The Empire of the Lone Mother: Parental Rights, Child Welfare Law, and State Restructuring

This article uses the Supreme Court of Canada\u27s decision in G.(J.) v. New Brunswick to frame a discussion of the historical and ideological character of Canadian child welfare regimes on the nature and experience of women’s citizenship within the liberal political order and, in particular, within the current neo-liberal restructuring of welfare provision. The article also analyzes traditional understandings of the political character of child welfare in terms of state intervention and non-intervention, by placing the state ordering of parent-child relations in the context of larger issues of colonialism, gendered parenting discourses, and the linkage between child neglect and poverty. The article argues that this more complex account of state/family relations exposes the rhetorical slippage between a family privacy and family support interpretation of liberal respect for family autonomy in both judicial discourse and the broader political sphere

The Idea of the Private : A Discussion of State Action Doctrine and Separate Sphere Ideology

This essay is a discussion of the formalization in law of a dichotomy between a natural, private order on the one hand, and a public sphere of state action and citizenship on the other. The discussion takes place in the context of equality rights and of the philosophical tensions that underlie the delineation of rights in general. Two legal phenomena are examined: state action doctrine as it has developed in American equal protection jurisprudence under the Fourteenth Amendment and separate sphere ideology as a rationalization for sexual discrimination. Under each doctrine, judicial denial of relief is predicated on a pre-ordained and natural compartmentalization of human experience and on a refusal to perceive the dichotomy as socially created and legally enforced discrimination. The contradictions inherent in state action jurisprudence are a microcosm of the contradictions inherent in liberal theories regarding the nature of rights and of the state. A critique of separate sphere ideology in the context of women\u27s rights offers a macrocosmic view of social transformation. Although I shall refer largely to American jurisprudence, the underlying philosophical questions are of critical importance in Canadian judicial treatment of the Canadian Charter of Rights and Freedoms

Siberian Tigers and Exotic Birds: Ronald Dworkin\u27s Map of the Sacred

At its most abstract, Life\u27s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom is a meditation on the nature of individual freedom. However, as author Ronald Dworkin explains at the end of Chapter One, he believes in doing philosophy in much the same way common law jurists believe in doing law-from the inside out-that is, by starting with a concrete problem and then proceeding to the more general questions raised by that problem. According to Dworkin, this generates a theory that is appropriately tailored to the issue, Savile Row so to speak, rather than Seventh Avenue, and thus a theory that is more likely to improve the quality of public debate. The crucible for Dworkin\u27s theory in this instance is the debate over abortion and constitutional rights. Although euthanasia is discussed in the last two chapters of the book, it is not as comprehensively explored as the abortion issue. Indeed, it is plausible to read the book as an elaborate justification of the U.S. Supreme Court decision on abortion rights, Roe v. Wade, which Dworkin suggests may be the most famous case in America, if not the world. The majority in Roe v. Wade found that although women\u27s constitutional privacy rights entitle them to choose to terminate a pregnancy, those rights diminish as their pregnancies progress in accordance with a trimester framework

The Empire of the Lone Mother: Parental Rights, Child Welfare Law, and State Restructuring

This article uses the Supreme Court of Canada\u27s decision in G.(J.) v. New Brunswick to frame a discussion of the historical and ideological character of Canadian child welfare regimes on the nature and experience of women’s citizenship within the liberal political order and, in particular, within the current neo-liberal restructuring of welfare provision. The article also analyzes traditional understandings of the political character of child welfare in terms of state intervention and non-intervention, by placing the state ordering of parent-child relations in the context of larger issues of colonialism, gendered parenting discourses, and the linkage between child neglect and poverty. The article argues that this more complex account of state/family relations exposes the rhetorical slippage between a family privacy and family support interpretation of liberal respect for family autonomy in both judicial discourse and the broader political sphere

“Dollars Versus [Equality] Rights”: Money and the Limits on Distributive Justice

The social benefit challenges under the Charter’s equality guarantee offer insight into the Supreme Court of Canada’s approach to claims for distributive justice. In most of these cases, the financial costs to government of rights recognition play a role in the analysis. A survey of the outcomes of these cases and the “dollars” at stake reveals a “follow the money” pattern. In all cases in which the claim that the government regime creates an inequality was successful, the cost to the public purse of finding in favour of the equality claimant was characterized by the Court as low or inexpensive. All those cases in which the public cost of recognition was regarded as significantly high have failed, although some inexpensive claims have also failed. The correlation suggests that a minimal budgetary impact is a necessary, albeit not sufficient, condition for a successful social benefit challenge. Conversely, the correlation indicates that a significant budgetary impact poses a serious, if not insurmountable, barrier to success. The social benefit equality cases have also been the occasion of the Court’s elaboration of a doctrinal framework for factoring budgetary impacts into the adjudication of rights claims under the Charter. Much of the discussion in this regard has been on the question of at what stage of Charter analysis — the rights analysis, the section 1 analysis (and its subparts), and/or the remedy stage — the public cost of rights recognition should or should not be weighed against other factors. From an initial position of high principle — that governmental concerns about saving time and money should not trump rights — the jurisprudence has, over the past 30 years, reached a point at which the financial impact on government may play a significant role at all three stages of analysis, often curtailing a meaningful exploration of both the Charter values and the non-monetary regulatory concerns at stake. If the Charter equality guarantee is truly to be given substantive content, the n judges, lawyers and legal scholars need to work out a more coherent framework for taking account of budgetary impacts. an overview is provided of the sorts of considerations that need to be integrated into such a framework

Developments in Constitutional Law: The 1994-95 Term

This essay explores the apparent triumph of the individual of classical liberalism in Supreme Court decision making. Our analysis examines the particular way in which this political imagery of the individual interacts with judicial assumptions about important social institutions: the family, religion, media, and the state. What is revealed is the judicial adoption of an intricate social and political map in which abstract individualism combines with, and often masks, traditional, conservative images of social order and moral choice

Response to the Consultation Paper of the Task Force on the Canadian Common Law Degree of the Federation of Law Societies of Canada, Canadian Association of Law Teachers/Canadian Law and Society Association

This Response to the Consultation Paper of the Task Force on the Canadian Common Law Degree (the Task Force) of the Federation of Law Societies of Canada was prepared by a joint Committee of the Canadian Association of Law Teachers (CALT) and the Canadian Law and Society Association (CLSA)

The Construction of Health Care and the Ideology of the Private in Canadian Constitutional Law

Healthcare benefits are provided universally to all Canadians through a national healthcare system with provincial differences. A history of the manner in which healthcare issues have been understood in different historical and constitutional periods reveals the ever present inequalities in many aspects of healthcare delivery