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Brettel Dawson (Ed.)
Captus Press,
ISBN
978-1-55322-251-4
(2011)
Persons and Property in
Private Law is an edited collection of cases and writings that presents the
fundamental building blocks of private law. Part I introduces concepts of “legal
persons”, property and the concept of the possessive and autonomous individual
in private law. Part II examines women, corporations, and partial persons such
as children and persons with development disabilities. In Part III, the
attention is on the body itself, as a site of debate over the dividing lines
between persons and property. Having thoroughly pondered the concepts of
persons in relation to property, Parts IV and V shift attention to property
outside the body: to more “tangible” kinds of property such as land and water, and
to “intangibles” such as news and the Internet. Private Law covers a broad range
of topics, affecting individuals, corporations, and greater society. The concepts
of private property and legal personality change over time; Persons and
Property in Private Law offers historical background that informs and
provides context to contemporary issues, stimulating discussion and engagement. A
class-tested, well-thought selection of materials, Persons and Property in
Private Law is a stimulating learning resource, perfect as a primary text
for courses on private law in legal studies and law and society programs, and an
excellent secondary resource for university private law courses. Topics
Summary Part I Who can be a
legal person, capable of autonomous legal action and ownership? What is
legal property (as a bundle of rights and obligations)? Part II How can a
human being not be a legal person? How can a
non-human aggregation of capital be regarded as a legal person? How can some
legal persons have restricted legal capacities for decision-making? Part III Why can’t we
own (and sell) our bodies or body parts? Do the
relations of human reproduction shift in the age of modern medical technology when
fetuses can be gestated by women with no genetic or biological connection to
the fetus? When human
sperm can be frozen for later use? Part IV What is
property on the internet? What is the
property of a news media outlet? Is Google
the scapegoat for newspapers? Part V Would the
eco system be a more sustainable foundation for decisions facing us at a global
level? Why not
ascribe legal personality to trees and waterways? Why do we
think of trees as property? Can the
legal system extend rights to nature that are similar to those given to humans
(and corporations)?
Introduction and Preface I Persons, Property,
and Private Law 1 Introduction A.
Taxonomies: Ordering in Private Law (a) Of the Absolute
Rights of Individuals; Of Property in General Sir
William Blackstone (b) Private Right and
Public Interest Stephen Waddams B. Case Study: Persons as Property in Private Law (c) Dred
Scott v. Sandford The U.S. Supreme Court
(d) R. v.
Knowles, ex parte Somersett (The Somersett’s Case) The U.K. Court of
King’s Bench (e) Gregson
v. Gilbert The
U.K .Court of King’s Bench (f) Excessive
Memories: Slavery, Insurance and Resistance Anita
Rupprecht (g) E-link(s) and
Further Reading 2 Of Property and Persons A. The Possessive Individual (a) Ancient Law Sir
Henry Sumner Maine (b) Concepts of
Property Margaret
Davies and Ngaire Naffine (c) The
Personality of an Idol P.W.Duff (d) The Nature of
Legal Personality: Its History and Its Incidents Margaret
Davies and Ngaire Naffine B. Case Study: Persons, Property, and Place (e) Shelley v.
Kraemer The U.S
.Supreme Court (f) Noble et
al. v. Alley The Supreme
Court of Canada (g) R. v.
Quong-Wing The Supreme
Court of Canada (h) Christie v.
York Corp. The Supreme
Court of Canada (i) Further
Reading II Persons 3 Women as Legal Persons A. Women and the Public Sphere: Are Women Persons? (a) The Trial of
Susan B. Anthony for Illegal Voting Doug Linder (b) Remarks by
Susan B. Anthony in the Circuit Court of the United States for the Northern
District of New York, 19 June 1873 Susan B.
Anthony (c) Bradwell v.
State of Illinois The U.S.
Supreme Court (d) Edwards v.
Canada (Attorney General) The Supreme
Court of Canada (e) Edwards v.
Canada (Attorney General) The Privy
Council B. Women and the Private Sphere: Are Women Property? (f) Of Husband and
Wife Sir William
Blackstone (g) “The Virtual
Slavery of Marriage”: The Common Law and Married Women Lee Holcombe
(h) Married Women
and the Law of Property in Victorian Ontario: Introduction Lori
Chambers (i) Valuing
Women’s Work in the Home: A Defining Moment Kim Brooks (j) E-link(s) and
Further Reading 4 Corporations: The Quintessential Economic Man A. Corporations as Legal Persons (a) Capacity of a
Corporation Canada
Business Corporations Act (b) Objects and
Powers of a Company Bermuda Companies
Act (c) Objects and
Powers of a Company: An Example (d) Book Review on
Merchant Kings Lynda Grace
Philippsen (e) The Emergence
of the Corporation as a Legal Unit and the Rise of Limited Corporation
Liability Phillip I.
Blumberg (f) Early U.S.
Cases Associated with Personification of the Corporation Editor’s
Note (g) Salomon v.
Salomon & Co., Ltd.; Salomon & Co., Ltd. v. Salomon The U.K.
House of Lords (h) The
Personification of the Business Corporation in American Law Gregory A.
Mark B. Corporations as Superman: The Limits of Legal Fictions
(i) The
Personification of Capital Mark
Neocleous (j) Canadian
Corporate Law, Veil-Piercing, and the Private Law Model Jason W.
Neyers (k) Citizens
United v. Federal Election Commission The U.S.
Supreme Court (l) Joint
Resolution Referred J.R.S. 11 State of
Vermont (m) E-link(s) and
Further Reading 5 Persons Paternal A. Children and Medical Treatment (a) Malette v.
Shulman (b) C.K. v.
Major-Cook Ontario
Superior Court of Justice (c) Health Care
Consent Act, 1996 (d) A.Y. (Re) The
Newfoundland Supreme Court—Unified Family Court (e) A.C. v.
Manitoba (Director of Child and Family Services) The Supreme
Court of Canada B. Developmentally Disabled Persons and Sterilization (f) E. (Mrs.)
v. Eve The Supreme
Court of Canada (g) Re B (A
Minor) (Wardship Sterilisation) The U.K. Court
of Appeal, Civil Division (h) Sex and the
Sacred: Sterilization and Bodily Integrity in English and Canadian Law Kristin
Savell III The Body: The Intersections
of Persons and Property 6 Reproductive Bodies: Self-Ownership Revisited A. The Pregnant Body (a) Sex,
Reproduction and the Self-Proprietor Margaret
Davies and Ngaire Naffine (b) R. v.
Morgentaler The Supreme
Court of Canada (c) Disarticulating
Liberal Subjectivities: Abortion and Fetal Protection P.Lealle
Ruhl (d) Winnipeg
Child and Family Services (Northwest Area) v. G.(D.F.) The Supreme
Court of Canada (e) Re G:
An Afterword (14 Years on) Editor’s
Note (f) E-link (g) Dobson
(Litigation Guardian of) v. Dobson The Supreme
Court of Canada B. The Generative Body: Surrogacy and the Market (h) In Re Baby
M (i) A.G.R. v.
D.R.H. & S.H. The Superior
Court of New Jersey—Hudson County (j) Assisted
Human Reproduction Act (k) Giving Away
the “Gift of Life”: Surrogacy and the Canadian Assisted Human Reproduction Act Rakhi
Ruparelia (l) Revisiting the
Handmaid’s Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers Karen
Busby and Delaney Vun (m) India’s
Surrogate Mothers Face New Rules to Restrict ‘Pot of Gold’ Jason Burke 7 The Departing Body: Non-Ownership Revisited A. The Dead Body (a) Succession
Law Reform Act (b) Personality
and Property at the End of Life: The Will and the Corpse Margaret
Davies and Ngaire Naffine (c) Johnston v.
Alberta (Director of Vital Statistics) The Court of
Queen’s Bench of Alberta B. Human Tissue and the Market (d) R. v.
Bentham (Appellant) (On Appeal from the Court of Appeal (Criminal
Division)) The U.K.
House of Lords (e) Moore v.
The Regents of the University of California The Supreme
Court of California (f) Hecht v.
Superior Court (Kane) The Court of
Appeal of California (g) Yearworth
v. North Bristol NHS Trust T The England
and Wales Court of Appeal IV Property 8 Concept and Functions of a Property System (a) What Is
Private Property? Jeremy
Waldron (b) The
‘Properties’ of Property Bruce Ziff (c) Making the Law
Work for Everyone Commission
on Legal Empowerment of the Poor (d) Case Study
Discussion: First Nations Property Ownership Initiative Editor’s
Note 9 Properties of Property A. Private Property (a) The Case for
Private Property Bruce Ziff (b) Edwards v.
Sims The Kentucky
Court of Appeals (c) Edwards v.
Lee’s Administrator The Kentucky
Court of Appeals (d) International
News Service v. Associated Press The U.S.
Supreme Court (e) Rupert Murdoch
vs. the Internet: Can the Tycoon Stop the Web’s Free Ride and Save the News
Business? Jason Kirby
and Katie Engelhart (f) Discussion
Problem Editor’s Note B. Public Property (g) Harrison v.
Carswell The Supreme
Court of Canada (h) Ontario
(Attorney-General) v. Dieleman The Ontario
Court (General Division) (i) Victoria
(City) v. Adams British
Columbia Court of Appeal V Expanded Narratives
of Persons and Property 10 Land, Water, and the Market: Private Property (a) Images of
Property in Canadian Law Michael
Mac Neil (b) Hickey et
al. v. Electric Reduction Co. of Canada, Ltd. The
Newfoundland Supreme Court (c) Palmer v.
Nova Scotia Forest Industries The
Nova Scotia Supreme Court (d) 114957
Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town) The
Supreme Court of Canada (e) A Private
Property Duty Of Stewardship: Changing Our Land Ethic James P. Karp 11 Land, Water, and the Eco-System: The Commons (a) The Promise of
Economic Prosperity Bruce
Ziff (b) See the World
like Elinor Ostrom Will
Wilkinson (c) Governing the
Commons in the New Millennium: A Diversity of Institutions for Natural Resource
Management Harini
Nagendra and Elinor Ostrom (d) Property in
the Commons Lee
Anne Fennell (e) We Must All Be
Stewards of Water: Simcoe County Aquifer Dispute Underscores the Need for a
National Water Policy Maude
Barlow and Meera Karunananthan (f) Our Water
Commons: Toward a New Freshwater Narrative Maude
Barlow (g) E-link(s) and
Further Reading 12 Conclusion: Re-imaging Persons and Property (a) The Functions
of Modern Property Law Bruce
Ziff (b) Sierra Club
v. Morton The
U.S. Supreme Court (c) Should Trees
Have Standing? —Toward Legal Rights for Natural Objects C.D.Stone
(d) Legal
Considerateness Christopher
D.Stone (e) Sued by the
Forest: Should Nature Be Able to Take You to Court? Rebecca
Tuhus-Dubrow (f) The
Emancipated Earth Kari
Volkmann-Carlsen (g) Further
Reading
Brettel Dawson is the Academic Director of
the National Judicial Institute of Canada which is based in Ottawa, Canada,
undertaking a leadership role in areas of curriculum and pedagogy design and
ongoing integration of social context (equality and diversity) in the work and
programming of NJI. An Associate Professor of Law at Carleton
University in Ottawa, she had been Chair of the Department of Law, a member of
the University Senate, and a member of the Boards of Inquiry (Ontario Human
Rights Code) involving mediations, inquiry and decision on human rights
complaints. Her teaching subjects include gender, human rights, judicial
process, private law and socio-legal research methodology. Professor Dawson has written in the areas
of social context judicial education, women and legal process, human rights,
and legal research methodology. She is completing work on the Guides to
Judicial Education (Canada) and a book on social context as an element of
judging and judicial education. A past English Language Co-Editor of the Canadian
Journal of Women and the Law and a past member of the External Committee of
the Independent Policy Research Fund of Status of Women Canada, she is
currently Chair of the Board of Directors of CANADEM, Canada’s resource
database for human rights and democratic development.
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