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2011

The Peter A. Allard School of Law

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Articles 1 - 30 of 36

Full-Text Articles in Law

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise: With An Assessment Of The Preventing Human Smugglers From Abusing Canada's Immigration System Act (Bill C-4), Benjamin Perrin Oct 2011

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise: With An Assessment Of The Preventing Human Smugglers From Abusing Canada's Immigration System Act (Bill C-4), Benjamin Perrin

Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity which cannot be rationalized, justified, or excused. From both a supply and demand side, failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel; endangers the lives and safety of smuggled migrants, undermines border security, with consequences for the Canada/U.S. border, and undermines the integrity and fairness of Canada’s mmigration system. Introduced in Parliament in June, 2011, the Preventing Human Smugglers from ...


Spaces And Challenges: Feminism In Legal Academia, Susan B. Boyd Jan 2011

Spaces And Challenges: Feminism In Legal Academia, Susan B. Boyd

Faculty Publications (Emeriti)

Women now make up at least 50 percent of students in the entry classes in most Canadian law schools. In some law schools women constitute about 50 percent of the tenured or tenure stream professoriate – a marked change from the early 1990s. This feminization of legal education is not the result of affirmative action but rather the increased acceptability of a legal education for women, the removal of formal and informal barriers to women's admission to law school, and women's strong academic records. Despite the fact that legal academia is now populated by virtually equal numbers of women ...


No Presumptions! Joint Custody In The British Columbia Court Of Appeal, Susan B. Boyd Jan 2011

No Presumptions! Joint Custody In The British Columbia Court Of Appeal, Susan B. Boyd

Faculty Publications (Emeriti)

This paper examines the treatment of joint custody in the British Columbia Court of Appeal from 1996 through 2008, comparing to the “cautious” approach taken by the Ontario Court of Appeal. The B.C. Court of Appeal has taken a strong stance against the use of presumptions, either for or against joint custody. However, in a society and a legal system that increasingly favours shared parenting, the lack of a cautionary approach to joint custody can lead to complacency about its appropriateness in circumstances that either generate risk (to a parent or a child) or are not conducive to consensual ...


Is Your Defined-Benefit Pension Guaranteed?: Funding Rules, Insolvency Law And Pension Insurance, Ronald B. Davis Jan 2011

Is Your Defined-Benefit Pension Guaranteed?: Funding Rules, Insolvency Law And Pension Insurance, Ronald B. Davis

Faculty Publications (Emeriti)

Defined-benefit pension plans do not offer complete security; there are policy alternatives that would clarify this and are more likely to improve pension security than would the much-discussed options of reforming insolvency law or the constitutionally complex process of negotiating the introduction of a national pension benefit guarantee scheme.


Corporate Governance Reform For The 21st Century: A Critical Reassessment Of The Shareholder Primacy Model, Carol Liao Jan 2011

Corporate Governance Reform For The 21st Century: A Critical Reassessment Of The Shareholder Primacy Model, Carol Liao

Faculty Publications

This article questions the efficiency of the shareholder primacy model of corporate governance in light of the financial calamities that have plagued the first decade of the 21st century. Reform efforts following the global financial crisis have focused on failures in securities regulation, but that is only part of the story. Effective reform measures must also address the legal and normative prescriptions found within existing governance structures, and the collateral effect those prescriptions have on political and regulatory inaction.

There was strong ideological support for the shareholder primacy model at the start of the century. Following the corporate and accounting ...


Corporate Monitorships And New Governance Regulation: In Theory, In Practice, And In Context, Cristie Ford, David Hess Jan 2011

Corporate Monitorships And New Governance Regulation: In Theory, In Practice, And In Context, Cristie Ford, David Hess

Faculty Publications

This paper was prepared for a conference on "New Governance and the Business Organization" at the University of British Columbia in May 2009. It considers government agencies' increasingly common strategy of resolving corporate criminal law and securities regulations violations by way of settlement agreements that require corporations to improve their compliance programs and hire independent monitors to oversee the changes. Based on our interviews with corporate monitors, regulators, and others in the United States and Canada, we identify the ways in which these monitorships in practice fall substantially short of the ideal new governance model we describe. These failings are ...


A Cooperative Conundrum? The Naalc And Mexican Migrant Workers In The United States, Robert Russo Jan 2011

A Cooperative Conundrum? The Naalc And Mexican Migrant Workers In The United States, Robert Russo

Faculty Publications

Since its adoption in 1993 at the insistence of U.S. President Bill Clinton's administration, the labor side accords to the North American Free Trade Agreement (NAFTA) have been extensively examined, occasionally ridiculed, and often dismissed as irrelevant. Most analysis tends to focus on the disappointing results of the North American Agreement on Labor Cooperation (NAALC) in affecting meaningful changes in the conditions of workers in Mexico. In this article, I aim to take a different approach. My analysis focuses instead primarily on the efficacy of the NAALC process when complaints are made about alleged labor law violations in ...


The Tax Consequences Of Corporate Reorganisations In China, Wei Cui, Richard Krever Jan 2011

The Tax Consequences Of Corporate Reorganisations In China, Wei Cui, Richard Krever

Faculty Publications

The story of China’s income taxation of corporate reorganisations falls into four distinct periods. The first years of the development of a market economy were a period of benign neglect as tax authorities came to grips with a new tax system and some domestic taxpayers exploited unintended exemptions for reorganisation transactions. A dialectic emerged during the second period of reform with a shift towards a more conventional company tax system based on widely-accepted normative tax principles, while at the same time concessional rules were enacted for transactions favoured by the economic planners. The third stage saw a winding back ...


At What Cost? Access To Consumer Credit In A Post-Financial Crisis Canada, Janis P. Sarra Jan 2011

At What Cost? Access To Consumer Credit In A Post-Financial Crisis Canada, Janis P. Sarra

Faculty Publications

Access to consumer credit is influenced by many factors, such as amount and security of the consumer’s income, and credit card company and financial institution practices. Access is also driven by social, cultural and cognitive factors, including consumer understanding of the cost of credit; perceptions regarding ability to repay; cognitive influences regarding immediate consumption and delayed payment; understanding of the benefits and risks of debt to economic security; and the conflicts of interest inherent in the business of lending. Overall, bank and credit union credit has tightened since the global financial crisis. However, the study found that for many ...


Risk Management, Responsive Regulation, And Oversight Of Structured Financial Product Markets, Janis P. Sarra Jan 2011

Risk Management, Responsive Regulation, And Oversight Of Structured Financial Product Markets, Janis P. Sarra

Faculty Publications

Globally, regulators, supervisory authorities, and governments are grappling with what have now been identified as systemic risk factors that contributed to the recent global financial crisis. Internationally, the Basel Committee on Banking Supervision and other organizations are developing standards to identify and address systemic risk, suggesting that the extent of regulation or exemption from it can serve as a mechanism by which risk is transferred within the financial system. The Cross-border Bank Resolution Group of the Basel Committee has developed ten recommendations as a result of its stocktaking of lessons learned from the financial crisis.' The Financial Stability Board (FSB ...


Context, Choice, And Rights: Phs Community Services Society V. Canada (Attorney General), Margot Young Jan 2011

Context, Choice, And Rights: Phs Community Services Society V. Canada (Attorney General), Margot Young

Faculty Publications

Constitutional law cases that revolve around the rights or circumstances of those groups most marginalized in Canadian society are not frequent cause for celebration. Typically, these cases push the boundaries of classical liberal understandings of the rights our Canadian Charter of Rights and Freedoms protects, asking the courts to recognize social and economic dimensions to liberties that are traditionally and popularly more narrowly construed. Such demands are more often than not sidestepped (or rejected outright) by courts, with the result that activist agendas focusing on leveraging Charter rights to achieve significant social change are less compelling than initially imagined. It ...


Cloning And The Lgbti Family: Cautious Optimism, Erez Aloni Jan 2011

Cloning And The Lgbti Family: Cautious Optimism, Erez Aloni

Faculty Publications

While fertile, opposite-sex couples can have children who carry a mix of their genes without involving third parties in the reproductive process, this option is not available to the majority of the LGBTI community. If this were simply a biological fact, it would not raise any equal protection or other constitutional issues. However, emerging technologies in the field of reproductive cloning may offer the LGBTI community the chance to have genetically related children - possibly even with a mix of both partners’ genes. As such, bans on federally funding research that would help to refine and ensure the safety and efficacy ...


Macro- And Micro-Level Effects On Responsive Financial Regulation, Cristie Ford Jan 2011

Macro- And Micro-Level Effects On Responsive Financial Regulation, Cristie Ford

Faculty Publications

We are approaching the 20th anniversary of Ian Ayres’ and John Braithwaite’s 1992 book, Responsive Regulation. This paper, which was prepared for a September 2010 workshop at UBC, considers the implications of the recent financial crisis for Ayres’ and Braithwaite’s concept of “enforced self-regulation.” Its main thesis is that flexible and iterative regulatory strategies, such as enforced self-regulation and its progeny, are more porous to influence from different planes of action than prescriptive regulation would be. When focusing on technical regulatory design strategies, scholars should therefore be cautious about bracketing or underestimating the problem of power operating at ...


Introduction To 'New Governance And The Business Organization', Cristie Ford, Mary Condon Jan 2011

Introduction To 'New Governance And The Business Organization', Cristie Ford, Mary Condon

Faculty Publications

In the fall of 2010, the University of British Columbia Faculty of Law welcomed a group of scholars from around the world to consider the state, and evolution, of responsive regulation, in both theory and practice. The occasion was the presence of Dr. John Braithwaite as UBC Law’s inaugural Fasken Martineau Senior Visiting Scholar. This paper is an introductory essay to the special edition of the UBC Law Review devoted to the workshop’s resulting work products. The volume begins with John Braithwaite’s own reflections on the responsive regulation project. On one level, the set of essays that ...


We Are The (National) Champions: Understanding The Mechanisms Of State Capitalism In China, Li-Wen Lin, Curtis J. Milhaupt Jan 2011

We Are The (National) Champions: Understanding The Mechanisms Of State Capitalism In China, Li-Wen Lin, Curtis J. Milhaupt

Faculty Publications

While China appears to present a new variety of capitalism, frequently labeled "state capitalism," the features of this system - particularly the organizational structure surrounding China’s most important state-owned enterprises (the national champions) - remains a black box. Corporate governance scholarship on China has focused on listed firms, but listed SOEs in China are nested in vertically integrated corporate groups, and the groups are strategically linked to other business groups, as well as to the Communist Party and to governmental organs. While the parent company of the listed firms has a governmental controlling shareholder in the form of an agency called ...


Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui Jan 2011

Why Is The Japanese Supreme Court So Conservative?, Shigenori Matsui

Faculty Publications

The Constitution of Japan, enacted on November 3, 1946, and effective as of May 3, 1947, gave the judicial power to the Supreme Court and the inferior courts established by the Diet, the national legislature, and gave the power of judicial review to the judiciary. Equipped with the power of judicial review, the Japanese Supreme Court was expected to perform a very significant political role in safeguarding the Constitution, especially its Bill of Rights, against infringement by the government. Yet, it has developed a very conservative constitutional jurisprudence ever since its establishment. This article examines why the Japanese Supreme Court ...


Political Protest, Mass Arrests, And Mass Detention: Fundamental Freedoms And (Un)Common Criminals, Debra Parkes, Meaghan Daniel Jan 2011

Political Protest, Mass Arrests, And Mass Detention: Fundamental Freedoms And (Un)Common Criminals, Debra Parkes, Meaghan Daniel

Faculty Publications

“No Justice. No Peace.” The mass arrest and detention of over 1,105 people during the Toronto G20 summit in June 2010, including author Meaghan Daniel, prompted reflection on the connections between justice and peace and in particular, between peaceful protest, policing, detention and the justice system. The record breaking weekend of mass arrests and temporary detention of people described as “innocent bystanders” and “peaceful protestors” provoked an ongoing conversation about the criminalization of protest. It is the authors’ hope to extend this conversation beyond these (un)common criminals to the “every day” processes of criminalization and imprisonment that go ...


Responsive Regulation In Context, Circa 2011, Cristie Ford, Natasha Affolder Jan 2011

Responsive Regulation In Context, Circa 2011, Cristie Ford, Natasha Affolder

Faculty Publications

In the fall of 2010, the University of British Columbia Faculty of Law welcomed a group of scholars from around the world to consider the state and evolution of responsive regulation, in both theory and practice. The occasion was the presence of Dr. John Braithwaite, the faculty's inaugural Fasken Martineau Senior Visiting Scholar.' Given that we are on the cusp of the twentieth anniversary of Ian Ayres and John Braithwaite's seminal book, Responsive Regulation: Transcending the Deregulation Debate,' it is appropriate that this issue begins with John Braithwaite's own reflections on the responsive regulation project. On one ...


Current Jurisdictional And Recognitional Issues In The Conflict Of Laws, Vaughan Black, Blom Joost Jan 2011

Current Jurisdictional And Recognitional Issues In The Conflict Of Laws, Vaughan Black, Blom Joost

Faculty Publications

In honour of the 40th Consumer and Commercial Law Workshop and the 50th volume of the Canadian Business Law Journal we have been asked to provide a retrospective of developments in the conflict of laws that highlights emerging issues. We have chosen to present it in a conversational fashion in which each of us presents a perspective and the other two offer their comments.


Temporarily Unchained: The Drive To Unionize Foreign Seasonal Agricultural Workers In Canada – A Comment On Greenway Farms And Ufcw, Robert Russo Jan 2011

Temporarily Unchained: The Drive To Unionize Foreign Seasonal Agricultural Workers In Canada – A Comment On Greenway Farms And Ufcw, Robert Russo

Faculty Publications

A Case Comment on Greenway Farms and UFCW


Prudential, Pragmatic And Prescient, Reform Of Bank Resolution Schemes, Janis P. Sarra Jan 2011

Prudential, Pragmatic And Prescient, Reform Of Bank Resolution Schemes, Janis P. Sarra

Faculty Publications

The 2008-2009 global financial crisis highlighted the interdependency of financial institutions and markets worldwide. Globally, fiscal support packages totaling 3 trillion USD were introduced, placing enormous strain on the public finances of a number of countries. Even in jurisdictions such as Canada, with relatively well-managed banking systems, a generalized loss of confidence led to a sharp rise in funding costs. The largest negative effects of the financial crisis on the Canadian economy stemmed from crises originating in other countries, with adverse contagion effects on the Canadian banking system, making it very difficult for Canadian banks to fund themselves in foreign ...


Insite: Site And Sight (Part 1 - Insights On Insite), Margot Young Jan 2011

Insite: Site And Sight (Part 1 - Insights On Insite), Margot Young

Faculty Publications

The Insite case is a great study for students of constitutional law. The twinning of a claim of inter-jurisdictional immunity - in a somewhat novel application to provincial jurisdiction - to the assertion by some of Canada's most marginalized citizens of the fundamental freedoms of life, liberty, and security of the person delivers a compact and compelling recitation of basic features of Canada's constitutional landscape. The case is set in the landscape of the Vancouver's Downtown East-side (DTES) - a geography of spatial outcomes that reflects balances of economic and social power and displacement. This place has a specific demography ...


What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson Jan 2011

What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson

Faculty Publications

This Article examines the history of Canadian environmental law in order to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering ...


Four Varieties Of Social Responsibility: Making Sense Of The 'Sphere Of Influence' And 'Leverage' Debate Via The Case Of Iso 26000, Stepan Wood Jan 2011

Four Varieties Of Social Responsibility: Making Sense Of The 'Sphere Of Influence' And 'Leverage' Debate Via The Case Of Iso 26000, Stepan Wood

Faculty Publications

One of the key controversies in social responsibility discourse is whether an organization’s responsibility should be based on its capacity to influence other parties or only on its actual contribution to social and environmental outcomes. On one side of the debate are those who argue that the limits of an organization’s responsibility should be defined in terms of its “sphere of influence” (SOI): the greater the influence, the greater the responsibility to act. On the other side are those who reject the SOI approach as ambiguous, misleading, normatively undesirable and prone to strategic manipulation. Foremost among the critics ...


The Meaning Of 'Sphere Of Influence' In Iso 26000, Stepan Wood Jan 2011

The Meaning Of 'Sphere Of Influence' In Iso 26000, Stepan Wood

Faculty Publications

The relationship between a company’s influence and its social responsibilities is the subject of persistent controversy, manifested for example in the debate over the use of the concept of “sphere of influence” (SOI) to define the scope of a company’s social responsibility. Early drafts of the ISO 26000 guide on social responsibility employed SOI in this way, stating among other things that influence can give rise to responsibility and that generally, the greater the ability to influence, the greater the responsibility. The UN Special Representative on business and human rights, John Ruggie, rejected this use of SOI as ...


Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach Jan 2011

Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach

Faculty Publications

The case of Christopher Pauchay demonstrates some of the differences between predominant Euro-Canadian and First Nations approaches to dispute resolution. The principles of sentencing circles sometimes overlap with the principles of restorative justice and suggest their potential incorporation into the criminal justice system. The use of alternative processes that share some common values is not enough to overcome to chasm between Euro-Western and Aboriginal justice. Where underlying worldviews diff er, those who can choose between competing values amidst limited possibilities will likely choose the values that refl ect the conventional system. A comparison of Euro-Western and Aboriginal approaches to crime ...


Why Study Large Projects? Environmental Regulation’S Neglected Frontier, Natasha Affolder Jan 2011

Why Study Large Projects? Environmental Regulation’S Neglected Frontier, Natasha Affolder

Faculty Publications

Large-scale natural resource and infrastructure projects create some of the most challenging and high-stakes contexts for environmental regulation. Witness the heated debates surrounding the Keystone XL pipeline project. But to date, large projects have attracted relatively little sustained interest from scholars of environmental law and regulation. Case studies stand alone as valuable empirical accounts of individual pipelines, dams, and mining projects. But synthesis of these case studies is lacking. A workshop that celebrates the approaching 20th year anniversary of Ian Ayres’ and John Braithwaite’s 1992 book, Responsive Regulation, provides an opportune moment to reflect on this lacuna in environmental ...


Indigeneity And Sovereignty In Canada's Far North: The Arctic And Inuit Sovereignty, Gordon Christie Jan 2011

Indigeneity And Sovereignty In Canada's Far North: The Arctic And Inuit Sovereignty, Gordon Christie

Faculty Publications

As the Arctic “opens up” to exploration and economic development, a new stage in colonization looms. This essay builds toward a vision of Arctic nation-states meeting with the Inuit to work out how they might together come to an understanding of how decisions about the future of the Arctic may be appropriately made. The Inuit are currently actively resisting the new wave of colonization within a framework built on the bedrock of nation-state sovereignty. The notion of “sovereignty” serves as a keystone in a system of controlling narratives, functioning to generate and police ways of thinking about decision-making processes, a ...


What Is The 'Law' In Chinese Tax Administration?, Wei Cui Jan 2011

What Is The 'Law' In Chinese Tax Administration?, Wei Cui

Faculty Publications

In December 2009, in just weeks of proximity to the issuance of several controversial, arguably ultra vires tax circulars by the Ministry of Finance and by the State Administration of Taxation (SAT), the latter agency promulgated a seminal regulation governing informal rulemaking activities of all tax authorities in China. This regulation took effect on July 1, 2010, and promises to significantly improve the clarity, transparency, predictability, and quality of tax rulemaking. Ironically, it can also be seen as a rebuke to a cynical view that is rather prevalent among Chinese tax practitioners and reinforced by the recent problematic tax circulars ...


Fiscal Federalism In Chinese Taxation, Wei Cui Jan 2011

Fiscal Federalism In Chinese Taxation, Wei Cui

Faculty Publications

The recent policy literature on fiscal federalism in China has concentrated on the large “vertical fiscal gap” resulting in inadequate local provision of public goods and services. Thus there is an evident interest in giving local governments more taxing powers. After a brief historical survey, the article discusses a 1993 State Council directive that centralized taxing power. This has led local governments to make use of their control over tax administration to alter effective tax rates, and to the practice of “refund after collection”, whereby local governments disguise tax cuts as expenditures, following a logic opposite to tax expenditures. This ...