Problems in Canadian Business Law

Pol/Soc Sci 3165 6.0A

Tuesdays, 2:30-5:30 pm

Simon Archersarcher@torys.com

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

Otto

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”?

Above the 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

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?