Phil Lord | Université de Moncton (original) (raw)

Journal Articles by Phil Lord

This is an extended proposal for the book I am currently writing.

University of Illinois Law Review Online, 2023

This Essay draws upon Canadian constitutional law to analyze the Supreme Court’s decision in Dobb... more This Essay draws upon Canadian constitutional law to analyze the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In his Foreword to the 2018 Harvard Law Review Supreme Court issue, Jamal Greene analogously draws upon Canadian constitutional law to illuminate aspects of U.S. constitutional law we often oversee and take for granted. He argues that rights are construed as “trumps”: they are absolute. Greene contrasts this framework to Canada’s, under which rights are subject to reasonable limitations pursuant to a “proportionality analysis.” This Essay builds upon that work. It argues that proportionality analysis is indeed central to constitutional adjudication in Canada and most other developed countries. The Essay shows how the framework for the protection of reproductive rights set out in Roe v. Wade and modified in Planned Parenthood v. Casey incorporates key aspects of proportionality analysis. It allows for varying limitations to a constitutional right. Because these precedents significantly moved away from the existing framework of constitutional review, and did not acknowledge that they sought to fundamentally change that framework, they were uniquely vulnerable. Unsurprisingly, the Dobbs majority sharply criticizes the balancing of values and goals that defines proportionality analysis as impracticable and inconsistent with U.S. constitutional review. More broadly, these precedents, and the Dobbs opinion, illustrate how U.S. constitutional law lacks the necessary tools to mediate and reconcile conflicting rights – unlike countries which adopt proportionality analysis. Its rigid framework, which many Americans tightly hold on to as a hallmark of democracy and judicial minimalism, amplifies the role of courts in fundamental, charged sociopolitical debates. It is inherently bound to politicize the intervention of courts and undermine their legitimacy.

International Journal of Coercion, Abuse, and Manipulation, 2023

This report draws upon the issues discussed in my law review article titled "Religious Legitimacy... more This report draws upon the issues discussed in my law review article titled "Religious Legitimacy." It discusses and analyses my experience presenting the article at the International Cultic Studies Association's and the Center for Studies on New Religions' Annual Conferences in June of 2022 as a microcosm of the importance of scholarly responsibility and dialogue. My experience highlighted and personalised these issues, and led me to deepen some reflections that find their roots in my earlier writing. This report is my effort to share some of these insights and reflections.

Proceedings of the Paris Institute for Advanced Study, 2022

This Research Note draws upon the paper I presented at the conference, published in the Manitoba ... more This Research Note draws upon the paper I presented at the conference, published in the Manitoba Law Journal, to consider the persisting issues governments face as they continue to respond to the COVID-19 pandemic. It critically assesses the development of the responses discussed in our article, as well as the recommendations we provided. These insights may prove valuable as we chart the path forward.

Ottawa Law Review Blog, 2022

Governments are resorting to incentives to put the COVID-19 pandemic behind them. Using Canada as... more Governments are resorting to incentives to put the COVID-19 pandemic behind them. Using Canada as a case study, this paper discusses how governments have used positive and negative incentives to increase vaccination rates, which is key to minimizing the public health risks and restrictions related to the COVID-19 pandemic. This analysis sheds light on salient issues regarding the power and limitations of behavioral incentives, especially in the context of broader social and political challenges.

U.N.H. Law Review, 2022

This Article analyzes the War on Drugs as a social phenomenon. It argues that such an analysis, w... more This Article analyzes the War on Drugs as a social phenomenon. It argues that such an analysis, which rejects the assumption that collective, institutionalized behavior is generally rational, can help us understand key aspects of why we continue to marginalize disadvantaged individuals. If the War on Drugs is a war and wars are won or lost, there is no question we lost. Whatever drug-related evil that war sought to eradicate, whether drug consumption, trafficking, or addiction, the data clearly shows that "drugs won." Along the way, we nonetheless persisted-and largely still do. We filled prisons, lost lives, and shattered hopes and dreams. Those we hurt the most were already marginalized. To state that we lost is unhelpful and insufficient. Of course, we did. And we can draw obvious lessons that medicine and psychology work better than carceral institutions and that no one benefits from marginalizing already marginalized and often sick individuals. If the War on Drugs never worked, more salient questions are to be asked about why we fought it. This Article posits that the War on Drugs is not about drugs, crime, or addiction: it is about us. It is about why we cede to fear, anxiety, and irrationality. It is about why we stigmatize and hurt the most vulnerable. Like other irrational and counterproductive policies, the War on Drugs is not an anomaly. It bears close resemblance to other wars we fought (and fight) against the disempowered: witches, gays, Muslims, and others.

Ottawa Law Review Blog, 2021

This paper summarily lays out one potential legislative solution to poverty and homelessness in d... more This paper summarily lays out one potential legislative solution to poverty and homelessness in developed countries. This solution would be a government program offering loans to noncreditworthy individuals, repaid through additional, progressive taxation. The program helps solve the fundamental problem of access to credit for noncreditworthy individuals and alleviate structural mismatches between labour supply and labour demand.

Texas Tech Law Review, 2022

In 2020, the Black Lives Matter movement moved to the fore. Many Americans understood for the fir... more In 2020, the Black Lives Matter movement moved to the fore. Many Americans understood for the first time that racism persists in countless aspects of American society and that the legacy of our past is deep and structural. The legal academy, and higher education more broadly, responded by hiring more racialized scholars and making curricular changes. While I salute this effort, I argue that law schools chose to take the easiest path, instead of seizing the opportunity to question, and challenge, the structure and nature of legal education. I consider the structural characteristics of legal education that contribute to the exclusion of racialized and historically marginalized groups. I conclude that meaningfully advancing equity in our law schools, and responding to the Black Lives Matter movement, will remain hindered by the structure and nature of legal education – its soul. To truly challenge the legacy of racism, we will need to challenge the soul of legal education.

Health Law in Canada, 2021

On a beautiful summer night, Pritie Patel called up her friends. They decided to go out in Montre... more On a beautiful summer night, Pritie Patel called up her friends. They decided to go out in Montreal’s Old Port. Around 1 AM, as Patel and her friends were returning home, Patel walked across a stopped train. There were no crossing barriers, and no indications that the train could be set in motion. It was. On that night, Patel lost both of her legs and endured excruciating pain. But she lost much more than that. While Ms. Patel may still lead a fulfilling existence, certain aspects of her life have permanently changed. Ms. Patel will be compensated for the past and future income lost as a result of her injury. But she also endured a great deal of pain and lost access to some hobbies and occupations.

How much is that, in our legal system, “worth,” you ask? The answer is up to $390,000.
That’s because over 40 years ago, the Supreme Court of Canada set an “upper limit” on the amounts which can be awarded as compensation for the non-pecuniary component of a bodily injury. This upper limit has evolved into an effective cap.

This article argues that the cap makes no sense. Having further detailed Ms. Patel’s story, it reviews the principles which define this area of personal injury law in Canada. Then, the article argues against the cap, attempting to show that it is neither fair nor theoretically consistent. In doing so, it argues that the Supreme Court relied on unproven and incorrect assumptions when it created the cap in 1978. These assumptions still underly the rhetoric used by courts to justify their continuing adherence to the cap. The article proceeds to contend that the best way to get rid of (“pop”) the cap is not to challenge it on its own terms, but rather to persuasively argue that its conceptual foundations are incorrect. Finally, the article briefly discusses other broader social issues, of which personal injury law is both a constitutive scene and a microcosm. In doing so, the article makes an original contribution to the severely sparse body of Canadian personal injury law scholarship – and tangentially argues that the field deserves far more scholarly attention.

UMKC Law Review, 2021

This article seeks to demonstrate both the importance of expertise and scholarship in framing a r... more This article seeks to demonstrate both the importance of expertise and scholarship in framing a religion’s claim of legitimacy in law, and how expertise can be harnessed by a religious group to gain this legitimacy. From a broad overview of the consequences of religious status in law, the article analyses the tests used to attribute the status, to show the crucial role that their application affords to experts and scholarship. It then argues that new religious movements, and Scientology, are ideal case studies to illustrate the importance of scholars and scholarship. Scientology is indeed the only major religion to have emerged in the twentieth century and is unique in that it has, over this period, gained, lost, re-gained, and grappled with ongoing challenges to its status in law. The article then illustrates these issues with an analysis of two key periods from Scientology’s history: its ultimately successful fight to gain tax-exempt status in the United States in the 1980s, and its response to modern-day challenges to this status. Both periods illustrate, in different ways, how Scientology has recognised the power of expertise and scholarship, and sought to harness it to frame its claim of legitimacy in law.

Houston Law Review Off the Record, 2021

This piece analyses and situates the crisis Pornhub currently faces. It argues that the crisis is... more This piece analyses and situates the crisis Pornhub currently faces. It argues that the crisis is largely of Pornhub’s own making and is symptomatic of an industry ripe with deep issues that are starkly at odds with contemporary values. As a result, this crisis will likely only mark the beginning of Pornhub’s unraveling.

The Law Teacher, 2021

This article focusses on the role of humility in the law school. It argues in favour of a culture... more This article focusses on the role of humility in the law school. It argues in favour of a culture where humility is consciously cultivated in law students. Section I considers on the grading curve, a quintessentially North American attribute of almost all law schools. It analyses and theorises the curve and its effect in cultivating humility. It suggests that, while the curve can have a humbling effect, this effect is felt irregularly among law students and comes with significant and often discounted consequences. This article argues that a model where humility is more consciously cultivated could minimise these consequences. Section II provides such an alternative, arguing in favour of law professors showing humility and vulnerability. It depicts this alternative as both a partial antidote to the grading curve’s problems and a key starting point in inviting students to be vulnerable and constitutively challenging what it means to be a lawyer.

Denver Law Review Forum, 2021

This Article draws upon law and behavioral economics to analyze the transition to remote work bro... more This Article draws upon law and behavioral economics to analyze the transition to remote work brought about by the COVID-19 pandemic. While widely celebrated, this transition, which indeed has many promising aspects, is far more complex than public discourse would suggest. This Article is articulated around two overarching, structural issues which both arise from and are exemplified by the increasing adoption of remote work policies. Its first section depicts the move to remote work as an example and catalyst of the more broadly increasing precarity of work. It proposes solutions which could alleviate this increasing precarity. Its second section focusses on the intrinsically heterogeneous impact of the COVID-19 pandemic and these remote work policies and proposes solutions which could alleviate the disproportionate impact of these policies on certain groups.

The Theory and Practice of Legislation, 2020

This article considers government responses to unemployment caused by the COVID-19 pandemic. It a... more This article considers government responses to unemployment caused by the COVID-19 pandemic. It analyses the two main legislative responses adopted by North American governments: a broadening of access to (un)employment insurance (EI) and the adoption of payroll subsidies for companies. It comparatively and critically assesses these two solutions, to eventually propose an alternative plan. Under this plan, access to EI would be broadened to cover those not traditionally covered by it, such as self-employed workers, contract workers, and those caring for a family member sick from COVID-19 or for a child who is at home due to school and day-care closures. Unemployed workers who have traditionally paid into the EI system would be rewarded through a tax credit. To avoid incentivising temporary layoffs, a payroll subsidy would be adopted. The subsidy would make it as attractive to keep workers on payroll as to lay them off so they can benefit from EI. It would also provide a more faithful picture of unemployment rates during the crisis. The plan would also address broader concerns regarding the unsustainability of public spending during the crisis by limiting access to both temporary layoffs and the payroll subsidy. Large and profitable companies, as well as companies with high revenue or cash reserves, would not be able to temporarily lay their employees off during the crisis or benefit from the subsidy. For companies that face liquidity issues yet are not eligible for the subsidy, short-term, interest-bearing emergency loans would be available.

Manitoba Law Journal, 2020

The recent coronavirus outbreak provides a fit backdrop for us to assess our preparedness for and... more The recent coronavirus outbreak provides a fit backdrop for us to assess our preparedness for and reaction to this and future outbreaks. This article considers the role of non-state actors in global health crises. While much attention has been afforded to the role of the state in preventing and managing these crises, the recent coronavirus outbreak reminds us that the effectiveness of the state’s response to (the economic consequences of) global health crises is largely dependent on the good faith and implicit obligations of the private sector. In a capitalistic society and in the absence of specific legal obligations, companies have no obligation to keep their workers on payroll during an economic slowdown or use government stimulus funds to actually benefit those governments hope to target. We argue that relying on private actors to take measures which they have no obligation to take and are disincentivised to take is neither responsible nor sustainable. It causes private actors to shoulder a disproportionately low portion of the burden of a crisis, leaving governments to, in the unique circumstances of a prolonged global health crisis, spend public funds at an unsustainable rate. We further argue that the current framework, aimed at helping unemployed workers, provides perverse incentives and encourages companies to lay off their workers. Absent changes to this framework, our response to global health crises is bound to be inadequate.

Journal of Behavioral Economics for Policy, 2020

The COVID-19 pandemic has transformed daily life, notably by forcing billions of people to work f... more The COVID-19 pandemic has transformed daily life, notably by forcing billions of people to work from home. As restrictions related to the pandemic are eased, companies are reconsidering their real estate footprint and contemplating a long-term move to remote work. This paper takes an in-depth look at this move. It argues that remote work is, like other consequences and aspects of the pandemic, deeply rooted in broader social issues. The move to remote work has the potential to alleviate historic inequities which arise from the demands of the modern workplace-demands which have led women to occupy lower-paying positions. It also argues that the move to remote work can contribute to the increasing precarity of work, by shifting the cost of workspace from employers to employees. It suggests governmental solutions, rooted in law and behavioural economics, which could maximise its potential and protect workers from its perils.

Directions, 2020

This article uses an analytical framework from the criminal law to analyse Quebec's Bill 21. It a... more This article uses an analytical framework from the criminal law to analyse Quebec's Bill 21. It analyses denunciation, an important principle in the criminal law, and describes its analytical framework. It then applies this framework to Bill 21. From a historical analysis of the importance of state secularism in Quebec, it reframes the debate regarding Bill 21 and paints Bill 21 as a symbolic and constitutive act. Bill 21 allows Quebecers to break free from an oppressive past defined by the confluence of church and state. As a symbolic act, it constitutes and consolidates a shared identity. It is underlain by shared anxieties regarding potential threats to this identity. By developing a criminal law framework, this article suggests, although tangentially, that the importance of the symbolic and constitutive aspects of law transcends the criminal law.

Directions, 2020

This paper explores two contrasting perspectives on Bill 21, Quebec’s secularism law: the first, ... more This paper explores two contrasting perspectives on Bill 21, Quebec’s secularism law: the first, which has dominated the public debate, analyses whether Bill 21 is a suitable method to achieve its main stated aim of promoting the equality of men and women, while the second analyses the social and historical context which likely caused Quebecers to afford great importance to state secularism. The second perspective helps recast the debate regarding Bill 21. This paper concludes that the second perspective suggests that Bill 21 may be a symbolic act, a way for Quebecers to further break free from an oppressive legacy and constitutively assert their identity. To the extent that one accepts this claim, the issue of whether Bill 21 achieves its main stated aim is of little importance.

Directions , 2020

Le présent article utilise un cadre analytique issu du droit criminel pour analyser la Loi 21. Il... more Le présent article utilise un cadre analytique issu du droit criminel pour analyser la Loi 21. Il dresse un portrait de la dénonciation, un principe important du droit criminel, et décrit le cadre analytique qui lui est applicable. Il applique ensuite ce cadre analytique à la Loi 21. Partant d'une analyse historique de l'importance de la laïcité de l'État au Québec, il recadre le débat concernant la Loi 21 et dépeint celle-ci comme un acte symbolique et constitutif. La Loi 21 permet effectivement aux Québécois de se distancier d'un passé asphyxiant où l'état et la religion ne faisaient qu'un. La Loi 21, comme acte symbolique, est constitutive et consolidatrice d'une identité commune. Elle est sous-tendue par certaines anxiétés collectives quant à ce qui pourrait menacer cette identité. En développant un cadre analytique provenant du droit criminel, le présent article suggère, quoique de façon tangentielle, que l'importance des aspects symbolique et constitutif du droit transcende le droit criminel.

This is an extended proposal for the book I am currently writing.

University of Illinois Law Review Online, 2023

This Essay draws upon Canadian constitutional law to analyze the Supreme Court’s decision in Dobb... more This Essay draws upon Canadian constitutional law to analyze the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In his Foreword to the 2018 Harvard Law Review Supreme Court issue, Jamal Greene analogously draws upon Canadian constitutional law to illuminate aspects of U.S. constitutional law we often oversee and take for granted. He argues that rights are construed as “trumps”: they are absolute. Greene contrasts this framework to Canada’s, under which rights are subject to reasonable limitations pursuant to a “proportionality analysis.” This Essay builds upon that work. It argues that proportionality analysis is indeed central to constitutional adjudication in Canada and most other developed countries. The Essay shows how the framework for the protection of reproductive rights set out in Roe v. Wade and modified in Planned Parenthood v. Casey incorporates key aspects of proportionality analysis. It allows for varying limitations to a constitutional right. Because these precedents significantly moved away from the existing framework of constitutional review, and did not acknowledge that they sought to fundamentally change that framework, they were uniquely vulnerable. Unsurprisingly, the Dobbs majority sharply criticizes the balancing of values and goals that defines proportionality analysis as impracticable and inconsistent with U.S. constitutional review. More broadly, these precedents, and the Dobbs opinion, illustrate how U.S. constitutional law lacks the necessary tools to mediate and reconcile conflicting rights – unlike countries which adopt proportionality analysis. Its rigid framework, which many Americans tightly hold on to as a hallmark of democracy and judicial minimalism, amplifies the role of courts in fundamental, charged sociopolitical debates. It is inherently bound to politicize the intervention of courts and undermine their legitimacy.

International Journal of Coercion, Abuse, and Manipulation, 2023

This report draws upon the issues discussed in my law review article titled "Religious Legitimacy... more This report draws upon the issues discussed in my law review article titled "Religious Legitimacy." It discusses and analyses my experience presenting the article at the International Cultic Studies Association's and the Center for Studies on New Religions' Annual Conferences in June of 2022 as a microcosm of the importance of scholarly responsibility and dialogue. My experience highlighted and personalised these issues, and led me to deepen some reflections that find their roots in my earlier writing. This report is my effort to share some of these insights and reflections.

Proceedings of the Paris Institute for Advanced Study, 2022

This Research Note draws upon the paper I presented at the conference, published in the Manitoba ... more This Research Note draws upon the paper I presented at the conference, published in the Manitoba Law Journal, to consider the persisting issues governments face as they continue to respond to the COVID-19 pandemic. It critically assesses the development of the responses discussed in our article, as well as the recommendations we provided. These insights may prove valuable as we chart the path forward.

Ottawa Law Review Blog, 2022

Governments are resorting to incentives to put the COVID-19 pandemic behind them. Using Canada as... more Governments are resorting to incentives to put the COVID-19 pandemic behind them. Using Canada as a case study, this paper discusses how governments have used positive and negative incentives to increase vaccination rates, which is key to minimizing the public health risks and restrictions related to the COVID-19 pandemic. This analysis sheds light on salient issues regarding the power and limitations of behavioral incentives, especially in the context of broader social and political challenges.

U.N.H. Law Review, 2022

This Article analyzes the War on Drugs as a social phenomenon. It argues that such an analysis, w... more This Article analyzes the War on Drugs as a social phenomenon. It argues that such an analysis, which rejects the assumption that collective, institutionalized behavior is generally rational, can help us understand key aspects of why we continue to marginalize disadvantaged individuals. If the War on Drugs is a war and wars are won or lost, there is no question we lost. Whatever drug-related evil that war sought to eradicate, whether drug consumption, trafficking, or addiction, the data clearly shows that "drugs won." Along the way, we nonetheless persisted-and largely still do. We filled prisons, lost lives, and shattered hopes and dreams. Those we hurt the most were already marginalized. To state that we lost is unhelpful and insufficient. Of course, we did. And we can draw obvious lessons that medicine and psychology work better than carceral institutions and that no one benefits from marginalizing already marginalized and often sick individuals. If the War on Drugs never worked, more salient questions are to be asked about why we fought it. This Article posits that the War on Drugs is not about drugs, crime, or addiction: it is about us. It is about why we cede to fear, anxiety, and irrationality. It is about why we stigmatize and hurt the most vulnerable. Like other irrational and counterproductive policies, the War on Drugs is not an anomaly. It bears close resemblance to other wars we fought (and fight) against the disempowered: witches, gays, Muslims, and others.

Ottawa Law Review Blog, 2021

This paper summarily lays out one potential legislative solution to poverty and homelessness in d... more This paper summarily lays out one potential legislative solution to poverty and homelessness in developed countries. This solution would be a government program offering loans to noncreditworthy individuals, repaid through additional, progressive taxation. The program helps solve the fundamental problem of access to credit for noncreditworthy individuals and alleviate structural mismatches between labour supply and labour demand.

Texas Tech Law Review, 2022

In 2020, the Black Lives Matter movement moved to the fore. Many Americans understood for the fir... more In 2020, the Black Lives Matter movement moved to the fore. Many Americans understood for the first time that racism persists in countless aspects of American society and that the legacy of our past is deep and structural. The legal academy, and higher education more broadly, responded by hiring more racialized scholars and making curricular changes. While I salute this effort, I argue that law schools chose to take the easiest path, instead of seizing the opportunity to question, and challenge, the structure and nature of legal education. I consider the structural characteristics of legal education that contribute to the exclusion of racialized and historically marginalized groups. I conclude that meaningfully advancing equity in our law schools, and responding to the Black Lives Matter movement, will remain hindered by the structure and nature of legal education – its soul. To truly challenge the legacy of racism, we will need to challenge the soul of legal education.

Health Law in Canada, 2021

On a beautiful summer night, Pritie Patel called up her friends. They decided to go out in Montre... more On a beautiful summer night, Pritie Patel called up her friends. They decided to go out in Montreal’s Old Port. Around 1 AM, as Patel and her friends were returning home, Patel walked across a stopped train. There were no crossing barriers, and no indications that the train could be set in motion. It was. On that night, Patel lost both of her legs and endured excruciating pain. But she lost much more than that. While Ms. Patel may still lead a fulfilling existence, certain aspects of her life have permanently changed. Ms. Patel will be compensated for the past and future income lost as a result of her injury. But she also endured a great deal of pain and lost access to some hobbies and occupations.

How much is that, in our legal system, “worth,” you ask? The answer is up to $390,000.
That’s because over 40 years ago, the Supreme Court of Canada set an “upper limit” on the amounts which can be awarded as compensation for the non-pecuniary component of a bodily injury. This upper limit has evolved into an effective cap.

This article argues that the cap makes no sense. Having further detailed Ms. Patel’s story, it reviews the principles which define this area of personal injury law in Canada. Then, the article argues against the cap, attempting to show that it is neither fair nor theoretically consistent. In doing so, it argues that the Supreme Court relied on unproven and incorrect assumptions when it created the cap in 1978. These assumptions still underly the rhetoric used by courts to justify their continuing adherence to the cap. The article proceeds to contend that the best way to get rid of (“pop”) the cap is not to challenge it on its own terms, but rather to persuasively argue that its conceptual foundations are incorrect. Finally, the article briefly discusses other broader social issues, of which personal injury law is both a constitutive scene and a microcosm. In doing so, the article makes an original contribution to the severely sparse body of Canadian personal injury law scholarship – and tangentially argues that the field deserves far more scholarly attention.

UMKC Law Review, 2021

This article seeks to demonstrate both the importance of expertise and scholarship in framing a r... more This article seeks to demonstrate both the importance of expertise and scholarship in framing a religion’s claim of legitimacy in law, and how expertise can be harnessed by a religious group to gain this legitimacy. From a broad overview of the consequences of religious status in law, the article analyses the tests used to attribute the status, to show the crucial role that their application affords to experts and scholarship. It then argues that new religious movements, and Scientology, are ideal case studies to illustrate the importance of scholars and scholarship. Scientology is indeed the only major religion to have emerged in the twentieth century and is unique in that it has, over this period, gained, lost, re-gained, and grappled with ongoing challenges to its status in law. The article then illustrates these issues with an analysis of two key periods from Scientology’s history: its ultimately successful fight to gain tax-exempt status in the United States in the 1980s, and its response to modern-day challenges to this status. Both periods illustrate, in different ways, how Scientology has recognised the power of expertise and scholarship, and sought to harness it to frame its claim of legitimacy in law.

Houston Law Review Off the Record, 2021

This piece analyses and situates the crisis Pornhub currently faces. It argues that the crisis is... more This piece analyses and situates the crisis Pornhub currently faces. It argues that the crisis is largely of Pornhub’s own making and is symptomatic of an industry ripe with deep issues that are starkly at odds with contemporary values. As a result, this crisis will likely only mark the beginning of Pornhub’s unraveling.

The Law Teacher, 2021

This article focusses on the role of humility in the law school. It argues in favour of a culture... more This article focusses on the role of humility in the law school. It argues in favour of a culture where humility is consciously cultivated in law students. Section I considers on the grading curve, a quintessentially North American attribute of almost all law schools. It analyses and theorises the curve and its effect in cultivating humility. It suggests that, while the curve can have a humbling effect, this effect is felt irregularly among law students and comes with significant and often discounted consequences. This article argues that a model where humility is more consciously cultivated could minimise these consequences. Section II provides such an alternative, arguing in favour of law professors showing humility and vulnerability. It depicts this alternative as both a partial antidote to the grading curve’s problems and a key starting point in inviting students to be vulnerable and constitutively challenging what it means to be a lawyer.

Denver Law Review Forum, 2021

This Article draws upon law and behavioral economics to analyze the transition to remote work bro... more This Article draws upon law and behavioral economics to analyze the transition to remote work brought about by the COVID-19 pandemic. While widely celebrated, this transition, which indeed has many promising aspects, is far more complex than public discourse would suggest. This Article is articulated around two overarching, structural issues which both arise from and are exemplified by the increasing adoption of remote work policies. Its first section depicts the move to remote work as an example and catalyst of the more broadly increasing precarity of work. It proposes solutions which could alleviate this increasing precarity. Its second section focusses on the intrinsically heterogeneous impact of the COVID-19 pandemic and these remote work policies and proposes solutions which could alleviate the disproportionate impact of these policies on certain groups.

The Theory and Practice of Legislation, 2020

This article considers government responses to unemployment caused by the COVID-19 pandemic. It a... more This article considers government responses to unemployment caused by the COVID-19 pandemic. It analyses the two main legislative responses adopted by North American governments: a broadening of access to (un)employment insurance (EI) and the adoption of payroll subsidies for companies. It comparatively and critically assesses these two solutions, to eventually propose an alternative plan. Under this plan, access to EI would be broadened to cover those not traditionally covered by it, such as self-employed workers, contract workers, and those caring for a family member sick from COVID-19 or for a child who is at home due to school and day-care closures. Unemployed workers who have traditionally paid into the EI system would be rewarded through a tax credit. To avoid incentivising temporary layoffs, a payroll subsidy would be adopted. The subsidy would make it as attractive to keep workers on payroll as to lay them off so they can benefit from EI. It would also provide a more faithful picture of unemployment rates during the crisis. The plan would also address broader concerns regarding the unsustainability of public spending during the crisis by limiting access to both temporary layoffs and the payroll subsidy. Large and profitable companies, as well as companies with high revenue or cash reserves, would not be able to temporarily lay their employees off during the crisis or benefit from the subsidy. For companies that face liquidity issues yet are not eligible for the subsidy, short-term, interest-bearing emergency loans would be available.

Manitoba Law Journal, 2020

The recent coronavirus outbreak provides a fit backdrop for us to assess our preparedness for and... more The recent coronavirus outbreak provides a fit backdrop for us to assess our preparedness for and reaction to this and future outbreaks. This article considers the role of non-state actors in global health crises. While much attention has been afforded to the role of the state in preventing and managing these crises, the recent coronavirus outbreak reminds us that the effectiveness of the state’s response to (the economic consequences of) global health crises is largely dependent on the good faith and implicit obligations of the private sector. In a capitalistic society and in the absence of specific legal obligations, companies have no obligation to keep their workers on payroll during an economic slowdown or use government stimulus funds to actually benefit those governments hope to target. We argue that relying on private actors to take measures which they have no obligation to take and are disincentivised to take is neither responsible nor sustainable. It causes private actors to shoulder a disproportionately low portion of the burden of a crisis, leaving governments to, in the unique circumstances of a prolonged global health crisis, spend public funds at an unsustainable rate. We further argue that the current framework, aimed at helping unemployed workers, provides perverse incentives and encourages companies to lay off their workers. Absent changes to this framework, our response to global health crises is bound to be inadequate.

Journal of Behavioral Economics for Policy, 2020

The COVID-19 pandemic has transformed daily life, notably by forcing billions of people to work f... more The COVID-19 pandemic has transformed daily life, notably by forcing billions of people to work from home. As restrictions related to the pandemic are eased, companies are reconsidering their real estate footprint and contemplating a long-term move to remote work. This paper takes an in-depth look at this move. It argues that remote work is, like other consequences and aspects of the pandemic, deeply rooted in broader social issues. The move to remote work has the potential to alleviate historic inequities which arise from the demands of the modern workplace-demands which have led women to occupy lower-paying positions. It also argues that the move to remote work can contribute to the increasing precarity of work, by shifting the cost of workspace from employers to employees. It suggests governmental solutions, rooted in law and behavioural economics, which could maximise its potential and protect workers from its perils.

Directions, 2020

This article uses an analytical framework from the criminal law to analyse Quebec's Bill 21. It a... more This article uses an analytical framework from the criminal law to analyse Quebec's Bill 21. It analyses denunciation, an important principle in the criminal law, and describes its analytical framework. It then applies this framework to Bill 21. From a historical analysis of the importance of state secularism in Quebec, it reframes the debate regarding Bill 21 and paints Bill 21 as a symbolic and constitutive act. Bill 21 allows Quebecers to break free from an oppressive past defined by the confluence of church and state. As a symbolic act, it constitutes and consolidates a shared identity. It is underlain by shared anxieties regarding potential threats to this identity. By developing a criminal law framework, this article suggests, although tangentially, that the importance of the symbolic and constitutive aspects of law transcends the criminal law.

Directions, 2020

This paper explores two contrasting perspectives on Bill 21, Quebec’s secularism law: the first, ... more This paper explores two contrasting perspectives on Bill 21, Quebec’s secularism law: the first, which has dominated the public debate, analyses whether Bill 21 is a suitable method to achieve its main stated aim of promoting the equality of men and women, while the second analyses the social and historical context which likely caused Quebecers to afford great importance to state secularism. The second perspective helps recast the debate regarding Bill 21. This paper concludes that the second perspective suggests that Bill 21 may be a symbolic act, a way for Quebecers to further break free from an oppressive legacy and constitutively assert their identity. To the extent that one accepts this claim, the issue of whether Bill 21 achieves its main stated aim is of little importance.

Directions , 2020

Le présent article utilise un cadre analytique issu du droit criminel pour analyser la Loi 21. Il... more Le présent article utilise un cadre analytique issu du droit criminel pour analyser la Loi 21. Il dresse un portrait de la dénonciation, un principe important du droit criminel, et décrit le cadre analytique qui lui est applicable. Il applique ensuite ce cadre analytique à la Loi 21. Partant d'une analyse historique de l'importance de la laïcité de l'État au Québec, il recadre le débat concernant la Loi 21 et dépeint celle-ci comme un acte symbolique et constitutif. La Loi 21 permet effectivement aux Québécois de se distancier d'un passé asphyxiant où l'état et la religion ne faisaient qu'un. La Loi 21, comme acte symbolique, est constitutive et consolidatrice d'une identité commune. Elle est sous-tendue par certaines anxiétés collectives quant à ce qui pourrait menacer cette identité. En développant un cadre analytique provenant du droit criminel, le présent article suggère, quoique de façon tangentielle, que l'importance des aspects symbolique et constitutif du droit transcende le droit criminel.

In Daniel Wheatley, Irene Hardill & Sarah Buglass, eds, Handbook of Research on Remote Work and Worker Well-Being in the Post-COVID-19 Era, 2021

The COVID-19 pandemic has accelerated the existing transition to remote work and, more broadly, f... more The COVID-19 pandemic has accelerated the existing transition to remote work and, more broadly, flexible forms of work. Much energy and attention have been dedicated to analysing this transition, and how governments and other actors can best respond to it. This chapter takes a step back and analyses the potential impacts of the transition to remote work on our individual and collective identities. Recognising that work is an important part of who we are, and has historically been a microcosm and a catalyst of broader social change, this chapter analyses how remote work challenges gender roles, contemporary family structures, and our conceptualisation of the relationship between work and other commitments. The chapter admittedly offers more questions than it does answers. It complexifies our understanding of remote work, and seeks to spark future discussions as to its consequences.

Les Cahiers de droit, 2024

English Abstract: Book review of Pour une commune justice by Geoffrey Grandjean French Abstract ... more English Abstract: Book review of Pour une commune justice by Geoffrey Grandjean

French Abstract : Recension de Pour une commune justice par Geoffrey Grandjean

Alberta Law Review, 2020

This paper reviews Norman Bacal’s "Breakdown: The Inside Story of the Rise and Fall of Heenan Bla... more This paper reviews Norman Bacal’s "Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie." It ties Bacal's reflections on the recent downfall of one of Canada's largest and most prestigious law firms to the broader issues affecting the legal profession and its business model. It argues that, while the rising economic tide may have resulted in strong economic performance at Canada's law firms, their fundamental business model remains largely unchanged. It concludes that, as we likely approach the end of a growth cycle, Bacal’s book is an untapped source of wisdom and a cautionary tale, for scholars, practitioners, and law students alike. It could help us turn our apparent collective amnesia into genuine innovation, hopefully before it is too late.

Les Cahiers de droit, 2020

French Abstract : Recension de L'action collective : ses succès et ses défis par Catherine Piché ... more French Abstract : Recension de L'action collective : ses succès et ses défis par Catherine Piché

English Abstract: Book review of L'action collective : ses succès et ses défis by Catherine Piché

McGill Journal of Law and Health Online, 2020

Over 40 years ago, the Supreme Court of Canada set an “upper limit” on the amounts which can be a... more Over 40 years ago, the Supreme Court of Canada set an “upper limit” on the amounts which can be awarded as compensation for the non-pecuniary component of a bodily injury. This upper limit is now an effective cap. While the interpretation of the principles first set out by the Court has evolved, the cap has enjoyed a surprising and unusual stability, even as our society has changed. This short essay preliminarily sets out my thoughts on the cap, how it is understood by our courts, and the arguments which could lead to its abolition.

Arbitration, 2020

This piece analyses the decision rendered by Justice James D. Whittemore of the United States Dis... more This piece analyses the decision rendered by Justice James D. Whittemore of the United States District Court for the Middle District of Florida in the case of Garcia v Church of Scientology Flag Service Organization. It goes beyond the face of the decision, which upholds an arbitration award, to argue that the decision has significant implications for freedom of religion in the United States. More specifically, it argues that the decision narrows the grounds upon which a religious arbitration award can be vacated by a court. The decision allows religious legal systems to, in some circumstances, exist with no oversight from the court system. It exemplifies and supports the thesis that the protections afforded to religious freedom in the United States create room for religious legal systems that are inconsistent with the mainstream legal system to exist. Finally, this piece considers, in light of the obvious issues raised by Justice Whittemore’s decision, whether it might be time to rethink judicial review of religious arbitration awards.

These statements discuss my research and teaching.

As the title aptly suggests, this is an outline of government programs related to the COVID-19 pa... more As the title aptly suggests, this is an outline of government programs related to the COVID-19 pandemic in Canada.

Bora Laskin Faculty of Law, Lakehead University

This is my syllabus for the Law and Religion course at Lakehead University's Bora Laskin Faculty ... more This is my syllabus for the Law and Religion course at Lakehead University's Bora Laskin Faculty of Law (Fall 2021)

Bora Laskin Faculty of Law, Lakehead University

This is my syllabus for the Commercial Law course at Lakehead University's Bora Laskin Faculty of... more This is my syllabus for the Commercial Law course at Lakehead University's Bora Laskin Faculty of Law (Fall 2022)

Carleton University

This is my syllabus for the Equality and Discrimination course at Carleton University (Summer 2021)

Carleton University

This is my syllabus for the Intellectual Property course at Carleton University (Winter 2021).

Le Soleil, 2023

Ce texte d'opinion porte sur l'augmentation des frais de scolarité.

Paper delivered at the BLG Research Conference, Faculty of Law, McGill University [unpublished], 2018

This paper argues in favour of significant estate taxation. From a comparison of wealth and incom... more This paper argues in favour of significant estate taxation. From a comparison of wealth and income, it stresses how wealth fundamentally differs from income in its growth, distribution, and taxation. It demonstrates how these differences compound to fuel ever-growing wealth inequality. It argues that a 100% estate tax is likely our only tool to address such wealth inequality and that anything less than such a tax constitutes an unacceptable compromise. It, finally, shows how the failure to implement a 100% estate tax would do more than increase inequality: it would fundamentally redefine our society, tearing up the social contract and giving new meanings to notions of power, fairness, and democracy.