Longing for 4L

Reflections on Law School from an Already-Nostalgic 3L

My friends tell me that I am the only person whom they have heard utter the following refrain: I am devastated that law school is almost over.

I know, I know. A job will allow me to pay off my debt (of course, if I stay in school forever, I can continue to accrue debt I never have to pay off), and I have been working towards becoming a lawyer, not the ghost of Gowlings Hall. But as I think back to the time I have spent in that hallway, holding court with Osgoode royalty and jesters alike, I cannot help but feel nostalgic, and even sad, now that this magical time is coming to a close.

I have looked into law school victory laps, but have been told that they are frowned upon, and an LLM is simply not the same.

I will not miss writing exams or being ranked. I will not miss the acute imposter syndrome (though I am almost certain it will follow me into practice). And I will not lament leaving York’s brutalist architecture behind. But I will miss the people, the endless opportunities to learn and contribute, and the love of learning shared by my professors and classmates (whether or not the latter freely admit to it). And frankly, I don’t know how I’m going to deal with Septembers now that I will never have another first day of school. Continue reading

OCI Special Edition

The Obiter’s review of Osgoode’s penultimate hiring experience.

Capture

Today’s publication marks the penultimate edition of the 2015/2016 Obiter Dicta. As we approach the end of  another year, this issue also fittingly serves as our first foray into one of Osgoode’s most exciting, and notorious, opportunities: On-Campus Interviews. OCI’s mark for many of us the last hiring process before we seek out articling positions, and yet this moment of transition is also a source of polarity and divisiveness among students.

The OCI Survey and Special Edition come thanks to the dedicated work of Obiter staff member and Osgoode student Michael Motala. Michael did a truly amazing job coordinating with Ultra Vires at the University of Toronto, disseminating the survey, collecting the data, and putting together the Special Edition’s content and layout. It was an enormous task for a team, let alone one student, and we couldn’t be more appreciative of Michael’s work, or more proud to present the final product to you now.

With two thirds of OCI participants responding to our survey, we are confident that the Special Edition gives a useful and informative look at student impressions of the OCI process. The Special Edition begins with a review of some of the most pertinent and important results, and some of the stand-out data. The Edition goes on to an analysis of hiring trends and the makeup of the student population. It concludes with student comments and opinions on the OCI experience.

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Editors’ Note — Correction from 23 February, 2016

It has come to our attention that in Lisa Bush’s article, “Indigenous Stories, Settler Bodies: Why ‘Reconciliation’ is not a Commodity” a paragraph preceded the article that was a mistake.  The paragraph read:

This article is not for everyone.  If you are looking for an in-depth analysis of a Supreme Court case, or a cover on how to secure that Bay Street interview, move right along!  If you are going to stay, however, keep in mind that most of the generalizations made here are meant to be illustrative of the greater point and, really, it’s not that serious.”

This was included due to a layout error and was unfortunately not caught during the editing process.  Clearly, this paragraph may have changed how the article was construed by readers, and may have given the wrong impression about the seriousness of its subject matter.  We sincerely apologize to both the author and to Obiter readers for the oversight.

Mamba Emeritus

A great television series captivates you. It is intuitive–the thrills and suspense are sprinkled in methodically, and the more mundane parts of the season are purposeful. It knows its audience.  Most importantly, a great television series knows when to end. If the show runs a little too long, in hindsight, it is probably as great a series as it could have been. Look at the critically-acclaimed series that have been iconic to this generation: The Sopranos, Breaking Bad, and The Wire. Now compare those shows to Dexter, Sons of Anarchy, and Entourage. Aside from the stark contrast in genres, these shows stayed well past their welcome. As fans, we are sad to see the shows end, but we are disappointed to see our shows devolve into cringe-worthy representations of what they once were. Go out on top, they say.

I have been watching Kobe Bryant since 1999. The “Kobe Bryant Show” has been one of the longest-running, exhilarating, edge-of-your-seat thrills that fans of the National Basketball Association (the “League”) has witnessed. Kobe Bean Bryant entered the League in 1996, making the 2015-2016 season his twentieth campaign–two decades which have been served in a Lakers uniform. He leads the Lakers all-time in (get ready for it):

  • games played*
  • minutes played*
  • points*
  • field goals made and attempted*
  • three pointers made and attempted*
  • two pointers attempted*
  • free throws made and attempted*
  • steals*
  • usage percentage*

*courtesy of www.basketball-reference.com Continue reading

Blue Chippers or Volatile Goods?

How Valuable is the First Overall Section in the NBA Draft?

Source: http://compliance.lsu.edu/PublishingImages/NBA%20Draft%20Logo.jpg

Source: http://compliance.lsu.edu/PublishingImages/NBA%20Draft%20Logo.jpg

Every decade or so, a supposedly “can’t miss” prospect out of high school or a National Collegiate Athletic Association (NCAA) Division I powerhouse attracts national attention and emerges as the crown jewel of a National Basketball Association (NBA) draft. For instance, in the 2000s, there was LeBron James, who was chosen first overall by Cleveland in the 2003 NBA draft. Likewise, in the 2010s, there is Andrew Wiggins, who was also selected first overall by the Cavaliers in the 2014 NBA draft (before being traded to the Minnesota Timberwolves prior to the 2014 to 2015 NBA season). Franchises that are able to get their hands on these generational talents—dubbed “program changers” by former Toronto Raptors General Manger (GM) Bryan Colangelo—can typically alter their fortunes in a hurry. Case in point, Cleveland, with 17 wins and 65 losses in the 2002 and 2003 season, finished last in the NBA standing (tied with the Denver Nuggets). Yet, even though the Cavaliers were in “full rebuilding mode” at the time, picking James first overall enabled the club to accelerate its progress in a non-linear fashion by rocketing the team from basement dwellers to not only legitimate contenders but a serious threat capable of contending for the title in only a few years. In fact, Cleveland reached the NBA Finals in the 2006-2007 season before bowing out to the eventual champion San Antonio Spurs in four games.

Still, being able to draft first overall is neither a necessary requirement nor a sufficient condition to winning championships as the recipe to a winning formula comes in various forms. Why? On one hand, in the 1980s, the consensus “program changer”—and arguably the best ever basketball player—is Michael Jordan, who guided the Chicago to six NBA titles via two separate three-peats within a span of eight seasons as the Most Valuable Player (MVP) of the NBA Finals: 1991 to 1993 and 1996 to 1998. Nevertheless, Jordan was chosen not first overall but instead third overall by the Bulls in the 1984 NBA draft. On the other hand, looking back, in the 1990s, the consensus “program changer” is Kobe Bryant, who led the Los Angeles Lakers to five NBA titles (a three-peat from 2000 to 2002 and a back-to-back from 2009 to 2010) en route to amassing more career regular season points than Jordan. Bryant was chosen a surprising thirteenth overall by the Charlotte Hornets (before being traded to the Lakers). All things being equal, however, teams prefer picking first simply because the probability of getting their hands on a “program changer” ought to be much better. But is this conclusion necessarily true when it comes to practice? Let us find out!

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THIS YEAR’S MOCK TRIAL

that nearly went forgotten

Source: Mock Trial Facebook page

Source: Mock Trial Facebook page

Something horrible almost happened, Mock Trial was almost forgotten in the Obiter Dicta.

Mock Trial is one of, if not the biggest events every year at Osgoode. A simple Google search proves it: “Mock Trial Osgoode Hall” brings up Obiter Dicta recap articles that go back to 2011, with one as recently as last year.

I don’t know about you, but I’ve been looking forward for this year’s recap since the second week of February. How disappointed I’ve been to see that Mock Trial has passed on without some offering of immortality.

I will not let my last year at Osgoode go down as the one that missed the opportunity to write about Mock Trial. Who cares if I was in it? Someone’s gotta put this year down in history.

Speaking of history, what a way to begin a 90s themed night than by starting with an energetic ensemble of this year’s Mock Trial execs. Long-time executive member Danielle Knight and 2L Madeleine Brown did an impressive job at bringing together this big, bubbly group of people responsible for making the show happen. Continue reading

Paid Prescriptions

How Pharma Companies Influence Medical Decision Making

Pharmaceutical companies that manufacture a particular kind of drug can maintain their monopoly over this product through patent protections, preventing other companies from manufacturing, marketing, and profiting from the drug. However, drug patent protections do expire; most drugs are initially protected for around twenty years in the US, though the particular lifetime of these patents will vary depending on the particular country and drug. Once patents expire, other countries can come into the market and manufacture generic drugs that compete against brand-name medicines. Often, these generic drugs are significantly cheaper than their brand-name counterparts, and so reduce the profits of established pharmaceutical companies.

When only one particular pharmaceutical company manufactures, let’s say a vaccine, for a particular illness, then physicians essentially must prescribe that product. However, when other competitors can create the same or similar products, their prescription is less guaranteed, especially when there are more affordable alternatives for patients.

One strategy to ensure prescription is through more traditional marketing techniques, such as television ads and billboards. Arguably, this form of marketing is directed towards patients, who either buy the drug off the counter or ask their doctor for more information about the medicine.

Another strategy, which is more contentiously implemented, is to give physicians payments and benefits in exchange for higher brand-name prescription rates. For some, the issue is ideological. Some physicians dislike the claim that they can be “bought out” by pharmaceutical companies. So, they strive to distance themselves from corporate influence. For others, the issue is causal. Some physicians claim that there is no connection between the payments they receive and how they prescribe drugs.

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Like Going to a Knife Fight Armed with a Stick

by Barbara Captijn, former self-represented litigant, blogger and consumer advocate

srlI was pleased to be invited to Osgoode Law School’s “Bring a Self-Represented Litigant (SRL) to Law School Day” on March 14th. Thanks to Dr. Julie Macfarlane of the University of Windsor Law School and Dean Sossin of Osgoode Hall for this opportunity to interact with students and law professors, and share our experiences as SRLs.

I arrived early on the day of the event and had some time to wander the halls of this prestigious law school, where photos of graduation classes dating back to the 1920’s are proudly displayed. I felt intimidated about being there, and also some regret at not knowing my late father’s graduation year to search for his photo. I spotted some of his contemporaries, some of whom later became judges, and began to think: what motivates anyone to study law—justice, fairness, love of language, societal good, making a good living…?

I was pleasantly surprised by the warm and friendly welcome we received as SRLs at Osgoode. I wondered what makes these open, kind, respectful people into some of the legal attack dogs we encounter in the courtroom. Continue reading

The Retention of Women in Private Practice: The Challenge is Intersectional

By: Andrea S. Anderson, PhD Candidate, Osgoode Hall Law School

There is nothing quite like being a defence lawyer—walking into a criminal courtroom with a nice suit on, pulling your litigation case, proceeding to the front to sit at counsel table ready to advocate for your client—only to be stopped by another member of the bar who advises you that the general public are to sit in the body of the courtroom and wait for their matter to be called. There is nothing quite like that when it happens more than once.

Female lawyers experience various forms of gender-based challenges in practicing criminal law.

This is a recent finding from a Criminal Lawyers Association (CLA) study, which highlights  that female defence lawyers are leaving the practice at a higher rate than men. The March 2016 report, “Retention of Women in Criminal Defence Practice Study,” reveals that unpredictable hours and income, limited family support, and sexism are some of the reasons that female defence lawyers are dropping out of the profession at higher rates than their male counterparts. In a recent CBC interview, prominent criminal defence lawyer and CLA’s VP Breese Davies made note of the survey’s findings, which included specific examples of sexism female lawyers experienced, including occasions where senior male counsel assumed they were students, being asked to do administrative tasks, and being propositioned by male clients. The respondents of the survey also reported mistreatment at the hands of senior women lawyers and judges. Continue reading

“This is why I love my job”:

Black Lives Matter and the Optics of Justice

A little over a week ago, Black Lives Matter Toronto staged a demonstration at City Hall to protest a decision by the Special Investigations Unit not to criminally charge the officer who shot and killed Andrew Loku last summer. Many see the death of Andrew Loku, a forty-five -yearold survivor of war and father of five with a history of mental illness, as part of an undeniable pattern of police violence against black men and women in Toronto, and across North America.

On Sunday, protestors moved their demonstration a few blocks north to the Police Headquarters on College Street – and on Monday evening, police officers attacked the peaceful sit-in. While CTV and the Toronto Star reported “clashes” between protestors and police, that passive language intentionally obfuscates the surprising and unprovoked attacks. Videos posted to the BLM Toronto Twitter account and under the #BLMOTOtentcity tag show police using force against unarmed and non-violent protestors. (I mean, that’s “clashing” if you want to get pedantic about it, but I can think a few ways to more accurately describe that situation.)

According to Twitter user syrus marcus ware, the police were “laughing and joking after attacking our people. One is overheard saying, ‘this is why I love my job.’” Continue reading

An Early Retirement

Justice Cromwell’s departure will test the Liberal government’s call for transparency

(Philippe Landreville/Supreme Court of Canada Collection)

Justice Thomas Albert Cromwell: “Being a judge is both a great privilege and an onerous responsibility”

The news that Justice Cromwell had announced he will retire from the Supreme Court of Canada (SCC) on 1 September of this year—twelve years before the mandatory retirement age of 75—seemed to come out of nowhere. It appears that I wasn’t the only one who thought so. Osgoode Professor Philip Gerard, who knows Justice Cromwell from their days teaching at Dalhousie, also expressed his surprise to Maclean’s magazine, saying that he was under the impression that he enjoyed his job at the Supreme Court. Some had even pegged Cromwell to be Chief Justice Beverley McLachlin’s replacement, since (I really hate to say this) her mandatory retirement date is coming up in 2018. While his personal reasons for leaving Ottawa are yet to be made public, many hope that he will lend his wisdom and judicial insight to another sector of law.

Although Justice Cromwell wrote judicial reasons in a large variety of cases (“..everything from A to Z, from aboriginal to zoning,” stated lawyer Eugene Meehan), the decisions that are most memorable are probably no stranger to anyone who has taken criminal law. In R v Fearon, the right for police officers to search cell phones during a lawful arrest was upheld as constitutional with regard to section 8 of the Charter of Rights and Freedoms, which prohibits unreasonable search and seizure. I might be stealing this joke from Professor Berger, but here’s a note to potential criminals: it is not a good idea to send a text saying “we did it” after committing a crime. In another section 8 case, R v Spencer, Justice Cromwell wrote for a unanimous court in a decision widely hailed as a massive victory for privacy rights on the internet. Continue reading

R v Ghomeshi and its Impact on Nonstranger Sexual Assaults

Bringing Awareness to the ‘Gap’

A brief look at how stereotypes, myths & seduction affect the application of law in sexual assault cases

By Jessica Zita

Law has power in constructing knowledge and ideology, yet it functions in dynamic tension with social structure and systems that affect its operation. –Ruthy Lazar

If the outpouring of dialogue inspired by Ghomeshi indicates anything, it is that Ruthy Lazar was onto something: there is a gap between legal theory and its function, and it is apparent in how the courts treat stranger and nonstranger sexual assault cases (see her 2010 article, “Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada” in the Canadian Journal of Women and the Law). We have a problem: there is a widespread lack of public confidence in the criminal justice system with respect to sexual violence. It is true that sexual assault law in theory and sexual assault law in practice are not always the same. There is a gap between sexual assault law as interpreted by the Supreme Court of Canada and its application and enforcement at the grassroots level by police, prosecutors and trial judges.

Research shows that most sexual assaults are committed by someone known to the assailed. Despite this fact, nonstranger assaults are the least reported and prosecuted form of sexual assault. This, in response to the discrepancy in the application of the law, has resulted in a large enforcement gap with respect to sexual assault offenses allegedly committed by nonstrangers. It is here that one begins to see whythe facts in Ghomeshi have caused such uproar. The enforcement of law at grassroots levels has been unable to apply these standards fairly.

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