The Rule Against Abstract Claims: A Critical Perspective on US Jurisprudence
C.I.P.R., Vol. 27, No. 1, pp. 3-30, 2010
30 Pages Posted: 11 Mar 2011 Last revised: 29 Jan 2012
Date Written: February 13, 2011
The US approach to the rule against abstract claims is important both because Canadian courts are willing to consider foreign law as persuasive authority, and because the US Supreme Court has provided a clearly articulated rationale for the rule. In this article I argue that the US doctrine is inconsistent with Canadian law, and that none of the rationales offered by the US Supreme Court to support its approach are sound. The Canadian position, in contrast, is supported by a compelling policy rationale. Consequently, US Supreme Court jurisprudence should not be followed by Canadian courts.
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