Foreword

• Author: Lorne Sossin
• Position: Professor and Dean, Osgoode Hall Law School, York University
• Pages: 3-7

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Foreword

Lorne Sossin*

It is my privilege to o er this brief foreword for the inaugural issue of

the Canadian Journal of Comparative and Contemporary Law (CJCCL),

launched in 2013 by  ompson Rivers University Faculty of Law. I will

o er a word or two about the Journal and then a word or two about its

 rst issue, which grapples with the complex interrelationship between

health law and human rights.

Some might see this as a perilous moment at which to launch a new

law journal. We are by any measure at the crossroads of signi cant change

in the dissemination of ideas about law and justice.  ose ideas may now

be found in the blogosphere, in real time listserv debates or from your

favourite scholar on iTunes as readily as within the pages of a venerable

law review. Law journals wrestle with whether to move purely online,

and if so whether to be open access or throw up subscription pay-walls.

Authoritative voices have heralded the demise of the law review. Chief

Justice Roberts of the US Supreme Court questioned their relevance with

this widely circulated comment:

Pick up a copy of any law review that you see, and the  rst article is likely to

be, you know, the in uence of Immanuel Kant on evidentiary approaches in

18th Century Bulgaria, or something, which I’m sure was of great interest to

the academic that wrote it, but isn’t of much help to the bar.1

* Professor and Dean, Osgoode Hall Law School, York University.

1. “Law Prof. I ll Challenges Chief Justice Roberts’ Take on Academic

Scholarship” American Constitution Society: ACS blog (5 July 2011),

online: American Constitution Society for Law and Policy

www.acslaw.org/acsblog/law-prof-i ll-challenges-chief-justice-

roberts%E2%80%99-take-on-academic-scholarship>.

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Sossin, Foreword

Follow up studies highlighted that by 2011, no major law review

had more than 2,000 paying subscribers and arguably the top law review,

the Harvard Law Review, shrank from 10,895 subscribers in 1963-64

to 1,896 by 2011.2 Such statistics drove Walter Olsen to pen a screed in

 e Atlantic entitled, simply, “Abolish the Law Reviews.”3 He referred to

Judge Richard Posner’s oft-invoked anecdote that 90 percent of what is

written in law reviews is useless but it is impossible to know which 90

percent. To this, Olsen added:

What we do know is that the page volume of law reviews has proliferated

beyond reason with no corresponding rise in compelling content. Even low-

ranked law schools often publish six or eight of them.  ere’s no secret as to

why: students crave the credential of having worked on law review, while faculty

crave a high likelihood of being published. Legal educator Harold Havighurst

nailed it half a century ago: “Whereas most periodicals are published primarily

in order that they may be read, the law reviews are published primarily in order

that they may be written.”4

While criticism of many law reviews may be merited (though this

seems to blur with a general critique of “ivory tower” research which

glosses over how so many of the legal doctrines lawyers and courts rely

on had their origins in university-based research and writing), the metrics

referred to above certainly miss the point.  e measure of a law review’s

relevance should be downloads and citations, not paid subscriptions – or,

more elusively, the kind of in uence that is more di cult to quantify. I

would call this metric, “shaping the debate.”

Peter Hogg and Allison Bushell’s article on “ e Charter Dialogue

Between the Courts and the Legislatures (Or Perhaps  e Charter of

Rights Isn’t Such a Bad  ing After All)”5 was published by the Osgoode

Hall Law Journal in 1997, and cited for the  rst time by the Supreme

Court of Canada the following year in Vriend v Alberta,6 and frequently

2. Ross E Davies, “Law Review Circulation 2011: More Change, More

Same” (2012) 1:1 J Legal Metrics 179 at 179, 185.

3. Walter Olson, “Abolish the Law Reviews!”,  e Atlantic (5 July 2012)

online: theatlantic.com

archive/2012/07/abolish-the-law-reviews/259389/>.

4. Ibid.

5. Peter W Hogg & Allison A Bushell, “ e Charter Dialogue Between

Courts and Legislatures” (1997) 35:1 Osgoode Hall LJ 75.

6. [1998] 1 SCR 493 at 565, 578.

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thereafter. Few public law scholars (or lawyers) are indi erent to the

“dialogue” debates as to whether judicial review under the Charter leads

to unelected activist judges which undermines democracy, or vigorous

and healthy exchanges between judges and legislators which strengthens

democracy (or some variation of one of these themes or another). What

is not in doubt is that this single law review article has shaped the public

law debate in Canada. As the authors noted in a follow up piece on the

tenth anniversary of the article’s publication, “[i]n short, a law journal

article on ‘Charter dialogue’ has precipitated its own vigorous, multi-

faceted dialogue.”7

In my view, this catalytic role for legal scholarship – to spark a

dialogue (or debate) remains the goal of the best law reviews. We need

more rather than fewer such publications.  e achievement of this goal

for a law review is not a matter of subscriptions, or even downloads or

citations, but of in uence. To invoke a twist on the Havighurst critique

quoted by Olsen above, the point of law review articles should not be

simply to be written, or simply to be read, but rather to be discussed and

debated. In uence, in turn, is also a matter of quality and readability.

Badly written and badly reasoned articles tend to slip into obscurity;

great articles, by contrast, are woven into subsequent scholarly exchanges,

academic conferences, judicial deliberation, classroom discussions and

then become a necessary reference point. For example, few speak about

the right to privacy without allusion to the simple but powerful reference

to, “the general right of the individual to be let alone” in Samuel Warren

and Louis Brandeis’ landmark article, “ e Right to Privacy.”8

All this is to say not only is the idea of the law review alive and well,

but its ideal has never been more important. Shaping the debate today

consists not necessarily of bringing new information or ideas to light, but

in  ltering and sifting through the dizzying onslaught of information

7. Peter W Hogg, Allison A Bushell  ornton & Wade K Wright, “Charter

Dialogue Revisited – Or, ‘Much Ado about Metaphors’” (2007) 45:1

Osgoode Hall LJ 1 at 6.

8. Samuel Warren & Louis Brandeis, “ e Right to Privacy” (1893) 4:5

Harv L Rev 193 (cited most recently by the Ontario Court of Appeal as

they crafted the  rst recognition of the tort of “intrusion upon seclusion”

in Canada). See Jones v Tsige, 2012 ONCA 32 at para 16.

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Sossin, Foreword

and ideas in a digital and interactive world.  e best law review articles

provide the analytic perspective necessary to enable readers to reach their

own conclusions and to enhance our understanding of the world around

us in the process.

For this reason, the establishment of the CJCCL as a new open

access law journal is particularly welcome. Law is best understood

through its interconnectedness – whether to society, to history, to other

disciplinary perspectives or to similar and contrasting developments in

other jurisdictions. Making sense of law, in other words, requires both an

insider and an outsider perspective.  e CJCCL’s mission is ideally suited

to this venture. It is also signi cant that its home is  ompson Rivers

University, one of Canada’s newest law schools, and one dedicated to the

pursuit of new perspectives on legal education.

 e inaugural issue of the CJCCL does justice to these ambitions,

both to shape the debate and to do so through melding insider and

outsider perspectives on law.  e setting for this examination is the

intersection of health and law. Contributors tackle the legal dynamics of

health from a number of perspectives, from access to health care services

to the status of health bene ts within the constitutional order. Issues

ranging from the nature of consent to the privatization of health care

dominate headlines and water cooler discussions alike. Law’s relation to

health, however, always has been complex and contentious.

Health debates have a way of polarizing both the public and the

judiciary like no other issue. In Chaoulli v Quebec,

9 Deschamps J observed:

In order to receive federal funds, a provincial plan must conform to the

principles set out in the Canada Health Act, R.S.C.1985, c. C6:it must

be administered publicly, it must be comprehensive and universal, it must

provide for portability from one province to another and it must be accessible

to everyone.  ese broad principles have become the hallmarks of Canadian

identity. Any measure that might be perceived as compromising them has

a polarizing e ect on public opinion.  e debate about the e ectiveness

of public health care has become an emotional one. e Romanow Report

stated that the Canada Health Act has achieved an iconic status that makes it

untouchable by politicians (Building on Values:  e Future of Health Care in

Canada:Final Report (2002) (Romanow Report), at p. 60). e tone adopted

by my colleagues Binnie and LeBelJJ. is indicative of this type of emotional

9. 2005 SCC 35.

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reaction. It leads them to characterize the debate as pitting rich against poor

when the case is really about determining whether a speci c measure is justi ed

under either the Quebec Charter or the Canadian Charter.10

As this passage re ects, health debates in the context of legal disputes

often have a text and a subtext.  e text might be whether, as in Chaoulli,

a particular person has a right to a particular health service by virtue of a

particular statutory or constitutional provision, but the subtext has more

to do with broad social commitments and shared values.  e universal

nature of the health care system in Canada makes each individual

decision in relation to health care (whether funding a service, limiting

a doctor’s discretion, holding a hospital liable, etc.) a matter, at some

level, of public interest. Health, distinct among  elds of legal interest,

a ects and matters to everyone. Policy, legal doctrine, principle and lived

experience all inform debates over health and justice. For these reasons,

in this  eld in particular, we need more interdisciplinary, comparative

and conceptual scholarship.

I hope the articles within these pages are not only read but debated,

and I look forward to this  rst issue of the CJCCL representing the

arrival of a fresh and timely voice within the Canadian legal academy. I

am con dent the CJCCL will help shape the debate in the thematic areas

of focus it selects for each year’s special issue. I wish the CJCCL much

success into the future!

10. Ibid at para 16.