Tag Archives: NIP

Interview with Vanessa MacDonnell via I*CONnect

New Scholarship Review: Interview with Vanessa MacDonnell.

Neat format.  Audio interview.  Prof interviews Prof.

In this outing, Professor Richard Albert, Boston College Law School speaks with Professor Vanessa MacDonnell  of the University of Ottawa (English common law) about her new (comparative) work on the role of government in advancing and securing constitutional rights.  The abstract of the paper (forthcoming in the UTLJ), is available on SSRN here.  I am teaching constitutional law at the moment and am consider how this might enrich the introduction to the Charter materials (next semester) and encourage students to think more broadly about the roles the state plays beyond violator-of-rights.  Not to mention the ways it may affect my own thinking as an “equality advocate”.


NIP: Breakups by Deborah Tuerkheimer in Yale J. of Law & Feminism & how to use HeinOnline Table of Contents Alerts

Fascinating abstractice.

This Article identifies an overlooked criminalization gap. While
the existence of a private sphere in which violence is allowed has been formally
repudiated, a subtler form of legal immunity persists. Relationship status-that
is, whether or not a couple is involved in an ongoing relationship-continues to
construct crime. Though physical violence between intimate partners is
categorically outlawed, patterns of controlling behavior that encompass
physical violence may or may not be lawful. These patterns of controlling
behavior are legally permitted when two people are together. Yet these same
patterns become illegal if, and only if, the couple separates. The law thus
prohibits behavior that it permits before the breakup. I call this the de facto separation requirement and offer a conceptual framework that explains its
endurance. On analysis, the differential treatment of pre- and post-breakup patterns cannot be justified.

Available on SSRN here, or Heinonline (not open access) here.


This came to my attention because i get some email alerts from Hein Online, via the MyHein service.  Again, all of this  is only for those who have access to Hein, but it can be a useful service, if you can control the number of alerts you subscribe to…:

You can create an eTOC alert for one or more titles which will you send you an email every time the
title(s) you selected have been updated. To do this, browse to a title and click on the Create eTOC Alert
link. You will then receive a message that says the title has been added to your “eTOC alerts”.

What you get is an email with the Table of Contents for the new volume and clickable links to all the articles.  Handy, fun, efficient.

Jotwell: Grant reviews Fournier, McDougall & Dekker "Dishonour, Provocation and Culture: Through the Beholder’s Eye?"

Isabel Grant (UBC Law) reviews Pascale Fournier (Ottawa Civil Law Section), Pascal McDougall & Anna R. Dekker, Dishonour, Provocation and Culture: Through the Beholder’s Eye?, 16(2) Can. Crim. L. Rev. 161 (2012), here.

In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked.  While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed.  The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants.  For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178).line drawing of an eye


New issue of CJWL in Honour of Dianne Pothier "Critical Disability Studies and Feminisms: On Getting It"

New issue of the Canadian Journal of Women and the Law is out!

This issue honours the contributions of legal scholar Dianne Pothier, who is retiring after a distinguished career at the Schulich School of Law, Dalhousie University. Her faculty colleagues, Richard Devlin and Dean Kim Brooks, guest edit this issue which features ground-breaking scholarship on topics such as poverty and disability, disability and care, the treatment of ameliorative programs in court decisions, and barriers to women with mental disabilities testifying in court.

Editorial  [This article is available open source & free of charge, Click here ]
Kim Brooks and Richard Devlin
Kim Brooks and Richard Devlin
Une analyse de la réglementation des personnes itinérantes selon une perspective pothienne de la discrimination
Suzanne Bouclin and Joëlle Pastora Sala
Dans cet article, nous nous appuierons sur les analyses critiques de Dianne Pothier concernant la discrimination et la dignité humaine pour établir ce que nous nommons la « perspective pothienne ». Notre objectif est de démontrer l’applicabilité de la perspective pothienne aux enjeux relatifs à la dignité des personnes itinérantes. Une analyse pothienne de l’adoption et des effets d’un règlement municipal—le Règlement sur la sollicitation obstructive de Winnipeg—nous permet de sonder la complexité des structures dans lesquelles les instances formelles créent ou renforcent des obstacles à l’épanouissement des personnes itinérantes. Entre autres, l’analyse pothienne complexifie la compréhension des dynamiques et des différentiations marginalisant les personnes itinérantes. Néanmoins, Pothier mise aussi sur la manière dont les personnes conçoivent divers moyens créatifs de composer avec leur réalité quotidienne en développant des tactiques pour maintenir leur dignité humaine malgré des expériences de discrimination. Son analyse apporte aux discussions sur le phénomène de l’itinérance à Winnipeg un éclairage original qui peut favoriser l’émergence de stratégies novatrices pour les groupes qui luttent contre la pauvreté.
More Than an Empty Gesture: Enabling Women with Mental Disabilities to Testify on a Promise to Tell the Truth
Janine Benedet, Isabel Grant
In this article, the authors use the recent Supreme Court of Canada decision in R. v DAI to examine the issue of competence to testify in sexual assault prosecutions for women with mental disabilities. The authors support the outcome reached by the majority of the Court but raise questions about some of the reasoning, including the equation of women with mental disabilities with children. The authors examine what types of questions are now appropriate in a competence inquiry and raise cautions with respect to the reliance on lay and expert witnesses to assist in the competency inquiry. It is argued that allowing women to testify who can communicate their evidence is a small step towards enabling the criminal justice system to respond to the high rate of sexual assault against women with mental disabilities.
The Supreme Court, Ameliorative Programs, and Disability: Not Getting It
Jonnette Watson Hamilton and Jennifer Koshan
Recent Supreme Court of Canada decisions on section 15(2) of the Canadian Charter of Rights and Freedoms raise concerns for the equality rights of persons with disabilities. Although R. v Kapp gave independent force to the protection of ameliorative programs as an aspect of substantive equality, Alberta (Aboriginal Affairs and Northern Development) v Cunningham gave governments significant deference even in relation to targeted benefit programs that are under-inclusive and potentially discriminatory. This article examines the impact of the Supreme Court of Canada’s recent section 15(2) jurisprudence on people with disabilities. We argue that the Court’s extreme deference to targeted benefit programs may perpetuate the social exclusion and marginalization of persons with disabilities to whom the government denies benefits. The Court’s section 15(2) approach also runs the risk of reinforcing essentialized, categorical, and medicalized views of disability and creating hierarchies of disability. These risks are of particular concern in the current climate of fiscal restraint. While the recent Supreme Court of Canada decisions on section 15(2) do not deal specifically with issues of discrimination on the basis of disability, we argue that the Court’s apparent failure to think through how its decisions would impact people with disabilities is a serious shortcoming indicative of Pothier and Devlin’s notion of “dis-citizenship.”
Vulnerability, for Example: Disability Theory as Extraordinary Demand
Kate Kaul
This article considers the function of analogy and example in interdisciplinary disability theory, taking vulnerability as an extended example of the shared concerns and the contrasting demands of disability studies and feminist theory. It centres a politicized disabled subjectivity and considers the interplay of the universal and the particular in the operation, or function, of disability as a category. The first section of the article, “Examples, Analogies,” presents theories of example and analogy and relates them to strategies of example and analogy in disability studies and in feminist theory, particularly in the work of Robert McRuer, Rosemarie Garland-Thomson, Joan W. Scott, and G. Thomas Couser. The second section, “Translation into Politics,” considers Debra Bergoffen’s discussion of vulnerability and the gendered universal as well as the possibility of its translation into disability theory. The third section, “Vulnerable Subjects,” discusses Judith Butler’s articulation of vulnerable subjectivity and Martha Fineman’s notion of the vulnerable subject. The fourth section, “More Vulnerable Subjects?” shifts to the particular with a reading of Sherene Razack’s argument that feminist law reform must recognize disability’s specific difference and of Couser’s and Paul Longmore’s examples of the particular operation of vulnerability in disability experience.
Disability and Care: Still Not “Getting It”
Nancy Hansen and Lorna Turnbull
In this article, the authors, one a critical disability studies scholar and the other a legal academic, critically consider a decision of the Federal Court of Appeal that engages questions of gender and disability. The case deals with access to Canada Pension Plan (CPP) disability benefits. Cynthia Harris, a mother who has multiple sclerosis, challenged the application of the CPP child-rearing drop-out rules contained in the legislation. Harris’s challenge is made on the basis that her child’s disability required parental care for a longer period of time than would be required for a non-disabled child. The authors critique the different approaches to understanding equality and its application to issues of disability and gender. Particular attention is paid to the manner in which workforce attachment tests in social benefit legislation have an impact on women and, in particular, on women with disabilities. The formalistic approach to, and understanding of, equality, coupled with the absence of an intersectionality analysis in the judgment, is considered. Systemic rather than individualized responses are required to properly accommodate equality seekers. The authors argue that a theoretical approach that places inclusion and social citizenship at its core is how such equality claims should be approached.
“I Wish the Supreme Court Thought More Like Dianne”: A Comment on Krangle v Brisco
Darcy L. MacPherson
The author begins by detailing his experiences with Dianne Pothier as law professor and mentor. He then turns to the Supreme Court of Canada’s decision in Krangle v Brisco, which centred on the alleged obligation of a negligent doctor to pay for the adult care of a child who had been injured by that negligence. There were two complicating factors. First, there was a government in place at the time of the suit that would cover these adult-care costs. Second, the child was only ten years old at the time of the Supreme Court of Canada hearing. Would the government continue to offer the program throughout the life of the child? The Court dealt with these issues through a contingency. The author argues that a better solution exists. While he agrees with the Court that the government should take responsibility for the care of disabled adults, there is no constitutional imperative to do so. Someone (the parents or the government) is going to be paying the more than $1.5 million that is not included in the damage award. The use of a trust would prevent a windfall to the parents while ensuring that the defendant doctor paid for the full amount of damage caused. The two payees of this trust would be the government and the parents—either of these parties could be reimbursed by the trust. In the view of the author, this solution is consistent with prior Supreme Court of Canada case law on damages. Pothier would have taken a broader view of how to achieve the social goals that the Court says are important. The author hopes that the next time the opportunity arises, the Supreme Court of Canada will follow her lead.
The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program
Elaine Craig
Trinity Western University (TWU), a private Christian school in British Columbia is posed to become Canada’s first Christian law school. Trinity Western discriminates on the basis of sexual orientation in both its hiring and admissions policies. It has also been found to violate academic freedom. Institutions with discriminatory policies that are antithetical to fundamental legal values are not competent providers of legal education. The Federation of Law Societies of Canada, the national coordinating body for Canada’s fourteen law societies, should not approve programs from institutions with discriminatory policies. A decision not to approve TWU’s application would survive a court challenge by TWU. The legal framework within which a decision of the Federation would be judicially reviewed has changed since the Supreme Court of Canada ruled in favour of Trinity Western in Trinity Western v B.C. College of Teachers. The Federation’s decision would be reviewed on a standard of reasonableness rather than correctness. Based on the Federation’s mission, mandate, and current academic requirements, a decision to deny TWU’s application would be upheld as reasonable by the courts. TWU should be free to pursue research and education in a manner in keeping with its religious commitments. TWU should not be permitted to impose upon the public a religiously grounded program that is incompetent to deliver a legal education consistent with what the regulators of the law profession in Canada have identified as necessary to protect the public.

Founded in 1985, the same year as the equality guarantee of the Canadian Charter of Rights and Freedoms came into force, the Canadian Journal of Women and the Law has been publishing ground-breaking, multi-disciplinary scholarship on the impact of law on women’s social, economic and legal status for twenty-five years.
For more information about the Canadian Journal of Women and the Law or for submissions information, contact:
Canadian Journal of Women and the Law
University of Toronto Press­­ – Journals Division
5201 Dufferin Street, Toronto, ON Canada M3H 5T8
Tel: (416)667-7810 Fax/: (416)667-7881

Roundup of Things to Read

At Jotwell,  has reviewed Rosie Harding’s, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives (Routledge 2011).

Bringing pluralism and consciousness of law together allows for a much more expansive definition of legality and a more nuanced analysis of everyday narratives of law. Engagement with and resistance to the formal law is refracted through a variety of normative lenses other than the state law itself.

The empirical dimension of Harding’s book is equally significant and produces an amazingly rich picture of the complexities of lesbian and gay engagements with law, including the myriad forms of resistance and the diversity of positions which form lesbian and gay legal identities.

The amazing Dorothy Roberts has posted her The Social Context of Oncofertility (DePaul Law Review, Vol. 61, Page 777, 2012)   to SSRN, (h/t Lawrence Solum’s legal theory blog)

There are compelling ethical reasons to restore to women cancer survivors the capacity to have a child so easily preserved for men and for the public to support wide access to this restoration. Yet an investigation of the underlying structural injustices that place women in conditions of infertility, poor health, and inadequate access to medical care raise questions about the just distribution of public resources used to pay for oncofertility and other health care services.

The Legal Theory Blog is also recommending Jeremy Waldron’s 2009 Tanner Lectures “Dignity, Rank and Rights” (the Legal Theory Blog links to an OUP version, but I think that the lectures are available full text here.)   Canadian Constitutional/Charter/Equality scholars might be interested:

Together the two lectures illuminate the relation between dignity conceived as the ground of rights and dignity conceived as the content of rights; they also illuminate important ideas about dignity as noble bearing and dignity as the subject of a right against degrading treatment; and they help us understand the sense in which dignity is better conceived as a status than as a kind of value.