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Full-Text Articles in Law
A Goal-Oriented Understanding Of The Right To Health Care And Its Implications For Future Health Rights Litigation, Michael Da Silva
A Goal-Oriented Understanding Of The Right To Health Care And Its Implications For Future Health Rights Litigation, Michael Da Silva
Dalhousie Law Journal
International human rights law recognizes a right to health. A majority of domestic constitutions recognize health-related rights. Many citizens believe that they have a moral right to health care. Some theorists agree. Yet the idea of a right to health care remains controversial. Specifying the nature of such a right invites more controversy. Indeed, most models of the right face persistent problems that threaten to undermine the conceptual coherence of a right to health care. This article accordingly sketches preliminary arguments for a new, goal-oriented model of the right to health care. It explains that the model avoids most of …
Identity, Law, And The Right To A Dream?, Robert Leckey
Identity, Law, And The Right To A Dream?, Robert Leckey
Dalhousie Law Journal
This paper engages critically with the new orthodoxy holding that individuals have a "right" to know their genetic origins and that such knowledge is crucial to realizing their identities. It examines two case studies: the Pratten litigation under the Canadian Charter of Rights and Freedoms regarding anonymous donor conception and scholarship approving a reform to Quebec's adoption law. It addresses the supposed "identity gap" between those who are adopted or donor-conceived and those who are neither Arguments for law reform exaggerate that gap, opposing the incomplete, insecure identity of the adopted or donorconceived to the ostensibly complete, secure identity of …
Common Resource Or Private Right: Contested Claims To Seaweed In 19th Century Prince Edward Island, Rusty Bittermann, Margaret Mccallum
Common Resource Or Private Right: Contested Claims To Seaweed In 19th Century Prince Edward Island, Rusty Bittermann, Margaret Mccallum
Dalhousie Law Journal
In the nineteenth century, before farmers could purchase inexpensive chemical fertilizers, farmers on Prince Edward Island looked to the sea and the shore for nutrients to add to their soils. When disputes over who had the right to gather seaweed led to litigation, judges ruled that the owners of property fronting on the shore had the exclusive right to seaweed cast up on the shore, both above and belot, the high water mark. These rulings did little to dispel the popular perception that seaweed, a gift of nature, was a common resource that belonged to the people who collected it. …
Law's Treatment Of Science: From Idealization To Understanding, Nayha Acharya
Law's Treatment Of Science: From Idealization To Understanding, Nayha Acharya
Dalhousie Law Journal
Increasing reliance on scientific evidence in litigation has created a demand for discussions directed at enabling a legitimate interaction between science and law The article develops the notion ofprocedural legitimacy-that adherence to legal procedure maintains the legitimacy of the adjudicative system and its outcomes -and applies it to determining how best to admit and use scientific evidence. The problem of undervaluing procedural legitimacy is illustrated through a commentary on contributions to the science and law discussion of Edmond and Roach, and Haack. The author's thesis is that maintaining adjudicative legitimacy depends on procedural rules being applied as vigilantly to science …
Refining The Reasonable Apprehension Of Bias Test: Providing Judges Better Tools For Addressing Judicial Disqualification, Jula Hughes, Dean Philip Bryden
Refining The Reasonable Apprehension Of Bias Test: Providing Judges Better Tools For Addressing Judicial Disqualification, Jula Hughes, Dean Philip Bryden
Dalhousie Law Journal
Despite a considerable amount of litigation concerning judicial impartiality, the Canadian "reasonable apprehension of bias" test for judicial disqualification has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, the goal in the present contribution is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. The …
Response To Haack And Edmond/Roach Articles, Nayha Acharya
Response To Haack And Edmond/Roach Articles, Nayha Acharya
Dalhousie Law Journal
I am grateful to Professors Edmond and Roach' and Professor Haack2 for their thoughtful replies to my paper, Law 's Treatment of Science: From Idealizationto Understanding.Much like my experience after reading "A Contextual Approach to the Admissibility of the State's Forensic Science and Medical Evidence,"' and Haack's contributions, 4 I have come away from reviewing Edmond and Roach and Haack's replies with a heightened awareness that the admissibility of scientific evidence is significant and complicated. Both replies have raised important concerns that have demanded further attention from me, which I turn to here. My response to Edmond and Roach's Reply …
Costs Immunity: Banishing The 'Bane' Of Costs From Public Interest Litigation, Martin Twigg
Costs Immunity: Banishing The 'Bane' Of Costs From Public Interest Litigation, Martin Twigg
Dalhousie Law Journal
For litigants raising a matter of public interest, the possibility of facing an adverse costs award if unsuccessful may act as a deterrent to pursuing their legal claim. The author evaluates a form of costs order called "costs immunity," referred to as "protective costs orders" (PCOs) in the U.K., as a means of removing the deterrent effect of costs on public interest litigants. Part Iprovides an overview of costs law in Canada. Part // reviews the various types of costs orders employed by Canadian courts to facilitate access to justice in public interest litigation. Part Ill explores the English experience …
Proceeding With (Pre)Caution: Environmental Principles As Interpretive Tools In Applications For Pre-Trial Injunctions, Heather Mcleod-Kilmurray
Proceeding With (Pre)Caution: Environmental Principles As Interpretive Tools In Applications For Pre-Trial Injunctions, Heather Mcleod-Kilmurray
Dalhousie Law Journal
In many cases of imminent environmental harm, a trial may take years. To prevent harm in the meantime, pre-trial injunctions are essential. The author highlights the important role of interlocutory injunctions in Canadian environmental litigation, uncovers the judicial assumptions and attitudes toward the environment which these decisions reveal, and proposes a precautionary approach to interpreting the interlocutory injunction test in environmental cases. She argues that prevailing judicial attitudes and presumptions in relation to environmental claims often negatively influence how the discretionary elements in procedural rules governing pre-trial injunctions are applied. Although there has been much analysis of principles such as …
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Dalhousie Law Journal
The author develops a model of constitutional dialogue which aims at helping the resolution of majority-minority conflicts. The model is applied to the aboriginal rights context. The author concludes that because of the ambivalences expressed by the Supreme Court of Canada in the Van der Peet case in particular, the federal government has not incorporated the Sparrow-Badger approach in its litigation and has failed even to attempt to comply with the justification requirements. This failure of the federal government to endorse the Sparrow-Badger approach in its continuing litigation strategy is the real tragedy in the Marshall case.
Lights, Camera, Litigate: Lawyers And The Media In Canada And The United States, Charles W. Wolfram
Lights, Camera, Litigate: Lawyers And The Media In Canada And The United States, Charles W. Wolfram
Dalhousie Law Journal
Drawing on recent high profile cases in Canada and the United States, the author examines the different extent to which lawyers in those two countries comment to the media about ongoing litigation. He investigates various formal constraints upon lawyer comment, such as court-imposed publication bans and rules of professional responsibility. He also looks at the way in which lawyer behaviour is attributable to non-formal, cultural determinants.