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Tuesday, April 26, 2011

John T. Saywell, 1921-2011

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 (, to the Toronto East General Hospital (, 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 R.S. Kane 416-221-1159.

Monday, April 25, 2011

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

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.

Sunday, April 24, 2011

Mélanie Brunet online

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  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.

Thursday, April 21, 2011

We've been noticed!

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.

Sunday, April 17, 2011

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

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!

Wednesday, April 13, 2011

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

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

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.

Thursday, April 7, 2011

Simon Stern on case law and detective fiction

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.

Tuesday, April 5, 2011

New website on Chinese-Canadian legal history

 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.

Monday, April 4, 2011

Benjamin Berger to move to Osgoode

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).

Saturday, April 2, 2011

Feminized Justice: Update

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.

Friday, April 1, 2011

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

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.