LAWS 1002

Introduction to Legal Studies II

Session II

Prof. Umut Özsu

Royal Commission on the Donald Marshall, Jr., Prosecution
The Royal Commission on the Donald Marshall, Jr., Prosecution (“Marshall Inquiry”)
was a commission established by the Nova Scotia government to investigate the
wrongful murder conviction in 1971 of Donald Marshall Jr., an Indigenous person.
The first inquiry of its kind in Canada, the commission released its report in 1990. Its
recommendations resulted in changes to the criminal justice system in Nova Scotia,
particularly in regard to Indigenous peoples. Marshall served more than a decade in
prison on account of their wrongful conviction, being released only in 1982.

“The criminal justice system failed Donald Marshall, Jr. at virtually every turn, from
his arrest and wrongful conviction in 1971 up to—and even beyond—his acquittal by
the Court of Appeal in 1983. The tragedy of this failure is compounded by the
evidence that this miscarriage of justice could have—and should have—been
prevented, or at least corrected quickly, if those involved in the system had carried
out their duties in a professional and/or competent manner.”

The full back story is covered in this documentary on the case.

Many inquiries have since been established to examine the causes and consequences
of racial discrimination in the Canadian criminal justice system.
David Trubek on Max Weber’s Theory of Law and Capitalism
According to Max Weber, an influential German sociologist, the growth of “modern” law goes hand
in hand with the growth of capitalism in Europe from the sixteenth century onwards. Marx believed
that “modern” law is an outgrowth of capitalism. By contrast, Weber believes that capitalism is to a
significant degree an outgrowth of the northern European “Protestant work ethic” and the
“modern” law in which that “ethic” finds expression.

In their article, David Trubek, a Weberian legal scholar, highlights the co-constitutive relationship
between law and capitalism, stressing in particular the importance of legal predictability to the
operation of capitalism.

“Legalism supported the development of capitalism by providing a stable and predictable

atmosphere; capitalism encouraged legalism because the bourgeoisie were aware of their own need
for this type of governmental structure.”

“It is not enough for the capitalist to have a general idea that someone else will more likely than
not deliver more or less the performance agreed upon on or about the time stipulated. He must
know exactly what and when, and he must be highly certain that the precise performance will be
forthcoming. He wants to be able to predict with certainty that the other units will perform. But
given the potential conflict between their self-interests and their obligations, he also wants to
predict with certainty that coercion will be applied to the recalcitrant. The predictability of
performance is intimately linked to the certainty that coercive instruments can be invoked in the
event of non-performance.”
Private law
At root, in the common law tradition, there are three main areas of
private law, i.e. the legal rules that govern relations between private
parties (rather than involving the state as a public party). These three
areas are contracts, property, and torts.

Contract law formalizes and upholds deals or bargains between

private parties.

Property law formalizes and protects claims by private parties to

ownership and effective control over things.

Tort law is the body of law that deals with non-criminal harms or
injuries caused by one private party to another private party, typically
by way of nuisance (e.g. I play loud music in my house and my
neighbours are bothered by it) or negligence (e.g. I am a bartender and
serve you a pint of mud instead of a pint of Guinness).
Online contracts
Contracts formed through online means (e.g. shopping on Amazon) are both similar
to and different from contracts formed through other means, like face-to-face
bargaining or negotiation by way of traditional mail.

Online contracts are similar to other contracts in the sense that they too must
have all the basic elements of a contract—elements like offer and acceptance. These
elements help to formalize deals or bargains. In their absence, the deal or bargain
cannot be enforced as a contract in a court of law. In this respect, online contracts
are no different from other contracts.

However, online contracts are different from other contracts in that they are
concluded purely through electronic means. This typically increases speed and
efficiency. But it can also generate a significant degree of uncertainty about the
terms of the contract—what, in other words, you have and have not “signed up for”.

“Consumer distrust arises primarily out of concerns over safety and security of the
website and a lack of confidence with the parameters of the bargain itself—an issue
directly impacted by the clarity of the contract formed online.” (Rachel Conklin)
Rudder v. Microsoft Corp. (Ontario Superior Court, 1999)
This is a case about questions of “forum”, i.e. questions about where a legal proceeding
should be held. What makes this case useful to us is that the dispute about the most
appropriate forum for the proceeding has its roots in an online contract.

Facts: This case involves a class action. A class action is an action brought not by one or
two persons but by a large group of persons. All members of this large group—in this
case approximately 89,000 people across Canada—share the status of “plaintiffs”.

At the heart of the case is an online “member agreement” between the Microsoft
Network (“MSN”) and each and every one of the plaintiffs. This electronic contract
states that it is “governed by the laws of the State of Washington, U.S.A., and [that each
plaintiff] consent[s] to the exclusive jurisdiction and venue of courts in King County,
Washington, in all disputes arising out of or relating to [her or his] use of MSN or []
MSN membership”.

The plaintiffs seek to bring their class action in the Province of Ontario, not in the State
of Washington. (This is due to differences in the relevant laws—differences they believe
would advantage them.)

MSN is countering that move, arguing that Washington is the agreed-upon venue, as per
the terms of the contract.
Rudder v. Microsoft Corp. (cont’d)
The plaintiffs claim that MSN ripped them off, charging them
for (hidden) fees behind their backs. In this sense, the plaintiffs
are relying upon the online contract. However, they are
seeking to avoid that part of the online contract which says
that Washington will have exclusive jurisdiction over the
settlement of any disputes arising from it. They argue that this
part of the contract constituted “fine print”, and that it
therefore needed to be brought to the attention of each
plaintiff directly.

Issue: Should Washington have exclusive jurisdiction and be

the venue for settling disputes arising from the online contract,
or should the case be brought before Ontario courts instead?

Decision: Judgment for MSN. The court states that the text of
the contract, or “member agreement”, is quite clear.
Rudder v. Microsoft Corp. (cont’d)
Court’s reasoning: “[T]here is no fine print as that term would be defined in a written
document. The terms are set out in plain language, absent words that are commonly
referred to as ‘legalese’.”

“[T]he potential member is presented with the terms of membership twice during the
process and must signify acceptance each time.”

“To give effect to the plaintiffs’ argument would, rather than advancing the goal of
‘commercial certainty’, … move this type of electronic transaction into the realm of
commercial absurdity. It would lead to chaos in the marketplace, render ineffectual
electronic commerce and undermine the integrity of any agreement entered into through
this medium.”

Finally, the Court states that there is a real and substantial link between the online
contract and Washington. And besides, there is no reason to think that the plaintiffs
wouldn’t receive a fair trial in Washington.

Bottom-line takeaway: Watch out for the terms of an online contract. If you click “Accept”,
“I Agree”, “Complete Payment”, “Finalize Transaction”, etc. online, then you will, everything
else being equal, typically be obligated to comply with the terms of the contract. That goes
even for clauses concerning the most appropriate venue or forum for settling disputes.
Donoghue v. Stevenson (UK House of Lords, 1932)
Facts: Donoghue drinks a nice cold bottle of ginger beer at a bar in
Glasgow.

Shortly after drinking the ginger beer, Donoghue and his friend discover
that a decomposed snail was in the bottle.

Donoghue brings an action against Stevenson, the manufacturer of the

ginger beer.

Stevenson defends themselves by arguing that they did not owe a duty of
care to Donoghue. A “duty of care” is a legal relation that must be
present between the two parties in a tort action, the plaintiff and the
defendant, in order for the action to stand a chance of succeeding. It
basically means that the defendant (here Stevenson) was obligated to
take reasonable care when performing acts (here producing the bottle of
ginger beer) that could have foreseeably injured people in the position of
the plaintiff (here Donoghue).
Donoghue v. Stevenson (cont’d)
Issue: Was the relation between the plaintiff and defendant
grounded in a duty of care, such that the defendant
(Stevenson) can be held liable and required to pay
damages to the plaintiff (Donoghue) because it was
negligent when manufacturing the bottle of ginger beer?

To put it in different terms, under circumstances such as

this, who or what should count as one’s legal “neighbour”,
in the sense that one owes a duty of care toward them?
Does the manufacturer of ginger-beer owe a duty of care
to any given consumer of their ginger-beer?

Decision: Judgment for Donoghue, the plaintiff.

Donoghue v. Stevenson (cont’d)
Court’s reasoning: We are all familiar with traditional moral injunctions to love
one’s neighbour, refrain from injuring one’s neighbour, etc. This is all fine and
good as a matter of morality. But what is of concern to the court here is how
all of this ought to work as a matter of law, not morality. So who precisely is
one’s neighbour—as a matter of law, not morality? To whom does one owe a
duty of care, a duty to take reasonable care not to cause foreseeable injury?

“Who then, in law, is my neighbour? 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 into question.”

Bottom-line takeaway: “[A] manufacturer of products which he sells in such a

form as to show that he intends them to reach the ultimate consumer in the
form in which they left him, with no reasonable possibility of intermediate
examination, and with the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in injury to the consumer’s
life or property, owes a duty to the consumer to take that reasonable care.”