Winter 2021 Intersession (NEW)
Download abbreviated schedule in pdf
January 4 - 8, 2021
Instructor: Professor Payam Akhavan
The Holocaust “explode[s] the limits of law” Hannah Arendt famously wrote; for the Nazi genocide “no punishment is severe enough”. Yet, the prevalent conception of justice is based on the Nuremberg Judgment’s premise that “only by punishing individuals who commit such crimes can the provisions of international law be enforced.” This intensive course explores the potential and limits of international criminal law as a response to mass-atrocities, focusing on the global system established by the 1998 Rome Statute of the International Criminal Court (ICC).
Topics covered include: (1) retribution, deterrence, and other purposes of punishment, in the context of radical evil; (2) the historical shift from State-centric to human-centric conceptions of international law; (3) the emergence of international criminal jurisdictions, from “victor’s justice” at Nuremberg, to the ad hoc UN tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR), to the permanent ICC with global reach; (4) differences and similarities between national and international crimes; (5) the definition of war crimes, crimes against humanity, genocide, and aggression; (6) the general principles of attribution – common purpose, accessory liability, command responsibility, superior orders, duress, etc. – in the context of systemic criminality and organizational policy; (7) national prosecutions of international crimes under the “complementarity” principle; (8) amnesties, immunities, and the “peace versus justice” debate in transitional contexts; (9) reconciling global punitive justice in “The Hague bubble” with local access and victim participation; and (10) contrasts with victim-centred restorative justice, grassroots truth-telling, and collective healing.
Monday, January 4, 2021: 1:30 – 4:00 pm
Tuesday, January 5, 2021: 1:30 – 4:00 pm
Wednesday, January 6, 2021: 1:30 – 4:00 pm
Thursday, January 7, 2021: 1:30 – 4:00 pm
Friday, January 8, 2021: 1:30 - 3:30 pm
Instructors: Susan Brooks and Jeff Carolin
This interactive, experiential, and reflective course is rooted in the belief, as stated by writer and activist Adrienne Maree Brown, that what we practice at the small scale sets the patterns for the whole system. Accordingly, this course is oriented to three overlapping spheres that we are constantly engaging in as legal professionals committed to social change: the personal; the interpersonal; and the systemic.
At the personal level, students will be invited to bring their whole selves into the classroom: their analytical abilities honed in other courses and all the other aspects of their identities – including their questions and uncertainties about their own professional paths. They will be introduced to tools that can improve their self-awareness and wellness in a profession that is known for the toll it takes on mental health, and that can support them in visualizing a fulfilling career-ahead.
Turning to the interpersonal level, as legal professionals we are often engaged in conflict – whether it is formalized as litigation or develops informally in relationships with clients, colleagues, opposing counsel, etc. In this sphere, students will become aware of their communication and conflict styles, and will learn to work more compassionately and mindfully across differences of class, race, gender, sexual orientation, and ability with a trauma-informed approach. Students will also get to practice these skills through simulations.
Finally, at the systemic level, students will be introduced to alternative ways of conceptualizing the law – such as restorative & transformative justice, and conscious contracts – that fundamentally challenge the often invisible assumptions upon which areas such as criminal and contract law are based. In this sphere, we ask: what do our legal systems and processes look like if they are an extension of the core values we hold most dear?
Monday, January 4, 2021: 1:00 – 3:30 pm
Tuesday, January 5, 2021: 1:00 – 3:30 pm
Wednesday, January 6, 2021: 1:00 – 3:30 pm
Thursday, January 7, 2021: 1:00 – 3:30 pm
Friday, January 8, 2021: 1:00 – 3:00 pm
Instructor: Professor Li Chen
This seminar surveys some of the most important features and developments of Chinese law and society over the last few decades within their relevant cultural and politico-economic contexts. By studying a range of topics based on recent scholarship, students may develop a more systematic and nuanced understanding of the operational dynamics of the legal and political institutions in the world’s second largest economy and a rapidly changing society. Topics may include the Chinese government structure and Party state, the evolving role of the courts and legal professionals, and the continued reforms of criminal and civil justice, and other specific topics such as family law, women and gender issues, law in popular culture and media, and so on.
Monday, January 4, 2021: 3:00 – 5:30 pm
Tuesday, January 5, 2021: 3:00 – 5:30 pm
Wednesday, January 6, 2021: 3:00 – 5:30 pm
Thursday, January 7, 2021: 3:00 – 5:30 pm
Friday, January 8, 2021: 3:00 – 5:00 pm
Instructor: Nathalie Des Rosiers
The course will look at the legal consequences of a pandemic: the use of emergency powers and the powers of Public Health units. It will then explore how pandemics affect different groups and different aspects of our legal system: among others, labour and employment law, prison law, mobility rights, privacy and civil liberties.
The course aims to use the COVID pandemic and the legal responses and legal consequences of it as a lenses through which to explore different legal concepts. Students are invited to share materials that they find and scenarios that interest them.
Monday, January 4, 2021: 9:30 am – 12:00 pm
Tuesday, January 5, 2021: 9:30 am – 12:00 pm
Wednesday, January 6, 2021: 9:30 am – 12:00 pm
Thursday, January 7, 2021: 9:30 am – 12:00 pm
Friday, January 8, 2021: 9:30 am – 11:30 pm
Instructor: Ronit Dinovitzer
This course examines empirical research on lawyers and the structure of the legal profession. We will draw on quantitative and qualitative research to examine what we know about legal education and law schools, the paths through which lawyers build their careers, lawyer satisfaction, and analyses of which lawyers choose to (and are able to) attain elite positions within the profession. The course will provide insights into the structures of inequality, focussing on the role of social origins, gender, and race in legal careers.
Monday, January 4, 2021: 10:30 am – 1:00 pm
Tuesday, January 5, 2021: 10:30 am – 1:00 pm
Wednesday, January 6, 2021: 10:30 am – 1:00 pm
Thursday, January 7, 2021: 10:30 am – 1:00 pm
Friday, January 8, 2021: 10:30 am – 12:30 pm
Instructor: Timothy Endicott
An introduction to the philosophy of interpretation and to the role of interpretation in law and adjudication. We will start with a historical introduction to the distinction between interpretive and equitable reasoning in the common law tradition. The English judges’ understanding of legal interpretation underwent a double inversion as they began in the sixteenth century to assert jurisdiction to interpret statutes, and to disavow their medieval jurisdiction to create exceptions on grounds of equity to the requirements of statutes. In the modern approach, judges see the interpretation of statutes as central to their role, and they do not picture themselves as exercising an equitable jurisdiction to depart from statutes.
Does the modern approach disguise departures from the law by calling them ‘interpretations’, as Jeremy Bentham thought? Does the widely-accepted role of judges as interpreters conceal the exercise of dispensing and reforming powers? We will address those questions through particular problems in the interpretation of statutes and constitutions, and we will ask whether common law reasoning is best seen as a form of interpretation. Finally, we will ask whether law ought to be understood as a practice that empowers public authorities and private actors to make law by communicative acts (which may or may not need interpretation, depending on the issues at stake in particular circumstances), or whether law is best understood as an inherently interpretive practice.
Monday, January 4, 2021: 2:00 – 4:30 pm
Tuesday, January 5, 2021: 2:00 – 4:30 pm
Wednesday, January 6, 2021: 2:00 – 4:30 pm
Thursday, January 7, 2021: 2:00 – 4:30 pm
Friday, January 8, 2021: 2:00 – 4:00 pm
Instructors: Roberto Gargarella and David Dyzenhaus
Most Constitutions tend to be restrictive with respect to the democratic ideal. In fact, our constitutional structures may be characterized by a “hypertrophy of counter-majoritarian practices and arrangements” (Unger 1996, 72, 198). They commonly comprise numerous “limiting” principles and “disabling” clauses, which can cogently be argued to hinder unjustifiably the possibilities of collective self-government. These tools include not only judicial review, but also a “natural law” approach to rights; presidential veto (and sometimes, veto by quasi-monarchical Executives); a model of political representation based on the “separation” between elected and electors; an elitist legislative power (particularly, through the institution of the Senate); a clear preference for “internal” rather than “external” or “popular” controls; a system of “checks and balances” that aims to provide “veto points” to the different sections of society, rather than facilitate a democratic conversation about the Constitution, etc.
Those institutional arrangements were born to respond to ideals and needs of the 18th century, and to a large extent they fulfilled their purpose. At the present time, however, we live under a completely different paradigm that is distinguished by its strong democratic character. The present time is marked by what we could call the fact of democracy. This is to say the shared conviction that our voice must be considered for the decision of those matters that significantly affect our lives. Therefore, we live today under a growing tension between the rules we created and the needs we have--a tension between our 18th Century’s constitutional structure and our 21th Century’s needs and, more particularly a tension between our 21th Century’s expectations, convictions and demands, and our 18th Century’s restrictive and exclusive institutional system. The described tensions create a strong democratic dissonance: we have democratic claims, which our constitutional structure does not help us to satisfy, but rather obstructs. This would explain the widespread feeling of civic disengagement and discomfort that seems distinctive of our time.
The purpose of the seminar is to explore these existing tensions between constitutionalism and democracy, both at a theoretical and practical level, and do so with help of examples mainly coming from the Americas.
The seminar will be organized around the discussion of Professor Gargerella’s work in progress, a draft of a book entitled, The Law as a Conversation Among Equals. The seminar will thus provide a unique opportunity to students—to read critically with the author a complete work that covers many of the most pressing topics in constitutional theory and which will be revised in light of the seminar and the students’ papers. (At the same time, of course, this will be a valuable resource for Professor Gargerella when it comes to making the final revisions to his book.) There will also be a list of suggested readings for each topic, which the students may use to deepen their knowledge of the different theoretical problems addressed during the course.
Please note that the book chapters are short and written to be most accessible. So reading the whole book is easily managed over a week. Please also note that students may write their paper on one or more of the many themes covered by the book and the suggested readings should help with that task. If you wish, you may also write a critical review of the whole, or of part of the book. Professor Gargarella welcomes criticism. He and Professor Dyzenhaus will collaborate in grading and commenting on all the papers.
Monday, January 4, 2021: 10:00 am – 12:30 pm
Tuesday, January 5, 2021: 10:00 am – 12:30 pm
Wednesday, January 6, 2021: 10:00 am – 12:30 pm
Thursday, January 7, 2021: 10:00 am – 12:30 pm
Friday, January 8, 2021: 10:00 am – 12:00 pm
Instructor: Professor Anthony Niblett
This course looks at the interaction of law and new technologies. How can we use law to incentivize beneficial technological change? We will explore what happens when new technologies emerge: How does the law respond? What changes? What stays the same? How should the law respond? How can new technologies be used to produce a better legal system? A focus of the course will be the emergence of data-driven artificial intelligence. Specific topics include: smart contracts, biomedical technology, self-driving cars, autonomous weapons, legal tech, and whether artificial intelligence can be used to build a more efficient and just society.
Monday, January 4, 2021: 10:00 am – 12:30 pm
Tuesday, January 5, 2021: 10:00 am – 12:30 pm
Wednesday, January 6, 2021: 10:00 am – 12:30 pm
Thursday, January 7, 2021: 10:00 am – 12:30 pm
Friday, January 8, 2021: 10:00 am – 12:00 pm
Instructor: Professor Ayelet Shachar
Citizenship and immigration have become hot-button legal issues in recent years in Canada, the United States, across Europe, and in other parts of the world. Debates range from admission questions--who should be allowed to enter, according to what criteria, and for how long--to queries about the civil rights of migrants, cultural diversity, and the level of integration that can legitimately be expected from newcomers once they have settled in the country. This intensive course will explore these new developments, placing them in the broader context of citizenship theory and immigration law and policy, as well as contemporary border studies. We will also refer to comparative evidence drawn from some of the world’s leading immigration receiving and sending countries. The course will draw upon legislative materials, policy analysis and case law, as well as selected works from political theory and economics.
Monday, January 4, 2021: 2:00 – 4:30 pm
Tuesday, January 5, 2021: 2:00 – 4:30 pm
Wednesday, January 6, 2021: 2:00 – 4:30 pm
Thursday, January 7, 2021: 2:00 – 4:30 pm
Friday, January 8, 2021: 2:00 – 4:00 pm
Instructor: Justice Robert Sharpe
The seminar is intended to provide students with an inside look at the process of judicial decision-making at the appellate level. We will consider the nature and extent of legal uncertainty. What is the extent of legal uncertainty and what are the implications of legal uncertainty for the judicial process? Do judges approach their task of deciding cases by assuming that there are “right answers” to every legal question? Although it is well-established that appellate judgments create precedents that are binding on lower courts, the issue of judicial law-making remains controversial. What is the reach and what are limits of the judicial law-making role? We will look at the nature of reasoning used by lawyers and judges, examine its distinctive features, discuss the role of intuition or the “judicial hunch” and consider the institutional factors that structure and discipline judicial reasoning. Are judges expected or allowed to be compassionate or must they always follow the letter of the law? Finally, we will discuss the essential attributes of judicial independence and impartiality and how the law attempts to ensure that judges display those qualities.
Monday, January 4, 2021: 1:30 – 4:00 pm
Tuesday, January 5, 2021: 1:30 – 4:00 pm
Wednesday, January 6, 2021: 1:30 – 4:00 pm
Thursday, January 7, 2021: 1:30 – 4:00 pm
Friday, January 8, 2021: 1:30 – 3:30 pm
Instructors: Simon Stern and Cheryl Suzack
The course provides an introduction to the field of law and visual culture. It asks how cultural productions, including media articles, documentaries, and fictional representations, prompt calls for historical redress. It aligns case law on residential schools with cultural representations to ask how fact-based justice is in dialogue with aesthetic forms. We will read some cases in connection with recent theories concerning the consumption and interpretation of visual materials, with an eye to questions about how courts are influenced by these materials, and how changing approaches to visual style and subject matter might present lawyers and judges with new perspectives on the legal issues raised by these cases.
Monday, January 4, 2021: 9:30 – 12:00 pm
Tuesday, January 5, 2021: 9:30 – 12:00 pm
Wednesday, January 6, 2021: 9:30 – 12:00 pm
Thursday, January 7, 2021: 9:30 – 12:00 pm
Friday, January 8, 2021: 9:30 – 12:00 pm
Instructor: Paul Williams
In 1997, the Supreme Court of Canada, in Delgam’uukw, declared that in cases involving aboriginal title and rights, Canadian courts should pay equal respect to the legal system of the indigenous nation. The Haudenosaunee, the Iroquois Confederacy, are the Crown’s oldest and firmest allies in this part of the world. Their legal system, the Kaianeren:kowa, or Great Law of Peace, is historically well-documented and very much alive today. The course will focus on the principles of this indigenous legal system; on their social consequences; and on their pragmatic application to modern dispute resolution, negotiation, criminal law, environmental law and the law of treaties that flow from Haudenosaunee law. The course will consider Haudenosaunee law as a living, effective, culturally appropriate living legal system. It will provide a viable alternative to the thinking that “aboriginal law” in Canada is really Canadian law about aboriginal peoples.
Monday, January 4, 2021: 9:30 am – 12:00 pm
Tuesday, January 5, 2021: 9:30 am – 12:00 pm
Wednesday, January 6, 2021: 9:30 am – 12:00 pm
Thursday, January 7, 2021: 9:30 am – 12:00 pm
Friday, January 8, 2021: 9:30 am – 11:30 am
