Tag Archives: legal history

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.

Oct. 24 4-6pm @yorku Prof. Bettina Bradbury: “Twists, turning points and tall shoulders: studying Canada and feminist histories”

Twists, turning points and tall shoulders: studying Canada and feminist histories: Bettina Bradbury

The Robarts Centre for Canadian Studies: Robarts Lecture and Publication Launch Wednesday October 24 4 – 6 pm; Senate Chambers, 9th floor N Ross Building

A light reception will follow the lecture. RSVP by Wednesday October 17 to Laura Taman (llt@yorku.ca).

The Robarts Centre is very pleased to invite you to the ‘new series’ of Annual Robarts Lectures featuring our distinguished colleague Prof. Bettina Bradbury (Women’s Studies and History) speaking on “Twists, turning points and tall shoulders: studying Canada and feminist histories.” In this ‘intellectual biography,’ Prof. Bradbury will reflect on her career in and contributions to the study of Canada.

photo of Prof. Bradbury receiving FGS award.

An award-winning historian of Québec and family history, Prof. Bradbury has served the university in various roles, among others, as chair of Women’s Studies and as director ofthe graduate programme in History. She recently received the Faculty of Graduate Studies Teaching Award (see photo).

Here are some of Prof Bradbury’s publications (i selected some of those most clearly relevant to legal scholars)

“Colonial Comparisons: Rethinking Marriage, Civilization and Nation in 19th century White- Settler Societies,” in Phillip Buckner and G. Frances eds., Rediscovering the British World, (Calgary: University of Calgary Press, November, 2005), 135-58.

“Widows Negotiate the Law: The First Year of Widowhood in Early 19th Century Montreal,” in Tamara Myers and Bettina Bradbury, eds., Negotiating Identity in 19th and 20th Century Montreal (Vancouver: UBC Press, 2005), 120-48.

“Debating Dower: Patriarchy, Capitalism and Widows’ Rights in Lower Canada, ” in Tamara Myers, Kate Boyer, et. al. eds., Power, Place and Identity: Historical Studies of Social and Legal Regulation in Quebec (Montreal, Montreal History Group, 1998), 55-78.

“Creating a More Inclusive History – An overview of the challenges and solutions faced in integrating class, race and gender into survey courses, ” in Bettina Bradbury, Franca Iacovetta, Joan Sangster et. al. Teaching Women’s History (Athabaska, 1995), 37-48.

Alongside this public lecture, the Robarts Centre is also hosting its first collective book launch for Canadian-themed publications produced by members of the York University community. This is an occasion to celebrate the breadth of Canadianist research at York.



'Omak’s Minimum Pay Law Joan D’Arc': Telling the Local Story of West Coast Hotel v. Parrish (1937) by Helen Knowles

‘Omak’s Minimum Pay Law Joan D’Arc’: Telling the Local Story of West Coast Hotel v. Parrish (1937)

by Helen Knowles (Whitman)

New at SSRN.

Scholars agree about the socio-political significance of West Coast Hotel v. Parrish (1937), in which the U.S. Supreme Court upheld the Washington State minimum wage law for women. However, they tend to focus on the decision’s relationship to FDR’s Court-packing plan. Little attention has been paid to the stories of the parties; beyond identifying her as the famous-for-five-minutes “Wenatchee chambermaid,” scholars have provided us with minimal information about the plaintiff Elsie Parrish, and even less is known about the lawyers and lower court judges who participated in this landmark case.

Using analysis of local newspaper coverage, the original court documents, and drawing upon information provided by descendants of Elsie Parrish, her lawyer C.B. Conner, and Fred Crollard, the attorney for the West Coast Hotel Company, in this article I bring to light many previously untold details of the local story of Parrish. This material highlights the importance of telling the stories of Supreme Court cases, because it demonstrates that for the residents of Washington State it was the local story, rather than the national narrative, of Parrish that captured their attention.

Two New on SSRN: Marriage, Equality & History (Franke and Murray)

Two pieces on marriage, both with a historical bent, both available on SSRN.  In the first, Columbia’s Katherine Franke asks why marriage has received so much attention in the struggle of same sex/LGBTTQ rights, and attempts to sketch an answer by looking to the period immediately after the Civil War when African Americans received the right to marry.  Analogy and equality, some of my favourite things! 

The Murray article points out that until relatively recently, marriage was sometimes part of the punishment for the “crime” of seduction.  This leads author Melissa Murray (UCLA – Berkeley)  to argue that those involved in the struggle for marriage equality have not paid enough attention to the role of marriage as a punishment, or technique of state discipline.  Murray’s article is award winning.  Cannot wait to get to these. Today? Tomorrow?  Very soon.  They are on my ipad, waiting for me. 


See! I have restrained myself from making a snarky comment about weddings being a form of punishment.




KATHERINE M. FRANKE, Columbia Law School  “The Curious Relationship of Marriage and Freedom”  

MARRIAGE AT  A CROSSROADS, E. Scott and M. Garrison, eds., 2012  Columbia Public Law Research Paper


This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are articulated in and through the institution of marriage? What kind of freedom and what kind of equality does the capacity to marry bring forth? 

In important ways, what we are witnessing today with same-sex couples echoes the experience of another group of new rights-holders almost 150 years ago. To better understand how the gay rights movement today has collapsed into a marriage rights movement, and what the costs of such a strategy might be, the essay looks backward in history to another time when marriage rights intersected with the rights of freedom, equality and dignity of a marginalized population: newly emancipated Black people in the mid-nineteenth century.

MELISSA E. MURRAY, University of California, Berkeley – School of Law  “Marriage as Punishment” 

Columbia Law Review, Vol. 100, No. 2, 2012   UC Berkeley Public Law Research Paper No. 1952311


Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used – and importantly, continues to be used – as state-imposed sexual discipline.

Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who ‘seduced and had sexual intercourse with an unmarried female of previously chaste character’ under a ‘promise of marriage.’ Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.

The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.

With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.

Now Posted on SSRN: A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye

looks interesting

Swan, Sarah Lynnda, A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye (August 29, 2011). Harvard Journal of Law and Gender, Vol. 35, 2012.

The tort of interference with contractual relations has many puzzling features that conflict with fundamental principles of contract and tort law. This Article considers how gender influenced the structure of the tort and gave rise to many of these anomalies. Lumley v. Gye, the English case that first established interference with contractual relations, arose from a specifically gendered dispute: two men fighting over a woman. This type of male—male—female configuration creates an erotic triangle, a common archetype in Western culture. The causes of action that served as the legal precedents for interference with contractual relations – enticement, seduction, and criminal conversation – are previous instances where the law regulated gendered triangular conflicts. Enticement prohibited a rival male from taking another man’s servant, seduction prohibited a rival male from taking another man’s daughter, and criminal conversation prohibited a rival male from taking another man’s wife.

via A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye by Sarah Swan :: SSRN.