Law Commons^™

Cryptocurrencies And The Evolution Of Banking, Money And Payments, Benjamin Geva

Articles & Book Chapters

This paper explores cryptocurrencies against the backdrop of the history of monetary, banking and payment systems, from a legal perspective. Providing a historical overview beginning in Antiquity, it explores just how today’s cyber revolution compares against some key predicate operations, and situates cryptocurrencies in the context of the long-running evolution of bank payment intermediation and monetary development.

Methods And Severity: The Two Tracks Of Section 12, Benjamin Berger, Lisa Kerr

Articles & Book Chapters

This paper argues that there are two main routes – two tracks – by which one can arrive at the fundamental wrong at the heart of section 12 of the Charter. On the “methods track”, the state can run afoul of section 12 by using intrinsically unacceptable methods of treatment or punishment. For historical reasons, jurisprudence on this track is not well developed in Canada, though it would clearly prohibit the death penalty and most methods of corporal punishment. On the “severity track”, the concern is with excessive punishment. Here, even where the state has chosen a legitimate method of …

Truth Be Told: Redefining Relationships Through Indigenous Research, Deborah Mcgregor

Articles & Book Chapters

The recently released report of the Truth and Reconciliation Commission of Canada (TRC) contains recommendations which seek to deconstruct the highly colonial relationship between Indigenous peoples and the Canadian state. This chapter explores how the TRC’s findings might be applied in transforming the theory and practice of academic research as part of renewing and re-defining relationships between Indigenous peoples and broader Canadian society. I will address the fundamental bias that exists in the historical and contemporary scholarship that either explicitly or implicitly frames Indigenous peoples as “problems” to be solved.

Enforcing Employment Standards For Migrant Agricultural Workers In Ontario, Canada: Exposing Underexplored Layers Of Vulnerability, Leah F. Vosko, Eric Tucker, Rebecca Casey

Articles & Book Chapters

Over 50,000 migrant agricultural workers are employed in Canada each year, almost half of whom are destined for the Province of Ontario. These workers are among the most vulnerable in the country and therefore most in need of labour and employment law protection. One important source of employment rights in Ontario is the Employment Standards Act (ESA), which establishes basic minimum entitlements in areas such as wages, working time, and vacations and leaves. Drawing on an analysis of the Ontario Ministry of Labour’s(MOL’s) Employment Standards Information System (ESIS), a previously untapped administrative data source containing information on all of Ontario’s …

Phase 2 Of The Uncitral Isds Review: Why ‘Other Matters’ Really Matter, Gus Van Harten, Jane Kelsey, David Schneiderman

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The authors argue that UNCITRAL Working Group III, as part of its mandate for reform of the international investment regime, should consider issues at the core of the concerns about the regime's accountability and legitimacy, especially in the case of investor-state dispute settlement (ISDS). These issues include: the right of standing for affected parties, the customary duty to exhaust local remedies, the chilling effect of ISDS, and the relationship of the international investment regime to goals of sustainable development and the rule of law. Procedural reforms of ISDS are necessary but not sufficient to address these concerns.

Phase 2 De L’Examen Du Mécanisme Rdie De La Cnudci: Pourquoi «Les Autres Questions» Ont Une Véritable Importance, Gus Van Harten, Jane Kelsey, David Schneiderman

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No abstract provided.

The Rule Of Law In International Tax Relations, Jinyan Li

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This paper discusses the issue of rule of law in international tax relations. International tax relations refer to the relationship between countries in terms of substantive tax laws and tax administration. It aims to contribute to the conversations about the Belt and Road Initiative (BRI) tax administration cooperation.

Regulating Strikes In Essential Services - Canada, Eric Tucker

Articles & Book Chapters

This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.

Critical Copyright Law & The Politics Of ‘Ip’, Carys J. Craig

Articles & Book Chapters

Since its explosion late in the twentieth century, the field of intellectual property scholarship has been a vibrant site for critical legal theorizing. Indeed, it is arguable that US-based intellectual property scholarship effectively generated a resurgence or ‘second wave’ of Critical Legal Studies. Exploring critical engagement with the very idea of ‘intellectual property’ and its conceptual counterpart, the ‘public domain,’ this chapter suggests that a vast swath of copyright scholarship that has bloomed over the past few decades, as copyright has expanded in its reach and relevance, builds implicitly or explicitly on insights gleaned from legal realism, Critical Legal Studies, …

An Empirical Comparison Of Insider Trading Enforcement In Canada And The United States, Anita Anand, Stephen J. Choi, Adam C. Pritchard, Poonam Puri

Articles & Book Chapters

Canadian and American securities market regulators have differing approaches to enforcement. In this article, we present the results of an empirical study comparing a highly salient aspect of securities enforcement—insider trading—in Canada and the United States. We reach a number of important findings. First, adjusting for trading volume, Canada has a greater intensity of enforcement when compared to the U.S. Second, Canadian securities regulators primarily concern themselves with insider trading in Canadian companies, while the SEC brings more enforcement actions involving insider trading in companies incorporated outside the U.S. Third, we do not find significant differences in the fraction of …

Law As A Social Construction And Conceptual Legal Theory, Dan Priel

Articles & Book Chapters

A currently popular view among legal positivists is that law is a social construction. Many of the same legal philosophers also argue that before one can study law empirically, one needs to know what it is. At the heart of this paper is the claim that these two propositions are inconsistent. It presents the following dilemma: if law is a social construction like all other social constructions, then legal philosophers have to explain what philosophers have to contribute to understanding it. Studies of social constructions are typically conducted by historians, sociologists, and others, who explain them (and what they are) …

Contract Damages, Moral Agency, And Henry James’ The Ambassadors, Jennifer Nadler

Articles & Book Chapters

This paper enters the dispute over the proper interpretation of the expectation measure of damages in contract law. Should damages be measured by the plaintiff’s financial loss or by the cost of acquiring a substitute performance (“cost of cure”)? I begin by presenting a moral (as opposed to an economic or a pragmatic) justification for the traditional contract principle that a plaintiff has a right to compensation for the financial loss flowing from breach but no right to performance. I do so by showing that implicit in the principle that the plaintiff has a right to compensation for financial loss …

The Louisiana Purchase: Indian And American Sovereignty In The Missouri Watershed, Kent Mcneil

Articles & Book Chapters

Like a historical mantra repeated time and again, it is asserted that the Louisiana Purchase doubled the size of the United States. As this assertion takes for granted that the Purchase included the entire Missouri watershed, it rests on the assumption that France had a valid title thereto because, as a matter of common sense and international law, France could only convey title to territory that it actually owned. But what basis is there for the assumption that France had sovereign title to the vast territory drained by the Missouri River that stretches from the Mississippi River to the Rocky …

Critical Perspectives On The Scholarship Of Assessment And Learning In Law: Preface, Craig Collins, Vivien Holmes, Paul Maharg

Articles & Book Chapters

In this Preface to the first volume of the series Assessment in Legal Education, we outline the scope of the series, the reasons for its development and the ways it may assist those involved with legal education generally.

Critical Perspectives On The Scholarship Of Assessment And Learning In Law: Introduction - Legal Education Assessment In England, Alison Bone, Paul Maharg

Articles & Book Chapters

In this Introduction, we set out some of the innovative practices and themes arising from assessment in legal education in England. It is fair to say that assessment theory has not attracted the same rigorous analysis and implementation that has attended the subject in other disciplines such as medical education. Much of the theoretical innovations tend to be syncretic, adaptations from other disciplines. Nevertheless, there are examples of genuine innovations when England is viewed alongside other jurisdictions, and where it has occurred we have noted it in this Introduction. Needless to say, but we shall say it anyway the field …

Prometheus, Sisyphus, Themis: Three Futures For Legal Education Research, Paul Maharg

Articles & Book Chapters

In almost every jurisdiction regulatory review of legal education has become more complex. It has not been matched by concomitant increase in the sophistication and complexity of the empirical research base, nor in the organisation of that research. As we pointed out in the LETR Report (2013), there are significant gaps in legal educational research. There is little co-ordination of research initiatives between academy and regulatory bodies on a sustained basis. There is little organisation by the academy of the increasing volume of research that it produces on legal education: a significant lack of longitudinal studies, very few ongoing and …

The Employment Standards Enforcement Gap And The Overtime Pay Exemption In Ontario, Mark P. Thomas, Leah F. Vosko, Eric Tucker, Mercedes Steedman, Andrea M. Noack, John Grundy, Mary Gellatly, Lisa Leinveer

Articles & Book Chapters

Employment Standards (es) legislation sets minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. es legislation is designed to provide minimum workplace protections, particularly for those with little bargaining power in the labour market. In practice, however, es legislation includes ways in which legislated standards may be avoided, including through exemptions that exclude specified employee groups, fully or partially, from legislative coverage. With a focus on the Ontario Employment Standards Act, this article develops a case study of exemptions to the overtime pay provision of the act and regulations …

International Tax Simplification In South Africa Through Managing Substantive Complexity And Improving Drafting Efficiency, Jinyan Li, Teresa Pidduck

Articles & Book Chapters

This chapter discusses the complexity of the South African international tax legislation in terms of both its substantive complexity and drafting complexity. Substantive complexity is established by examining the current legislation governing tax jurisdiction, the taxation of resident taxpayers and non-resident taxpayers as well as international tax incentive measures and anti-avoidance rules. Drafting complexity is established by comparing the South African Income Tax Act to the Canadian Income Tax Act in respect of the drafting of individual provisions and arrangement of provisions. The chapter recommends ways to simplify the South African international tax legislation by: (a) accepting substantive complexity that …

Impacts Of Investment Treaties On Health And Human Rights, Gus Van Harten

Articles & Book Chapters

While investment treaties could help protect health and promote human rights, they are rather often used as a means to discourage governments from taking action. The treaties allow foreign investors to initiate investor-state dispute settlement (or ISDS) proceedings against states for their legislative, executive, administrative, and judicial decisions at any level. Thus, they provide a powerful tool for “foreign” investors to frustrate state action in virtually any area, including health and human rights. This article describes how ISDS provisions have impacted health-related decision- making by states and, in so doing, weakened their abilities to fulfill their human rights obligations.

Value Creation: A Constant Principle In A Changing World Of International Taxation, Jinyan Li, Nathan Jin Bao, Huaning Li

Articles & Book Chapters

The authors consider the new nomenclature of value creation in terms of its meaning, theoretical basis, and importance in the context of the international taxation of business profits. The authors’ central claim is that the principle of value creation is a profound elaboration of the doctrine of economic allegiance, which is the theoretical basis for the current international tax system; and that international tax norms, such as the arm’s-length principle, are meant to give effect to the doctrine of economic allegiance (and now to the principle of value creation). As demonstrated by the Organisation for Economic Co-operation and Development/Group of …

The History And Promise Of Shared Space In A Section 35 World, Signa A. Daum Shanks

Articles & Book Chapters

When non-Indigenous people made their way to North America, both conflicting and complementary social norms existed between explorers and the land’s original inhabitants. Capable of agreeing with, often challenging, and regularly borrowing each other’s ideas, people of early post-contact times demonstrated how they could have different values and processes but could still cooperate. So while colonialism certainly stifled, if not terminated, some Indigenous processes, local concepts still often prevailed and governed all those who inhabited a space—including the non-Indigenous. Canada’s post-contact past is as much about the adherence to Indigenous jurisdiction as it is about an external force’s interpretation of …

Carrying Little Sticks: Is There A ‘Deterrence Gap’ In Employment Standards Enforcement In Ontario, Canada?, Eric Tucker, Leah F. Vosko, Rebecca Casey, Mark P. Thomas, John Grundy, Andrea M. Noack

Articles & Book Chapters

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.

The International Tax Environment And Simplification Of South African Tax Legislation: A Double-Edged Sword, Jinyan Li, Teresa Pidduck

Articles & Book Chapters

In this paper, we examine the relationship between the international tax environment and legislative complexity in South Africa’s international tax system. We suggest that the international tax environment is a double-edged sword. It causes complexity in South Africa’s tax legislation as it largely responds to the needs of OECD countries and produces tax rules to deal with ‘sophisticated’ tax problems and taxpayers (such as multinational enterprises). When such rules are transplanted into South Africa, they are typically more complex than local rules dealing with local taxpayers. On the other hand, the international tax environment offers ideas for ‘scientific’ drafting of …

Approach To Constitutional Principles And Environmental Discretion In Canada, Lynda Collins, Lorne Sossin

Articles & Book Chapters

One of the most important and least scrutinized areas of environmental policy is the exercise of administrative discretion. Those committed to environmental action tend to focus on law reform, international treaties, and political commitments - for example, election proposals for carbon taxes and pipelines, or environmental protections in global protocols and trade agreements. Many proponents of stronger environmental protection have focused their attention on the goal of a constitutional amendment recognizing an explicit right to a healthy environment, while others seek recognition of environmental protection within existing Charter rights. As the rights conversation evolves, advocates must continue to grapple with …

The Resilience Of Métis Title: Rejecting Assumptions Of Extinguishment For Métis Land Rights, Adam Gaudry, Karen Drake

Articles & Book Chapters

The Crown long has disputed Métis title claims by contending that any previously existing Métis rights, including title, have been extinguished. We argue, however, that Métis rights, including title, remain unextinguished in at least some areas of the Métis homeland. In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to April 17, 1982, and by constitutional amendment. When applied to the Métis homeland, we conclude that these means have not effectively extinguished all Métis rights and title. This chapter builds on our previous work, in which …

Viewing The International Labour Organization’S Social Justice Praxis Through A Third World Approaches To International Law Lens: Some Preliminary Insights, Obiora Chinedu Okafor, Titilayo Adebola, Basema Al-Alami

Articles & Book Chapters

The overarching objective of this paper is to shine a Third World

Approaches to International Law (TWAIL) torchlight on the ILO’s social

justice discourse and praxis to find out what can be seen, or seen in a new

light, or seen in a different way, when the TWAIL approach is adopted,

and to comment on the significance of our findings, if any. To this end,

the paper pursues two specific and intertwined goals, namely: (i) to analytically

tease out the similarities and differences between TWAIL’s avowedly

(global) social justice discourse and praxis and its ILO counterpart; and (ii)

to, in …

Book Review: John Borrows, Law's Indigenous Ethics, Karen Drake

Articles & Book Chapters

No abstract provided.

Over-Indebted Criminals In Canada, Stephanie Ben-Ishai, Arash Nayerahmadi

Articles & Book Chapters

The criminal justice system often imposes financial, as well as penal, consequences upon offenders. Often these fines and surcharges are levied on those who are least able to bear the cost. This article examines the "justice debt" regime, including the formerly mandatory victim surcharge, to illustrate the ways it interacts with the lives of indigent Canadians. After canvassing American scholarship on the topic, the authors conclude with recommendations on how the problem can be alleviated, and how the topic can be more fully researched in a Canadian context.

Non-State Community Virtual Currencies, Benjamin Geva, Dorit Geva

Articles & Book Chapters

Community currencies are means of payment issued other than by the State, for voluntary use side by side with State-issued (that is, national) currency, either in a particular geographical area or by a group of users. This chapter deals with them as their media have been transforming from paper to digital. Discussing legal aspects of digital community currencies as monetary objects, this chapter combines an analysis general to the law of community currencies, as applied to community currencies regardless of the media in which they are embodied, with an analysis of the general law governing digital currencies as applied to …

Consumer Protection Issues And Non-Banks: A Comparative Analysis, Stephanie Ben-Ishai

Articles & Book Chapters

The same millennials who spend all their money on avocado toast might not be looking to traditional banks to obtain mortgages or invest their limited funds because they don't have the requisite credit scores or resources to save money. This generation has also seen too many movies about Wall Street disasters and may have decided they don't want to give Leonardo DiCaprio money to "buy wolves." They've been working any number of jobs that don't offer pensions or benefits; they often live paycheck to paycheck; and the prospect of borrowing money from or depositing money at a mainstream bank when …