Law Commons^™

The Order To Pay Money In Medieval Continental Europe, Benjamin Geva

Articles & Book Chapters

This chapter discusses the evolution of non-cash payment mechanisms in the course of the development of the medieval banking system in Europe. The chapter sets out three categories of a medieval continental financier. The first category, pawnbrokers, consisted of lenders who lent out of their capital primarily for consumption who played no role in the development of the payment system. The second category consisted of moneychangers who accepted deposits and whose practices were rooted in in the manual exchange of coins. The third category consisted of exchange bankers whose practices emerged from the exchange of money in long distance trade. …

Reconsidering Copyright's Constitutionality, Graham Reynolds

Osgoode Legal Studies Research Paper Series

In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (Michelin), Teitelbaum J. of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms (Charter) and that, even if they did, these provisions could be justified under s. 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these …

Reducing Vulnerability To Human Trafficking: An Experimental Intervention Using Anti-Trafficking Campaigns To Change Knowledge, Attitudes, Beliefs, And Practices In Nepal, Margaret Boittin, Dan Archer, Cecilia Hyunjung Mo

Commissioned Reports, Studies and Public Policy Documents

Prepared for USAID, Humanity United, the US Department of Labor, and Terre des Hommes, March 2016.

Volume 89, Issue 13 (2016)

Obiter Dicta

No abstract provided.

Guidance Documents For Card Industry Code Of Conduct Open For Public Consultation, Benjamin Geva, Peter A. Aziz, Steven Slavens, Eliot Che

Editorials and Commentaries

The Commissioner of the Financial Consumer Agency of Canada (FCAC) is seeking comments on three proposed guidance documents it has published to assist with the implementation of new disclosure requirements set out in the April 2015 update to the Code of Conduct for the Credit and Debit Card Industry in Canada (the Code). Submissions to FCAC regarding the draft guidance documents are due April 15, 2016.

The April 2015 update amended the code to require, among other things, that all merchant-acquirer agreements include a cover page containing an information summary box and fee disclosure box. The proposed guidance documents (CG-10, …

Volume 89, Issue 12 (2016)

Obiter Dicta

No abstract provided.

Paths To Justice And The Resolution Of Consumer Problems: Findings From The 2014 Everyday Legal Problems And The Costs Of Civil Justice In Canada National Survey, Lesley Jacobs, David Kryszajtys, Mathew Mcmanus

Canadian Forum on Civil Justice

This project analyzes the various ways Canadian citizens of different ethnicities try to resolve their consumer problems. Specifically; we look at whether respondents from some ethnic backgrounds are more likely than others to access the formal legal system as a means to resolve one or more consumer problems. We also try to link this to respondent’s conceptions of the legal system, both in general and with regard to its value in resolving these issues.

Protecting Reasonable Expectations: Mapping The Trajectory Of The Law, Edward J. Waitzer, Douglas Sarro

Articles & Book Chapters

The doctrine of reasonable expectations has evolved into a powerful tool for judicial and regulatory activism and, as a result, a bellwether for the trajectory of the law. The concept has broadened — both in scope and in the range of potential claimants. Yet it has been used to achieve goals that are remarkably consistent across different areas of law: first, to require powerful actors to treat stakeholders fairly, which entails treating them with honesty and avoiding actions that would impose unnecessary or disproportionate costs on them; second, to uphold the integrity of legal or regulatory regimes by remedying actions …

Volume 89, Issue 11 (2016)

Obiter Dicta

No abstract provided.

Volume 89, Issue 10 (2016)

Obiter Dicta

No abstract provided.

Book Review: Earth Jurisprudence: Private Property And The Environment, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

Volume 89, Issue 9 (2016)

Obiter Dicta

No abstract provided.

When Insider Trading And Market Manipulation Cross Jurisdictions: What Are The Challenges For Securities Regulators And How Can They Best Preserve The Integrity Of Markets?, Janet Elizabeth Austin

PhD Dissertations

Over the last few decades world securities markets have become significantly more sophisticated in terms of how securities are traded as well as the variety of securities traded. My hypothesis is that the ability of securities regulators to take enforcement action against market abuse has not kept pace with the level of sophistication of the markets and, in particular, the way in which trading can take place across borders and the manner in which market related information can spread rapidly across the world. I argue that that regulators need to do more to protect the integrity of the markets by …

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

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

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

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

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

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

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

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 …

Volume 89, Issue 8 (2016)

Obiter Dicta

No abstract provided.

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

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

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

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 …

Maximizing Opportunity, Minimizing Risk: Aligning Law, Policy And Practice To Strengthen Work-Integrated Learning In Ontario, Joseph F. Turcotte, Leslie Nichols, Lisa Philipps

All Papers

A broad consensus is emerging in Ontario and at the federal level in favour of expanding postsecondary students’ access to experiential or “work-integrated learning” (WIL) opportunities. One of the challenges in implementing this vision is navigating the complex legal status of students as they leave campus and enter workplaces in a wide range of industries and roles. This study aims to support these efforts by mapping the current legal landscape for WIL to identify both risks and opportunities for students, post-secondary institutions (PSIs) and placement hosts alike (referred to collectively in this study as “WIL participants”). It makes recommendations to …

Osgoodepd: Twenty Years And Twenty Stories, Osgoode Hall Law School Of York University

Law School Publications

Over the past 20 years, OsgoodePD has been a part of the learning journey for over 50,000 people. With over 1,300 CLE programs and 2,500 LLM degrees awarded, we’ve had professionals from all walks of life and from all over the world grace our classrooms and discussions. We wanted to share more widely some of the incredible diversity in experience and perspective that we get to see on a daily basis.

We asked 20 people who have been a part of OsgoodePD over the past 20 years to give us their perspectives on professional development. We asked them about their …

Cosmopolitanism, Custom And Complexity: Kant's Cosmopolitan Norms In Action, Tracey Leigh Dowdeswell

Osgoode Legal Studies Research Paper Series

Immanuel Kant's Cosmopolitanism has come to stand alongside Political Realism and Liberal Internationalism as one of three broad theories of ethics in international relations. Yet Cosmopolitanism has been subjected to criticisms that the universal norms identified by Kant - including such norms as hospitality, reciprocity, and publicity (transparency and free political participation) - are Western and Eurocentric in nature, incompatible with cultural pluralism, and lack the justification and legitimacy for the broad-based consensus required for a Cosmopolitan politicalsphere to emerge among the world’s diverse peoples. This paper seeks to address these criticisms of Cosmopolitanism by studying examples of Cosmopolitan norms …

Banning Bribes Abroad: U.S. Enforcement Of The Foreign Corrupt Practices Act, Ellen Gutterman

Osgoode Legal Studies Research Paper Series

The United States has been at the forefront of international efforts to combat corruption in the global economy for almost forty years, chiefly through its Foreign Corrupt Practices Act (FCPA). Over the past decade, US enforcement of the FCPA has surged - both in increased numbers of enforcement actions and through the application of increasingly expansive interpretations of jurisdiction through which to enforce the FCPA on an extraterritorial basis. On one hand, extraterritorial enforcement of the FCPA has promoted anti-corruption policies and the banning of bribes abroad. At the same time, three aspects of FCPA enforcement shape and constrain the …