Problems in Canadian Business Law

1. Problems in Canadian Business Law Pol/Soc Sci 3165 6.0A Tuesdays, 2:30-5:30 pm Simon Archer sarcher@torys.com

2. Introduction PCBL • Learning objectives • Basic familiarity with legal concepts that businesses use and are formed by • Hot topics in business law • Research ability • Critical approaches • After course should be able to understand basic vocabulary of business law, identify how to research business law problems.

3. Introduction cont’d • Course format • Assigned readings • Supplementary readings • Lecture and guest lecture • Division of 3-hour timeslot • Multimedia where possible • Self-directed research

4. Introduction cont’d • Grading scheme • Evaluation format • Deadlines • Researching and writing research papers • See handout

5. Research Papers • Select topic, narrow topic • Secondary sources first, primary sources second • Typical public policy options and analysis: • Conceptual problems (e.g., definitions), analytical problems (e.g., consistent reasoning), empirical problems (e.g., how measured, how common, etc.)

6. Research papers cont’d • Single most important “legal” skill • Expectations: • Argumentative paper • Based on actual research conducted • Your very best effort, not a draft • Review academic policy on plagiarism • USE writing and researching aids and other resources from York

7. Writing tips • Prepare by reading other people’s opinions on your subject • Use outlines (bullet points) to develop your paper, don’t write from the top of your head. • Use plain English: never over-utilize hypertrophic linguistics, it sounds pompous and stupid (and many academics do this to their discredit) • See handout.

8. Overview of PCBL • Survey course of several areas of law relating to businesses in Canada • Each topic requires a course in itself • Combine introduction to topic with “special issues” in that topic • Not a cumulative or iterative process, choose topics that interest you from entire curriculum

9. Basic contents of course • Constitutional distinctions • Common law and equity (fall) (private law?) • Law of of obligations • Contract, tort, restitution • Employment contracts, sale of goods • Equity • Trusts and fiduciaries • Regulatory schemes (spring) (public law) • Business associations • Regulation of competition and trade • Regulation of international trade • Dissolution (bankruptcy and insolvency) • Taxation • Intellectual property law

10. Contents not covered • Property law • Transfer of property, real estate • Bailment • Insurance law • Negotiable instruments • Environmental law • E-business law (cf. contract) • YOU CAN choose these for research papers

11. Otto

12. Today’s lecture • Some theoretical frameworks • Sources of law • Vocabulary and distinctions in legal discourse • Identify the Willes’ position on certain issues

13. Some characterizations of “the law” • Naturalism – law or legal systems have inherent moral or “natural” elements • Positivism – law and legal systems are constructed according to social convention • Realism – legal principles not strictly related to decisions – emphasis on analogical reasoning • Critical legal theory/Critical race theory – emphasis on analytics and distribution of power • Law-and-economics, law-and-biology: legal systems and principles as sharing homological root to other disciplines: economics and biology

14. Sources of law for public policy questions • Why do people cheat on taxes? • Economist: because there is sufficient incentive versus risk • Sociologist: because the community condones it • Psychologist: because behaviour of risk-takers separates risk from rewards • Bay St. lawyer: define “cheating”? Creative interpretation of the Income Tax Act.

15. Further reading for theory • The Willes’ • Doesn’t take a clear position (but hints of the libertarian, consistent with mainstream business press?) • Question: are courts state or non-state institutions? • Standard introduction: J.W. Harris, Legal Philosophies, 2nd ed., 1997.

16. Bottom line • Be aware many approaches and forms of legal theory • Be aware many sources of evidence that “explain” law, legal systems, legal behaviours • Try to choose ones that seem appropriate to the problem

17. Some legal sources • Three main sources of formal law • Parliament, legislatures, domestic courts • “Black letter law” – “jurisprudence” • Constitutions • Statutes • Judicial decision-making (case law) • Treatises, commentaries (from Blackstone to Peter Hogg) • Secondary sources (see handout) • Legal pluralism (another theoretical approach) • Individuals and groups part of many normative systems • “Gap” between formal legal principles and behavioural outcomes

18. Sources cont’d • Other sources of institutional authority (non-state?) • Professional associations – e.g., law societies – self-regulating by statute • Industry associations and codes • Voluntary codes of conduct • Standard-setting bodies • Supra-national instruments • NAFTA, World Court

19. The systems • Two parallel legal systems • Common law system • All provinces but Québec • Precursor and filiations with English legal system • Civil Code system • Québec, codification of all laws • cf. Roman law and Napoleonic Code

20. Some initial vocabulary • Common law system • Origins in English legal system from communal decision-making processes in the Middle Ages to modern court system • Judge-made law, case-by-case • Origins in “writs” that could be brought naming party, cause, and “prayer for relief” • e.g., quantum meruit, a writ for services rendered but not paid for, a part of the development of contract law called quasi-contract, now called restitution, required specific wording and formula

21. Vocabulary cont’d • Common law • Features doctrine of stare decisis • judicial decisions as main source, all courts bound by prior decision on same facts • SCC not bound • In reality many outside influences on development of doctrine

22. Vocabulary cont’d • Equity • Initially introduced to “correct” or “supplement” perceived failures of the common law • Employs doctrine and maxims, “equity follows the law” • Equitable relief at Court of Chancery • Fusion of the courts in Canada – 1871

23. Substantive areas • Lex mercatoria (law merchant) • First transnational business law? • Cf. relationship to arbitration, specialty courts • Current incarnation: globalization of the law of business transactions (law of New York law firms) • Why no lex laboria? • Factoid: maybe 10 cases in Canada employ the word “globalization”. Why?

24. Vocabulary cont’d • Statute law (public law, regulatory or administrative state) • Bill – Motion/Readings • Royal Assent • Proclamation • Regulations • Powers given under statute that avoid the legislative process when figuring out how to apply a law.

25. Vocabulary cont’d • Judicial review of state in/action • Claimed priority by “inherent jurisdiction” • Developed out of five perogative writs • Mandamus, prohibition, certiori, procendendo, quo warranto, habeus corpus • Feature of administrative law (law of regulatory state) • Highly contested/politicized area: brings up basic questions of jurisdiction and authority in democratic theory

26. Public vs. Private • Willes: private is individual (plaintiff vs. defendant), public is individual versus state • What is use of this distinction?

27. Substantive vs. procedural • An heuristic distinction • Usually made to distinguish the right or obligation from the way it is enforced • E.g., right to have a promise kept, but enforced through rules of civil procedure • Is there such thing as a right without a remedy? Is it “law”?

28. Above the law?

29. Some questions • The question of certainty • Litigation was a response to trial by ordeal. What’s different? • Do judges follow stare decisis? • Are court proceedings relatively certain ways of deciding disputes? • Do legal rules or principles have robust connection to individual or group behaviour? • Are, therefore, courts efficient from a business perspective?

30. Addendum: case law • Elements of most reported cases/how to read a case: • Recitation of material facts • Applicable law (statutes or precedent cases) • List of issues to be decided • Analysis of issues as law is applied to facts (ratio decendi) • Ruling or outcome • In fact, the paper involved in a typical criminal case is at least a banker’s box of documents, so reported cases are stylized reports • No case law reading requirements – a waste of time

31. Next class • Setting up the system • Current constitutional arrangements • The set up: court system in general • Can we talk about process? Procedure in general • Administrative law and regulatory state • More Simpsons?