LAWS 1000 Lecture 9: DETAILED LEC NOTES - CARLETON UNI - JANE DICKSON
Lecture 9 Legal Studies LAWS 1000-C
REGULATING PERSONAL RELATIONSHIPS
I. Course Reader, 15(a)-(c), 21(e).
REVIEW FROM LAST CLASS
• Trubek: Weber, Law and Capitalism: key concepts:
• Calculability & rationality
• Balance in the system – how?
• ‘conflict of egoistic wills’
• Interdependence constrains but introduces instability
• Problem: How do we control the instability and encourage calculability?
• What is it about the market system that makes coercion necessary?
1. Coercion is necessary because self interest is limitless
2. Legal coercion is necessary to predictability
Legalism constrains the marketplace and the state!
• Formal equality=factual autonomy of elites
• Rudder v. Microsoft
• Regulating Personal Relationships
• What is Crime?
• Shift from focus on law’s regulation of private relationships to public law’s regulation of relationships between
individuals and society
DONOGHUE V. STEVENSON
• Plaintiff discovered remains of a dead snail in a soft drink
Does the manufacturer owe a duty to the ultimate purchaser of the soft drink?
Rule is that “you must not injure your neighbor’
• “The rule that you are to love your neighbor becomes in law: You must not injure your neighbor, and the lawyers’
question: who is my neighbor? receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbor” (p.297)
But who is my neighbor?
• “Who then, in law, is my neighbor? The answer seems to be persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question” (p.297)
• Duty relies on proximity, and proximity will be defined as “such close and direct relations” that an act directly affects
a person whom the actor should have known would be directly affected by his or her careless act.
• If the person harmed was sufficiently proximate that you could anticipate that your actions could cause them harm,
then you owe them a ‘duty of care’
• So – did Stevenson owe Donaghue a “duty of care”?
CHILDS V. DESORMEAUX
• When is a neighbor not a neighbor?
• To whom do Courrier & Zimmerman owe a duty?
• To Desormeaux?
• To Childs?
• What degree of proximity gives rise to a duty of care?
• Three situations in which proximity gives rise to a duty of care: Lecture 9 Legal Studies LAWS 1000-C
1. Where one party has invited the other to participate in a risky activity, there is an obligation to minimize risk
2. Positive relationship of supervision & control
3. Public function carries implied responsibilities to the public & duty to be careful
PETTKUS V. BECKER
• Equity favors equality, but not all contributions are considered equal
• Formal equality may not lead to factual equality
• …and if you want to live common law – get a CONTRACT!
WHAT IS ‘CRIME’?
How do we decide what activities are acceptable and which are unacceptable?
• Who should decide?
• What do you think crime looks like in Canada?
• Graph 1
• Graph 2
• Graph 3
THE ROLE OF CRIMINAL LAW IN SOCIETY
• Law serves to reinforce the social, economic and political structures which are central to capitalism
• “ideological domination”: those forces which produce and reaffirm the existing social orde