Tuesday, October 10, 2017

Moore on Section 121 at SSRN

I was an expert witness last winter. There was a case out west in which section 121 of the British North America Act 1867 was at issue, and one side decided that some historical context might be useful to the court, or at least to the case it was making to the court. 

It was pleasant to learn that I had been approached because the constitutional law expert on the case had read my 1867: How the Fathers Made a Deal in his book group.  But I found the idea of the expert witness was, well, thought-provoking. When a historian say A, there is a legion of other historians ready to cry, No, B!  But if you convince a judge of A, he or she brings down the gavel, and A ain't just history, it's law.

Still and all, it was a simulating little research assignment, applying views I've argued elsewhere to a specific set of facts. For those saying, "... and s.121 is about what particularly?" it reads:
All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.
and it is usually understood to be about beer and wine, though I suggest the real issue is federalism. It has been newsworthy recently because a New Brunswick beer-and-wine case that turns on s.121 is headed to the Supreme Court of Canada later this year. Anyway, for those interested in constitutional arcana, I've recently posted my report at SSRN.

Comments and criticisms welcome. There may be revisions.

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