Problems in Canadian Business Law
Pol/Soc Sci 3165 6.0A
Tuesdays, 2:30-5:30 pm
Simon [email protected]
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.
Introduction cont’d Course format
Assigned readings Supplementary readings Lecture and guest lecture
• Division of 3-hour timeslot Multimedia where possible Self-directed research
Introduction cont’d Grading scheme
Evaluation format Deadlines Researching and writing research
papers• See handout
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.)
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
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.
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
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
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
Today’s lecture Some theoretical frameworks Sources of law Vocabulary and distinctions in legal
discourse Identify the Willes’ position on
certain issues
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
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.
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.
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
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
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
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
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
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
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
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?
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.
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
Public vs. Private Willes: private is individual (plaintiff
vs. defendant), public is individual versus state
What is use of this distinction?
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”?
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?
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