Crossing North American Borders in Law and Education
Curriculum Development Workshop
North American Consortium on Legal Education
University of Ottawa Faculty of Law
October 2 – 5, 2008

We are grateful to the convenors of the academic workshops in Ottawa for providing the following summaries of NACLE’s academic sessions. This report summarizes the results of the Friday workshops, which consisted of academic dialogues, and of the Saturday morning workshops, which were devoted to proposals to enhance contact among students and faculty by suggesting projects that will give rise in our courses to cross-border interaction among North American students and faculty in our courses and other academic activities.

International Trade Workshop (approximately 25 participants)

Academic session, Friday Oct. 3

J. Anthony VanDuzer, Ottawa (Common Law) Convenor

1. Evaluating NAFTA’s experience with the supplemental agreements on labor and environmental cooperation

-The Environmental Agreement and Commission

Armand de Mestral, Jean Monnet Chair in the Law of International Economic Integration (McGill)

Lee Paddock, Associate Dean for Environmental Studies and Professorial Lecturer in Law (George Washington)

Gabriel Cavazos Villanueva, Professor and Director of the Masters in International Law Program (Monterrey Tech)

- The Labor Agreement and Commission

Stephen Zamora, Professor of Law (University of Houston Law Center)

2. The Future of Environmental and Labour Rights in North America– How will the next US administration deal with Trade and the Environment and Trade and Labour Rights?

David Gantz, Professor of Law and Director, International Trade Law Program (University of Arizona James E. Rogers College of Law)

Gil Winham, Professor Emeritus of Political Science (Dalhousie)

Summary of International Trade academic session

The North American Agreement on Labour Cooperation (NAALC) and the North American Agreement on Environmental Cooperation (NAAEC) were last minute additions to the package that was approved as part of NAFTA. They were added largely to provide a basis for democrats in Congress to give their approval to the deal. The motivation may have been politically expedient but these side agreements were ground breaking in linking social issues – labour rights and environmental protection – to trade. The approach in the side agreements has been followed, with some variations, in FTAs subsequently negotiated by Canada and the US.

In very general terms, the NAALC and the NAAEC are intended to
• support and facilitate cooperation on labour and environment issues among the three NAFTA states; and
• promote the effective enforcement the parties’ domestic environmental and labour legislation and ensure that domestic legislation provide high levels of environmental protection and labour standards

Both have mechanisms for inter-state enforcement and provide for the investigation of citizen submissions on issues of concern, though the procedures are slightly different.

The presenters and the interventions from the group made clear that the commissions, particularly the NAAEC, had had some success in raising awareness and understanding of labour and environmental issues, including the effects of NAFTA, but their impact has been limited. The commissions have not contributed in a significant way to the advancement of labour and environmental standards in North America. The formal state-to-state dispute settlement procedures had never been used and both commissions have been constrained by political interference. The NAFTA states have been unwilling to permit the commissions to function independently, limiting their funding and their institutional separation from the governments.

It was suggested that if Barack Obama were elected, there might be an opportunity to improve on the provisions in the NAALC and NAAEC, given his statements regarding the renegotiation of NAFTA. Though it was recognized that there was resistance in all three NAFTA countries to strong supra-national institutions, it was suggested that, in light of candidate Obama’s statements, there would be pressure on an Obama government to do something in relation to NAFTA. The increasing importance of climate change might make action on the environmental front politically attractive. With respect to labour protection, an Obama government might be attracted to developing stronger commitments to high labour standards in Mexico, especially if an initiative in this area could be promoted as reducing the attractiveness of illegal immigration into the US.

In light of this opportunity, it was suggested that NACLE members might play a constructive role by submitting a paper or statement providing suggestions for change. As well, encouraged by a staff person from the NAAEC Secretariat, who participated in the session, it was suggested that there were opportunities for the NACLE schools to work with the commission. For example, NAAEC representatives could visit to the schools and students could become involved in the work of the commission. These kinds of activities would be valuable to students and would assist in raising the profile of the NAAEC.

Pedagogical session, International trade Saturday, Oct. 4

The International Trade faculty discussed the possibility of organizing a course on comparative international trade law, following the example of the Family Law faculty, who have for several years taught an internet-based course in comparative North American family law. Armand de Mestral and Gabriel Cavazos spoke of their experiences in organizing distance courses with students in foreign countries. After considerable discussion, Steve Zamora suggested the creation of a comparative NAFTA course, with students from Canada, Mexico and the United States, offering to organize such a course with his students at the University of Houston. Tony VanDuzer agreed to help teach such a course, with his students at the University of Ottawa, and Jimena Moreno of CIDE agreed to find a professor at her law school to participate. The idea is to present a course taught simultaneously in Canada, Mexico and the United States, with students registering separately in their own law schools. The course will use internet communications and videoconferencing to provide significant contacts for students from all three countries. Professors Zamora and VanDuzer are committed to teaching such a course in the Spring of 2010.

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Indigenous Law Workshop
Professor Brad Morse, Convenor (Ottawa, Common Law)

Lunch Speaker
Claudette Dumont-Smith, a Commissioner of the newly established Canadian Indian Residential Schools Truth and Reconciliation Commission [TRC], delivered a powerful and informative presentation on the horrendous history of Indian Residential Schools in Canada from the 1880s to 1996; the efforts in recent years to seek redress through litigation and political action; and the successful conclusion of the largest class action in Canadian history in 2007 that was endorsed by the superior courts in 9 jurisdictions affecting some 90,000 survivors with a likely final settlement cost in excess of $4 billion. She also described in detail the mandate of the TRC that was established within the Settlement Agreement, its activities to date and the hopes for the Commission's future.

Academic Session - Friday, October 3rd

The session attracted 9 participants from 6 universities for a lively discussion on a broad array of issues. The session began with a presentation by Constance Macintosh (Dalhousie), on “Environmental Degradation, Climate Change & Indigenous Survival.” This lead to lengthy discussion on this topic within all countries. As the conversation turned to international environmental law and Indigenous peoples, it segued nicely into the topic prepared by Evan Fox-Decent (McGill) entitled, “The Inter-American System and Recent Court Cases on Indigenous Issues.” Evan reviewed all of the recent Inter-American Commission on Human Rights and Inter-American Court on Human Rights jurisprudence. This sparked broader consideration of how the OAS experience could be more actively known by our students and reflected in our courses. The final presentation, by Jorge Alberto González Galván (UNAM-IIJ), was “La méthodologie de la recherche appliquée en droit, et en droit autochtone en particulier (Methodology and applied research, with a focus on indigenous law).’

All 3 presentations helped launch quite extensive and diverse discussions during the 2 sessions leaving the participants feeling that we simply had too little time to pursue our shared interests to the extent that we would have liked.

All 3 presentations helped launch quite extensive and diverse discussions during the 2 Friday sessions leaving the participants feeling that we simply had too little time to pursue our shared interests to the extent that we would have liked.

Pedagogical session, October 4, 2008

Summary prepared by Professor Larry Chartrand (Ottawa, Common Law)

The workshop included 4 very interesting presentations on projects involving the nature of Indigenous laws and legal systems, recognition of those systems and the teaching of Indigenous law in legal education institutions, such as the University of Ottawa.

Summary of Presentations

The first presentation was from Jorge Alberto Gonzalez Galvan (UNAM) entitled “Les techniques de recherches empiriques en droit et en droit autochtone, en particular.” Professor Galvan began his presentation with a hand drawing exercise designed to illustrate the differences and similarities in perception of reality. This was done to give emphasis to the point that Indigenous laws traditionally did not involve text in teaching law, but was an observable phenomena as opposed to readable.

The second presentation was by Peter Oliver (Ottawa, French Common Law) who spoke on the topic “Teaching Indigenous Rights from a Cross-Cultural Perspective to a Multicultural Student Body”. Professor Oliver raised two important issues. One was the issue of trying to understand the different conceptual frameworks for teaching Aboriginal law which can have several meanings depending on one’s definition of “Aboriginal law”. The other point was about whether it is legitimate or possible to teach traditional Indigenous law when one is not from that community. What issues are involved in that dynamic? This raised the issue of language. To what extent is the accuracy of teaching Indigenous law dependent on the Indigenous language itself? Can we translate Indigenous law into English or French and if so does it lose some or all of its essential characteristics?

The third and fourth presentations were from Professors’ Sebastien Grammond and Jean-Paul Lacasse (Ottawa, Droit Civil) who each spoke about their summer school courses where students took courses in Cree Territory and in Innu Territory respectively. Both professors relied on Elders as teachers to incorporate traditional Cree law or Innu law into the course curriculum. These courses were pilot projects which demonstrated in practical terms how elements of Indigenous traditional law can be incorporated into a university course, albeit taught in the territory of the traditional community as opposed to at the university itself.

Unfortunately after the four presentations were completed, we had little time to discuss the issues raised by the presentations. However, we did have an interesting discussion of the theoretical issues, barriers and opportunities in teaching Indigenous law in mainstream legal education institutions. It was wide ranging and probing. For many of the participants this was a new and challenging idea. As a result, the group agreed that the issues required further exploration and clarification before any serious concrete proposals could arise from the workshop. One idea, although agreed as somewhat pre-mature at this point, was to add an Indigenous nation (such as the Algonquin nation) family law component to the family law comparative project that already exists with NACLE schools. Thus, for example, one could see how Texas, Ontario and Algonquin laws would be applied to an issue of same sex marriage.

The idea of a comparative law project involving Indigenous law was seen as too premature given the relative lack of experience that professors and law schools have in incorporating Indigenous law into legal curriculum. However, we thought that encouraging students of our various institutions to undertake research and work in this area would lead to more precisely defined issues for further discussion in subsequent meetings. How we can do this the group was unable to address due to lack of time.


Attendees at Indigenous Rights workshop

Larry Chartrand (Convener) This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Gerhard Niedrist This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Ana Fierro This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Evan Fox-Decent This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Sebastien Grammond This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Jean-Paul Lacasse This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Constance MacIntosh This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Peter Oliver This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Fannasco Ibana PalaFox (UNAM) This e-mail address is being protected from spambots. You need JavaScript enabled to view it
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Jorge Alberto Gonazalez This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Flora Le This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Brad Morse This e-mail address is being protected from spambots. You need JavaScript enabled to view it


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Family Law Workshop
Nicole La Violette, Convenor (Ottawa, Common Law)

Academic session, Friday, Oct. 3

The Family Law faculty have been among the NACLE faculty most committed to North American comparative law exchange. Friday’s academic session focused on a number of challenging issues, including interesting exchanges on similarities and differences in North American jurisdictions in relation to new reproductive technologies, and to issues of child custody.

Pedagogical session, Saturday, Oct. 4

Having organized a Comparative North American Family Law course with faculty from Canada (Ottawa), Mexico (U of Sonora, a NACLE non-member affiliate) and the United States (Houston and Arizona), the family law faculty focused on ways in which to continue its leadership in cross-border exchanges.

Guest lectures via video conferencing

It was proposed that a simple way to start incorporating transnational law issues on our classes would be to invite a colleague to give a lecture via videoconferencing in one of our classes. We agreed it would be a good idea to create a list of the topics on which each of us would be willing to give such a lecture. For instance, if a professor teaching family law intends to talk about same-sex marriage in their class, they could invite a Canadian colleague to give a video lecture on the recognition of marriage for gay and lesbian couples in Canada.

Action: Nicole La Violette agreed to coordinate the creation of a list of family law experts, and has asked her family law colleagues for topics that they would be able to lecture on. This list will be a resource to all NACLE faculty wishing comparative law input in their courses.

Supervision of comparative research projects

Another idea was to encourage students to write comparative family law papers in the course of an independent research project or directed research course. This could take several forms (one student doing a comparative paper, students from two or more jurisdictions doing a joint comparative paper), but the idea would be for the students to have access to some faculty guidance in each jurisdiction.

Action: At this point, we did not plan a formal arrangement. Family law professors decided that if one has a student who is interested in doing a comparative paper, then the student would contact his or her NACLE family representative to be put in contact with a NACLE family law colleague to work out an arrangement. [For this purpose, the NACLE website could include a list of faculty experts in each area of expertise – SZ.]

NACLE Family Law Research Seminar

NACLE family law professors would like to explore the possibility of setting up a transnational research seminar in the Fall of 2009. The idea would be to bring students together from several North American jurisdictions to work as teams on specific family law issue. The students would write a paper together where they take a comparative and critical look at a North American family law issue. The course would involve videoconference seminars where the students would present their research and findings to the rest of the group. Faculty members would provide supervision and guidance to the students.

Faculty members would explore with their own institutions whether the seminar could be offered as an independent research project or an actual course. The project is flexible enough that it could meet the requirements of either format.

Action: NACLE family law professors need to identify those who wish to participate in the seminar. Ideally, professors from several jurisdictions would be participating so that the transnational and comparative elements would be sufficiently foregrounded in the seminar. Nicole La Violette has asked family law professors to contact her as soon as possible to indicate their interest in participating in this research seminar, so that planning for the seminar can begin (identification of research topics, setting dates for lectures or videoconferences, etc.)

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Intellectual Property Workshop

1. Intellectual Property and Information Law – Open Access and Privacy
Yousuf Karsh Room

Elizabeth Judge (Ottawa, Common Law), Convenor

• Creative Commons and Open Access -- Tina Piper (McGill) and Elizabeth Judge (Ottawa), Discussants

• Geoprivacy -- Teresa Scassa (Ottawa), Discussant

• Open Source Software -- Greg Vetter (Houston), Discussant

Tina Piper (McGill) and Elizabeth Judge (Ottawa) began the morning academic sessions with a discussion of cross-cultural copyright practices, Creative Commons, and open access. The session was a lively and very interesting exchange on the culture of copyright in Mexico, the United States and Canada, and especially norms for educational uses of copyrighted materials among students, instructors, librarians and other university staff. We shared our copyright experiences with curriculum design, the selection of teaching materials, and publication. In the afternoon, Teresa Scassa (Ottawa) led a fascinating discussion of geoprivacy (privacy of geographic information). The group debated when geospatial data becomes personal information tackling the question of when a postal/zip code might become personal information, and the concept of a reasonable expectation of privacy for location data. We also considered jurisdictional issues in enforcement of geoprivacy regulations among the three countries. For the last academic session, Greg Vetter (Houston) led a very informative talk about free and open source software (FOSS), which covered the taxonomy of the FOSS movement, types of licenses, the degree of government involvement, and patent and trademark implications. We especially focused on national differences in familiarity with and implementation of open source and the role of the government.

10:00 a.m. Concurrent Workshops –Transnational Curriculum Development

1. Intellectual Property Law
Room 315

Transnational Technology Law Courses: Successful Course Design, Collaborative Pedagogical Technologies, and Copyright Issues in Transnational Curriculum Development, Elizabeth Judge (uOttawa, Common Law), Convenor

Jeremy DeBeer (Ottawa), Discussant -- discussing Digital Music Law, a multijurisdictional and multidisciplinary course taught at Universidad de Puerto Rico and Ottawa; videoconferencing, podcasting, and other collaborative technologies for teaching

Tina Piper (McGill) and Elizabeth Judge (Ottawa), Discussants -- Creative Commons and open access to facilitate transnational course design; copyright issues with transnational curriculum design (e-reserve policies, course management software, site licenses)

Though the Saturday session emphasized curriculum development, aspects of the intersection between intellectual property and transnational curriculum design had been in the forefront of all of our discussions. On Saturday, Jeremy DeBeer (Ottawa) led a great discussion of the benefits (and practical pitfalls!) of integrating videoconferencing, podcasting and other collaborative technologies for teaching. The group built on those ideas to discuss possibilities for student and teaching exchanges between the participants’ universities. We discussed a problem-based learning course that would focus on subject themes that would be pertinent to the three countries; the group was most enthusiastic about parody, biotech, broadcasting, and traditional knowledge. We also discussed the current frameworks for student exchanges at each of our institutions and ways to promote those within the IP/Information Technology groups. We talked about the importance of open access for transnational teaching. Finally, we returned to the discussions we had had in the academic sessions and the synergies between the substantive and pedagogical sessions. The group thought one exciting possibility for student and teaching exchanges could be to add a 1-unit session on the cultures and practices of intellectual property to a number of the existing courses that the participants already taught (one in each university). That unit could be coordinated around the same teaching schedule and similar readings, with students in each of the classes sharing ideas using collaborative technologies.