January 2007
Monthly Archive
Foundations of Canadian Law #6: The Hart-Fuller Debate Wednesday, Jan 31 2007
1L and Erin Morgan and Foundations of Canadian Law and McGill Faculty of Law 10:10 pm
This podcast we will do a brief overview of the Hart-Fuller debate. What happens when two overeducated professors duke it out in the Harvard Law Review? Hart defends the positivist stance that law and morality are separate, while Fuller maintains that law must encompass a certain amount of morality to explain its binding power. My Foundations professor tells me that the consensus across the Atlanic is that Hart won the debate. I’m not sure I see it.
Foundations of Canadian Law #5: Rules and Obligations Wednesday, Jan 31 2007
1L and Erin Morgan and Foundations of Canadian Law and McGill Faculty of Law 10:09 pm
As Foundations abruptly stops being simple, I attempt to explain the philosophies of HLA Hart and Ronald Dworkin regarding the nature of law, legal systems, and the source of our obligations to obey. Hart’s positivism views law as seperate from morality (more on this next podcast), and explains obligations as a product of social rules. Dworkin criticizes this social rule theory and views duties as a product of normative principles.
HLA Hart, “The Concept of Law”
Ronald Dworkin, “Taking Rights Seriously”
Foundations of Canadian Law #4: Conceptions of Justice Wednesday, Jan 31 2007
1L and Erin Morgan and Foundations of Canadian Law and McGill Faculty of Law 10:09 pm
What is justice? Is it the same as law? What happens when laws are unjust or harmful to us? In this episode we discuss Aristotle’s Ethics, Plato’s Republic and Dialogues, and Sophocles’ Anitgone. We will discuss different conceptions of justice, and the moral dilemna that arises in regards to obeying laws which harm us.
Foundations of Canadian Law #3: Aboriginal Title Wednesday, Jan 31 2007
1L and Erin Morgan and Foundations of Canadian Law and McGill Faculty of Law 8:57 pm
This podcast we look at the landmark Delgamuukw case, in which the Supreme Court recognized the aboriginal title held by several First Nations in BC. This title is not the same as ownership, it is the sui generis right to exclusive use and occupation of the land, inalienable but to the crown. (If you were in Civil Property you’d be musing that the first part sounds a lot like the definition of ownership under article 947 CCQ, except minus the free disposal.) We will also talk about other historic cases dealing with First Nations rights, because it’s a complex and interesting issue. For the record, I think it’s very lame that we only did one class on this, but have spent about four on the “Hart-Fuller debate”.
Delgamuukw v British Columbia (1997)
R v Guerin (1984)
Calder v BC (AG) (1973)
St. Catherine’s Milling v the Queen (1888)
Maritime Law #4: Recovery of Non-Pecuniary Damages (with Prof. Force) Wednesday, Jan 31 2007
Marc Montgomery and Maritime Law and Tulane University Law School 8:19 pm
If you have taken civil procedure or listened to one of Neil’s podcasts on the subject, you may be familiar with the Erie doctrine. In matters of admiralty law, the reverse Erie doctrine applies; common law is created by the federal judiciary. Such federal common law rules are even binding on state courts hearing an admiralty case. Professor Robert Force, the founding director of the Maritime Law Institute at Tulane University Law School has written several articles on how a 1990 Supreme Court case has affected maritime wrongful death and personal injury actions. Specifically, the Court in Miles v. Apex Marine Corp. held that prohibitions against the recovery of non-pecuniary damages in statutorily created personal injury and wrongful death actions also applied to actions under general maritime law (read federal common law). In this episode, I interview Professor Force, who provides some background on the judicial landscape of maritime tort actions as well as his analysis of the Miles decision.
Miles v. Apex Marine Corp.
Constitutional Law (Samuel) #1: Standing Sunday, Jan 28 2007
1L and Constitutional Law and Constitutional Law I and Iowa State University and Samuel Berbano 1:54 pm
In Samuel Berbano’s first of a series of podcasts on justiciability doctrines, we’ll analyze the question of standing as it relates to Federal Article III courts. These courts are bound to take only cases containing what legal commentators call a “case or controversy” requirement. This requirement exists to preserve the integrity of the adversarial system.
The first justiciability addressed is standing. Plaintiffs have standing when the court finds that there is (I) an legally-recognised harm to the plaintiff, (II) a reasonable causal connexion between the injury to the plaintiff and the complained-of conduct of the defendant, and (III) a likelihood that an affirmative ruling will vindicate the rights of the plaintiff.
Cases include issues of what constitutes a harm, when third parties suffer harm, questions of taxpayer standing, and a hypothetical about punching one’s younger brother in the face. No little brothers were harmed in the making of this podcast.
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Warth v. Seldin, 422 U.S. 490 (1975)
Com. of Massachusetts v. Mellon, 262 U.S. 447 (1923)
Flast v. Cohen, 392 U.S. 83 (1968)
Canadian Constitutional Law #19: Economic Regulation II Wednesday, Jan 24 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 11:44 pm
In our second podcast on economic regulation, we look at the federal government’s power to legislate for trade under sec 91(2), control over trade and commerce. Beginning with the parsons case, this has been interpreted as containing 2 branches: power over international or interprovincial trade and commerce, and a second branch of power over general trade affecting the dominion as a whole. This second branch was first discussed in Parsons, then expanded by Laskin J in the Anti-inflation reference and Vapor Canada, and by Dickson J in General Motors.
Citizen’s Insurance Co v Parsons (1881)
Reference re Anti-Inflation Act 1975 (Canada), (1976)
MacDonald v Vapor Canada Ltd (1977)
R v Dominion Stores Ltd (1980)
Canada Agricultural Products Standards Act
British Columbia (AG) v Canada (AG) (1937)
Motor Vehicle Safety Act
Reference re Agricultural Products Marketing Act (Canada), (1978)
The Queen v Klassen (1960)
Caloil Inc v AG Canada (1971)
Labatt Breweries of Canada Ltd v AG Canada
General Motors v City Natn’l Leasing (1989)
Canadian Constitutional Law #18: Economic Regulation I Wednesday, Jan 24 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 11:40 pm
Who has jurisdiction over economic regulation? This is an area that could fit under the federal power of trade and commerce (sec91(2)), or the provincial power over property and civil rights (sec92(13)). In general, intraprovincial trade is considered to be a provincial matter and interprovincial and international trade is considered a federal matter. In the JCPC era w little overlap was allowed, and the provincial jurisdiction over trade was thought to be very expansive. More recent cases have narrowed this until a 1982 constitutional amendment returned more control over natural resources to the provinces. The next podcast will focus on the federal power over trade.
Citizen’s Insurance Co v Parsons (1881)
Carnation Co Ltd v Quebec Agricultural Marketing Board (1968)
Manitoba Egg Reference (1971)
Re Agricultural Products Marketing Act (1978)
Canadian Industrial Gas and Oil Ltd v Saskatchewan (1978)
Central Canada Potash (1978)
Westcoast Energy v Canada (National Energy Board), (1998)
Black and Co v Law Society of Alberta (1989)
Union Colliery Co of BC v Bryden, (1899)
Winner v SMT (Eastern) Ltd, (1951)
Reference re offshore mineral rights of British Columbia (1967)
Reference re the seabed and subsoil of the continental shelf offshore Newfoundland, (1984)
Reference re AG Canada and AG BC (Re strait of Georgia), (1984)
Foundations of Canadian Law #2: Court System Monday, Jan 15 2007
1L and Erin Morgan and Foundations of Canadian Law and McGill Faculty of Law 10:13 pm
In this episode we look at the structure of the court system in Canada. The most important feature to remember is that Canada is a unified (as opposed to a dual) court system. So our courts sit in direct hierarchies, with the Supreme Court serving as the final court of appeal for both federal and the provincial courts. We will talk a little bit about each court and its jurisdiction.
Supreme Court Act 1985
Constitution Act 1867, s96
Foundations of Canadian Law #1: Civil Law History Monday, Jan 15 2007
1L and Erin Morgan and Foundations of Canadian Law and McGill Faculty of Law 10:12 pm
This is the first podcast in a class called Foundations of Canadian Law at McGill University. In Foundations we tend to cover a wide variety of topics related to law such as philosophy, aboriginal title, history, rights, rules and morals, etc., so many of these episodes can stand alone. In this short episode, I talk a little bit about the history of civil law in Canada. For a more comprehensive history of Canada’s pre-confederate legal system you may also listen to Canadian Constitutional Law #3.
Royal Proclaimation 1763
Quebec Act 1774
Coutume de Paris 1510
Civil Code of Lower Canada 1866