were forced to accept the Quebec Resolutions drafted by North American representatives as a fait accompli. This view tends to exaggerate the importance of Confederation as a singular constitutional event, and it does not take into account the active pursuit, by numerous colonial administrators over the course of the years prior to Confederation, to organize some form of union of the British North American colonies and the considerable influence they exercised over the nature of the union created in 1867. This article examines the intentions of the various British colonial administrators and their visions for a federal or legislative model for the governance of the new Dominion. It argues that while the Colonial Office heavily favoured a strong legislative union, the British North America Act of 1867 was ultimately a product of compromise resulting in the strong ambiguities that gave rise to the later notion of a “compact theory.” These ambiguities were further reflected in the innovative designation of “Dominion” to the newly united provinces; however, this article warns that it is crucial that scholars are wary of anachronistically imposing Canada's eventual quasi-independent Dominion status upon the circumstances of 1867.

Cent cinquante ans après la création du « dominion » du Canada, on remarque que les historiens ont souvent minimisé le rôle du Colonial Office britannique dans l'enclenchement et l'orientation du processus qui a mené à l'union des colonies de l'Amérique du Nord britannique. Selon le récit traditionnel, le gouvernement britannique et le Colonial Office ont été forcés d'accepter comme un fait accompli les résolutions de Québec rédigées par des représentants nord-américains. Cette interprétation tend à exagérer l'importance de la Confédération en tant qu'événement constitutionnel singulier et elle ne tient pas compte du long travail en amont effectué par de nombreux administrateurs coloniaux, durant les années précédant la Confédération, pour trouver une forme quelconque d'union des colonies britanniques d'Amérique du Nord ni de l'influence considérable qu'ils ont exercée sur la nature de l'union créée en 1867. Le présent article traite des intentions des divers administrateurs coloniaux britanniques et de leurs visions du modèle de gouvernance fédéral ou législatif du nouveau dominion. L'auteur soutient que bien que le Colonial Office ait été hautement favorable à une solide union législative, l'Acte de l'Amérique du Nord britannique de 1867 a finalement été un compromis qui s'est soldé par d'importantes ambiguïtés qui ont plus tard donné naissance à la notion de « théorie du pacte fédératif ». Ces ambiguïtés se reflètent en outre dans l'appellation novatrice de « dominion » utilisée pour désigner les nouvelles provinces unies; l'auteur met toutefois en garde les chercheurs contre accoler au Canada de 1867 le statut de dominion quasi-indépendant, car ce serait un anachronisme.

CFP: Canadian Law and Society Midwinter Meeting, Winnipeg, Jan. 19-20 (deadline Nov. 27)


The midwinter meeting of the Canadian Law and Society Association will be held at the University of Manitoba Faculty of Law on January 19-20, 2019. The call for papers is here.The deadline for submission of proposals is November 27, 2018.

Le colloque d’hiver de l’Assocation canadienne Droit et Société se tiendra à la Faculté de droit de l’Université du Manitoba les 19 et 20 janvier 2019L’appel à communications est ici. La date limite de soumission est le 27 novembre 2018.

Wednesday, November 7, 2018

York University Job Posting in Law & Society: Socio-legal Studies, Indigeneity, and Indigenous Peoples

Position Information

Position Rank: Full Time Tenure Stream - Assistant/Associate/Full Professor
Discipline/Field: Law & Society: Socio-legal Studies, Indigeneity, and Indigenous Peoples
Home Faculty: Liberal Arts & Professional Studies
Home Department/Area/Division: Social Science
Affiliation/Union: YUFA
Position Start Date: July 1, 2019
Department of Social Science
The Law and Society Program in the Department of Social Science, Faculty of Liberal Arts &
Professional Studies invites applications for a professorial stream tenure-track appointment at
the rank of Assistant/Associate/Full Professor in the area of Socio-Legal Studies, Indigeneity,
and Indigenous Peoples to commence July 1, 2019. Information about the Law and Society
Program can be found here: Information about the affiliated
Graduate Program in Socio-Legal Studies can be found here: .
Required qualifications include a completed PhD (or near completion) with specialization in
Socio-Legal Studies, Law, Indigenous Studies or a relevant related field. This position is open to
candidates from all areas of expertise, with preference for expertise in Indigenous Peoples and
law (Canadian focus); law, social justice and Indigenous knowledge; arts, culture and social
change, and/or socio-legal history. Candidates must demonstrate excellence or promise of
excellence in scholarly research, teaching and service as well as demonstrate a willingness to
take a leadership role in program/curricular innovation. Candidates are expected to have
produced publications relevant to the field of Law and Society appropriate to their stage of
career. The position will involve undergraduate teaching as well as graduate teaching and
supervision. Pedagogical innovation in high priority areas such as experiential education and
technology enhanced learning is preferred. Candidates must demonstrate engagement with
Indigenous communities in their research and teaching with knowledge of indigenous
methodologies and pedagogies. The successful candidate will be expected to teach
interdisciplinary courses in their own areas of expertise as well as core courses in the Law and
Society Program. The successful candidate must be eligible for prompt appointment to the
Faculty of Graduate Studies.
York University acknowledges its presence on the traditional territory of many Indigenous
Nations. The area known as Tkaronto has been care taken by the Anishinabek Nation, the
Haudenosaunee Confederacy, the Huron-Wendat, and the Métis. It is now home to many
Indigenous Peoples. We acknowledge the current treaty holders, the Mississaugas of the New
Credit First Nation. This territory is subject of the Dish With One Spoon Wampum Belt
Covenant, an agreement to peaceably share and care for the Great Lakes region. York

University supports Indigenous research and education through its Indigenous Framework for
York University, the Centre for Aboriginal Student Services, the York Aboriginal Council, and
Skennen'kó:wa Gamig, or the House of Great Peace, a space for Indigenous faculty, staff, and
students. York is committed to fostering understanding of, respect for and connections with
Indigenous communities; and the University is working to support the recruitment and success
of Indigenous undergraduate and graduate students, the integration of Indigenous cultures,
approaches and perspectives into curricular offerings and research, collaboration with
indigenous communities, and recruitment and retention of Indigenous faculty and staff.
This selection will be limited to Aboriginal (Indigenous) peoples. York University values diversity
and encourages candidates from Aboriginal (Indigenous) communities to self-identify as a
member of one or more of the four designated groups: Aboriginal (Indigenous) Peoples,
women, visible minorities (members of racialized groups) and persons with disabilities.
Qualified candidates are encouraged to apply; however, Canadian citizens, Permanent

Residents and Indigenous peoples in Canada will be given priority. Applicants wishing to self-
identify can do so by downloading, completing and submitting the forms found at: . Please select the "Affirmative Action" tab under which forms
pertaining to Citizenship and Affirmative Action can be found.

Applicants should submit a signed letter of application outlining their professional experience
and research interests, an up-to-date curriculum vitae, a sample of their scholarly work, a
teaching dossier, and arrange for three signed confidential letters of recommendation to be
sent to: Professor Amanda Glasbeek, Chair, Department of Social Science, S754 Ross Building,
York University, 4700 Keele St., Toronto, Ontario, Canada, M3J 1P3. Email:
(subject line "LASO appt").

The deadline for receipt of completed applications has been extended to January 12, 2019.
Salary will be commensurate with qualifications and experience. All York University positions
are subject to budgetary approval.
Posting End Date: January 12, 2019

Monday, November 5, 2018

4th Evening of Legal History, Nov. 19: Heidi Bohaker speaking on Canada by Treaty: Indigenous Legal Traditions and the Common Law of Property in the Agreements that Shaped a Country

Join us for our fourth evening session of Legal History for Legal Professionals. 
On November 19th Professor Heidi Bohaker will present the fourth lecture in our lecture series (5:30 at Osgoode Hall, Toronto)
Canada by Treaty: Indigenous Legal Traditions and the Common Law of Property in the Agreements that Shaped a Country

A central fact of the Canadian historical experience is that the French and subsequently British colonization of Indigenous lands was effectively peaceful, and accomplished through treaties, at least for the 50% of the Canadian land mass covered by those agreements prior to 1923. While the colony of New France was conquered militarily and ceded to Great Britain by the 1763 Treaty of Paris, there was no military conquest of France’s Indigenous allies, not then, and not really at any subsequent point.

Indeed, The Royal Proclamation of 1763, which was the first British constitution for the former French colony of Quebec, recognized Indigenous title to and jurisdiction over their own lands, and laid out the rules by which subsequent generations of British settlers would acquire it.  The Proclamation forbade any private person from acquiring title to any land, limiting such purchases from the “several Nations or Tribes of Indians with whom We are connected” only to the Crown, and only at “some public Meeting or Assembly” that was convened by “the Governor or Commander in Chief.” In other words, such purchases of land were to be undertaken at the level of government to government, or nation-to-nation. And many such purchases were made beginning in 1768 – each purchase called a treaty. While the text of the documents are standard British title deeds, the associated council minutes reveal different legal traditions at work – the creation and renewal of alliance relationships according to Haudeonsaunee and Anishinaabeg customary law.

Examination of treaties negotiated between 1768 and 1862 for lands in North America’s eastern Great Lakes Region (including what is now Ontario) reveals the enduring presence of Indigenous legal traditions in such “purchase” agreements, where one party sought to acquire title, and the other to affirm or renew an alliance relationship.

This essential historic and cross-cultural context is crucial to making sense of contemporary treaty litigation and ongoing challenges in Indigenous-Crown relationships across Canada today.

* approval pending for 40 minutes EDI Professionalism Credit from the Law Society for Ontario.

This lecture is for Osgoode Society members only
Join or rejoin the at

PHONE AT 416-947-3321 OR E-MAIL

Please renew your membership for 2018 if you haven't already done so, or join now for the first time.

Membership brings many benefits: 
  • 2018 members book, which will be A History of Law in Canada Volume I: 1500 to 1866 by Philip Girard, Jim Phillips, and Blake Brown
  • Lectures and Events
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