Labour and the “Real” Constitution

Même si la constitution officielle du Canada ne fait aucunement mention du droit du travail ou de l’emploi, et quoique la jurisprudence ait depuis longtemps établi la prépondérance de la compétence provinciale dans ce domaine, les droits constitutionnels des syndicats et des travailleurs ont récemment fait l’objet de nombreux litiges et d’un examen approfondi dans la doctrine. Cet article passe en revue les tentatives de se servir des dispositions de la Charte canadienne des droits et libertés afin de protéger les intérêts des syndicats et des travailleurs et de faire progresser la cause de l’égalité en milieu de travail. Il explore ensuite la manière dont l’architecture constitutionnelle du Canada a eu tendance à contrecarrer les intérêts des syndicats et des travailleurs. En dernier lieu, il suggère que les intérêts des syndicats et des travailleurs seront tranchés en grande partie non pas par la constitution officielle mais bien par la « véritable constitution », soit la structure de son économie. Bien que la « véritable constitution » soit généralement défavorable aux droits et intérêts des syndicats et des travailleurs, à l’instar de la constitution officielle, elle est vague et laisse ample place à l’évolution et pour faire valoir des oppositions.While Canada’s formal constitution does not mention labour or employment law, and while jurisprudence has long established the primacy of provincial jurisdiction in this field, labour’s constitutional rights have been the subject of extensive recent litigation and scholarship. This article reviews attempts to use the provisions of the Canadian Charter of Rights and Freedoms to protect labour’s interests and to advance the cause of equality in the workplace. It then explores how Canada’s constitutional architecture has tended to frustrate the interests of unions and workers. And finally, it proposes that labour’s interests will largely be determined not by the formal constitution but by the “real constitution” — the structure of its economy. While the “real constitution” generally disfavours labour’s rights and interests, like the formal constitution it is vague and leaves ample room for challenge and for change

Making Bricks Without Straw: The Creation of a Transnational Labour Regime

This essay suggest that attempts to create a transnational regime of labour regulation have been frustrated by a series of related and mutually reinforcing developments: the incapacity or unwillingness of states to intervene in labour markets; changes in those markets associated with globalization and post-­‐industrial capitalism; the decline of the “standard employment contract”; the demise of working class consciousness, solidarity and power; and the shift from “hard” to “soft” labour law. It concludes with a proposal for three-­‐part strategy of reinventing labour law in the new dispensation: by enlarging its intellectual ambition; expanding its clientele; and extending its spatial reach

Introduction

This special edition of the osgoode hall law journal presents a collection of articles originally delivered at a symposium in 2013 celebrating John McCamus’s 40 years as a professor at Osgoode Hall Law School of York University. The conference might equally have celebrated other milestones in John’s remarkable professional life: forty years—give or take—since his first venture in law reform as a member of a research team; twenty years since his appointment as a member (subsequently Chair) of the Ontario Law Reform Commission; twenty years or so as Chair of the Canadian Civil Liberties Association; twenty years as well since the publication of his monumental work, The Law of Restitution (with the late Peter Maddaugh); ten years since his even more monumental work, The Law of Contracts , appeared; and five years as Chair of Legal Aid Ontario, the logical culmination of his work in the field reaching back to 1996 when he was appointed to head up a review of the province’s legal aid scheme

The Majestic Equality of the Law: Why Constitutional Strategies Do Not Produce Equality

Paper Presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June, 2014. Two epidemiological studies — the Whitehall Studies of 1967 and 1988 — famously demonstrated that socio-economic status is a primary determinant of health outcomes. By locating a large cohort of British civil servants on a social-class gradient, researchers were able to show that individuals at successively lower levels on that gradient experienced diminishing prospects of good health and longevity. This conclusion was complemented by subsequent studies that concluded that degrees of inequality in a society — rather than absolute levels of wealth and status — are a very strong predictor of health outcomes. But no single comprehensive epidemiological study has sought to test empirically the link between economic or social inequality, on the one hand, and the overall quality of citizenship on the other. There is little reason to doubt that Anatole France’s mordant reflections on the relationship of law and equality would be confirmed by such a study. Recent research further suggests that advanced economies are becoming more unequal for a variety of reasons, including the growing importance of inherited wealth and the dominance of the “grabbing hand” model of corporate governance. If this is true, if the gradient is becoming steeper and steeper, we can expect that the distribution of social goods is becoming less and less fair; that the vulnerable populations mentioned above are likely to experience greater and greater deprivation and exclusion; and that the gap between law’s promise and its performance is likely to grow at an alarming rate

My Very Idea of Rod - and Yours

Text of introductory address to symposium The Unbounded Level of the Mind: Rod Macdonald\u27s Legal Imagination, held at McGill University\u27s Faculty of Law, February 7-8, 2014. The author expresses his admiration and affection for Prof Maconald, taking as his clue something he says frequently and in various formulations: “The very idea of law [he says] must be autobiographical”. [Roderick A. Macdonald & Martha-Marie Kleinhans, What is a Critical Legal Pluralism? Canadian Journal of Law and Society , 12 (1997), 25-46, 46]. Quote: If that’s true, then the “very idea” of Rod himself must be “autobiographical”. I’m therefore going to begin our symposium by sharing my autobiographical — and consequently idiosyncratic — idea of Rod and his work. This idea has been shaped by our many encounters over some four decades. It may not accord with your idea of Rod’s scholarship or, for that matter, with his. However, as Rod himself strongly advocates “pluralizing the legal subject”, it will be interesting to see what happens when we put his theory into practice

Labour Law and Transnational Law: The Fate of Legal Fields / The Trajectory of Legal Scholarship

In this lecture, I’m going to explain how and why I came to write my article, The Law of Economic Subordination and Resistance. I hope that by doing so, I will be able to shed some light not only on my own field of labour law, but on the larger problem of how legal fields or domains of legal knowledge, come into existence, change or become obsolete, and in the end are either transformed or superseded altogether. I will be talking about labour law, but I hope you will be thinking about transnational law. I’m going to try to persuade you that the invention and transformation of these two fields have something in common. But I’m going to go further. I hope to convince you that their ultimate fate is determined by some of the very same forces. Transnational law, I am going to argue, can only survive if it learns from the short, sad history of labour law

The Majestic Equality of the Law: Why Constitutional Strategies Do Not Produce Equality

Paper Presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June, 2014. Two epidemiological studies — the Whitehall Studies of 1967 and 1988 — famously demonstrated that socio-economic status is a primary determinant of health outcomes. By locating a large cohort of British civil servants on a social-class gradient, researchers were able to show that individuals at successively lower levels on that gradient experienced diminishing prospects of good health and longevity. This conclusion was complemented by subsequent studies that concluded that degrees of inequality in a society — rather than absolute levels of wealth and status — are a very strong predictor of health outcomes. But no single comprehensive epidemiological study has sought to test empirically the link between economic or social inequality, on the one hand, and the overall quality of citizenship on the other. There is little reason to doubt that Anatole France’s mordant reflections on the relationship of law and equality would be confirmed by such a study. Recent research further suggests that advanced economies are becoming more unequal for a variety of reasons, including the growing importance of inherited wealth and the dominance of the “grabbing hand” model of corporate governance. If this is true, if the gradient is becoming steeper and steeper, we can expect that the distribution of social goods is becoming less and less fair; that the vulnerable populations mentioned above are likely to experience greater and greater deprivation and exclusion; and that the gap between law’s promise and its performance is likely to grow at an alarming rate

Opening Remarks

I would like to welcome you all to York University and, on behalf of the University, to say that we are very honoured and pleased that this discussion will be going on this week

The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?

Self-governance of the legal profession, and the promulgation and enforcement of a code of professional conduct are usually justified by arguments from principle, practicality and past practice. None of these can be sustained However, if professional self-governance were replaced by governmental or judicial regulation, the operational norms of professional conduct - the way lawyers actually behave - would likely not change very much. In fact, formal regulation, by whatever means, is not a major determinant of conduct that can be characterized as unethical. Rather, such conduct is largely determined by the personal characteristics of the individual lawyer, the professional circumstances of her or his practice, and especially the ethical economy of the profession. The ethical economy encompasses the social, political, economic and cultural forces, inside and outside the profession, which help to define which conduct will be treated as deviant or unethical and to identify who will be sanctioned for engaging in such conduct