Law Commons^™

The Strange Pairing: Building Alliances Between Queer Activists And Conservative Groups To Recognize New Families, Nausica Palazzo

Michigan Journal of Gender & Law

This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.”

The central claim of this Article is thus that …

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

Canadian Bank Act And Its Implementation Under The Nafta, Michelle Brown Berziel

Law and Business Review of the Americas

No abstract provided.

A Call To Higher Action: Cannabis Prohibition In The United States And Canada Makes For An Uncertain Future, Carlos Alvarez

University of Miami International and Comparative Law Review

No abstract provided.

Achieving Equality For Women In Labour And Employment – A Comparative Study Of Colombia And Canada, Lina M. Hernandez

Electronic Thesis and Dissertation Repository

The primary focus of this thesis is to analyze and compare the legal systems enacted to protect working women in Colombia and Canada. This thesis focuses on: the protection of maternity and parental rights; the principle of equal pay for work of equal value; and discrimination in employment (including harassment). This research argues that the legislative and judicial changes made in each country to protect working women have not led to substantive equality for working women. This thesis also argues that there is a gap between international and national standards, thus a law reform is appropriate and needed in both …

A Critical Canadian Perspective On The Benefit Corporation, Carol Liao

Seattle University Law Review

Part I of this Article provides a brief background and description of the American benefit corporation. Part II then delineates the Canadian model of corporate law and governance as it currently stands in the statutes, common law, and in practice. Part III applies the information gathered from the previous two sections to explain why the legal features in the American benefit corporation model are largely redundant to existing Canadian corporate laws. It also addresses how the implementation of the benefit corporation in Canada would conflate incorrect assumptions on Canada’s model of governance and potentially impede the progressive development of Canada’s …

Next Up: A Proposal For Values-Based Law Reform On Unilateral Withholding And Withdrawal Of Potentially Life-Sustaining Treatment, Jocelyn Downie, Lindy Willmott, Ben White

Articles, Book Chapters, & Popular Press

As the legalization of assisted dying shifts from a project for law reform to one of implementation, the gaze for Canadian end of life law and policy academics and practitioners should be turned quickly to another pressing issue – the unilateral withholding and withdrawal of potentially life-sustaining treatment. What should happen when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should? While the future of end of life law and policy no doubt includes many other issues, this is an urgent and immediate horizon issue for Canada as well …

Book Review, Ahmed White

Publications

No abstract provided.

Should We Presume State Protection?, James C. Hathaway, Audrey Macklin

Articles

Professors Hathaway and Macklin debate the legality of the “presumption of state protection” that the Supreme Court of Canada established as a matter of Canadian refugee law in the Ward decision. Professor Hathaway argues that this presumption should be rejected because it lacks a sound empirical basis and because it conflicts with the relatively low evidentiary threshold set by the Refugee Convention’s “well-founded fear” standard. Professor Macklin contends that the Ward presumption does not in and of itself impose an unduly onerous burden on claimants, and that much of the damage wrought by the presumption comes instead from misinterpretation and …

Keeping Secrets: The Case For A North American Trade Secret Agreement, Jonathan K. Heath

The Journal of Business, Entrepreneurship & the Law

In this paper, I attempt to give an overview of the statutory trade secret protections available in the United States, Canada, and Mexico, and suggest a solution to the problem of inadequate and confusing trade secret legislation: an international agreement between the NAFTA signatories criminalizing the theft of trade secrets.

Immigration And Disability In The United States And Canada, Mark Weber

College of Law Faculty

Disability arises from the dynamic between people’s physical and mental conditions andthe physical and attitudinal barriers in the environment. Applying this idea aboutdisability to United States and Canadian immigration law draws attention to barriers toentry and eventual citizenship for individuals who have disabilities. Historically, NorthAmerican law excluded many classes of immigrants, including those with intellectualdisabilities, mental illness, physical defects, and conditions likely to cause dependency.Though exclusions for individuals likely to draw excessive public resources and thosewith communicable diseases still exist in Canada and the United States, in recent yearsthe United States permitted legalization for severely disabled undocumented immigrantsalready in the …

Agenda: Coping With Water Scarcity In River Basins Worldwide: Lessons Learned From Shared Experiences, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Coping with Water Scarcity in River Basins Worldwide: Lessons Learned from Shared Experiences (Martz Summer Conference, June 9-10)

Water scarcity is increasingly dominating headlines throughout the world. In the southwestern USA, the looming water shortages on the Colorado River system and the unprecedented drought in California are garnering the greatest attention. Similar stories of scarcity and crisis can be found across the globe, suggesting an opportunity for sharing lessons and innovations. For example, the Colorado River and Australia's Murray-Darling Basin likely can share many lessons, as both systems were over-allocated, feature multiple jurisdictions, face similar climatic risks and drought stresses, and struggle to balance human demands with environmental needs. In this conference we cast our net broadly, exploring …

Agenda: Indigenous Water Justice Symposium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Indigenous Water Justice Symposium (June 6)

Indigenous peoples throughout the world face diverse and often formidable challenges of what might be termed “water justice.” On one hand, these challenges involve issues of distributional justice that concern Indigenous communities’ relative abilities to access and use water for self-determined purposes. On the other hand, issues of procedural justice are frequently associated with water allocation and management, encompassing fundamental matters like representation within governance entities and participation in decision-making processes. Yet another realm of water justice in which disputes are commonplace relates to the persistence of, and respect afforded to, Indigenous communities’ cultural traditions and values surrounding water—more specifically, …

Slides: Synthesis Session: Indigenous Water Symposium, Jason Anthony Robison

Indigenous Water Justice Symposium (June 6)

Presenter: Jason Robison, University of Wyoming

15 slides

Material Contribution To Risk In The Canadian Law Of Toxic Torts, Lynda M. Collins

Chicago-Kent Law Review

Causation is acknowledged as the single biggest hurdle to recovery for plaintiffs in toxic tort actions in Canada (and elsewhere). Scientific uncertainty involving questions of both generic and specific causation has frequently precluded recovery for plaintiffs even where defendants have negligently exposed them to toxic risk. Three types of uncertainty have been identified: plaintiff indeterminacy (where we know that the defendant has harmed some proportion of a particular population but no individual can prove causation); defendant indeterminacy (where we know that a group of defendants has harmed a particular plaintiff or plaintiffs but each can escape liability by pointing the …

Insights From Canada For American Constitutional Federalism, Stephen Ross

Stephen F Ross

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police …

Charter Insights For American Equality Jurisprudence, Stephen Ross

Stephen F Ross

Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit …

Constitutional Avoidance As Interpretation And As Remedy, Eric S. Fish

Michigan Law Review

In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized …

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Publications

No abstract provided.

Regulation Of Chemical Risks: Lessons For Reform Of The Toxic Substances Control Act From Canada And The European Union, Adam D.K. Abelkop, John D. Graham

Pace Environmental Law Review

The purpose of this Article is to compare the regulatory systems in Canada and the EU, and use comparative insights to draw some lessons that may be of interest to U.S. policy makers engaged in TSCA reform. CEPA and REACH are seen by stakeholders as state of the art in chemicals assessment and management, and thus the U.S. may draw useful insights from them. Indeed, the European Union and Canada have each been urging other countries to join in a globalization of the REACH or Canadian programs, respectively. Regardless of what TSCA reformers choose to learn from the Canadian and …

Reforming The Regulation Of Political Advocacy By Charities: From Charity Under Siege To Charity Under Rescue?, Adam Parachin

Chicago-Kent Law Review

A newly elected liberal federal government in Canada has pledged to reform the legal distinction between charity and politics. This paper provides context to this reform initiative, linking it to a controversial political activities audit program funded by the former conservative federal government. It identifies three distorting ideas about charity—that charity can be understood as a tax expenditure, economic or neutral concept—that should be eschewed in the reform process. It also identifies three characteristics of charity—the capacity of charities for thought leadership, the pervasiveness of messaging in charitable programming and the distinctiveness of charity and government—that should guide reformers.

A Tale Of Two Countries' Engagement With The Fair Cross Section Right: Aboriginal Underrepresentation On Ontario Juries And The Boston Marathon Bomber's Jury Wheel Challenge, Marie Comiskey

Chicago-Kent Law Review

In both Canada and the United States, the constitutional right to a jury trial includes the right to select a jury from a representative cross-section of the jury-eligible population. This article compares and contrasts how this right has been interpreted in the two countries through the lens of recent controversies. In Part I, the article examines how the Supreme Court of Canada and the United States Supreme Court have defined the representative cross-section component of the right to a jury trial in the two respective countries. In Part II, the article focuses on the crisis of Aboriginal underrepresentation on coroner …

Juror Bias, Voir Dire, And The Judge-Jury Relationship, Nancy S. Marder

Chicago-Kent Law Review

In the United States, voir dire is viewed as essential to selecting an impartial jury. Judges, lawyers, and the public fervently believe that a fair trial depends on distinguishing between prospective jurors who are impartial and those who are not. However, in England, Australia, and Canada, there are impartial jury trials without voir dire. This article challenges the assumption that prospective jurors enter the courtroom as either impartial or partial and that voir dire will reveal the impartial ones. Though voir dire fails as an “impartiality detector,” this article explores how voir dire contributes to the trial process in two …

The Development Of Canadian Law On Trans-Border Data Flow, Douglas Yarn

Georgia Journal of International & Comparative Law

No abstract provided.

Linguistic Minority Educational Rights In Canada: An International And Comparative Perspective, Edward H. Lindsey Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

The Foreign Investment Review Agency (Fira) And The General Agreement On Tariffs And Trade (Gatt): Incompatible?, Emily F. Carasco

Georgia Journal of International & Comparative Law

No abstract provided.

Voluntary Plant Closings And Workforce Reductions In Canada, Innis Christie

Georgia Journal of International & Comparative Law

No abstract provided.

Introduction To Roundtable On Comparative Labor Relations Law: The Law And Measures Affecting Workers In The Context Of Voluntary Plant Closings And Workforce Reductions, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.

The Scottish Independence Referendum And The Principles Of Democratic Secession, Benjamin Levites

Brooklyn Journal of International Law

On September 18, 2014, Scottish voters decided whether to sever the 307 years of unity between Scotland and the United Kingdom in an independence referendum. While the voters ultimately rejected independence, the process by which the Scots accomplished this historic exercise will inform further democratic secession movements.

This Note examines the significant implications of Scotland’s independence referendum by assessing the history of independence referendums and the present scope of relevant international law. The formative history of the independence referendum and modern precedential examples established the requirements for democratic secession. In turn, the Scottish independence referendum, in the context of evolving …