Law Commons^™

Reconnecting The Financial Sector To The Real Economy: A Plan For Action, Edward J. Waitzer, Douglas Sarro

Articles & Book Chapters

Informational asymmetries, misaligned incentives, and artificially elongated chains of intermediation have created a disconnect between the financial sector and the real economy that is detrimental to the public interest. Courts and regulators are increasingly intervening to break the cycle. Fiduciary law offers a conceptual framework both for understanding and responding to this trend. This article argues that the financial sector, rather than waiting for this trend to develop and reacting to new rules in a piecemeal way, should be proactive and shape the way in which the trend develops.

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Articles & Book Chapters

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

Action Committee On Access To Justice In Civil And Family Matters: Colloquium Report, Action Committee On Access To Justice In Civil And Family Matters

Canadian Forum on Civil Justice

This report on the Colloquium provides an overview of the Colloquium discussions and a summary of the key messages of those who participated in the two-day event. It attempts to capture the comments, suggestions and major points of dialogue. In addition to providing an overview and summary of the major discussion threads, it also highlights examples provided by participants of initiatives, programs and innovations that are currently working in various jurisdictions.

Transnational Business Governance Interactions: Conceptualization And Framework For Analysis, Burkard Eberlein, Kenneth W. Abbott, Julia Black, Errol Meidinger, Stepan Wood

Articles & Book Chapters

This special issue demonstrates the importance of interactions in transnational business governance. The number of schemes applying non-state authority to govern business conduct across borders has vastly expanded in numerous issue areas. As these initiatives proliferate, they increasingly interact with one another and with state-based regimes. The key challenge is to understand the implications of these interactions for regulatory capacity and performance, and ultimately for social and environmental impact. In this introduction, we propose an analytical framework for the study of transnational business governance interactions. The framework disaggregates the regulatory process to identify potential points of interaction, and suggests analytical …

My "Very Idea" Of Rod - And Yours, Harry Arthurs

All Papers

Text of introductory address to symposium The Unbounded Level of the Mind: Rod Macdonald's Legal Imagination, held at McGill University's Faculty of Law, February 7-8, 2014. The author expresses his admiration and affection for Prof Maconald, taking as his clue something he says frequently and in various formulations: “The very idea of law [he says] must be autobiographical”. [Roderick A. Macdonald & Martha-Marie Kleinhans, "What is a Critical Legal Pluralism?" Canadian Journal of Law and Society , 12 (1997), 25-46, 46]. Quote: "If that’s true, then the “very idea” of Rod himself must be “autobiographical”. I’m therefore going to begin …

The "Majestic Equality" Of The Law: Why Constitutional Strategies Do Not Produce Equality, Harry Arthurs

All Papers

Paper Presented at a workshop on Equality, at the Institute for Advanced Studies, Nantes, France, in June, 2014. Two epidemiological studies — the Whitehall Studies of 1967 and 1988 — famously demonstrated that socio-economic status is a primary determinant of health outcomes. By locating a large cohort of British civil servants on a social-class gradient, researchers were able to show that individuals at successively lower levels on that gradient experienced diminishing prospects of good health and longevity. This conclusion was complemented by subsequent studies that concluded that degrees of inequality in a society — rather than absolute levels of wealth …

Book Review: Canadian Patent Law, Ikechi Mgbeoji

Articles & Book Chapters

No abstract provided.

Diversity In The Boardroom: A Content Analysis Of Corporate Proxy Disclosures, Aaron A. Dhir

Articles & Book Chapters

My work in this field has focused on regulation by quota and regulation by disclosure. With regard to quotas, strikingly, the Norwegian law is not located in regulation that explicitly deals with human rights or equality issues; rather, it is found in the heart of the legal regime that gives life and personality to corporations – in Norwegian corporate law. I have conducted qualitative, interview-based research with Norwegian corporate directors, both men and women. It is only through understanding how the goals of the law have translated into the day-to-day existence of these individuals that we can begin to consider …

The Future Of Law School: Three Visions And A Prediction, Harry W. Arthurs

Articles & Book Chapters

In this article, the author examines three visions of the future of law schools. The first vision is that they should focus on producing “practice ready lawyers” to meet the immediate needs of today’s legal profession. The second is that law schools should focus on training “tomorrow’s lawyers,” graduates who are able to adapt to a rapidly-changing world. The third insists that law schools are knowledge communities whose many functions include, but are not limited to, providing students with a large and liberal understanding of law that will prepare them for a variety of legal and non-legal careers and for …

Access To Justice And Corporate Accountability: A Legal Case Study Of Hudbay In Guatemala, Shin Imai, Bernadette Maheandiran, Valerie Crystal

Articles & Book Chapters

This case study looks at the avenues open for addressing serious allegations of murder, rape and assault brought by indigenous Guatemalans against a Canadian mining company, HudBay Minerals. While first-generation legal and development policy reforms have facilitated foreign mining in Guatemala, second-generation reforms have failed to address effectively conflicts arising from the development projects. The judicial mechanisms available in Guatemala are difficult to access and suffer from problems of corruption and intimidation. Relevant corporate social responsibility policies and mechanisms lack the necessary enforcement powers. Canadian courts have been reluctant to permit lawsuits against Canadian parent companies; however, in Choc v. …

The Comprador Complex: Africa’S Iprs Elites, Neo-Colonialism And The Enduring Control Of African Ipr Agenda By External Interests, Ikechi Mgbeoji

Articles & Book Chapters

No abstract provided.

Making Bricks Without Straw: The Creation Of A Transnational Labour Regime, Harry Arthurs

Articles & Book Chapters

This essay suggest that attempts to create a transnational regime of labour regulation have been frustrated by a series of related and mutually reinforcing developments: the incapacity or unwillingness of states to intervene in labour markets; changes in those markets associated with globalization and post-­‐industrial capitalism; the decline of the “standard employment contract”; the demise of working class consciousness, solidarity and power; and the shift from “hard” to “soft” labour law. It concludes with a proposal for three-­‐part strategy of reinventing labour law in the new dispensation: by enlarging its intellectual ambition; expanding its clientele; and extending its spatial reach.

A Crisis And Its Afterlife: Some Reflections On ‘Scholars In Self-Estrangement’, Ruth Buchanan

Articles & Book Chapters

This essay is an extended reflection on the avenues of influence of a single article, one that is arguably the most cited contribution to scholarship on law and development of the last 40 years. In that article, published in the Wisconsin Law Review in 1974, David Trubek and Marc Galanter confidently identified and cogently parsed a ‘crisis’ in law and development studies in the United States. ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States’ (hereinafter SISE), was undoubtedly a key intervention in the debate over US funding of law reform …

Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig

Articles & Book Chapters

This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors …

Indigenous Rights Litigation, Legal History, And The Role Of Experts, Kent Mcneil

Articles & Book Chapters

Litigation involving the rights of Indigenous peoples in Canada usually involves historical facts and events from a long time ago, sometimes as far back as 400 years. This reality presents significant challenges for proof of the facts upon which these rights are based. In addition to historical documents, the parties have to rely on testimony by Indigenous witnesses who are able to present the oral histories and traditions of their people, as well as on the opinion evidence of experts such as archaeologists, anthropologists, linguists, historians, ethnohistorians, and legal historians. In this paper, I examine the role of legal historians …

Employment-Related Geographic Mobility In Canada And Collective Bargaining: A Report Prepared For The On The Move Partnership Research Team, Eric Tucker, Brendan Breckman Jowett

All Papers

Report prepared for: On the Move, Policy Component, July, 2014.

From Theory And Research To Policy And Practice In Work And Employment - And Beyond?, Harry W. Arthurs

Articles & Book Chapters

This paper was delivered as the keynote address to the 50th Annual Conference, Canadian Industrial Relations Association, 29 May 2013. My thanks to Alex Zamfir, JD Candidate, Osgoode Hall Law School, for his editorial and research assistance.

Book Review: Presumed Incompetent: The Intersections Of Race And Class For Women In Academia, Sonia N. Lawrence

Articles & Book Chapters

This is a book review of Presumed Incompetent: The Intersections of Race and Class for Women in Academia Gabriella Gutierrez y Muhs, Yolanda Flores Niemann, Carmen G. Gonzalez, and Angela P. Harris, eds., Boulder, CO: Utah State University Press, 2012.

Legal Writing, Therapeutic Jurisprudence, And Professionalism, Shelley Kierstead

Articles & Book Chapters

“Professionalism as a personal characteristic is revealed in an attitude and approach to an occupation that is commonly characterized by intelligence, integrity, maturity, and thoughtfulness.”

“Words are the principal tool of lawyers and judges, whether we like it or not.”

The quotes above refer to two quintessential aspects of lawyers’ work. First, as members of a self-regulated profession, we must aspire to a level of professionalism that is characterized by intelligence, maturity, and thoughtfulness. Second, regardless of the tasks we undertake, words are critically important to lawyers. Not only must we be able to conduct comprehensive and coherent legal analysis; …

The Canada-China Fippa: Its Uniqueness And Non-Reciprocity, Gus Van Harten

Articles & Book Chapters

It is demonstrated that the signed (but not ratified) Canada-China Foreign Investment Promotion and Protection Agreement (FIPPA) is novel and, in key respects, non-reciprocal in favour of China. For example, the FIPPA would provide a general right of market access by Chinese investors to Canada but not by Canadian investors to China, allow wider scope for investment screening by China than by Canada, remove a longstanding Canadian reservation for performance requirements that favour aboriginal peoples, and dilute Canada's established position on transparency in investor-state arbitration. These and other aspects of the FIPPA are highlighted via a comparison to other trade …

Objective Mens Rea And Attenuated Subjectivism: Guidance From Justice Charron In R. V. Beatty, Palma Paciocco

Articles & Book Chapters

Justin Ronald Beatty was driving on the Trans-Canada Highway on July 23, 2003 when, for no apparent reason, his truck suddenly crossed the solid centre line and collided with an oncoming car, killing three people. Beatty was charged with dangerous operation of a motor vehicle causing death. He was acquitted at trial on the grounds that his momentary lapse of attention was not enough to establish fault. The Crown appealed, and the Court of Appeal ordered a new trial after concluding that the trial judge had misapplied the fault standard. Beatty appealed to the Supreme Court of Canada, which undertook …

Experience The Future Of Legal Education, Lorne Sossin

Articles & Book Chapters

This article examines the shift towards experiential legal education and its implications. While others have focused on experiential education as a means of training better lawyers, the author advances the argument for experiential education because it is rooted in substantive problem-solving, access to justice, engagement with communities, and greater opportunities for reflective and critical thinking about law and justice. Drawing on examples from Osgoode Hall Law School, which adopted an experiential curricular requirement in 2012, the article explores the ways in which experiential education may change law school and law students. The article also canvasses the implications of the experiential …

“A Different Day In Court”: Exploring The Place Of Judicial Mediation In Ontario’S Alternative Dispute Resolution Landscape, Nicole Aylwin, Trevor C. W. Farrow

Articles & Book Chapters

In January 2011, the Ontario Bar Association established a taskforce to explore the question of how judicial dispute resolution could improve access to justice in Ontario. In their recently released final report, the taskforce offers some compelling conclusions. In particular, the report recommends that JDR be formally recognised as part of the alternative dispute resolution options available in Ontario since it would provide litigants the opportunity to receive their “day in court” without the necessity of a costly trial.This article elaborates on the findings of the report and places them within the larger context of current research and Canadian policy …

A Response, Fay Faraday, Eric Tucker

Articles & Book Chapters

Faraday and Tucker respond to criticism about their work Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (2012).

The Future Of Legal Education: Three Visions And A Prediction, Harry W. Arthurs

Articles & Book Chapters

In this article, the author examines three visions of the future of law schools. The first vision is that they should focus on producing "practice ready lawyers" to meet the immediate needs of today's legal profession. The second is that law schools should focus on training "tomorrow's lawyers, "graduates who are able to adapt to a rapidly-changing world. The third insists that law schools are knowledge communities whose many functions include, but are not limited to, providing students with a large and liberal understanding of law that will prepare them for a variety of legal and non-legal careers and for …

Developments In Financial Services Regulation: A Canadian Perspective, Poonam Puri, Andrew Nichol

Articles & Book Chapters

No abstract provided.