Category Archives: What we’re thinking/reading/doing (IFLS blog)

What’s interesting these days?

The Person’s Case, in Carissma Mathen’s “Courts without Cases: The Law and Politics of Advisory Opinions” (Hart 2019)

You can find the book for order here, and check Carissima on Twitter @cmathen in case she’s doing a launch event that you can get to (Winter Semester, Osgoode). If you are on twitter and don’t follow her, recommend that you do, for live tweeting all kinds of things, for instant digests of SCC new releases, for fun. Oh, and if you want the JCPC Person’s case itself, here it is on Canlii.

(excerpt from Chapter 7 “Interpretation and Rights” with thanks to Carissima)

It took time for the Persons Case to make its mark. [A]side from a few other Privy Council decisions, it went virtually unmentioned until 1979.  In its own time, academic discussion of the reference was uniformly negative.  British scholar Berriedale Keith said that ‘no decision of the Privy Council is probably harder to defend as sound in law ’.  GF Henderson was equally cutting, charging that the case was ‘not written in strict accordance with well understood legal principles ’; that the federal government had manipulated the situation to secure its preferred outcome; and that the JCPC had by ‘ judicial legislation … altered the constitution of the Senate of Canada ’.

More positive regard began to emerge in the 1970s, a time of greater awareness of women’s rights and an increasing role for feminist advocacy. After being mentioned in some early Charter decisions, Edwards quickly assumed more prominence. The reference enjoyed an intriguing duality. It was used to chart a different path to constitutional interpretation compared to the more formalist approach of the Supreme Court of the 1970s. At the same time, being so deeply rooted in the country ’s legal history, it may have rendered the Court ’s momentous interpretative choices, a number of which are explored later in this chapter, less radical.

The critiques of the Persons Case are reminiscent of the debates in the United States over the soundness of the Brown v Board of Education (Topeka) landmark decision.  Although it is possible to legitimately object to the judicial craft in each, and many commentators do, few take the next step and claim that the decision should be cast aside.  In Canada, such a position would be repudiated by all but the most implacable defenders of constitutional minimalism.  The hesitation to fully back the implications of such a critique illustrates the opinion’s power. For, while the reference may attract debate over its precise contours, and future applications, there is in almost all quarters an acceptance of its legacy and continuing force.”

Have you or your colleagues got New In Print academic/legal work that could be featured here? Let me know via email.

Aziza Ahmed at Osgoode Thurs November 14 |FEMINISM’S MEDICINE: Risk, Race, Gender, and Law in the AIDS Epidemic

Poster for the Department of Health and Human Services demonstration designed by ACT UP/DC Women’s Committee, 1990. https://www.nlm.nih.gov/exhibition/survivingandthriving/img/photo-exhibition-OB2224.jpg

THURSDAY 14 November 2019 1230PM Osgoode Hall Law School IKB 2027 (Faculty Lounge)

Lunch Served

How did the world come to see women as “at risk” for HIV? How did a disease of men come to kill women? Against a linear narrative of scientific discovery and progress, Feminism’s Medicine argues that it was women’s rights lawyers and activists that fundamentally altered the legal and scientific response to the epidemic by changing core conceptions of who was at risk of contracting HIV.  In other words, feminists not only changed the legal governance of AIDS, they altered the scientific trajectory of the epidemic.  In doing so, they moved resources towards women in the epidemic.  Feminists advocated for women to be seen as a risk group for HIV in multiple locations: in U.S. administrative agencies, courthouses across the country, as well as in global governance institutions. The talk will consider the impact of a diverse range of feminisms for its impact on scientific ideas, legal reform agendas, and the distributional consequences of feminist engagement in the AIDS epidemic. 

Aziza Ahmed is Associate Professor of Law at Northeastern School of Law. She is an expert in health law, human rights, property law, international law, and development. Her interdisciplinary scholarship focuses on issues of both domestic and international law. Join the IFLS for this talk.

A few recent or forthcoming publications from Professor Ahmed

  • Handbook on Race, Racism, and the Law (Edward Elgar Publishing, forthcoming) (with Guy-Uriel Charles).
  • Gender Violence (forthcoming) (with Donna Coker, Leigh Goodmark, and Deborah Weisman).
  • “Forensic Science in Self-Induced Abortion Prosecutions,” Boston University Law Review (forthcoming 2019)
  • “Health and Human Rights: Harm-Reduction and the Fight to Decriminalize Public Health Services,” American Society of International Law Proceedings (forthcoming 2019). 
  • “Race and Assisted Reproduction: Implications for Public Health,” 86 Fordham Law Review 2811 (2018). 

Professor Vasuki Nesiah “Is gender sensitive transitional justice the feminism we were aiming for?” October 18 2019 at Osgoode

“TELL ALL THE TRUTH BUT TELL IT SLANT”
Is gender sensitive transitional justice the feminism we were aiming for?

Professor Vasuki Nesiah, Gallatin School NYU

FRIDAY OCTOBER 18 2019
1230-2PM
FACULTY LOUNGE | IKB 2027
OSGOODE HALL LAW SCHOOL

Add to your calendar

co presented with Law Arts Culture .

“From Rigobertu Menchu to Anne Frank, the testimonials of women and girls are often seen to have particular authority in ‘speaking truth to power’ and bearing witness to vulnerable communities’ experience of genocidal violence and their fortitude in resistance. Feminist celebration of ‘narrative truth’ has rendered truth commissions a particularly important site of feminist engagement.

At the same time, feminist analysis of the politics of knowledge and their mobilization in the commission of truth has drawn attention to the fraught stakes of categories such as victimhood, voice and injury. This talk will engage in the debate by thinking with Paulina in Ariel Dorfman’s play, Death and the Maiden.

New in Print: Hastie, Workplace Sexual Harassment (report)

Bethany Hastie of Allard (UBC) Law has just published Workplace Sexual Harassment: Assessing the Effectiveness of Human Rights Law in Canada (available here, open access). Hastie analyzes decisions in workplace sexual harassment at each of the BC and Ontario Human Rights Tribunals from 2000-2018. She’s particularly focused on “whether, and to what extent, gender-based stereotypes and myths known to occur in criminal justice proceedings arise in the human rights context”.

For instance, one finding: “the requirement that a complainant establish that the impugned conduct was “unwelcome” provides the most direct and expansive space for gender-based myths and stereotypes to influence the analysis and outcome of sexual harassment complaints”.

The Report concludes with 8 recommendations. An important resource.

Davina Cooper @ IFLS | The Future of Legal Gender

Thursday September 19 2019  1230-2

Osgoode Hall Law School   IKB ROOM 2027

THE FUTURE OF LEGAL GENDER

Professor Davina Cooper, Dickson Poon School of Law, King’s College

all text in poster is available in the post.

Are there good reasons to retain a system in which people have a formal legal sex/ gender? What might change involve? And what are the challenges, risks and benefits of radical reform? This talk draws on a British, feminist, law reform research project, currently in its second year, to explore these questions. It approaches decertification, where the state no longer stands behind people’s sex/gender, from two primary angles: the politics of moving from gender-as-identity to gender-as-network (or something similar); and the politics of prefiguring what the law (and its options) could be.

If you would like to learn more about the research project this talk draws on? See here for the project website, and/or read this fascinating blog post from one of the Researchers, Dr. Flora Renz. It is up at the UK Socio Legal Studies Association blog.

Fluctuating intensities: Thinking about gender through other socio-legal categories

” Part of the challenge of a prefigurative law reform project, is to think through what such options would look like. If we want to imagine and anticipate different ways of dealing with gender as a legal status, one useful starting point may be to think about how other identity statuses or categories are currently dealt with in social, policy and legal contexts. Disability as a category may offer a particularly rich source both for comparison, but also to think about how future changes to gender could be approached from a different starting point. In thinking through these issues I am using disability or chronic illness not as a direct comparison but rather as a prompt for considering some aspects of gender that are less prominent in current discussions, such as gender as a legal category whose intensity and relevance may fluctuate in different times and places.”