Category Archives: General News

Stylistic Flair – A time and place?

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The Original Literary Judge

In a post from a few weeks ago, I lamented the lack of flair in legal writing. Although it’s certainly not a “need-to-have”, it’s certainly a “nice-to-have”. Throughout legal education and practice, you will likely have to read many, many decisions, and most of them are – to not put too fine of a point on it – dry as dust. The legal arguments may be compelling, significant, and of lasting importance, but the prose less so.

It is human nature to want to be entertained, even when reading dry legal writing. This is, of course, why Lord Denning has proven to be so enduring and popular. His judgments were colourful, informative, and yes, entertaining. After reading a Lord Denning decision, you are both entertained and informed. Of course, many do not necessarily subscribe to this opinion, believing that such writing undermines the proper gravity that should be afforded to the law. On a personal level, I think that, as with many things in life, a balance should be struck. To my mind, taking the time to write judgments that are not boilerplate demonstrates that the judge is engaged and wants others to be as well. While the realities of time constraints means that taking the personalized approach to each and every judgment is unlikely at best and foolhardy at worst, it is always refreshing when something comes to your attention that demonstrates that not every decision is bloodless (yet).

Although R. v. Duncan was released a month ago, it just recently came to my attention. It is nothing if not extremely entertaining, chronicling the story of Matthew Duncan, who was rather forcefully arrested and tasered, where he eventually found himself before Fergus O’Donnell, the author of the decision, representing himself. And doing a rather poor job of it, to boot. As Abraham Lincoln famously stated – he who represents himself has a fool for a client.

As with many “literary” decisions, it has found itself to be the subject of quite a bit of controversy. In this case, in addition to the usual concerns about the appropriateness of the bench as a venue for judges to exercise their literary aspirations, there have been concerns the fact that O’Donnell so openly mocks the defendant (despite eventually acquitting him).

As I mentioned previously, it really comes down to striking the balance. However, I must concede that however entertaining it may have been to read Justice O’Donnell’s evisceration of Duncan, the old adage of “a time and a place” did cross my mind. Perhaps it is in the eye of the beholder, so take a look for yourself and decide!

Summer Reading

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Exams are nearly over and summer is nearly here (notwithstanding spring’s rather reluctant arrival), so no doubt everyone’s mind is turning to their summer reading. The Guardian newspaper has very thoughtfully compiled a reading list for you, and we have a number of the books in our collection, including a DVD in one case. Your summer reading list is ready for pick-up!

Of the top six nominations, we have (in the order set out in The Guardian):

 

Other books in the top six recommendations for you to hunt down (try your public library):

  • Tom Bingam, The Rule of Law
  • Nicholas McBride, Letters to a Law Student
  • Catherine Barnard et al, What About Law?

Other nominations:

  • Gary Slapper, How Law Works
  • Clare Dyer and Marcel Berlins, The Law Machine
  • Lon Fuller, The Case of the Spelun[c]ean Explorers
  • Mark Giminez, The Colour of Law

Of course, we have plenty more DVDs and law-related fiction in our fiction corner in the northwest corner of the main floor of the library, in the midst of the study rooms.

Don’t thank me, thank Dan Pinnington’s Slaw blog of April 8, 2013.

High Noon at York?

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Choosing sides in Temple Garden – the start of the War of the Roses

For those of you who are interested in copyright and intellectual property (and I know that there are a lot of you), you will doubtless be familiar with the recent battles surrounding the shifting landscape of Canadian copyright law between Access Copyright and pretty much everybody else. For those of you unfamiliar with the drama surrounding these changes, in a nutshell there has been a huge shift towards “fair dealing” for the purposes of education. This shift began with the landmark CCH v. LSUC case in 2004 and was rapidly accelerated with the so-called “pentalogy” of SCC decisions in conjunction with the long-needed overhaul of the Canadian Copyright Act in 2012.

These changes served to further widen the already-yawning gap between champions of access to information and the advocates for artists’ rights. The rhetoric on both sides has been nothing if not pointed. However, while many (myself included) believe that the fair dealing provisions included in s. 29 of the Act and discussed by the SCC are rather clear-cut, it also represents a potentially massive shift away from the way things have been done previously. Which brings us to the the issue of Access Copyright, which represents a significant part of the status quo.

Previously, educational institutions would simply pay a set fee per student and that would serve as a basis for covering the licensing. After Access Copyright proposed a major fee hike, many institutions (understandably) balked, leading to a drawn-out impasse. Eventually, many institutions chose to “opt out” of signing an agreement with Access Copyright, instead choosing to deal with copyright internally, through fair dealing, licensing directly from publishers, and other means. York was no exception, announcing on May 29 of last year that they were not going to sign a new tariff.

Despite the relative clarity of the legislation and case law, there is still enough ambiguity with regard to what exactly constitutes “fair dealing” in the educational context to ensure that there would be continued struggles in attempting to frame these issues, particularly when the prevailing interpretation essentially threatens Access Copyright’s entire business model. It has long been seen to be a matter of when, rather than if, there would be what would likely be one last showdown between Access Copyright and Canadian educational institutions to finalize – once and for all – what the new status quo will be.

That moment arrived when Access Copyright filed a lawsuit against York on April 8 of this year, claiming that York’s fair dealing guidelines authorize and encourage copyright infringement. While I have some reservations about the substance of Access Copyright’s claim, it is undeniable that this is something that needs to happen, since the current environment of uncertainty is not sustainable in the long run. Whatever your feelings the changes in Canadian copyright, it has certainly been anything but boring.

For further information, in-depth analysis, and news, here are a few blogs worth keeping an eye on:

IP Osgoode

Michael Geist

Howard Knopf at Excess Copyright

Ariel Katz

Sam Trosow

Exam Stress – Going to the dogs?

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It’s that time of year – the end-of-term paper-writing and exam crunch. And for many of you who are graduating this spring, you’ll barely have time to catch your breath before launching headlong into your bar ads. In a nutshell, it’s a crazy, busy, stressful whirlwind of all-nighters, bleary eyes, summary writing, coffee consumption, and all-around madness before you can come up for air in several weeks’ time.

Although you might have missed “Take Your Dog To Work” Day earlier this year, there are some law schools who are making this a part of exam time to offer respite from the stress of exams. George Mason University School of Law had “puppy day”, where students were able to pet, cuddle, and spend time with homeless and adoptable puppies from a shelter. Another example of law schools going to the dogs is Monty the Therapy Dog, who is available at set times at the Yale Law Library. A registered therapy dog, he can be reserved to spend time with groups of up to four students. Alas, since we do not have any cuddly pooches for you to project your stress on to, you might want to check out the Mayo Clinic’s stress relief tips.

Although it has been a number of years since my graduation from Osgoode in 2009, it is still a feeling that is instilled deep, deep into the psyche, so I am only all-too-aware of the punishing realities of what often feels like an interminable and impossibly stressful exam period. However, it is always helpful to remember that no matter what your classmates might tell you, they’re likely just as terrified/stressed out/confused as you are. It is also worth noting that no matter how convincingly authoritative they might sound about x, y, or z   point of law, there is always the possibility of overcompensation. At the end of the day, you’re ultimately responsible to yourself – and part of that is the ability to take a deep breath, put your nose to the grindstone, and get to it. You’ll be fine.

And, if you need anything, even just somebody to lend an ear, we’re here for you. As they say, you get by with a little help from your friends.

Sticks and stones?

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Duelling – Monty Python-style

Everybody knows the old schoolyard chant of “sticks and stones may break my bones, but names will never hurt me”. However, lately there seems to have been a spate of high-profile cases of (alleged) defamation and libel, with varying degrees of success. While the idea of defending one’s honour typically conjures up visions of duels (including the famous duel between Alexander Hamilton and American Vice President Aaron Burr), given that shooting people – whether it is in defence of honour or not – is typically frowned upon in modern society, recourse is now more typically found in the courts.

Two particularly high profile cases have been making the rounds recently. The first involved Toronto Mayor Rob Ford who, during the course of his successful campaign for the mayoralty, made disparaging comments about the contract awarded to the Boardwalk Pub, which operates at Woodbine Beach. Ford suggested that there had been corruption involved, an allegation that the owner of the pub took exception to. In response, he filed a $6 million libel suit against the Mayor (which was one of only three major legal battles Ford fought in a short period of time). Ultimately, Ford was successful. The full text of the court’s decision can be found here.

The other high profile case (and perhaps I am betraying a touch of librarian bias here) is the case of the Edward Mellen Press and McMaster University and its Associate University Librarian, Dale Askey. In a nutshell, the case revolves around the Mellen Press suing Askey and McMaster for libel due to a less-than-favourable assessment of Mellen’s offerings as a part of a blog post that he had written when at Kansas State University. The Mellen Press has been very assiduous in protecting its reputation, and this is in keeping with its policy. For those who are interested in reading up on the ongoing story, there is an excellent blog which is offering updates as they arise. Not surprisingly, given the serious implications of such claims, there has been a great deal of scrutiny and interest in the case, so it is well worth keeping tabs on.

Given the enormous breadth of issues that can arise in the course of a defamation action (such as – but certainly not limited to – libel, slander, freedom of expression, freedom of speech, and so on), it is not surprising that we have a tremendous amount of material pertaining to the subject, including the sinister-sounding (if antiquated) concept of “seditious libel“.

Oh, and a history of duelling in Canada. But just in case you ever feel so inclined to challenge somebody to a duel or take up said challenge, you should make sure to check s. 71 of the Criminal Code first.

Additional note (April 6): I forgot to mention another classic and enjoyable read that deals with libel, and is available in our fiction collection – QB VII by Leon Uris. Indeed, as the bibliographic note indicates, this was one of the books that was donated to form the core of our fiction collection, and with good reason.

Legal writing… with style?

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Oliver Wendell Holmes: Law and Style in harmony

Today there is an interesting article on Slaw about the need for a greater degree of style in legal writing. Not in the stylistic sense of flair (although that would certainly be nice – there is a reason we still love to read Lord Denning), but rather in the formalistic sense, where the writing is broken down in ways that are easy to follow.

The reasons for this are not simply attributable to crochety guardians of linguistic formalism, but to altogether more prosaic and practical reasons – the Jodhan v. Canada (Attorney General) decision has mandated that the federal government ensures that all of its web sites are fully accessible by August 30 of this year.

While much of this does not have direct trickle-down impact on those in the legal profession, it will have an impact on those who are writing decisions and other documents that will find themselves on government websites. They will now need to be aware of the necessity of formatting and style in such a way as to produce documents that can be translated into accessible formats. To quote from the Slaw post:

Lawyers and – may I dare to say – “judges” as well as judicial staff and administrators are among those who must act to implement the looked after accessibility. In the medium term, this will change forever the way legal documents are prepared in our courts.

From now on, style is in order.

While it may not be enough to fully shield against the slings and arrows suffered by language in the recent past, at least style and legal writing can be in the same sentence without becoming accompanied by a snickering aside.

Furthermore, it is the simply the tip of the iceberg in the coming wave of accessibility initiatives as the Accessibility for Ontarians with Diabilities Act begins to be phased in over the coming years. These are important (and set to only increase in importance) concepts, so it is wise to begin to think about these issues now.

Winter of discontent

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In one of last week’s biggest news stories, researchers and archaeologists in Britain managed to find and identify the body of one of the most notorious British monarchs, Richard III, whose remains were found beneath a parking lot in the middle of the city of Leicester. Although the historical significance of the discovery is arguably dubious, with historians already debating on that point, it is undeniably fascinating as a window into the not-so-distant past. While many have said that if it had not been for Shakespeare, Richard would have vanished into the mists of time, the Shakespearean depiction has given us such cultural touchstones as “Now is the winter of our discontent” and “A horse! A horse! My kingdom for a horse!”, not to mention one of the greatest mysteries ever written,the Daughter of Time by Josephine Tey. Consequently, Richard III has lived on in popular culture as a sort of grotesque caricature of the absolutely corrupt product of absolute power.

In reading up on Richard (and picking up the Daughter of Time for a long-overdue reread), it is easy – especially for the attention-deficit-addled modern mind – to rapidly bounce through royal history and what-ifs that raise plenty of interesting questions. Richard III was, of course, the last of the House of Plantagenet, as well as being the last English monarch killed in battle.

This led me to wonder about subsequent royal houses and their extinction. The Tudors succeeded the Plantagenets, and were extinguished with the childless death of Elizabeth I, with successive royal houses including Stuart, Hanover, Saxe-Coburg and Gotha, and Windsor (in actuality, the last two are the same, but the name was changed in response to anti-German sentiment during the First World War). There is also the fact that Jacobitism is alive and well, with the Royal Stuart Society still fighting the (by now doubtlessly lonely) battle against the “illegitimate” succession to the throne that followed the deposing of the Catholic King James II following the Glorious Revolution in 1688. For what it’s worth, if the Jacobites had their way, instead of Queen Elizabeth II, we would instead have Franz Bonaventura Adalbert Maria Herzog von Bayern (that’d be Franz, Duke of Bavaria to you) as King Francis II.

The legal implications of a potential (and altogether improbable) usurping of the throne are too complicated to even comprehend in this space, but the library does actually have a few interesting works on succession. Apropos of the Glorious Revolution, we have the 1795 edition of Some considerations on the law of forfeiture, for high treason : occasioned by a clause in the late act, for making it treason to correspond with the Pretender’s sons, or any of their agents in both hard copy and (should you feel compelled to check it out for yourself) microfilm, in which the implications of fraternizing with the Old Pretender or Young Pretender (aka Bonnie Prince Charlie) are made altogether very clear. The 1810 Tracts on various subjects in the law and history of England has sections on treason and succession (it is unlikely that the correlation is an accident). We also have The old English constitution: in relation to the hereditary succession of the crown, antecedent to the revolution in 1688 from 1709 in microform.

Thankfully, the days of monarchs being hacked to death by their successors are (hopefully) behind us, but their capacity to fascinate lives on.