Students enrolled in this seminar will engage in a close and critical examination of the complex historical and contemporary interactions between law and religion, two social forces whose relationship has shaped – and continues to shape – our modern world. This seminar will call upon students to use the study of the interaction of law and religion as a vehicle for gaining (a) a keener appreciation of the challenges of deep cultural diversity, (b) a deeper and more complex sense of the politics of “secularism” in modern secular states, and (c) a richer understanding of the nature of law. Students will examine certain influential theories in the study of religion and learn about the place of religion in the historical foundations of the common law. They will trace issues of religious difference through Canadian constitutional history, consider questions of law and religion in international and comparative perspective, and examine the structure and limits of constitutional rights through the study of doctrines of religious freedom. Seminar readings and discussions will canvass issues such as: the nature of “secularism(s)”; justifications for the constitutional protection of religion; religion, gender, and sexual equality; religion and education; religion and legal pluralism; religion and public reason; and law, religion, and morality. The seminar will be overtly interdisciplinary, putting questions of history, philosophy, and religious studies alongside legal theory and analysis.
Course or Seminar Category: Legal Theory and Legal History
Law, Society, State: Critical Race Theory
One way of describing critical race theory (CRT), a body of work which began in the 1980s, is to say it aims to expose and explain the role of law in creating and sustaining societal structures of race and racial oppression. In this model, in contrast to the more liberal civil rights model, law is understood to be the problem, not the solution. Scholars also often describe CRT as praxis – theory that exists in how it is enacted. In this seminar, we will read key early texts from the originators of CRT and then consider more recent scholarship. Our goal will include exploring the utility of CRT as a way of understanding law and our relationship to it. Students should expect to engage with scholarly proposals and prescriptions, to understand internal and external critiques of CRT as theory and method, and to determine how and why something should be – or not be – considered part of the CRT tradition. We will carefully consider the role of the lawyer if the legal system is part of the support structure for racial inequality. Members of the seminar will be expected to engage both in class and in the form of periodic small exercises, and the classroom time will focus on efforts to carefully and deliberately consider the theory and its application, and to discern with precision zones of uncertainty and disagreement. Guest speakers including practicing lawyers will visit this classroom to discuss their experiences and teach from their expertise. This class will feature guidance through the stages of writing a research paper, including developing a research question, preliminary research, organization and argument.
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 2024-25. 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 2024 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.
Legal Values: Psycho-dynamics of Advocacy & Judging
Advocates reverse-engineer cases from the outcome their clients seek, selecting the most compelling facts and the most plausible legal channel to build the chain of reasoning that will lead to that outcome. This is result-selective reasoning. By contrast, judges are expected to come to the dispute without a personal agenda beyond the call of duty to reach the just legal outcome based on the facts, the law, and their interaction.
Advances in cognitive science and psychology have led to an arms race between advocates and judges of which judges. No doubt these advances have given advocates more sophisticated persuasive techniques. In response, the task of judges is to detect the use of these techniques and avoid being lured away from doing justice according to law.There are four quite distinct and burgeoning fields of research into the psychology of judging, which are based on empirical research that lays out the cognitive infirmities that affect human beings. These could be basic materials for effective advocacy.
The first, and the one with the broadest reach beyond judging, is based on the thought of Daniel Kahneman and Amos Tversky, who explore cognitive illusions or biases that affect human cognition generally, and, therefore, judicial cognition. Second, there is a growing area of research specifically on the effect of emotions on judging, particularly empathy. Third, the study of coherence-based reasoning seeks to describe the way judges and juries think. Fourth, there is research on the effect of narrative on judicial attention, understanding, and judging. These areas are not quite silos, but they have not yet coalesced into coherence.
This course will familiarize you with these areas of thought, using an excellent recent American text: Linda L. Berger and Kathryn Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (Routledge, 2018). It is an operating manual to the judicial mind and ground-breaking. I would supplement with Canadian cases demonstrating the impact of the rhetorical techniques explored by Berger and Stanchi.
To these techniques is added the filter of ethics – judicial and lawyerly. How do judges and lawyers meet their obligations, in the course of a lawsuit, to first, do no harm; then, do the right thing, for the right reason, in the right way, at the right time, and in the right words? Do rule of law constraints work to ensure principled advocacy and adjudication?
Chinese Law
Lawyers, whether working in business, regulation, policymaking, or advocacy, are increasingly likely to come into contact with issues related to China over the course of their careers. Recent tensions, for example involving Huawei Technologies, trade bans on key exports, and the fight against COVID-19 are straining the Canada-China bilateral relationship. This course serves as a foundation for such encounters and aims to expose students to more of what lawyering involves in such contexts. It is an introductory course that addresses how aspects of the Chinese legal system shape China-Canada relations and inform the contemporary practice of law in Canada.
In addition to being of interest to students who would like to learn more about China and Canada-China relations, the class is also relevant for students interested in international relations and the practice of law in the global context.
The course will begin with an overview of Canada-China legal relations and China’s contemporary legal system. It will then examine the political, economic and social environment within which the Chinese legal system operates. Topics covered will include recent diplomatic disputes and their implications for bilateral relations; foreign investor ownership of residential real estate in Canada; cooperation on global issues in areas such as climate change, health and safety (including COVID-19), Arctic sovereignty and food security; gender equality, including sex work and human trafficking; trade and competition issues; key debates in criminal law, including extradition; and current tensions between Hong Kong and mainland China.
Course materials will include readings (all available for download through Moodle), documentaries, and guest speakers with experience working in the sphere of Canada-China relations (via zoom).
No prior knowledge of China or Chinese is required or expected for this course.
Please do not hesitate to reach out to the instructor (MBoittin@osgoode.yorku.ca) for any questions on the course.
Comparative Law: Comparative Constitutionalism
This course provides a comprehensive examination of comparative constitutionalism in the developing world, with a focus on the Global South. It aims to give students a deep understanding of the principles, practices, and challenges of constitutional governance within these diverse contexts. The course will examine historical, cultural, and political factors, as well as investigate colonial legacies, democratization processes, and socio-economic conditions to better understand their influence on constitutional design, development, and implementation. Key topics include constitutional making and accommodation, democratic governance, the separation of powers, checks and balances, and the role of constitutional oversight bodies. Through case studies from countries such as Afghanistan, Asia, Africa, and South America, students will analyze various approaches to constitutionalism and the influence of institutional design and power dynamics on constitutional outcomes.
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.
Law & Social Change: Torts and Technology
Tort law is one of the law’s oldest areas of law, where one still encounters such Latin tags as “sic utere tuo ut alienum non laedas” and “volenti non fit injuria,” where some cases printed in the casebooks are a century older than printed books. Can this area of law be of any relevance to the brave new world of large language models in the metaverse? Perhaps. In 2023, Epic Games, the studio that developed the enormously popular video game “Fortnite,” was sued in both Quebec and British Columbia on the charge that their game was too addictive. Snapchat was sued in the United States after a traffic collision for allegedly encouraging its users to earn a “badge” by driving at excessive speeds. The leading Canadian case on invasion of privacy did not involve snooping into someone else’s bedroom but accessing someone’s bank account details. Social media is full of defamatory statements, with chatbots increasingly adding their voice.
The course aims to see what tort law can do to deal with these issues. It will start by considering the impact of technology on our lives; it will then turn to the question of the interrelationship between technological change and legal (especially tort) doctrine: how technological change influenced doctrine and whether doctrine can affect technological change. A large part of the course will be devoted to examining the law of defamation, harassment, and invasions of privacy. These areas of law are not new, but new technology has given them greater urgency.
Contracts II
This course will provide a framework for students to explore contract law and contract theory at a more advanced level. It will explore contract doctrines that are not usually covered in the first year curriculum or are covered only briefly. Topics may include: the parol evidence rule, warranties and implied terms, exclusionary clauses, promissory estoppel, mistake, frustration, illegality, the restitutionary and punitive remedies for breach of contract, and the intersections between contract and tort in negligent misrepresentation and inducing breach of contract. It will also ask students to return to what they studied in first year and re-think it in a deeper, more theoretical way, asking questions such as: How should we understand the doctrine of consideration and is the doctrine justified? How should contract law approach boilerplate contracts? Why is there a separate requirement of “intention to create legal relations”? How can we understand the difference between the common law and equitable doctrines of contract law?
Globalization & the Law
Globalization is both a material and conceptual process that acts on and through the law. This seminar critically positions questions of the ‘global’ in conversation with the idea of law, legality and legal thought. Taking a historical approach, we will investigate how legal institutions and concepts evolved, travelled, and were transplanted across the globe in response to specific economic and political events and pressures. Students will critically engage with the process of ‘globalization’ to explore how power is distributed through law across hegemonic and oppressed legal jurisdictions. With an eye towards social and liberation movements, we will explore the extent to which global, local and ‘glocal’ law can be relied on to advance – and restrict – emancipatory projects. Finally, we will look at the recent turn to populism across the world to ask how and why nationalism has been one response to global interconnectedness and ideas of justice.
This seminar will be delivered using a combination of teaching methods including class discussions; mini-lectures; in-class exercises and guest lectures.