Legal Values: Property, the Environment, and Equality

Property is at the heart of economic institutions, beliefs about freedom and security, and people’s understanding of their relationship to the Earth. The focus of this course is (1) understanding the role of property law in harm to the environment and in human relations of inequality and (2) exploring alternatives to the norms and legal forms of property.  To do this, we will integrate analysis of political theory, legal theory, legal history, case law, environmental policy, and issues such as housing and homelessness.  This course will explore the connections between property law and beliefs basic to the economic and political systems of common law countries. For example, we will look at how property law expresses and maintains assumptions about human superiority to other life forms, and the links between those beliefs and settler colonialism.  We will (briefly) look at the legal history of property to understand evolving structures of power and inequality, and the role of property law in that evolution. Legal history provides a perspective that allows us to see that beliefs and practices dominant today have not existed from “time immemorial.” This then sets the stage for examining viable alternatives to existing property structures. In exploring those alternatives, we will look to Indigenous law, comparative law, and the potential for existing legal concepts like “trust” to be re-purposed. We will look at issues of human inequality and the ways they are interwoven with environmental harm. Hierarchies among humans and between humans and the Earth (with humans at the top of a pyramid of life forms) are interconnected through property law. Because property is so embedded in institutions and norms, transformation will require a deep rethinking of core beliefs. We will look at some of the resources for re-envisioning property and the values associated with it. In addition to Indigenous teachings (including learning from the land), these include:  the invocation of spiritual traditions, such as Buddhism and Christianity, to promote care for the earth; theories of the role of competition vs cooperation in evolution and contemporary “human nature;” the importance of nature for human health. Specific topics will include: property and settler colonialism; animals as legal beings; learning to care for the earth; the history of exclusion from the land; the importance of “place” in assessing loss of property; the idea of all land held in trust for the earth community, present and future; the power and threat of the myth of absolute rights of property; property, poverty, and homelessness.

Legal Biography

Judges play a critical role in the common law world. Since the emergence of legal realism, it has been accepted that judicial decision-making is not a value-free exercise from which a judge’s personal predilections can be eliminated. Judicial biography is one way to study how judges’ background, personal makeup and worldview influence their decision-making. This course exposes students to the variety of approaches to judicial life-writing that exist in the common law world, to the techniques of life-writing, and to the questions that lie at the intersection of legal theory and biography. One such question relates to the impact on the law of non-traditional appointees to the bench in the last few decades: women, members of racial and religious minorities, and lawyers with activist backgrounds of various kinds. But questions arise about more “traditional” appointees too, such as white males of Christian background. They are not uniform in their life experiences or their approaches to judicial decision-making, and sometimes turn out to behave very differently on the bench than might have been predicted. Exploring these patterns and their impact on the law will be a big part of what we do in this course. However, judges are not the only influential actors in the adversarial system. Lawyers, and the cases they bring (including how they are argued), are a key, often overlooked aspect of the judicial decision-making process. This course also considers the influence of the lived experiences of lawyers more generally.

Directed Reading: Legal History Workshop

The Workshop, also known as the Osgoode Society Legal History Workshop, takes place on Wednesday evenings via Zoom (only) throughout 2023-24. It meets approximately seven times in each term, on roughly alternate Wednesdays. The schedule for the first term will be arranged during the summer of 2023 and will be available by August. The schedule for the second term will be arranged during the first term and will be available by the end of November. Students must take the course for the full year. For each session, a different presenter will circulate in advance a paper on which he or she would like comments and critique. The presentations may be on any aspect of legal history, from any jurisdiction or time, though most tend to be on Canadian or US topics. Students enrolled in the course for credit are not expected to present a paper, but to read the papers and participate in the discussion and critique at each session. Through exposure to varied topics in and approaches to legal history, students will come to appreciate the methodologies and modes of analysis employed in doing legal history.

Attendees at the workshop in addition to J.D. students are graduate students and faculty in law and history from U of T and York, as well as members of the profession and other interested parties. Paper presenters are mostly workshop members, but some are visitors from other universities inside and outside Canada. Workshop presenters in recent years from outside Toronto have included Constance Backhouse (Ottawa), David Fraser (Nottingham), Robert Gordon (Yale), Rande Kostal (Western), Brad Miller (British Columbia), Michel Morin (Montreal), Rebecca Scott (Michigan), and Brian Young (McGill).

All members of the law school community are welcome to attend any workshop. JD students or graduate students wishing to register in the workshop for credit may do so. No previous background in history is required.

Indigenous Perspectives and Realities

This course will introduce students to fundamentals of knowledge systems that inform  
Indigenous understandings of law, justice, governance and treaties.  It is intended to provide students with a deeper understanding and appreciation of the lived experience of Indigenous peoples in Canada.   This course is offered as an experiential education opportunity that will assist students in gaining familiarity, in a variety of contexts, with the diversity of Indigenous worldviews, ontologies and epistemologies that frame Indigenous reality.  The course will examine major political, educational, economic, legal, and cultural issues facing Indigenous peoples and communities in Canada in both present-day and historical contexts.  Course material will be drawn from the Truth and Reconciliation Commission, the Ipperwash Inquiry, the Royal Commission on Aboriginal Peoples, the United Nations Declaration on the Rights of Indigenous Peoples, and Murdered Missing Indigenous Women and Girls Inquiry; as well as other materials that provide insights into the contemporary reality of Indigenous peoples. As the main goal of the course is for students to demonstrate a sound appreciation for the perspectives and realities of Indigenous peoples, students will learn directly from Indigenous peoples through guest speakers and assigned multi-media.  Students will be required to participate in land based  and experiential activities outside of the law school; there will be a remote option for students to fulfill these requirements remotely.   The course will be framed around the concept of ‘place’ (e.g., urban  
Toronto) and explore relationships to place from a variety of experiential perspectives (e.g., Indigenous, ally, settler Canadian, newcomer).

Comparative Law: Comparative Constitutionalism

The seminar will initiate students into what comparative constitutional law as a field of study looks like. Students will critically explore methodologies for comparison and identify constitutional borrowings, transplants and migrations. The class will interrogate the relationship between constitutionalism,  liberalism and democracy across different jurisdictions. It will compare defining structures such as separation of powers and federalism across while also studying specific constitutional rights across jurisdictions with reference to their formal status at law and their valence in society. The seminar will consider the structure and functions of constitutional courts, modes of judicial interpretation and the legitimacy of the function of judicial review. Finally, the seminar will track contemporary or emerging trends in the field. The jurisdictional contexts surveyed in the seminar will be selected both from the global ‘North’ and ‘South.’

Comparative Law: Indigenous Legal Traditions

This seminar will introduce students to non-state Indigenous legal orders. Using a transsystemic pedagogical model and a wide range of reading materials (legal cases, methodology, pedagogy, anthropology, theory) students will critically explore the theories and practices of indigenous legal traditions through analysis and substantive treatment of: indigenous sources of law; oral histories and traditions (as legal archive); legal cases and precedent; modes of reasoning and interpretation; and authority and legitimacy.

Indigenous Perspectives and Realities

This course will introduce students to fundamentals of knowledge systems that inform  
Indigenous understandings of law, justice, governance and treaties.  It is intended to provide students with a deeper understanding and appreciation of the lived experience of Indigenous peoples in Canada.   This course is offered as an experiential education opportunity that will assist students in gaining familiarity, in a variety of contexts, with the diversity of Indigenous worldviews, ontologies and epistemologies that frame Indigenous reality.  The course will examine major political, educational, economic, legal, and cultural issues facing Indigenous peoples and communities in Canada in both present-day and historical contexts.  Course material will be drawn from the Truth and Reconciliation Commission, the Ipperwash Inquiry, the Royal Commission on Aboriginal Peoples, the United Nations Declaration on the Rights of Indigenous Peoples, and Murdered Missing Indigenous Women and Girls Inquiry; as well as other materials that provide insights into the contemporary reality of Indigenous peoples. As the main goal of the course is for students to demonstrate a sound appreciation for the perspectives and realities of Indigenous peoples, students will learn directly from Indigenous peoples through guest speakers and assigned multi-media.  Students will be required to participate in land based  and experiential activities outside of the law school; there will be a remote option for students to fulfill these requirements remotely.   The course will be framed around the concept of ‘place’ (e.g., urban  
Toronto) and explore relationships to place from a variety of experiential perspectives (e.g., Indigenous, ally, settler Canadian, newcomer).

Indigenous Perspectives and Realities

This course will introduce students to fundamentals of knowledge systems that inform Indigenous understandings of law, justice, governance, and treaties.  It is intended to provide students with a deeper understanding and appreciation of the lived experience of Indigenous peoples in Canada.   This course is offered as an experiential education opportunity that will assist students in gaining familiarity with Indigenous voices and priorities, in a variety of contexts, with the diversity of Indigenous worldviews, ontologies and epistemologies that frame Indigenous realities. The course will examine major political, educational, economic, legal, and cultural issues facing Indigenous peoples and communities in Canada in both present-day and historical contexts.  Course material will be drawn from processes such as the Truth and Reconciliation Commission, the Ipperwash Inquiry, the Royal Commission on Aboriginal Peoples, the United Nations Declaration on the Rights of Indigenous Peoples and Murdered Missing Indigenous Women and Girls Inquiry; as well as other materials that provide insights into the contemporary realities of Indigenous peoples.  
As the main goal of the course is for students to demonstrate a sound appreciation for the perspectives and realities of Indigenous peoples, students will learn directly from Indigenous peoples through guest speakers and assigned multi-media.  Students will be required to participate in land-based and experiential activities outside of the law school; with potential options for students to fulfill these requirements remotely. The course will be framed around the concept of place’ (e.g., urban Toronto) and explore relationships to place from a variety of experiential perspectives (e.g., Indigenous, ally, settler Canadian, relation, newcomer).

Law & Social Change: Anti-Discrimination Law

This course surveys the legal principles of anti-discrimination law in Canada. We will begin by studying recent Supreme Court of Canada jurisprudence on section 15 of the Canadian Charter of Rights and Freedoms as well as the interpretation and application of Ontario’s Human Rights Code. Topics covered include: the legal tests a claimant must meet to demonstrate a limit on section 15 of the Charter and a breach of the Code; the interpretation of section 15(2) of the Charter; the nature of the “prohibited grounds” under the Charter and the Code; the scope of the Code’s “regulated spheres” of employment, accommodations, the provision of goods and services, and contracts; legal defences available to a respondent under the Code, including the “bona fide occupational requirement” defence and “special program” defences. With this foundational knowledge in hand, we will then explore two frontiers of anti-discrimination law in Canada. First, we will consider how the common law of torts, contract, and property can be reformed to address
discrimination. Second, we will consider the legal regulation of algorithmic discrimination under Canada’s new Artificial Intelligence and Data Act. Our survey will be supplemented by comparisons with legal doctrines in the United States and the United Kingdom. We will
also reflect on some philosophical theories about what makes discrimination morally wrong and the moral justification for legal prohibitions of discrimination.

Jurisprudence

This is a course in the philosophy of law that approaches its subject matter through the lens of political philosophy. It will involve critical discussion of core issues and classical texts from the 17th century to the present. The organizing topics are: legitimacy, justice, and the nature and moral significance of law. Special emphasis will be placed on the ways in which various philosophical conceptualizations of the human person intersect with justifications for political and legal arrangements, including distributions of rights, goods, and powers. Students will develop competence and facility over several historically influential texts in legal philosophy (from Hobbes and Locke to Rawls, Williams, Waldron and Dworkin). Students will sharpen their legal reasoning, analytical and critical reading skills. Students will fine-tune their abilities to break down legal arguments, and examine their foundations. No prior philosophical training is required.