Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (12)
- Environmental Law (5)
- Civil Rights and Discrimination (3)
- Courts (3)
- Indigenous, Indian, and Aboriginal Law (3)
-
- Intellectual Property Law (3)
- Administrative Law (2)
- Health Law and Policy (2)
- Immigration Law (2)
- Labor and Employment Law (2)
- Law and Politics (2)
- Religion Law (2)
- Banking and Finance Law (1)
- Comparative and Foreign Law (1)
- Criminal Law (1)
- Criminal Procedure (1)
- Dispute Resolution and Arbitration (1)
- Housing Law (1)
- Human Rights Law (1)
- Judges (1)
- Legal Education (1)
- National Security Law (1)
- Property Law and Real Estate (1)
- Rule of Law (1)
- Tax Law (1)
- Keyword
-
- Canada (19)
- Constitutional law (5)
- Canada. Supreme Court (4)
- Ontario (4)
- United States (4)
-
- Environmental law (3)
- Indigenous peoples--Legal status, laws, etc. (3)
- Book Review (2)
- Book review (2)
- Canada. Canadian Charter of Rights and Freedoms (2)
- Germany (2)
- Refugees--Legal status, laws, etc. (2)
- Separation of powers (2)
- Administrative agencies (1)
- Administrative law--Study and teaching (Higher) (1)
- Agreement on Trade-Related Aspects of Intellectual Property Rights (1994 April 15) (1)
- Antisocial personality disorders (1)
- Arab Spring, 2010- (1)
- Arbitration and award (1)
- Bias (Law) (1)
- Border security (1)
- British Columbia (1)
- Canada--Politics and government (1)
- Canada. Constitution Act, 1982 (1)
- Canada. Copyright Act (1)
- Canada. National Energy Board (1)
- Capacity and disability (1)
- Commercial treaties (1)
- Comparative law (1)
- Condominiums--Law and legislation (1)
Articles 1 - 30 of 46
Full-Text Articles in Law
Book Review: Being And Owning: The Body, Bodily Material, And The Law By Jesse Wall, Alicja Puchta
Book Review: Being And Owning: The Body, Bodily Material, And The Law By Jesse Wall, Alicja Puchta
Osgoode Hall Law Journal
This is a book review of Being and Owning: The Body, Bodily Material, and the Law by Jesse Wall .
“The Lands…Belonged To Them, Once By The Indian Title, Twice For Having Defended Them…And Thrice For Having Built And Lived On Them”: The Law And Politics Of Métis Title, Karen Drake, Adam Gaudry
“The Lands…Belonged To Them, Once By The Indian Title, Twice For Having Defended Them…And Thrice For Having Built And Lived On Them”: The Law And Politics Of Métis Title, Karen Drake, Adam Gaudry
Osgoode Hall Law Journal
To predict what is on the horizon of the Métis legal landscape, we can look to jurisprudence on First Nations’ rights, given that Métis rights cases are typically ten to fifteen years behind those of First Nations. With the release of the Supreme Court of Canada’s decision in Tsilhqot’in, the next big issue in Métis law may be Métis title. Scholars have doubted the ability of Métis to establish Aboriginal title in Canada for two reasons: first, Métis were too mobile, and second, Métis were too immobile. This paper critically analyzes these positions and argues that the case for Métis …
Book Review: Legalist Empire: International Law And American Foreign Relations In The Early Twentieth Century By Benjamin Allen Coates, William Heisey
Book Review: Legalist Empire: International Law And American Foreign Relations In The Early Twentieth Century By Benjamin Allen Coates, William Heisey
Osgoode Hall Law Journal
This is a book review of Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century by Benjamin Allen Coates.
Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris
Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris
Osgoode Hall Law Journal
Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (from 2008 to 2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be expelled from condominium for …
Innovation In Healthcare, Innovation In Law: Does The Law Support Interprofessional Collaboration In Canadian Health Systems?, Nola M. Ries
Innovation In Healthcare, Innovation In Law: Does The Law Support Interprofessional Collaboration In Canadian Health Systems?, Nola M. Ries
Osgoode Hall Law Journal
Interprofessional collaboration in health care describes a model of practice in which multiple health professionals work together in a team-based approach to patient care. A growing body of literature demonstrates that interprofessional collaboration advances health care quality and safety, improves patient outcomes and experiences of care, and promotes job satisfaction among health professionals. Governments and health organizations across Canada are working to advance interprofessional health care delivery. This article examines the importance of law in supporting a shift to interprofessional collaboration in Canadian health care and discusses two key aspects of the legal context in which health practitioners work. First, …
Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson
Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson
Osgoode Hall Law Journal
Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …
Re-Thinking Executive Control Of And Accountability For The Agency, Benedict Sheehy, Don Feaver
Re-Thinking Executive Control Of And Accountability For The Agency, Benedict Sheehy, Don Feaver
Osgoode Hall Law Journal
The organization of many Western governments has undergone dramatic structural and procedural changes over the past century. A large portion of public administration previously done by departments within a more centralized structure of government has been shifted to administrative units, often referred to as “agencies” that fall outside the constitutional core—an “agencified” model. This article investigates the historical contexts and legal developments associated with these changes and illuminates how “agencification” has altered the balance between executive control powers and executive accountability obligations. It examines how the organizational changes have been addressed in both the responsible government models of the United …
Book Review: Law’S Religion: Religious Difference And The Claims Of Constitutionalism By Benjamin L. Berger, Howard Kislowicz
Book Review: Law’S Religion: Religious Difference And The Claims Of Constitutionalism By Benjamin L. Berger, Howard Kislowicz
Osgoode Hall Law Journal
This is a book review of Law’s Religion: Religious Difference and the Claims of Constitutionalism by Benjamin L Berger.
Book Review: Unlocking Memories: Cognitive Interviewing For Lawyers By Geoff Coughlin, Jason M. Chin, Vanja Ginic
Book Review: Unlocking Memories: Cognitive Interviewing For Lawyers By Geoff Coughlin, Jason M. Chin, Vanja Ginic
Osgoode Hall Law Journal
This is a book review of Unlocking Memories: Cognitive Interviewing for Lawyers by Geoff Coughlin.
Book Review: Civil Justice, Privatization, And Democracy By Trevor C. W. Farrow, Barbara A. Billingsley
Book Review: Civil Justice, Privatization, And Democracy By Trevor C. W. Farrow, Barbara A. Billingsley
Osgoode Hall Law Journal
This is a book review of Civil Justice, Privatization, and Democracy by Trevor C. W. Farrow.
Beyond Ip–The Cost Of Free: Informational Capitalism In A Post Ip Era, Guy Pessach
Beyond Ip–The Cost Of Free: Informational Capitalism In A Post Ip Era, Guy Pessach
Osgoode Hall Law Journal
Critical copyright scholarship rightly emphasizes the social costs of ordering cultural production through proprietary intellectual property law regimes. This scholarship also celebrates the virtues of free content and free access, particularly in digital domains. The purpose of this article is to question this critique, which tends to pair proprietary intellectual property protection with informational capitalism and the commodification of culture. This article argues that the drawbacks of cultural commodification and informational capitalism are also apparent in market-oriented media environments that are based on free distribution of content. The article makes a novel contribution by untying the seemingly Gordian knot binding …
Leaving Labour Law’S Pragmatic And Purposive Fortress Behind: Canadian Union Successor Rights Law As A Case Study, Pascal Mcdougall
Leaving Labour Law’S Pragmatic And Purposive Fortress Behind: Canadian Union Successor Rights Law As A Case Study, Pascal Mcdougall
Osgoode Hall Law Journal
In this article, I analyze a series of Canadian cases on union successor rights defining the circumstances in which labour rights should be transferred to a successor entity in the context of business sales, restructuring and subcontracting. My analysis casts doubt on a globally influential theory of legal interpretation, which I call the “old legality.” According to this theory, labour law is made not through conventional legal reasoning but through non-legal, pragmatic, and purposive applications of loose industrial relations standards. I claim that the old legality paradigm is analytically inaccurate and has the perverse effect of normalizing the status quo …
Book Review: The Great Dissent: How Oliver Wendell Holmes Changed His Mind—And Changed The History Of Free Speech In America, By Thomas Healy, Jamie Cameron
Osgoode Hall Law Journal
This is a book review of Healy, Thomas. The Great Dissent: How Oliver Wendell Holmes Changed his Mind—and Changed the History of Free Speech in America. Metropolitan Books, Henry Holt and Co. 2013.
Crime, Desire And Law’S Unconscious: Law, Literature And Culture, By David Gurnham, Greig Henderson
Crime, Desire And Law’S Unconscious: Law, Literature And Culture, By David Gurnham, Greig Henderson
Osgoode Hall Law Journal
Book review of Crime, Desire and Law’s Unconscious: Law, Literature and Culture, by David Gurnham.
The Canadian Law Of Toxic Torts, By Lynda Collins & Heather Mcleod-Kilmurray, Meinhard Doelle
The Canadian Law Of Toxic Torts, By Lynda Collins & Heather Mcleod-Kilmurray, Meinhard Doelle
Osgoode Hall Law Journal
Book review of The Canadian Law of Toxic Torts.
Icsid’S Reinforcement?: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant
Icsid’S Reinforcement?: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant
Osgoode Hall Law Journal
The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (“ICSID”) is a matter of spirited debate. Opponents argue that ICSID’s ideological and procedural bias impedes fairness, its complexity and cost restrict access to justice, and its lack of an appeal process exacerbates uncertainty and unpredictability. Dissatisfaction with and ideological critique of ICSID, especially on the part of Latin American states, culminated in 2009 when Ecuador proposed the creation of a regional arbitration centre as part of the Union of South American Nations (“UNASUR”). This article surveys the myriad criticisms launched against ICSID and assesses the likelihood …
Religious Institutionalism In A Canadian Context, Victor M. Muñiz-Fraticelli, Lawrence David
Religious Institutionalism In A Canadian Context, Victor M. Muñiz-Fraticelli, Lawrence David
Osgoode Hall Law Journal
Does freedom of religion protect religious institutions or does it only protect the individual religious conscience? Canadian jurisprudence after the enactment of the Canadian Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops (and through which it is ultimately protected). An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better …
The Unbearable Licence Of Being The Executive: A Response To Stacey’S Permanent Environmental Emergency, Bruce Pardy
The Unbearable Licence Of Being The Executive: A Response To Stacey’S Permanent Environmental Emergency, Bruce Pardy
Osgoode Hall Law Journal
This article responds to Jocelyn Stacey’s “The Environmental Emergency and the Legality of Discretion in Environmental Law.” In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies, but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it …
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
Osgoode Hall Law Journal
This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: They reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Osgoode Hall Law Journal
Three high-profile government losses in the Supreme Court of Canada in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between Stephen Harper’s Conservative government and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning Aboriginal rights and the elimination of the long-gun …
As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson
As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson
Osgoode Hall Law Journal
This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision makers to deport individuals who pose de jure security risks to face …
The Bunk House Rules: A Materialist Approach To Legal Consciousness In The Context Of Migrant Workers’ Housing In Ontario, Adrian Smith
The Bunk House Rules: A Materialist Approach To Legal Consciousness In The Context Of Migrant Workers’ Housing In Ontario, Adrian Smith
Osgoode Hall Law Journal
In this article, I tackle the controversy surrounding an application to convert an abandoned school into housing for migrant agricultural workers in Ontario. I examine how the written reactions of community residents to a proposed municipal zoning by-law amendment convey and invoke understandings of the legal regulation of temporary labour migration. Viewed through a legal consciousness analytical lens that has been reconstituted to attend to the material practices and contexts underpinning residents’ responses (a materialist approach to legal consciousness), the submissions intervene in the organization and regulation of agricultural labour. While rehearsing well-worn, racist colonial tropes, these responses (re)produce material …
Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin
Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin
Osgoode Hall Law Journal
While much attention has been paid to the frailties of eyewitness evidence, little attention has been given to the reliability of voice identification evidence, even though such “earwitness” evidence has been tendered in several wrongful conviction cases. The author reviews the empirical literature on the reliability of earwitness evidence and compares it to the principal factors used by Canadian criminal courts to assess earwitness testimony. The author concludes that earwitness evidence often can be quite unreliable and that the courts have not always properly assessed its reliability, offering some suggestions for reform.
Taxing State-Owned Enterprises: Understanding A Basic Institution Of State Capitalism, Wei Cui
Taxing State-Owned Enterprises: Understanding A Basic Institution Of State Capitalism, Wei Cui
Osgoode Hall Law Journal
State-owned enterprises (“SOEs”) have become active investors in global markets in the last decade, challenging policymakers in Canada and other Organisation for Economic Co-operation and Development countries to confront the logic of “state capitalism.” This article develops a novel theory of the income taxation of SOEs. Many countries subject their SOEs to the income tax, but economists tend to dismiss SOE taxation as superfluous. A contrary, popular belief holds that SOE taxation is necessary to ensure fair competition. This article shows that both views are mistaken and explains SOE taxation in terms of the agency problem for dividend policy. Because …
Introduction, Ingrid B. Wuerth
Introduction, Ingrid B. Wuerth
Osgoode Hall Law Journal
Comparative constitutional law is today an exciting and increasingly diverse field of academic inquiry in US and Canadian law schools, as the excellent papers for this Symposium illustrate. Looking back, the 1990s were also a dynamic period for comparative constitutional law, with a predictable emphasis on constitution drafting in Eastern Europe and South Africa. As law and economics and empirical work became popular tools of legal analysis, comparative constitutional law initially drifted instead toward a focus on constitutional courts and on positive and negative liberties. Moreover, once the focus shifted away from active constitution drafting projects, questions re-surfaced about why …
Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami
Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami
Osgoode Hall Law Journal
In the field of comparative constitutional law, the dominant approach to concept formation and research design is formal. That is, comparative projects generally identify what counts as the supreme law that can be enforced against all other sources of law based on the “constitutional” label of the positive law (written constitutions and the jurisprudence of constitutional courts) and the law books. This formal method, however, has significant limitations when compared with the functional method used in the field of comparative law more generally speaking. After a brief exposition of the functional method, this article explores the advantages of the functional …
A Theory Of Quasi-Constitutional Legislation, Vanessa Macdonnell
A Theory Of Quasi-Constitutional Legislation, Vanessa Macdonnell
Osgoode Hall Law Journal
Since the 1970s, the Supreme Court of Canada has treated a small number of statutes as quasi-constitutional. Despite the longstanding presence of quasi-constitutional statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-consitutional. In this article, I argue that quasi-constitutional legislation or more accurately, some provisions in quasi-constitutional legislation should be understood as implementing constitutional imperatives. I use the term constitutional imperatives to refer to constitutional obligations of varying degrees of specificity that emanate from the rights-conferring aspects of the Constitution, as well as from those aspects of the …
Equality Before The Law? Evaluating Criminal Case Outcomes In Canada, Michael Trebilcock, Albert Yoon
Equality Before The Law? Evaluating Criminal Case Outcomes In Canada, Michael Trebilcock, Albert Yoon
Osgoode Hall Law Journal
One of our most strongly held ideals is that individuals receive equal treatment under the law. Incidents of wrongful conviction or wide disparities in sentencing, however, challenge this premise. While legal scholars have recently examined this premise, our understanding remains largely normative or anecdotal. Scholars have begun to identify factors that influence legal outcomes, yet this question has remained largely unexplored in Canada. This article seeks to advance this inquiry. Using unique data from both the Ontario courts and Legal Aid Ontario during 2007–2013, we find that outcomes in routine criminal cases vary in ways not summarily explained by differences …
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik
Osgoode Hall Law Journal
As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …
Book Review: The Strategic Constitution: Understanding Canadian Power In The World By Irvin Studin, Stephen Paul Haigh
Book Review: The Strategic Constitution: Understanding Canadian Power In The World By Irvin Studin, Stephen Paul Haigh
Osgoode Hall Law Journal
This is a book review of The Strategic Constitution: Understanding Canadian Power in the World by Irvin Studin