Against Constitutional Originalism
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A detailed and compelling examination of how the legal theory of originalism ignores and distorts the very constitutional history from which it derives interpretive authority "What are the chances that, in 2024, a new book could fundamentally reorient how we understand America's founding? Jonathan Gienapp . . . has written such a book. . . . You read it, and you get vertigo. . . . Gienapp's book comes as a thunderclap."--Cass Sunstein, Washington Post Constitutional originalism stakes law to history. The theory's core tenet--that the U.S. Constitution should be interpreted according to its original meaning--has us decide questions of modern constitutional law by consulting the distant constitutional past. Yet originalist engagement with history is often deeply problematic. And now that a majority of justices on the U.S. Supreme Court champion originalism, the task of scrutinizing originalists' use and abuse of history has never been more urgent. In this comprehensive and novel critique of originalism, Jonathan Gienapp targets originalists' unspoken assumptions about the Constitution and its history. Originalists are committed to recovering the Constitution laid down at the American Founding, yet they often assume that the Constitution is fundamentally modern. Rather than recovering the original Constitution, they project their own understandings onto it, assuming that eighteenth-century constitutional thinking was no different than their own. They take for granted what it meant to write a constitution down, what law was, how it worked, and where it came from, and how a constitution's meaning was fixed. In the process, they erase the Constitution that eighteenth-century Americans in fact created. By understanding how originalism fails, we can better understand the Constitution that we have.
The Anti-Civil Rights Movement
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"Collins views American society as being trapped in the so-called prisoners dilemma. According to this classic piece of game theory, two prisoners whose interests would normally be aligned are put in a situation that compels them to betray their solidarity with each other. As Collins tells it, all of us are prisoners, and if we banded together we could create policies that would lead to a better, happier world. But those leading the Anti-Civil Rights Movement, such as Edward Blum, have repeatedly found ways to split coalitions-to pit marginalized groups against each others-whenever those coalitions have threatened the power of conservative elites to set the political and legal agenda. One of the central tools in the conservative arsenal has been affirmative action, which has had a long history of dividing the Asian American and Black American communities, going back to the anti-busing sentiment among Chinese Americans in San Francisco in the early 1970s. In 2013, the same year he helped gut the Voting Rights Act in the Shelby County v. Holder case, Blum created the Students for Fair Admissions and brought a suit against Harvard University for discriminating against Asian Americans-the latest in a long string of prisoner dilemmas designed to undermine social progress. Collinss groundbreaking work is a field guide to the personalities, funding, and dilemmas that characterize the war between the Civil Rights Movement and the Anti-Civil Rights Movement-between the forces represented, respectively, by Thurgood Marshall and the one who replaced him on the Supreme Court, Clarence Thomas. Reading this book helps readers better understand the battles that have been fought in the past, but also where the next fight might take place, and what might be necessary in order to win"--
Canadian anthology on mental health and the law
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"Thoughtfully edited by four of the nation’s leading subject matter experts, the Canadian Anthology on Mental Health and the Law brings together the voices of multidisciplinary experts from coast to coast. This volume contains contributions by 70 extraordinary authors--judges, academics, lawyers, psychiatrists and other mental health professionals--in conversation with family members, victims, and people living with mental health challenges. MAID and mental illness, overuse of psychiatric segregation, police interactions with persons in crisis, race-based discrimination in our mental health and justice systems, how administrative tribunals adjudicate mental health matters--these are just a few of the topics addressed in the 50 chapters in this special collection."-
Canadian anti-corruption law and compliance
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"This book focuses on relevant sections of the Corruption of Foreign Public Officials Act (CFPOA) and the Criminal Code, and discusses how to ensure compliance with anti-corruption laws in Canada. This third edition contains three new chapters on complaints, whistleblowers and internal investigations; government investigations and remediation agreements; and non-criminal accountability and enforcement."
Conscience Incorporated
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A guide for business leaders working to create socially conscious, sustainable companies?without sacrificing profit Amid international outcry over income inequality, labor abuses, and racial injustice, Conscience Incorporated examines the gaps in current corporate social responsibility measures. The rise of new technologies such as smartphones and social media have made it easier than ever to document and spread awareness of corporate misconduct. Despite these developments, large corporations often fail to meaningfully address the human rights abuses committed within their companies or as part of their global business practices. In Conscience Incorporated, Michael H. Posner addresses what lies at the root of the challenges global corporations face in addressing human rights failures by drawing on his extensive personal experience as a human rights lawyer, State Department official under President Obama, chair of the Fair Labor Association and Director of the Center for Business and Human Rights at NYU Stern School of Business. Drawing from research into the history of business ethics and anchoring his argument with examples of companies publically accused of human rights abuses?Nike, Coca-Cola, Apple, and more?Posner provides a blueprint for global business leaders to navigate human rights challenges and adopt sustainable corporate practices. Conscience Incorporated highlights the dangers of outsourcing labor to faraway nations and enforcing unfair deals with local suppliers. Posner argues that growing public awareness has not been enough to meaningfully alter the unethical practices of some global businesses. In doing so, he reveals how these businesses have failed to prioritize human rights time and again, betraying their vows to protect workers and communities. Posner offers concrete reforms and argues compellingly for why businesses need to devote greater time and resources to protecting basic human rights. Conscience Incorporated is a powerful challenge to the status quo and advocates for a fundamental shift in the principles that govern global businesses.
Environmental Law in Canada
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Derived from the renowned multi-volume International Encyclopaedia of Laws, this book provides ready access to legislation and practice concerning the environment in Canada. A general introduction covers geographic considerations, political, social and cultural aspects of environmental study, the sources and principles of environmental law, environmental legislation, and the role of public authorities. The main body of the book deals first with laws aimed directly at protecting the environment from pollution in specific areas such as air, water, waste, soil, noise, and radiation. Then, a section on nature and conservation management covers protection of natural and cultural resources such as monuments, landscapes, parks and reserves, wildlife, agriculture, forests, fish, subsoil, and minerals. Further treatment includes the application of zoning and land-use planning, rules on liability, and administrative and judicial remedies to environmental issues. There is also an analysis of the impact of international and regional legislation and treaties on environmental regulation. Its succinct yet scholarly nature, as well as the practical quality of the information it provides, make this book a valuable resource for environmental lawyers handling cases affecting Canada. Academics and researchers, as well as business investors and the various international organizations in the field, will welcome this very useful guide, and will appreciate its value in the study of comparative environmental law and policy.
Human Rights at Work
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Should workers ever lose their job because of their political views or affiliations? Should female employees be entitled to wear a headscarf in the workplace for religious reasons? Can it ever be right for an employer to dismiss someone for personal activities undertaken in their leisure time? What restrictions, if any, should be placed on the right to strike ? Engagingly written, this innovative new textbook provides an entry point for exploring these and other topical issues, enabling students to analyse the applicability of human rights to disputes between employers and workers in the UK. It offers an original perspective on the traditional topics of employment law as well as looking in greater depth at new issues, such as employees' use of social media or the enforcement of human rights in the gig economy. Uniquely, the book considers the most important international Conventions that are relevant for the law in the UK, especially the European Convention on Human Rights, the European Social Charter, Conventions of the International Labour Organisation, and the Charter of Fundamental Rights of the European Union. A central question that each of the chapters addresses is whether UK employment law is compatible with human rights law. Each chapter discusses all the key cases drawn from various jurisdictions, including the Court of Justice of the European Union and the European Court of Human Rights. Written by a stellar team of authors, this textbook is an invaluable teaching aid for both postgraduate and undergraduate students studying employment law, human rights, human resource management, and industrial relations.
Labour Justice
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This book argues that the imagination of the worker-citizen, inherent in citizens' constitutional duty to work, is the very foundation of constitutional citizenship and its social justice agenda. The design of social justice in the constitution takes labour as its core ideological and political commitment, seeking to treat workers fairly for their social contribution through work. Employing this constitutional design, this book evaluates the recently repealed labour law against the constitutional metric of social justice. Drawing on the components of social justice, the book evaluates the new labour law in its capacity to promote market-based distribution, respecting basic individual liberties; the complementary redistribution of public goods, upholding the principle of solidarity; and worker participation in decisions about the operation of the market and the state. In offering such evaluation, the book conceives of work in its wider social relationship in contrast to its narrower private exchange rationale.
The Law Student's Guide to Doing Well and Being Well
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The ABA and most state bar associations have identified a wellness crisis in the legal profession, and called for educating students on how to better cope with the challenges of law school and practice. At the same time, students must learn how to maximize their brain health so that they perform well in law school and on behalf of their clients in practice. The same way musicians would tune their instruments, or chefs would sharpen their knives, law students must sharpen their minds. This book aims to help students "do well" in their ability to learn, and "be well" in the process, by exploring the deep connection between brain health and wellness. Specifically, the book discusses: How to cultivate the ability to deeply focus and deal with the challenges of the 24/7 digital age; How stress affects both brain and body; How increasing resilience helps deal with challenges and setbacks; Why we need exercise for mental, physical, and brain health; Why adequate sleep is important and how it can be improved; and How what we eat affects the brain and one's physical performance. Written in a witty, informative, and easy-to-read style, the book is full of suggestions to help students establish healthy and productive habits which will benefit both brain and body. Each chapter ends with a self-reflection exercise to help students take the material and consciously begin implementing its suggestions. This book could be used in orientation programs, academic support and wellness programming, professional development, mindfulness, and other "preparing for practice" courses. The Law Student's Guide to Doing Well and Being Well in the media Q&A: To Boost Productivity, Lawyers and Law Students Should 'Socially Distance' From Their Phones via law.com XL Legal podcast appearance: Mindful Lawyering with Shailini George
Organizing for Sex Workers' Rights in Montréal
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This book is based on a case study about Stella, l'amie de Maimie a Montréal sex workers' rights organization, founded by and for sex workers. It explores how a group of ostracized female-identified sex workers transformed themselves into a collective to promote the health and well-being of women working in the sex industry. Weighed down by the old and tenacious whore symbol, the sex workers at Stella had to find a way to navigate the criminality of sex work and sex workers, in order to do advocacy and support work, and create safer spaces for sex workers to engage in such advocacy. This book focuses on sex workers, but the advocacy challenges and strategies it outlines can also apply to the lives of other marginalized groups who are often ignored, pitied, or reviled, but who are seldom seen as fully human.
Pandemics, public health, and the regulation of borders : lessons from Covid-19
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This book examines how the COVID-19 pandemic has engendered a new and challenging environment in which borders drawn around people, places, and social structures have hardened, and new ones have emerged. Over the course of the COVID-19 pandemic, borders closed or became unwelcoming at the international, national, sub-national and local levels. Debate persists as to whether those countries and territories that tightly managed their borders, like New Zealand, Australia or Hong Kong, got it 'right' compared to those that did not. Without doubt, a majority of those who suffered and died throughout the pandemic have been those from vulnerable populations. Yet, on the other hand, efforts taken to manage the spread of the disease, such as through border management, have also disproportionately affected those who are most vulnerable. How, then is the right balance to be struck, acknowledging too the economic and other imperatives that may dissuade governments from taking public health steps? This book considers how international organizations, countries, and institutions within those countries should conceive of, and manage, borders as the world continues to struggle with COVID-19 and prepares for the next pandemic.
Paper talk : a history of libraries, print culture, and aboriginal peoples in Canada before 1960
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"Paper Talk: A History of Libraries, Print Culture, and Aboriginal Peoples in Canada before 1960 explores the relationships between the introduction of Western print culture to Aboriginal peoples by missionaries, the nineteenth-century development of libraries in the Indian schools, and the twentieth-century establishment of community-accessible collections. Although missionaries and the Department of Indian Affairs envisioned books and libraries as assimilative and "civilizing" tools, Edwards shows that some Aboriginal peoples articulated Western ideas of print culture, literacy, books, and libraries as a means to assist their own cultural, social, and political aspirations. Edwards's book also illustrates that the contemporary struggle of Aboriginal peoples in Canada to establish community libraries has a historical basis and thus many of the obstacles today are similar to those encountered by earlier generations."
Pardon Power
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The president's power to pardon federal crimes is immense, with roots in ancient notions of mercy and amnesty. However, this power, seemingly boundless under the Constitution, lacks clear constraints, inviting concerns about abuse. Recent discussions in the U.S. Supreme Court have raised alarms about the potential for presidential abuse of pardons, highlighting the need for accountability within the pardon system to uphold the foundational premise that no one is above the law. Pardon Power: How the Pardon System Works-- and Why, Kim Wehle explores the historical context and contemporary challenges surrounding the presidential pardon. Wehle contends that any pardon undermining the principle of accountability before the law, including self-pardons, cannot be constitutionally justified. Urgent recognition of the necessity for guardrails around the pardon power is essential to safeguard American democracy.
Parole Work in Canada
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Parole officers (POs) support rehabilitation and desistance but face mental health challenges and occupational stressors. Parole Work in Canada provides novel insight into the occupational routines, mental health impacts, and identities of this oft-overlooked group of correctional workers. The authors conducted 150 interviews with POs employed in Canada's federal correctional system and traverse prison and community spaces in their analyses. They also examined how workplace culture and relationships affect POs' well-being, provide implications for occupational routines created by COVID-19; interrogate organizational structures, culture, and practice; and unpack how POs understand carceral space, self-presentation, and the tensions between supervising and supporting criminalized people.
Peace, order and good government : the abuse of a tricolon
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"This constitutional text examines the words “Peace, Order and Good Government” found in the introduction to section 91 of the Constitution Act, 1867. It examines the origins of the words in North America, across multiple international jurisdictions, and applies it to the modern issues of the carbon tax, the COVID-19 pandemic, and the “freedom convoy” blockades. Through this undertaking, he shows how these words have been misinterpreted by the courts, allowing the federal Parliament to use Peace, Order and Good Government to give itself “emergency powers”, and "national dimensions power" to legislate in relation to provincial matters."
The Power to Persuade
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The Power to Persuadeprovides an innovative and eye-opening analysis of strategic arguing as a means of power in global politics. Based on an empirical case study of arguing processes in the World Trade Organization (WTO), the book shows how discursive contexts, institutional norms and procedures, and unequal human resources condition who has the power to persuade. While accounts of arguing in international relations are typically based on a notion of arguing as a power-free mode of interaction oriented towards understanding, Angela Geck shows how such an approach precludes the question of persuasive power. Drawing on in-depth interviews with Geneva diplomats and a document-based analysis of the negotiations on two Doha Round issues, the book examines the practices governing strategic arguing in the WTO and uncovers two sources of persuasive power: firstly, prevalent discourses and connected regime norms empower some actors over others; secondly, their ability to debate is conditioned by exclusionary procedures and unequal human resources. Offering a grounded theory of strategic arguing in trade politics, The Power to Persuadepresents a novel analysis of the relationship between arguing and power.
Reading Like a Lawyer
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The supplemental materials website containing feedback to the end-of-chapter exercises has been changed to https://caplaw.com/sites/rll3e From Reading Like a Lawyer: "Just as storytelling is rooted in a rich oral history, and art is rooted in a rich visual history, law is rooted in a rich history of the written word. . . . the development of law rests primarily on written precedent and written rules housed in centuries of court opinions and statute books. To be understood, law has to be read, and read well." Written in an engaging style and full of real-life examples, Reading Like a Lawyer approaches the topic of reading law with contagious enthusiasm and an abiding respect for the importance of learning to read law well. Now in its third edition, Reading Like a Lawyer enjoys a fresh new look and continues to include practice exercises at the end of each chapter and an accompanying website that allows students to test their growing knowledge about legal reading against that of the author. Written for law students, pre-law students, paralegals, and the public, Reading Like a Lawyer uses active learning principles to help readers adapt their incoming reading skills to the skills needed to succeed in law: how to read legal casebooks and engage confidently in class; how to use assigned reading and class time to prepare for exams; how to read published court cases outside of a casebook; how to read legislative material (statutes) accurately; and how to make wise reading choices online. For faculty, Reading Like a Lawyer includes a separate teacher's manual with ideas for using the book and its examples with individuals and groups, a list of additional cases for more student practice, and access to a Powerpoint they can use to illustrate the book's principle lessons. Included on the American Bar Association's "Summer Syllabus: List of Books to Read Before the Start of Law School," Student Lawyer magazine, June 2019, Reading Like a Lawyer can be assigned in a class setting or as a recommended summer read, or can be read independently by anyone who has ever wondered, "how do lawyers read the law?"
Droit, langues et communautés : mélanges en l'honneur du professeur Pierre Foucher
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Le vingtième siècle a vu le commerce politique des langues se métamorphoser de manière significative et le Canada a été l'un des pays où cette transformation a été la plus vive. Or, ce que démontrent les cinquante dernières années de mise en œuvre des diverses lois sur les langues officielles au pays, c'est que tous ne se voient pas offrir les mêmes choix au buffet linguistique canadien. C'est ce qui explique qu'a été engagée depuis une cinquantaine d'années une dynamique complexe de revendications de la part des communautés linguistiques devant les tribunaux du pays. Au cœur de ce triptyque qui articule droits, langues et communautés depuis plus de quatre décennies, on retrouve l'éminent juriste Pierre Foucher
Making the Case for Equality
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Dozens of landmark legal cases, from 1973 to 2023, that drove transformative change from courtrooms to living rooms nationwide Lambda Legal, the pioneering non-profit legal organization, opened its half-century of archives to create a coffee-table book commemorating its 50th anniversary. Dozens of 'game-changing' legal cases winning and shaping the civil rights of the LGBTQ community are presented alongside a collection of curated archival material and historical images, chronicling the history and vital mission of the organization to advocate for the free and equal lives of LGBTQ people and people living with HIV. Through lively, detailed text and fascinating historical and contemporary images, including rarely seen and never-published images from the Lambda Legal's photo archive, dating back 50 years, to the beginning of the organization's history, this is the first book to celebrate and commemorate the societal impact of Lambda Legal's landmark strides for the civil rights of the LGBTQ community. Founded four years after the Stonewall Rebellion in New York City in 1973, Lambda Legal is the oldest and largest legal organization in the USA dedicated to achieving full equality for lesbian, gay, bisexual, transgender, and queer people. With unprecedented success, this trailblazing national civil-rights group has offices in six locations around the country and continues to improve lives for a diverse community of LGBTQ people, who, fifty years ago, were penalized, persecuted, and barely recognized under the law.
Droit des valeurs mobilières : théorie et pratique
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Trente ans après la publication de son premier article, l'auteur propose une analyse théorique, pratique et critique du droit des valeurs mobilières au Québec. Prenant appui sur ses écrits, notamment l'encadrement du secteur des valeurs mobilières par les provinces (Montréal, Éditions Thémis, 2012), l'auteur vise à combler une lacune dans la doctrine québécoise qui ne comporte pas de traité dans ce domaine depuis une quinzaine d'années. Le traité aborde la plupart des régimes du droit québécois des valeurs mobilières en faisant référence aux droit anglo-canadien et en puisant dans l'ensemble de la doctrine et de la jurisprudence des provinces. Il aborde aussi les enjeux contemporains de ce domaine, tels que la place des facteurs environnementaux et sociaux dans le régime de divulgation
Le droit linguistique au Québec
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Cet ouvrage explore en profondeur le droit linguistique au Québec, couvrant son histoire, ses fondements théoriques et son interaction avec le droit international, tout en abordant des aspects pratiques touchant divers secteurs tels que les ordres professionnels et leurs membres, les entreprises d’utilité publique, le secteur de l'éducation allant du primaire à l’université, la pratique notariale, l’État, le municipal le travail, le commerce et les affaires, de même que le secteur de la médiation. En puisant dans les lois, règlements la jurisprudence et les publications d'organismes spécialisés, comme l’Office québécois de la langue française et le ministère de la Langue française, cet ouvrage permet aux lecteurs de comprendre rapidement les normes applicables en la matière.
Fracking Uncertainty
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Hydraulic fracturing -fracking- is an unconventional extraction technique used in the oil and gas industry that has fundamentally transformed global energy politics. In Fracking Uncertainty, Heather Millar explains variation in Canadian provincial policy approaches, which range from pro-development regulation to moratoria and outright bans. Millar argues that although regulatory designs are shaped by governments' desires to seek out economic benefits or protect against environmental harms, policy makers' perceptions of said benefits and/or harms are mediated through socially constructed narratives about uncertainty and risk. Fracking Uncertaintyoffers in-depth case studies of regulatory development in British Columbia, Alberta, New Brunswick, and Nova Scotia. Drawing on media analysis and interviews with government officials, industry representatives, academics, and environmental advocates, Millar demonstrates how risk narratives foster distinctive forms of learning in each province, leading to different regulatory reforms.
A decade of Dunsmuir
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Canadian Journal of Administrative Law and Practice. Special Issue
Safety on trial
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"This new book covers the important subject of workplace safety in Canada. The book covers the current legal framework of Occupational Health and Safety (“OHS”) law, the origins of OHS law, the internal and external responsibility systems, how it is enforced across Canada, what employers, unions, and management have to do to comply with OHS law, and how OHS can be improved in Canada. This book will provide very detailed information on the enforcement of OHS laws in the courts and in tribunals across Canada. The book will provide comprehensive and detailed review of the OHS enforcement process in very clear, cogent, and concise language that will provide information and guidance to lawyers, human resource managers, OHS professionals, and all workplace stakeholders
A Short and Happy Guide to Criminal Procedure
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This Short and Happy Guide makes the law about police practices and criminal trial proceedings accessible and easy to remember. Learn the key points of search and seizure law, police interrogation, the right to counsel, the exclusionary rule, pretrial release, grand jury investigations, joinder, criminal discovery, plea bargaining, jury trials, pretrial publicity, double jeopardy, appeals, and post-conviction standards. Dominate your classes in Criminal Procedure and your skills courses in Trial Advocacy!
Gilbert Law Summaries on Wills
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This updated outline focuses on topics most commonly covered on Wills, Trusts, and Estates exams. These include intestate succession, wills formalities and interpretation, will revocation and revival, will challenges, family protections, and simultaneous death. Also succinctly explained are the subsidiary doctrines of incorporation by reference, pour-over wills, joint wills, contracts relating to wills, lapsed gifts, ademption, and exoneration of liens. Throughout, pointers are provided about fact patterns that students are likely to see on exams and how to address them, as well as things to watch out for.
Gender, Judging and the Courts in Africa
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Women judges are playing increasingly prominent roles in many African judiciaries, yet there remains very little comparative research on the subject. Drawing on extensive cross-national data and theoretical and empirical analysis, this book provides a timely and broad-ranging assessment of gender and judging in African judiciaries. Employing different theoretical approaches, the book investigates how women have fared within domestic African judiciaries as both actors and litigants. It explores how women negotiate multiple hierarchies to access the judiciary, and how gender-related issues are handled in courts. The chapters in the book provide policy, theoretical and practical prescriptions to the challenges identified, and offer recommendations for the future directions of gender and judging in the post-COVID-19 era, including the role of technology, artificial intelligence, social media, and institutional transformations that can help promote women's rights. Bringing together specific cases from Kenya, Uganda, Ghana, Nigeria, Zambia, Tanzania, and South Africa and regional bodies such as ECOWAS and the African Commission on Human and Peoples' Rights, and covering a broad range of thematic reflections, this book will be of interest to scholars, students, and practitioners of African law, judicial politics, judicial training, and gender studies. It will also be useful to bilateral and multilateral donor institutions financing gender-sensitive judicial reform programs, particularly in Africa. The Open Access version of this book, available at www.taylorfrancis.com/books/oa-edit/10.4324/9780429327865/gender-judging-courts-africa-jarpa-dawuni, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.
