Short Answer Questions Study Guide (Except Medearis)

Constitutional Documents

1. What is the distinction between (a) the structural provisions set out largely in the body of the U.S. Constitution and the bulk of the Constitution Act (1867) and (b) the amendments to the U.S. Constitution and the Canadian Charter of Rights and Freedom set out in the Constitution Act (1982)?

• The structural provisions in the main body of the U.S. Constitution and the Constitution Act (1867) focus on organizing government institutions and their functions. They set up frameworks like the U.S. separation of powers among the executive, legislative, and judicial branches and Canada’s division of powers between federal and provincial governments. These provisions explain how laws are made, leaders are chosen, and courts operate. In contrast, the U.S. Constitution's amendments (e.g., the Bill of Rights) and Canada’s Charter of Rights and Freedoms protect individual and collective rights from government overreach. They protect rights like speech, religion, and equality while providing remedies for violations. Structural provisions outline how governments work, while amendments protect and outline the rights governments must respect.

2. What are the functions of secs. 91 and 92 of the Constitution Act (1867)?

• Sections 91 and 92 of the Constitution Act (1867) are key to Canada's federal system, dividing legislative powers between the federal and provincial governments. Section 91 gives the federal government authority over national issues like trade, defence, criminal law, and taxation. Section 92 gives the provincial government authority over local issues, such as property, civil rights, health care, education, and municipal institutions, allowing them to address the specific needs of their populations.

Oakes and Lochner

1.) What are the key elements of the Oakes test? On what basis did the Oakes Court hold that Section 8 of the Narcotics Act was of no force and effect?

• The Oakes Test, created by the Supreme Court of Canada in R v. Oakes, is a way to decide if a law that infringes a Charter right can be justified under Section 1 of the Canadian Charter of Rights and Freedoms. It has four main steps. First, the government must show that the law serves a pressing and substantial objective. Second, the law must pass a proportionality test with three parts: it must be rationally connected to its goal, infringe the right as little as possible, and ensure that the benefits outweigh the harm caused by the infringement.

• In Oakes, the Court reviewed Section 8 of the Narcotics Control Act, which required individuals found with narcotics to prove they didn’t intend to traffic them. The Court ruled this violated the presumption of innocence under Section 11(d) of the Charter. The law failed the minimal impairment requirement because less intrusive methods could achieve the same goal of combating drug trafficking. As a result, Section 8 was struck down for failing the Oakes Test.

2.) What is the holding in Lochner? a. What was the Court’s main argument in support of this holding? b. What was the dissenting opinion’s main argument against this holding?

• In Lochner v. New York, the U.S. Supreme Court struck down a New York Labour law (s. 110) that limited bakers to working 10 hours a day and 60 hours a week, ruling it violated the 14th Amendment’s right to freely contract. The majority argued the law interfered with individual liberty and employer-employee agreements, making it a breach of the Due Process Clause. They decided the law was not a valid use of the state’s police powers because it wasn’t necessary for public health or directly tied to improving bakers’ safety. Instead, they saw it as an unjustified restriction on economic freedom, influenced by laissez-faire economic views. In dissent, Justice Holmes criticized the majority for imposing its economic beliefs over the legislature’s decision. He argued the law was a reasonable effort to protect workers’ health and safety in a demanding job. Holmes emphasized that the Constitution does not favour any economic theory and said courts should respect legislative choices unless a law clearly violates constitutional principles.

Waldron-  Core Case Against Judicial Review

1.) What is the distinction between weak and strong judicial review? Is Canada an example of weak or strong judicial review?

• Weak judicial review lets courts review laws for compatibility with constitutional or legal principles but allows the legislature to override court decisions. Strong judicial review, on the other hand, gives courts the final authority, making their rulings binding and beyond legislative override. Canada demonstrates strong judicial review because courts can strike down laws that violate the Canadian Charter of Rights and Freedoms. However, Canada also includes a weak review element through Section 33 of the Charter (the "notwithstanding clause"), which allows legislatures to temporarily override certain Charter rights, combining features of both models.

2.) What is the distinction between process- and outcome-related reasons for and against judicial review?

• Process-related reasons focus on how decisions are made, emphasizing democratic accountability, fairness, and institutional competence. Critics of judicial review argue that unelected judges lack the democratic legitimacy of legislatures, which can weaken public trust in governance. Outcome-related reasons, meanwhile, consider the quality and impact of decisions. Supporters of judicial review believe courts deliver better rights protection, while critics argue that judicial decisions don’t always lead to better policies or outcomes than those made by legislatures.

3.) Describe Raz’s outcome-based reasons (as rehearsed by Waldron) for and against judicial review.

• Waldron explains that Raz supports judicial review with outcome-based arguments, claiming courts are better at protecting individual rights and resolving controversial cases fairly. Judges have legal expertise, focus on rights without political influence, and deliberate systematically. However, Raz also critiques judicial review, pointing out its flaws. Judges may lack understanding of social, economic, or cultural contexts, resulting in decisions disconnected from societal needs. Additionally, judicial review can undermine democracy by shifting significant decision-making power from elected legislators to unelected judges.

4.) Describe Waldron’s reasons that counter Raz’s outcome-based reason for judicial review (hint: comparative quality of legislature versus executive).

• Waldron challenges Raz’s claim that courts produce better outcomes by comparing legislative and judicial decision-making. He argues that legislatures are more democratically accountable and better suited to consider the broader societal impact of their decisions. Waldron also says that legislatures are not necessarily less protective of rights than courts and that democratic processes can lead to more equitable and inclusive outcomes.

5.) Describe the orientation-to-particular cases outcome-based reason for judicial review and the gist of Waldron’s counterargument.

• The orientation-to-particular-cases argument suggests that courts are suited to resolving specific legal disputes, ensuring justice by tailoring decisions to the unique facts of each case. Judicial review allows for precise and fair rulings. Waldron counters that legislatures, though focused on general policies rather than individual cases, create laws through democratic deliberation, which can also protect rights effectively. He argues that while judicial decisions are case-specific, they may lack the democratic legitimacy and broader accountability of legislative processes.

6.) Describe the orientation-to-the-text-of-a bill of rights outcome-based reason for judicial review and the gist of Waldron’s counterargument.

• The orientation-to-the-text-of-a-bill-of-rights argument holds that courts, through judicial review, ensure laws align with the principles enshrined in a bill of rights. Advocates argue that judges are skilled at interpreting constitutional texts and applying them to legal disputes. Waldron disputes this, suggesting that legislatures are also capable of interpreting rights texts, often with more democratic input and inclusivity. He argues that judicial review places excessive emphasis on legal formalism, potentially neglecting broader social and cultural considerations that legislatures are better equipped to address.

7.) Describe the stating-reasons outcome-based reason for judicial review and the gist of Waldron’s counterargument.

• The stating-reasons argument for judicial review claims that courts justify their decisions in detail, promoting transparency and accountability. Waldron counters that legislatures also provide reasons for their decisions through debates, committee reports, and public consultations, which reflect collective reasoning. He emphasizes that legislative deliberations are more representative of societal values and priorities, making their reasons more democratically legitimate than judicial opinions.

8.) Describe the gist of Waldron’s process-based reason against judicial review.

• Waldron’s primary process-based reason against judicial review is that it undermines democratic legitimacy by transferring decision-making authority from elected representatives to unelected judges. He believes judicial review weakens self-governance by allowing courts to overturn legislatures' laws that reflect the will of the people. Waldron believes that democratic processes, even if imperfect, are more inclusive and deliberative, making them better for rights-based disputes in pluralistic societies. 

Christiano- Democracy

1.) What does Christiano mean by the term “democracy”? What all (not only majority vote) is involved in the democratic form of political governance? (See pp. 95-96.)

• Christiano defines "democracy" as governance where all individuals' interests and judgments are treated equally. It goes beyond majority rule, incorporating transparency, equal participation, deliberation, and accountability. Waldron identifies the Majoritarian Decision-Procedure (MD) as a key aspect. Democracy ensures public equality by advancing interests equally and using a clear, recognized process to realize equality. It also protects minority rights, freedom of expression, and access to information, enabling meaningful participation by all (pp. 95–96).

2.) What is Christiano’s definition of the common world? a. What are three key facts about this common world? (p. 80)

• The "common world," as defined by Christiano, is the set of public institutions, norms, and practices that shape individuals’ shared social existence. It encompasses everything from legal frameworks and economic policies to cultural norms that affect how individuals interact and live together.

Three key facts about this common world (p. 80):

1. Equal Stakes: Every individual has an equal stake in the common world, as it directly affects their opportunities, rights, and well-being.

2. Compromise: The common world is maintained through compromise, balancing diverse perspectives and interests to achieve collective governance.

3. Overall Justice: It embodies a collective sense of justice, ensuring fairness in decision-making and equitable treatment within shared institutions.

3.) What does Christiano mean by the term “interest”? See lecture slides.

• Christiano defines "interest" as what individuals need or value to live well and flourish. Interests are not limited to personal desires but include fundamental needs like security, autonomy, and the ability to participate meaningfully in society. Interests are shaped by individuals’ circumstances and are crucial for achieving well-being and self-determination.

4.) What is Christiano’s foundational principle of justice? (see p. 76)

• Christiano’s foundational principle of justice is the principle of equal advancement of interests. All individuals' interests must be considered when designing and implementing social and political institutions. Justice requires that no person’s interests be systematically privileged over another’s and that everyone’s needs are considered equally in collective decision-making (p. 76).

5.) What does Christiano mean by the publicity of justice? (see pp. 77, 85-86 & 88—see particularly 88!)

• Christiano’s concept of the "publicity of justice" refers to the idea that justice must be publicly seen, known, understood, and accepted by members of society. Justice is not merely about fairness in outcomes but also about the transparency of the processes that lead to those outcomes. This publicity ensures that all individuals recognize how their interests are being treated equally, fostering trust and legitimacy in the political system. Without publicity, individuals may perceive decisions as arbitrary or biased, undermining the democratic process (pp. 77, 85-88).

6.) What are the facts of diversity, fallibility, cognitive bias, and disagreement? See lecture slides.

These facts illustrate the challenges in collective decision-making:

• Diversity: Individuals have different preferences, values, and cultural perspectives, leading to varied views on the common good. 

• Fallibility: Humans are prone to mistakes in judgment and decision-making, requiring correction and learning.

• Cognitive Bias: People’s reasoning is influenced by unconscious biases, which can skew decisions.

• Disagreement: Even with shared goals, individuals may differ on the best means to achieve them due to their diverse experiences and perspectives.

7.) What are the four fundamental interests that Christiano appeals to in his explanation of the value of giving each adult member of society an equal say in the decisions about the common world? Describe these interests. (88-95) a. In what sense are the four fundamental interests political? (94) b. In what sense are the four fundamental interests? (94) c. In what sense are they publicly preeminent? (94)

Christiano identifies four fundamental interests that justify equal participation in decisions about the common world (pp. 88-95):

1. Protecting Against Cognitive Bias: Equal participation ensures diverse perspectives, reducing the risk of decisions being skewed by the biases of a few.

2. Being at Home in the World: Individuals need a sense of belonging and influence over the shared systems shaping their lives, fostering comfort and agency in their environment.

3. Learning the Truth Through Free Speech and Discussion: Open participation promotes the exchange of ideas and discovery of truth, enabling better, more informed decisions.

4. Affirmation of Equal Moral Status: Equal participation signals that every individual’s interests and judgments are valued equally, reinforcing the principle of mutual respect and moral equality.

a. In what sense are the four interests political?

• These interests are political because they directly relate to individuals’ roles and participation within public institutions. They guide the design of democratic systems to ensure that everyone has equal say in global policies (p. 94).

b. In What Sense Are the Four Interests Fundamental?

• They are fundamental because they are essential for achieving justice and dignity in society. Without these interests being protected, individuals cannot fully participate in society or trust that their rights will be upheld (p. 94).

c. In What Sense Are They Publicly Preeminent?

• These interests are publicly preeminent because they affect everyone equally and govern the common world. Their protection is necessary to ensure the legitimacy and fairness of public decision-making processes (p. 94).

Keegstra Case

1.) Who penned the majority opinion in Keegstra? What are the key facts of this case? What is the key question of law that the court answers in this case? What statutory provision does the court consider? What was the Supreme Court’s holding in this case?

• Majority Opinion: The majority opinion in R v. Keegstra (1990) was authored by Justice Dickson.

• Key Facts: James Keegstra, a high school teacher, was charged under Section 319(2) of the Criminal Code of Canada for willfully promoting hatred against an identifiable group. In his classroom, Keegstra made numerous anti-Semitic statements, portraying Jewish people as manipulative and evil, and taught students to adopt these hateful views. He argued that his right to freedom of expression, protected under Section 2(b) of the Canadian Charter of Rights and Freedoms, was violated by the hate speech provisions.

• Key Question of Law: The court had to determine whether Section 319(2) of the Criminal Code, which criminalizes hate speech, violated the constitutional guarantee of freedom of expression under Section 2(b) of the Charter, and, if so, whether this infringement was justified under Section 1 of the Charter.

• Statutory Provision Considered: The court examined Section 319(2) of the Criminal Code, which prohibits the willful promotion of hatred against identifiable groups.

• Supreme Court’s Holding: The Supreme Court upheld the constitutionality of Section 319(2), ruling that while it infringes upon freedom of expression, the limitation is justifiable under Section 1. The court emphasized that the harm caused by hate speech, particularly to vulnerable groups and societal cohesion, outweighed the protected value of such speech. 

2.) What did the Supreme Court say about the value of freedom of expression in the Ford case? How about the Irwin Toy case? (727-28)

• In the Ford Case: In Ford v. Quebec (1988), the Supreme Court emphasized that freedom of expression is a fundamental value in Canadian society. It protects individual self-expression, fosters participation in democratic processes, and contributes to the search for truth. The court stressed that this right covers all forms of expression, regardless of content, within reasonable limits.

• In the Irwin Toy Case: In Irwin Toy Ltd. v. Quebec (1989), the Supreme Court further elaborated on the value of freedom of expression, emphasizing its role in promoting individual self-realization, advancing knowledge, and enabling meaningful participation in democracy. The court ruled that this freedom applies to any activity that conveys meaning, but it may be limited if it violates equality or public safety (pp. 727–728).

3.) What is the two-step test set out in Irwin Toy for whether a government action violates freedom of expression? (727-728)

• The Irwin Toy case established a two-step test for determining whether a government action violates freedom of expression (pp. 727–728):

1. Does the activity convey meaning? The first step asks whether the act in question qualifies as expression. Any activity that attempts to communicate an idea or message, regardless of content, falls under Section 2(b).

2. Does the government action infringe on this expressive activity? The second step examines whether the government’s action or law restricts the form or content of the expression, either directly or indirectly. If so, the court must determine whether this infringement is justified under Section 1 of the Charter.

Waldron- Dignity

1. How does Waldron distinguish offence from harm to dignity?

• Waldron distinguishes between offence and harm to dignity in his discussion of hate speech. Offence refers to personal discomfort or upset caused by encountering disagreeable or distasteful speech. While offensive speech may provoke strong emotions, it does not undermine an individual’s fundamental rights or social standing.

• In contrast, harm to dignity involves a deeper, more severe impact on a person’s worth and status within society. Hate speech harms dignity by attacking the equal respect owed to individuals as members of the community. It undermines their ability to participate fully and equally in public life by stigmatizing and marginalizing them.

2. How, according to Waldron, does hate speech harm dignity?

• According to Waldron, hate speech harms dignity by creating a public environment that conveys hostility and inferiority toward targeted groups. It sends a message that these individuals are not deserving of equal respect, undermining their standing as members of the community. This harm is not limited to emotional distress but extends to material consequences, such as exclusion from opportunities and diminished trust in social institutions. Waldron argues that hate speech compromises the societal infrastructure of mutual respect, eroding the foundation upon which democracy and equality rest. This justifies legal restrictions on hate speech to preserve the dignity of all individuals.

Maitra and McGowan

1.) In the United States, what three statuses can speech have in relation to the free speech principle? Explain the three. (347)

• In the United States, speech can fall into one of three categories concerning the principle of free speech (p. 347):

1. Protected Speech: This includes most forms of expression safeguarded under the First Amendment. Protected speech encompasses a broad range of activities, such as political speech, artistic expression, and even offensive or controversial statements. Laws or government actions restricting this type of speech must pass strict scrutiny, demonstrating a compelling government interest and narrowly tailored means.

2. Unprotected Speech: Certain types of speech do not receive First Amendment protection because they are considered harmful or incompatible with free speech principles. Examples include incitement to violence, true threats, child pornography, defamation, and speech integral to criminal conduct. Such speech can be restricted or penalized without violating constitutional rights.

3. Low-Value Speech: This category occupies a gray area where speech is protected but subject to less rigorous scrutiny. Low-value speech includes commercial advertising and obscenity. Restrictions on these types of speech are more easily justified, as their contribution to public discourse is considered minimal compared to other forms of expression.

2.) What is the Narrow Normative Coverage Question?

• The Narrow Normative Coverage Question determines whether free speech protects specific utterances or types of speech. Based on their potential social harm, should First Amendment protections apply to hate speech, discriminatory signs, obligation-inducing speech? This requires balancing the value of the speech against the harm it causes. 

3.) What are obligation-inducing utterances? When is an obligation- inducing utterances significant? (352) Illustrate with examples: contracts; criminal acts; whites only signs. (353)

• Definition: Obligation-inducing utterances are speech acts that bind others legally or socially. 

• Significance: Such utterances actively shape behaviour and society, not just convey information or ideas. They can perpetuate inequality or discrimination, making their regulation a public interest (p. 352).

Examples:

• Contracts: “I agree to these terms” creates legally binding obligations between parties. Speech can influence legal relationships with these obligations.

• Criminal Acts: A verbal command to rob can also facilitate crime. Because it incites crime, free speech does not protect it.

• "Whites Only" signs: These signs signal social exclusion and reinforce segregation, imposing obligations

Sumner

1.) What is Sumner’s key thesis? (204 & 220)

• Sumner's key thesis is that hate speech regulation must balance free expression and harm. He believes hate speech should only be restricted if it meets liberalism-based harm criteria, such as Mill's harm principle. Although free speech is a cornerstone of democratic societies; it can be limited when it harms individuals or society. Hatespeech laws should minimize harm without infringing on free speech (pp. 204, 220).

2.) What is Mill’s harm principle? a. What is the harm-test? b. What is the cost-benefit test? What are the three factors of the cost-benefit test? (206-207)

• The harm principle, proposed by John Stuart Mill, argues that the only justification for limiting an individual’s freedom is to prevent harm to others. To be restricted, speech must cause tangible harm, not just offend or provoke.

a. The Harm-Test

• The harm-test evaluates whether an action or speech act directly causes harm to others. In this context, harm is the loss of rights, interests, or well-being. For example, speech that incites violence or perpetuates systemic discrimination meets the harm test because it is a loss of ones well-being.

b. The Cost-Benefit Test

• The cost-benefit test compares speech restriction's social costs and benefits. It seeks to ensure that restrictions are justified and proportionate.

Three factors in the cost-benefit test (pp. 206-207):

• Severity of Harm: The seriousness and extent of the harm caused by the speech. For example, does the speech incite widespread violence?

• Likelihood of Harm: The probability that the speech will result in harm. 

• Value of the Speech: The social, cultural, or intellectual value of the speech. Speech with significant value (e.g., political discourse) is less likely to be restricted than speech with little or no societal benefit (e.g., racist propaganda).

3.) What is Sumner’s distinction between promoting and inciting hate? (212)

• Sumner differentiates between promoting and inciting hate based on the intent, context, and impact of the speech (p. 212):

• Promoting Hate: Speech that expresses or endorses hateful ideas without directly encouraging others to act on them. For instance, an individual making derogatory comments about a group in a private conversation or a public forum may promote hateful attitudes but does not necessarily incite harmful actions. While promoting hate is morally objectionable, it is often protected under free speech principles unless it crosses the threshold of causing harm.

• Inciting Hate: Speech that actively encourages or provokes others to commit harmful or violent actions against a specific group. Incitement involves a direct link between the speech act and the likelihood of harm, such as violence, harassment, or discrimination. For example, a public call to attack members of a minority group constitutes incitement and is typically unprotected by free speech laws.

• Sumner argues that while promoting hate may contribute to a harmful social climate, legal restrictions should primarily target incitement, as it poses a clear and immediate danger to societal order and individual rights. This distinction helps balance the protection of free speech with the prevention of harm.

Rizzo Case

1.) What are the key facts of Rizzo?

•  The case of Rizzo & Rizzo Shoes Ltd. (Re) (1998) dealt with employees of Rizzo & Rizzo Shoes, who were terminated after the company declared bankruptcy. The employees sought termination and severance pay under the Employment Standards Act (ESA) of Ontario. The key issue was whether they were entitled to these payments, given that the company's bankruptcy proceedings prevented direct payment by the employer. Lower courts had ruled against the employees, interpreting the ESA as excluding such obligations during bankruptcy. The Supreme Court of Canada ultimately reversed this decision, ruling in favor of the employees.

2.) Describe the canon of statutory interpretation that relates to remedial legislation. Apply to Rizzo.

• Remedial legislation is designed to correct injustices or address gaps in the law, and its interpretation should aim to fulfill its purpose of providing relief or benefits. The Supreme Court in Rizzo emphasized that the ESA is remedial legislation and must be interpreted in a broad and generous manner, favoring the intended beneficiaries—in this case, the employees.

• Application to Rizzo: The court ruled that interpreting the ESA narrowly, as excluding termination pay during bankruptcy, would defeat its purpose of protecting employees' rights. Instead, the court adopted a purposive interpretation, ensuring the remedial goals of the statute were realized.

3.) What is the plain meaning rule? Apply to Rizzo.

• The plain meaning rule holds that statutory language should be interpreted based on its ordinary meaning unless doing so leads to an absurd or unjust outcome.

• Application to Rizzo: In this case, a strict plain meaning interpretation of the ESA  seemed to exclude employees terminated during bankruptcy from receiving severance and termination pay. However, the Supreme Court noted that this interpretation would undermine the legislation’s remedial intent, leading to an outcome contrary to its purpose. Therefore, the court moved beyond the plain meaning rule to adopt a purposive interpretation.

4.) Describe the rule that appeals to the purpose of legislation. Apply to Rizzo.

• This rule emphasizes interpreting statutes in light of the legislature's intent and the broader purpose of the law. The focus is on achieving the legislative goals rather than adhering rigidly to textual details.

• Application to Rizzo: The purpose of the ESA was to provide financial protection to employees who lose their jobs. The court reasoned that excluding bankruptcy terminations from severance and termination pay would contradict this protective purpose. By prioritizing legislative intent, the court ensured that the ESA’s goals were upheld.

5.) Describe the rule that appeals to the absurdity of a result. Apply to Rizzo.

• The absurdity rule asserts that courts should avoid interpretations of statutes that lead to unreasonable, illogical, or absurd outcomes.

• Application to Rizzo: A literal interpretation of the ESA would have excluded employees terminated during bankruptcy from receiving compensation, creating an absurd result where the most vulnerable employees—those affected by a bankrupt employer—would be left unprotected. The court rejected this outcome, choosing an interpretation that aligned with fairness and the statute’s remedial purpose.

6.) What is Hansard evidence? Describe the rule that appeals to Hansard evidence. Apply to Rizzo

• Hansard evidence refers to the records of parliamentary debates, which can be used to determine legislative intent. Courts may consult Hansard when the purpose or meaning of legislation is unclear, though its use is limited and often supplementary.

• Application to Rizzo: In Rizzo, the Supreme Court considered Hansard evidence to confirm the legislature’s intent to protect employees through the ESA. This evidence supported the view that the statute was meant to provide broad financial protections, including in bankruptcy scenarios.

7.) Describe the rule that appeals to benefits-conferring legislation. Apply to Rizzo.

• Benefits-conferring legislation should be interpreted generously to achieve its objective of providing benefits to the intended recipients. The interpretation must align with the legislative goal of promoting fairness and protection.

• Application to Rizzo: The ESA is benefits-conferring legislation aimed at safeguarding employees' rights. The Supreme Court’s interpretation ensured that the statute’s protections extended to employees terminated during bankruptcy, fulfilling its benefits-conferring purpose and preventing an unjust denial of entitlements.

Oliphant

1.) What is the doctrine of stare decisis? What is the problem of stare decisis that Oliphant identifies? Explain in terms of his imagined example of a tort case in which a woman’s fiancé brought suit against the woman’s father for inducing her to break her promise to marry the fiancé.

• Doctrine of Stare Decisis: Stare decisis is the legal doctrine that courts should follow precedents established in previous cases to ensure consistency, predictability, and fairness in the law. It obliges judges to adhere to established legal principles unless there is a compelling reason to overturn them.

• Oliphant’s Problem with Stare Decisis: Oliphant identifies the issue that stare decisis may not guarantee fair or just outcomes because precedents might not adequately address the unique circumstances of individual cases. Furthermore, judges often interpret precedents subjectively, allowing non-legal considerations to influence decisions.

• Imagined Example: In his tort case example, Oliphant imagines a scenario where a woman’s fiancé sues her father for inducing her to break off their engagement. If precedent allows such a lawsuit, the case might still hinge on how the court perceives the societal importance of enforcing marriage contracts versus individual autonomy. The application of stare decisis becomes problematic because judges must balance competing values—personal freedom and contractual obligations—and might prioritize one over the other based on their own views or societal pressures rather than strict adherence to precedent.

2.) Oliphant devotes about a paragraph to a number of court cases that address the enforceability of non-compete clauses. (See p. 159) Describe what these cases were about. Oliphant does not think the applicable legal rules and reasons alone determined the outcome of these cases. But he does think some other consideration was decisive. Describe that deciding factor.

• Court Cases on Non-Compete Clauses: Oliphant refers to cases where courts had to decide whether non-compete clauses in employment contracts were enforceable. Non-compete clauses restrict employees from working with competitors or starting similar businesses after leaving an employer. The enforceability of these clauses often hinges on whether they are reasonable in scope, duration, and geography.

• Oliphant’s Critique: He argues that legal rules and reasons—such as tests for reasonableness—were insufficient to determine the outcomes in these cases. Instead, decisions were shaped by external factors, particularly the courts' perception of the public interest. (legal realist approach)

• Decisive Factor: The deciding consideration was the broader societal impact of enforcing or invalidating such clauses. Courts weighed the need to protect employers’ business interests against the potential harm to employees’ livelihoods and the economic benefits of a competitive job market. For instance, courts might invalidate overly restrictive non-compete clauses to encourage innovation and worker mobility, demonstrating how societal values influenced the outcomes beyond strict legal reasoning.

3.) Oliphant argues at length that a set of considerations other than the applicable legal rules and reasons commonly play a role in determining the outcome of legal cases. What in general are these considerations? Explain with an example from the various cases we’ve considered or that Llewellyn or Oliphant discuss.

General Argument: Oliphant contends that legal rules and precedents alone often fail to determine the outcome of cases. Instead, non-legal considerations—such as societal values, economic factors, and the practical consequences of a decision—play a critical role. These considerations reflect the broader social and political context in which courts operate, allowing judges to adapt the law to changing circumstances.

Example: Oliphant and Llewellyn discuss cases involving the enforcement of contracts or tortious liability. In one example, a case might involve a landowner suing a neighbouring factory for pollution. While existing legal rules on nuisance provide a framework, the decision may depend on broader considerations such as:

• Economic Impact: How shutting down the factory might affect local employment and economic growth.

• Social Values: Whether environmental protection is a societal priority at the time.

• Judicial discretion: judges’ personal views on balancing property rights against industrial progress. 

• In these cases, decisions reflect a combination of legal reasoning and external factors. Oliphant views this interplay as evidence that judicial decision-making is not purely rule-based but is influenced by a dynamic set of societal and practical considerations.

Applied to Keegstra/Rizzo: if we were to apply this to a case like Keegstra. Societal factors played a central role in determining whether hate speech should be permissible under free speech or not. The harmful social effects of hate speech were the central reason the legislation was allowed to stand. Furthermore, in a case like Rizzo, economic factors and social factors played a role in the courts decision rather than precedence alone. 

Llewellyn

1.) How many canons of statutory interpretation does Llewellyn describe? Enumerate two pairs of conflicting canons of statutory interpretation that Llewellyn describes.

Number of Canons: Karl Llewellyn identifies 58 canons of statutory interpretation and argues that these canons often conflict with one another, providing judges with discretion in choosing which to apply.

Two Pairs of Conflicting Canons:

• Literal Rule vs. Purpose Rule:

  • Literal Rule: Words in a statute should be interpreted in their plain, ordinary meaning.

  • Purpose Rule: Statutes should be interpreted in light of the legislature's intent and the broader purpose of the law.

• Expressio Unius Est Exclusio Alterius vs. Inclusive Interpretation:

  • Expressio Unius Est Exclusio Alterius: Mentioning one thing in a statute implies the exclusion of others not mentioned.

  • Inclusive Interpretation: Statutes should be interpreted broadly to cover situations that fall within the statute’s purpose, even if not explicitly mentioned.

Llewellyn highlights these contradictions to demonstrate that statutory interpretation is not a fixed science but an exercise influenced by judicial discretion and contextual factors.

2.) What determines which canon a judge chooses? What is the sense of the situation for Llewellyn?

Judicial Choice of Canons: Judges choose which canon to apply based on the “sense of the situation,” a term Llewellyn uses to describe the judicial instinct or intuition about what outcome is most appropriate in the circumstances. This sense incorporates factors such as fairness, policy goals, social values, and the broader context of the case.

Sense of the Situation: For Llewellyn, the sense of the situation is the judge’s perception of the practical and moral implications of a decision. It guides their choice of legal tools—such as canons or precedents—to justify an outcome that aligns with their assessment of justice or public interest. This idea underscores the role of judicial discretion in bridging the gap between legal rules and real-world applications.

3.) Oliphant doesn’t use the term “sense of the situation,” but he employs the same idea. Relate Oliphant’s understanding of this idea to Llewellyn’s.

While Oliphant does not explicitly use the term “sense of the situation,” his analysis parallels Llewellyn’s idea. Oliphant argues that judicial decisions are often shaped by broader considerations—such as public interest, societal values, and the practical consequences of a ruling—rather than strict adherence to legal rules or precedents.

• Decisions were shaped by external factors, particularly the courts' perception of the public interest.

Relation to Llewellyn:

• Both theorists emphasize that judicial decisions are influenced by contextual factors that transcend formal legal reasoning.

• Oliphant’s recognition that judges balance competing societal interests, such as in cases involving non-compete clauses or tort liability, mirrors Llewellyn’s notion that judges use their sense of the situation to navigate conflicting legal principles.

4.) What is the defining empirical tenet for legal realism? What is the normative cousin of this empirical tenet that Oliphant and Llewellyn embrace?

• Defining Empirical Tenet of Legal Realism: Legal realism, a school of thought championed by Llewellyn and Oliphant, holds that judicial decisions are not determined solely by abstract legal rules but are shaped by the real-world context, including societal values, policy considerations, and judges’ subjective perceptions. The empirical tenet asserts that law in practice often diverges from law in theory.

• Normative Cousin of the Empirical Tenet: Llewellyn and Oliphant embrace the idea that the law should adapt to serve society’s needs and reflect its evolving values. This normative perspective suggests that the role of the judiciary is not merely to apply rules mechanically but to interpret them dynamically to promote justice and social welfare.

• For example, Llewellyn and Oliphant argue that judges should consider the practical effects of their rulings, such as the economic impact or the public interest, when deciding cases. This approach aligns legal realism with a commitment to judicial pragmatism and societal responsiveness.

Kennedy

1.) As a point of reference and illustrative example for the remaining questions, describe Kennedy’s toy example of the case involving striking workers blocking traffic.

• Kennedy’s toy example involves striking workers blocking traffic as part of their protest. A legal case arises where the judge must decide whether the workers should face penalties for obstructing public roads. Because the workers are protesting for their jobs the judge may consider the conditions the workers are in to have to take extremes of blocking traffic. Does the judge want to prosecute underpaid workers? This scenario serves as a simplified reference point to illustrate the broader complexities of judicial decision-making and the interplay between legal rules and personal inclinations (HIWTCO).

• The key legal issue is whether the workers’ right to strike and protest outweighs the public’s right to unobstructed roads. The case highlights how judges must navigate conflicting legal principles and societal values while balancing fairness and legal consistency.

2.) Describe the two poles of Kennedy’s duality and how they create a kind of inspirational tension for the judge: the how-I-want-to-come-out (HIWTCO) and the initial seemingly objective requirement of the law poles of the duality.

• Kennedy describes judicial decision-making as involving two opposing "poles" that create inspirational tension:

• HIWTCO (How I Want to Come Out): This reflects the judge’s personal inclinations about what the case outcome should be, often shaped by moral, political, or social considerations. It represents the judge’s subjective desire for justice or fairness in the context of the case.

• Objective Requirements of the Law: This is the seemingly neutral and rigid framework of laws and precedents that initially dictate what the law requires. Judges feel bound by these objective standards, even if they conflict with their personal inclinations.

• The tension arises as the judge attempts to reconcile these poles, using interpretive strategies to align the legal framework with their desired outcome.

3.) What is Kennedy’s HIWTCO for the workers-blocking traffic case? What’s his initial guess for what the law requires in this context? What two rules does he consider—the one that weighs in his favor and the one that sides against?

• HIWTCO for Striking Workers: Kennedy’s desired outcome is to support the workers' right to strike and protest, as he believes their cause is just and socially significant.

• Initial Guess for What the Law Requires: Initially, Kennedy assumes the law prohibits blocking traffic, as it disrupts public order and violates rules on road usage.

• Two Rules Considered:

1. Rule in Favor of the Workers: A principle supporting free expression and the right to protest, which could justify their actions despite the disruption caused.

2. Rule Against the Workers: A principle emphasizing the importance of public order and the enforcement of laws against traffic obstruction.

• Kennedy explores how these competing rules interact, creating space for judicial discretion to align the legal reasoning with his desired outcome.

4.) Describe Kennedy’s general idea of a law field. What are some of the key components that make up a law filed? a. Distinguish the following kinds of fields: Impacted, Case of first impression , Unrationalized , Contradictory

Definition of a Law Field: Kennedy conceptualizes a law field as the contextual and interpretive framework within which judicial decisions are made. A law field includes legal rules, precedents, social values, political pressures, and institutional norms. It shapes the range of acceptable judicial reasoning and outcomes.

Key Components of a Law Field:

• Rules and Precedents: The formal laws and cases that provide a foundation for legal interpretation.

• Social Norms and Values: The societal context that influences how rules are applied and interpreted.

• Judicial Discretion: The flexibility judges have to interpret and apply laws based on context.

• Institutional Constraints: Factors such as higher court rulings or legislative mandates that limit judicial choices.

Distinctions Between Types of Law Fields:

• Impacted Field: A highly structured area of law with clear rules and precedents that constrain judicial discretion.

• Case of First Impression: A situation where no prior rulings or precedents exist, requiring the judge to create new legal reasoning.

• Unrationalized Field: A disorganized area of law where conflicting rules and principles exist without coherent integration.

• Contradictory Field: An area where legal principles directly conflict, forcing judges to prioritize one over another.

5.) What is the devil’s compact?

• The Devil’s Compact refers to the implicit and problematic agreement judges make when they justify decisions based on rules they know are flawed or unjust. Kennedy critiques this as an ethical dilemma where judges perpetuate legal outcomes they personally disagree with because they feel bound by the system’s formal constraints.

• In the case of the striking workers, the Devil’s Compact might occur if a judge penalizes the workers based on rigid adherence to traffic laws, even while believing that their protest is morally justified and socially beneficial. This concept highlights the tension between maintaining legal consistency and achieving substantive justice.

Farrell and March

1.) What is collective bargaining? (1)

• Definition: Collective bargaining is a process where workers, represented by a union, negotiate with employers over employment terms and conditions, such as wages, working hours, benefits, workplace safety, and other issues. The aim is to create a collective agreement that governs these terms.

• Purpose: Collective bargaining is essential in protecting workers’ rights and interests, ensuring they have a voice in workplace decisions, and reducing power imbalances between employees and employers.

2.) What is the Wagner Act and what is its relevance to Canada? (2)

• The Wagner Act (U.S.): Officially known as the National Labor Relations Act of 1935, the Wagner Act was a landmark U.S. law that guaranteed workers the right to organize unions and engage in collective bargaining. It prohibited unfair labor practices by employers, such as interfering with union activities, and established the National Labor Relations Board (NLRB) to enforce labor rights.

• Relevance to Canada: The Wagner Act served as a model for Canadian labor legislation, influencing the development of Wagner-style collective bargaining laws during the mid-20th century. These Canadian laws adopted the principles of the Wagner Act to the Canadian context, ensuring workers’ rights to unionize and engage in collective bargaining while addressing specific provincial and federal labor needs.

• section 7→ guarantees employees the right to self organization and bargain collectively for mutual aid

• Section 13 also encompasses the right to strike 

• section 8 (a)→ makes it an unfair labour practice from preventing employees rights to section 7

3.) What are the key elements of Canadian Wagner Act-style legislation that creates and protects collective bargaining? See slides as well. (6)                                                       Canadian Wagner Act-style legislation includes the following key elements:

1. Right to Unionize: Workers have the legal right to form and join unions without employer interference.

2. Exclusive Bargaining Agent: A single union, once certified, has the exclusive right to represent all employees in the bargaining unit.

3. Certification Process: A legal procedure allows workers to demonstrate support for union representation, often requiring a majority vote or signed support cards.

4. Good Faith Bargaining: Employers and unions are legally required to negotiate in good faith to reach a collective agreement.

5. Prohibition of Unfair Labor Practices: Employers and unions are barred from engaging in practices that undermine the collective bargaining process, such as employer retaliation or union coercion.

6. Grievance and Arbitration Procedures: Mechanisms are established for resolving disputes between unions and employers during and after the collective agreement is in place.

4.) What three institutions administer collective bargaining in Canada? (7-10) See slides as well.

• The administration of collective bargaining in Canada involves three primary institutions:

1. Labor Relations Boards:

   • These are provincial or federal boards (e.g., the Canada Industrial Relations Board) that oversee the certification of unions, resolve disputes over bargaining unit composition, and adjudicate unfair labor practice complaints.

   • They ensure compliance with labor laws and provide neutral oversight to maintain balance between employers and unions.

2. Arbitrators and Mediators:

   • These neutral third parties assist in resolving disputes between unions and employers.

   • Mediators facilitate negotiations and help parties reach agreements voluntarily, while arbitrators make binding decisions when negotiations fail.

3. Courts:

   • Canadian courts play a limited but significant role in interpreting labor legislation and enforcing legal rulings related to collective bargaining.

   • Courts may address constitutional challenges, such as cases involving the Charter of Rights and Freedoms, which includes protections for freedom of association.

5.) What is right to work legislation? (7)

Definition: Right-to-work legislation refers to laws that prohibit requiring union membership or the payment of union dues as a condition of employment. These laws are designed to weaken union influence by allowing workers to benefit from union-negotiated agreements without contributing financially to the union.

Prevalence in Canada: Right-to-work legislation is less common in Canada compared to the United States due to the stronger tradition of Wagner-style collective bargaining. However, the concept has sparked debates about the balance between individual freedom and the collective power of unions.

Impact: Right-to-work laws often lead to lower union membership and reduced collective bargaining power, which can affect wage levels, workplace protections, and employee benefits. Advocates argue these laws protect individual choice, while critics contend they undermine unions and workers' collective rights.

Pope

1.) In general, how has the US Supreme court (according to Pope) used the US Constitution to cut back on statutory labor rights? See p. 519 and 550-53.

• According to Pope, the US Supreme Court has often interpreted the Constitution in ways that limit statutory labor rights. Particularly, the Court has emphasized employer property rights and freedom of speech to curtail labor protections. Key trends include:

• Prioritizing Employer Property Rights: The Court has used the Fifth and Fourteenth Amendments to justify rulings that restrict worker access to employer property, undermining organizing efforts (e.g., barring union access to workplaces).

• Expanding Employer Free Speech: Under the First Amendment, the Court has upheld employer rights to oppose union activity, even when such opposition influences worker decisions and impacts collective bargaining.

• Undermining Worker Protections: The Court has invalidated or weakened statutory provisions of the National Labor Relations Act (NLRA) by narrowly interpreting workers' rights to organize, strike, and bargain collectively. This judicial approach often favors employer autonomy over statutory labor protections.

2.) What is the issue in Fansteel? What is the Court’s holding? What is the court’s reasoning for this holding?

• Issue: The key question in Fansteel Metallurgical Corp. v. NLRB (1939) was whether employees engaged in a sit-down strike on company property could be protected under the NLRA.

• Holding: The Court ruled against the employees, holding that their actions—occupying and refusing to leave the employer's property—were unlawful and not protected by the NLRA.

• Reasoning: The Court argued that the workers’ occupation of the premises violated employer property rights and constituted an illegal trespass. This decision drew a line between lawful strikes and actions deemed unlawful due to their intrusion on property rights, weakening labor’s ability to engage in sit-down strikes.

3.) What is the issue in NLRB v. Mackay Radio & Telegraph Co.? What is the Court’s holding? What is the Court’s reasoning for this holding?

• Issue: The central issue was whether an employer could permanently replace striking workers while still recognizing the union and adhering to the NLRA.

• Holding: The Court upheld the employer's right to permanently replace striking workers, ruling that this practice did not violate the NLRA.

• Reasoning: The Court reasoned that while the Act protects the right to strike, it does not prohibit employers from hiring permanent replacements to ensure business continuity. This decision effectively weakened the economic power of strikes by allowing employers to undermine worker solidarity through permanent replacement.

4.) What is the issue in Consol. Edison Co. v. NLRB, 305 U.S. 197, 235-36 (1938)? What is the court’s holding? What is the Court’s reasoning for this holding?

Issue: The issue was whether employer-initiated communications to employees about unionization infringed on workers’ rights under the NLRA.

Holding: The Court ruled that such communications were permissible and did not constitute an unfair labour practice, provided they were not coercive.

Reasoning: The Court emphasized the employer’s First Amendment right to freedom of speech, holding that employers could express anti-union sentiments as long as they did not intimidate or threaten employees. This ruling limited the NLRA's scope by allowing employer influence on unionization efforts, provided it remained non-coercive.

Hayek

1.) What are the two features of collective bargaining that Hayek finds the most objectionable?
-  Hayek critiques collective bargaining primarily for the following reasons:

1. Union Monopolization of Labor Markets: Hayek opposes the way unions gain exclusive control over labor supply within specific industries, effectively coercing employers into negotiating on terms dictated by the union. This monopolistic control distorts free-market dynamics and limits individual workers' freedom to negotiate their contracts independently.

2. Coercive Nature of Strikes: Hayek objects to the implicit coercion involved in strikes, particularly when they impose undue economic pressure not only on employers but also on consumers and non-unionized workers. He views strikes as a form of economic blackmail rather than a legitimate exercise of freedom.

2.) Rehearse Chamberlin’s analogy that Hayek cites in support of the thesis that the right to strike and union security are illegitimate restraints of trade and interferences with contract and private property rights.

• Chamberlin’s analogy, as cited by Hayek, compares unionized collective bargaining and the right to strike to the practices of medieval guilds, which restricted competition by granting exclusive rights to certain trades. He argues that unions, through practices such as closed shops and strike actions, impose illegitimate restraints on trade, violate the principles of free contract, and infringe upon private property rights. For example, requiring union membership as a condition for employment parallels a guild preventing non-members from participating in a trade, limiting individual choice and market efficiency.

Stanford Encyclopedia Entry, Republicanism

1.) What are the two traditions within political philosophy associated with Republicanism? Which of these two senses is the focus of the SEP entry and the Bogg & Estlund and Medearis articles?

1) Two Traditions Within Political Philosophy Associated with Republicanism
The two traditions within political philosophy tied to Republicanism are:

1. Classical Republicanism: This tradition emphasizes civic virtue and active political participation. Citizens are encouraged to prioritize the common good over individual interests. Classical republicanism sees freedom as connected to collective self-governance, stressing a shared responsibility to ensure a flourishing community.

2. Neo-Republicanism: This modern interpretation focuses on freedom as non-domination rather than mere non-interference. It critiques the vulnerability to domination, where power can be exercised arbitrarily, even in the absence of direct interference.

2.) What is the distinction between positive and negative liberty? What is Berlin’s concern with the idea of positive liberty?

• Negative Liberty: Defined as the absence of external interference or constraints. An individual is free as long as no one restricts their choices or actions, often aligning with classical liberal ideals.

• Positive Liberty: Defined as the ability to act according to one’s will and achieve self-mastery. It focuses on enabling individuals to realize their potential, sometimes requiring external guidance or intervention.

• Berlin’s Concern: Berlin warns that the idea of positive liberty can lead to authoritarianism. When the state or a group claims to know what constitutes a person’s true will or self-realization, it can impose its vision, thereby undermining individual autonomy. For example, justifying coercion in the name of helping people achieve “true freedom” risks suppressing diverse perspectives.

3.) What is the idea of republican liberty? What is the concern with the idea of negative liberty that motivates the republican conception of liberty?

• On the view of liberty as non-interference, we must therefore say that there has been a decline in freedom with independence because people begin to self-govern 

4.) What are two possible conceptions of the idea of arbitrary power?

1. Unrestrained Power: Arbitrary power is unrestrained by law or norms. A person or institution with unchecked authority can exercise power unpredictably and without accountability, leaving others vulnerable.

2. Power Exercised Without Justification: Arbitrary power is seen as that which lacks legitimate justification. Even if exercised within legal constraints, power is arbitrary if its application is unfair, opaque, or unjustified, such as laws enacted without democratic input.

• These two conceptions underscore the republican focus on ensuring that power is both accountable and subject to fair, transparent rules to prevent domination

Bogg and Estlund

1.) Explicate Bogg’s and Estlund’s interpretation of the republican idea of nondomination. Make sure to say something about the eyeball test.

• 1) Bogg’s and Estlund’s Interpretation of the Republican Idea of Nondomination
  Bogg and Estlund interpret the republican idea of nondomination as a state in which individuals are free from arbitrary interference, particularly by those in positions of power, whether governmental, societal, or economic. Unlike negative liberty, which focuses only on the absence of interference, nondomination emphasizes the structural protection of autonomy against the possibility of unchecked authority.

• The eyeball test, a concept tied to nondomination, provides a litmus test for this principle. It states that a free person should be able to look others in the eye without fear or subordination. This metaphor illustrates the ideal of equal standing in society, where no one is beholden to or dominated by another, regardless of their social or economic status. Bogg and Estlund extend this idea to labor rights, emphasizing the importance of power balances in employer-employee relationships to prevent domination in the workplace.

2.) What is the republican conception of basic liberties in general? What is the republican conception of: a. freedom of exit; b. freedom of association; c. and freedom of contestatory expression?                                                                                                                                     In the republican framework, basic liberties are freedoms that protect individuals from domination by ensuring equal standing and participation in society. These liberties must enable individuals to live autonomously and engage with others on fair terms.

a) Freedom of Exit:
Republicanism views freedom of exit as a crucial safeguard against domination. The ability to leave a relationship, organization, or situation—such as employment or membership—ensures that individuals are not trapped in oppressive conditions. However, this freedom must be meaningful; for example, leaving a job dominated by an employer should not lead to undue hardship or a lack of alternative opportunities.

b) Freedom of Association:
This includes the right to form or join groups and organizations, such as unions, without fear of coercion or retaliation. It protects individuals' ability to build collective strength and act against domination, particularly in contexts like labor disputes. In republicanism, this freedom is linked to ensuring that power is shared and not concentrated in the hands of a few.

c) Freedom of Contestatory Expression:
This liberty ensures the right to question, challenge, and hold accountable those in positions of power. Contestatory expression enables individuals and groups to contest unjust laws, decisions, or actions. It is fundamental in republicanism because it provides mechanisms for resisting domination and fostering accountability in democratic governance.

3.) What is the right to strike? See Bogg & Estlund, Medearis, and lecture slides for this.

• The right to strike is the legal right of workers to collectively withdraw their labor as a form of protest or negotiation during labor disputes. According to Bogg, Estlund, Medearis, and lecture discussions, the right to strike is a key mechanism for preventing domination in the employer-employee relationship.

• Without the ability to strike, workers are vulnerable to the arbitrary power of employers, who can impose unfair conditions without challenge. The right to strike redistributes power by enabling workers to collectively exert pressure for fair treatment, better wages, or improved conditions.

• However, the republican view acknowledges that this right must be protected from interference. For example:

• Anti-strike legislation, like “right-to-work” laws, weakens collective bargaining and diminishes workers’ ability to resist domination.

• The right to strike must also be meaningful, ensuring that workers are not penalized through retaliation or legal action.

• Thus, the republican framework ties the right to strike directly to the broader principle of non domination, highlighting its importance in achieving fairness and equality in labour relations.