Winter 2018 Edition of the McGill Law & Society Workshop Series

The McGill Law & Society Workshop Series features scholars and graduate students in law, the social sciences, and the humanities presenting works-in-progress that use qualitative, quantitative, or interpretivist methods to explore the complex relationship between legal phenomena and social, political, and economic institutions and processes. Each workshop begins with a brief 5-minute introduction by the author(s) of a work-in-progress that is circulated in advance. This is followed by a 10-minute discussion of the work-in-progress by a discussant. Finally, the workshop then proceeds to a general exchange involving the author and the participants.

The workshops are held in Room 116 of Peterson Hall, McGill University (3460 McTavish Street). To confirm your participation in one or more of these workshops, please click here. This will ensure that you receive the paper one week before the workshop and will help us in ordering lunch.

With gratitude for the support provided by the McGill Faculty of Law and the Katharine A. Pearson Chair in Civil Society and Public Policy.

“Populism, (Dis)Trust & Rights as Externalities: The Ongoing Reform of Sexual Assault Law in Canada”

Benjamin Perryman, JSD Candidate & Trudeau Scholar, Yale Law School

Discussant: Prof. Carrie Rentschler, McGill University, Department of Art History & Communication Studies

Monday, February 5th, 13:00 to 14:30, Peterson Hall, Room 116

The neo-populist backlash against how the justice system handles sexual assault cases in Canada has resulted in a variety of calls for public law reform, including better education of judges, specialized courts, revised professional conduct rules for defence counsel, and even constitutional amendments to require an accused to testify. Others have suggested transferring sexual assault cases out of the public law system to the private law system, as either a civil case or some form of restorative process. Justice departments, at both the Federal and Provincial level, have signaled a willingness to fund and initiate such changes. What should public law’s response be to this type of populist call for law reform? How or should public law adapt to or resist such populist politics? And what are the implications for courts, the judiciary, and the administration of justice more broadly? In this paper, I attempt to answer these questions in the context of sexual assault law in Canada. Part 1 highlights why sexual assault is a persistent criminal justice and public policy problem in Canada. Part 2 explains the importance of trust to the justice system, describes recent trends in trust, and discusses three high profile sexual assault cases that have amplified the debate about the Canadian justice system’s approach to sexual assault cases. Part 3 contextualizes sexual assault law reform advocacy as a form of neo-populism. The main claim of the paper is that public law must respond to neo-populist challenges to public law because they raise legitimate grievances and because failing to do so risks sowing further distrust in the justice system. In the remainder of Part 3, I outline three ways that public law can respond.

“Words Matter: How WTO Rulings Handle Controversy

Prof. Marc L. Busch, School of Foreign Service and Department of Government Georgetown University & Prof. Krzysztof J. Pelc, McGill University, Department of Political Science

Discussant: Prof. Sébastien Jodoin, McGill University, Faculty of Law

Monday, February 12th, 13:00 to 14:30, Peterson Hall, Room 116

Judicial rulings handed down by international courts have long attracted the attention of those looking to see “who wins?”, but much more is at stake. Like other institutions, the World Trade Organization (WTO) is widely seen as offering rulings that balance legal discipline against political constraints, yet the literature has offered scant direct evidence of this. We argue that one way in which the WTO handles politically sensitive issues is by increasing the amount of affect in their rulings. In doing so, judges provide national governments with the linguistic resources they need to persuade their domestic audiences of the legitimacy of compliance. To test our expectations, we conduct a text analysis of all rulings rendered by the institution since 1995. Specifically, we find that more politically charged decisions, such as the ones concerning non-fiscal rather than fiscal aspects of national treatment claims, are explained in qualitatively different terms. When faced with these politically sensitive issues, judges rely on judicial economy four times as much, on citations to past cases twice as much, and they employ significantly more affect-laden terms. We also find that as an issue gets ruled on repeatedly, the amount of affect deployed progressively goes down. In sum, the WTO chooses its words strategically to persuade litigants, and their domestic audiences, of the merit of compliance in politically fraught disputes.

“Diversity in death: a case study of a Muslim cemetery project in Quebec”

Dr. Dia Dabby, Postdoctoral Fellow, University of Ottawa, Religion & Diversity Project & Prof. Lori G. Beaman, University of Ottawa, Department of Classics and Religious Studies & Canada Research Chair in Religious Diversity and Social Change

Discussant: Prof. Katherine Lemons, McGill University, Department of Anthropology

Monday, March 19th, 13:00 to 14:30, Peterson Hall, Room 116

Quebec has been the site of numerous public controversies about religious diversity, including the public display of religious symbols, the wearing of religious clothing, the definition of public space and who has access to them, and so on. Our paper seeks to explore religious and cultural diversity in Canada through funerary practices. Specifically, it asks how a Muslim cemetery is ‘made’ in the context of Quebec. The attack on the Islamic Cultural Center in late January 2017 highlighted the urgency of the need for a Muslim cemetery in Quebec City. Our research engages with local actors involved in discussions about municipal zoning and Muslim cemeteries in Quebec. It speaks to potential lacuna on planning for Muslim cemeteries and the broader implications for positive conversations about belonging/inclusion. Our research draws on participant observation at a public consultation held in March 2017 and 12 semi-structured interviews with key informants conducted between May and August 2017, as well as media analysis relating to the proposed development of a Muslim cemetery project in St-Apollinaire. Our study addresses gaps in knowledge relative to local zoning and religious practices surrounding death by: a) exploring a case study in Quebec city which is leading to the creation of a Muslim cemetery; b) identifying municipal structures and deliberative democracy mechanisms which could foster future positive outcomes in regards to discussions on religion; and c) connecting this case study to broader, constructive discussions on religious diversity in Canada.

“The Labours of Bankrupty”

Prof. Anna Lund, University of Alberta, Faculty of Law

Discussant: Prof. Kirsten Anker, McGill University, Faculty of Law

Monday, April 16th, 13:00 to 14:30, Peterson Hall, Room 116

The Canadian personal bankruptcy system provides debt relief to financially distressed individuals. The debt forgiveness available in bankruptcy marks a break from the usual rules that promises should be kept and debts should be paid. The availability of this benefit inspires considerable anxiety amongst the public, legislators, and judicial officers that undeserving individuals may be taking advantage of the system. Consequently, the Canadian personal bankruptcy system has developed mechanisms by which deserving debtors can be sorted from undeserving ones, with the latter being denied access to debt relief. Insolvency trustees are the professionals tasked with administering bankruptcies. They play a central role in sorting deserving debtors from underserving ones, and they are accorded significant discretion to determine what constitutes deservingness. Despite a wide grant of discretion, trustees consistently penalize debtors for a narrow range of behaviours. Past explanations for the discretionary decisions of trustees have focused on the financial incentives and constraints that inform their work. This project supplements the financial explanation with an emotional one that draws on Arlie Hochschild’s book The Managed Heart and subsequent research on the sociology of emotions at work. Combining doctrinal legal research, quantitative analysis of statistics provided by the federal government’s Office of the Superintendent of Bankruptcy, and qualitative interviews with 40 insolvency trustees, this project considers what feeling rules govern the work of trustees, what emotional labour trustees carry out to comply with these feeling rules, and how this emotional labour might shape the trustees’ discretionary decision-making.

"The Devil and the Deep Blue Sea: Reflections on Objectivity and Political Responsibility"

Prof. Stuart Kirsch, University of Michigan, Department of Anthropology

Discussant: Prof. Ronald Niezen, McGill University, Faculty of Law & Department of Anthropology

Monday, April 23rd, 13:00 to 14:30, Peterson Hall, Room 116

Objectivity is widely recognized as a fundamental value in the sciences, encouraging practitioners to ignore personal biases, set aside political commitments, and avoid conflicts of interest. Yet objectivity may also be deployed as a screen or filter that discourages scientists from reflecting on the political implications of their research. This paper examines the relationship between scientific commitment to objectivity and recent critiques of the influence of corporations on research, most notably the promotion of ‘doubt and uncertainty’ about practices that harm people or the environment. It takes up these questions in relation to legal proceedings regarding the punitive damage award in the Exxon Valdez case. In particular, it examines an environmental sociologist’s unusually candid reflections on his decision to consult for the company in its appeal of the original $5 billion punitive damage award. Exxon enlisted ten law professors and prominent social scientists, including an eventual Nobel prize winning economist, to publish articles that challenge the legitimacy of punitive damage awards, establishing a body of research it could cite in its appeal. Despite his prior research on the longevity of environmental impacts from oil spills and their corrosive social impacts, the sociologist agreed to write a paper that supported the corporation’s agenda. Although he subsequently acknowledged that a cognitive bias regarding corporate power prevented him from recognizing subtler forms of persuasion exercised by corporations, he defended his choice with reference to his ability to maintain his neutrality and objectivity when writing on the subject. The paper asks whether objectivity may operate as a form of “willful blindness” in which ethical and political concerns are excluded from the purview of scientists conducting research supported by corporations.

"If I had a surety, I could get bail: Examining the system of surety bail release in Ontario”

Dr. Holly Pelvin, SSHRC Postdoctoral Fellow, University of Alberta, Department of Sociology

Discussant: Prof. Amy Swiffen, Concordia University, Department of Sociology

Monday, April 30th, 12:00 to 13:30, Peterson Hall, Room 116

On any given night in Canada, there are more legally innocent people confined in provincial prisons than there are convicted prisoners. Although there has been increased awareness of this troubling trend, particularly following the Supreme Court decision in R v Antic, little is known about the experience of remand or the challenges detainees face in securing their pre-trial release. Drawing on interviews I conducted with 120 remand prisoners (60 male, 60 female) and 40 staff at four maximum-security institutions in Ontario, this paper explores a central impediment to bail release: the surety system. Sureties are best understood as a relational equivalent of a bail bondsman. These civilians are given state power to monitor an accused person to ensure they comply with the conditions of their bail release. If there is a violation, a surety has a duty to report the infraction to the police. In addition, an accused person is often required to reside with their surety. In this paper, I explore the implications of the surety requirement for both the individual accused person and their surety. First, I argue that the surety requirement is imbued with a host of normative assumptions about peoples’ lives that may discord with the reality of their lived experience. In the best case, the surety requirement presumes that people have personal networks that are willing and able to intercede in the event of a criminal charge. Yet, even willing actors may be prevented from coming to the aid of an accused person if they are deemed unsuitable due to a prior record, lack of employment, or because of their housing and other extra-legal considerations. In addition, the structure of daily life in remand custody actively subverts notification efforts, leaving many accused people unable to reach those on the outside who might act as a surety. In the worst case, the surety condition introduces state power into what may be already troubled familial and/or interpersonal dynamics. Endowing non-state actors with a state responsibility to police and monitor an accused person, with little or no oversight, creates the conditions for an abuse of power, and can further the reach of the criminal justice system into private lives. Secondly and relatedly, the surety system often requires individuals to reconfigure their lives in order to act as a surety. This can lead to a disruption in employment, childcare, or living arrangements in ways that extend the punitive arm of the state to those once removed from its intended target. In concluding this paper, I argue that the surety system can induce people to plead guilty or forego their bail proceeding in ways that challenge both the traditional logics of punishment and the primacy of criminal conviction among those who are legally innocent.

“The Legal Underground: Regulation of Treasure Hunts in the Post-Genocide Landscape”

Onder Celik, PhD candidate, Johns Hopkins University, Department of Anthropology

Monday, May 14th, 12:00 to 13:30, Peterson Hall, Room 116

This paper, based on 15 months of field and archival research, examines the legal regulation of treasure hunting practices in Turkey’s Kurdistan. In recent decades, treasure hunting has emerged as an important means for the pursuit of wealth in Kurdish areas of Turkey, where the formal economic sector has been devastated by state violence and neoliberal economic reforms. Reduced possibilities of making a living have led thousands of people to search for treasures believed to be buried by the victims of the Armenian Genocide, in abandoned Armenian graveyards, among the ruins of old monasteries, in the backyards of old Armenian houses, and remote rural caves. In this search for treasure, Kurdish treasure hunters mobilize diverse regimes of expert knowledge ranging from the interpretation of ancient images inscribed on rocks and maps, to rumors, magic, and such "modern" technologies as metal detectors and remote sensing devices. Treasure hunters also have recourse to occult practices such as breaking spells and negotiating with jinn. Treasure hunters thus produce competing knowledge of the historical and material landscape through their skills in locating and tracking hidden "treasures," and in communicating with local human and non-human forces. These diverse knowledge regimes provide the forms of evidence that is required for a treasure hunter to obtain an excavation permit from local state museums. When applying for a permit, one has to provide both a legitimate “objective” for excavating a specific place, and cartographic descriptions of the intended excavation site. In cases where the permit is granted, a museum expert, accompanied by a local police officer, attends the excavation to assure that it takes place within the spatial and temporal limits of the permit as granted, and also in case of anything is found, guarantee that the treasure trove goes to the state museum while the hunter receives 50 per cent of its value from the state.

“Canadian Cause Lawyering: An Empirical Investigation of Contemporary Trends and Issues”

Basil S. Alexander, PhD Candidate, Faculty of Law, Queen’s University

Discussant: Dr. Alexandra Law, Dawson College

Monday, May 28th, 12:00 to 13:30, Peterson Hall, Room 116

What is the role of Canadian lawyers in achieving broader societal changes? Lawyering that supports a social cause, or cause lawyering, is a worldwide phenomenon that focuses on using legal skills to produce social change. However, the existing literature is largely American-centred, which cannot give a sense of what is actually happening “on the ground” in Canada. I accordingly propose to present a draft dissertation chapter regarding selected Canadian cause lawyering tendencies, such as the role of law and personal satisfaction when doing such work. This chapter will be part of my broader doctoral investigation that uses qualitative and critical analyses to explore and understand current Canadian cause lawyering by using the perspectives of several such lawyers to gain a comprehensive understanding of key trends and issues. Given the potential broad scope of such research, I focus on a subset of cause lawyers who meet certain criteria to facilitate comparability and manageability: they work specifically to achieve systemic change (e.g. simply providing services to otherwise unrepresented individuals is insufficient); they work to remedy problems with the status quo for disadvantaged groups (i.e. “progressive” causes); they do such work primarily for reasons other than personal financial gain (e.g. they are foregoing at least some financial reward to do this work); and their work involves using their professional skills or knowledge in some broad form (e.g. litigation; advocacy; legal education). I completed over 30 semi-structured interviews of about 1-2 hours with cause lawyers who met these criteria. The interviewees are mainly from Ontario and British Columbia, and they are involved with various causes in different roles (e.g. management vs non-management) and with varying levels of experience. They are also work in distinct organizational contexts (e.g. private practice; clinics; other systemic issue non-profits; and academia). The results provide insights into the realities of how this diverse group of cause lawyers approach and conduct their work to effect long-term social change in the Canadian context, which I will examine selectively in each chapter and the dissertation overall. Potential workshop chapter issues include: what draws and motivates Canadian cause lawyers to do this work; how they engage and work with causes; how they approach and use the law as a result; the potential impacts of professional, ethical, financial, and other expectations and obligations; and what the lawyers view as the important developments and how they adapted. The results share also provide first-hand knowledge of the concerns that related organizations face, especially as they change and grow. The study also sets the stage for further research and comparisons, such as with the causes themselves or opposing causes. Finally, these lawyers’ methods of positively contributing to society while ensuring personal balance and fulfillment offer insights into lawyering approaches, emphases, and distinctive definitions of success that should be transferable and useful to lawyering generally.