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Articles 1 - 21 of 21
Full-Text Articles in Rule of Law
What Is Scholarly Legal Writing? An Introduction To Different Perspectives (On Us Qualified Immunity Doctrine), Samuel Beswick
What Is Scholarly Legal Writing? An Introduction To Different Perspectives (On Us Qualified Immunity Doctrine), Samuel Beswick
All Faculty Publications
How do you write a law article? It turns out there is no one ‘right way’. Legal problems can be analysed from different angles. Law journals are full of diverse perspectives on the law.
This document provides an introduction to the different types of legal scholarship that can be found in law journals. It illustrates using scholarship on the American judicial doctrine of qualified immunity, which shields government officials from legal liability for ‘constitutional torts’. Qualified immunity can be analysed from the perspective of doctrine, policy, comparative law, history, economics, empirics, sociology, and philosophy. One issue; many perspectives.
Human Rights And The Rule Of Law: Implications For Canada-China Relations, Pitman B. Potter
Human Rights And The Rule Of Law: Implications For Canada-China Relations, Pitman B. Potter
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China’s rise to prosperity has seen increased tension with international standards of human rights and the rule of law such that, after a lengthy period of tentative engagement China has more recently worked to change international standards to accommodate its interests. China’s approach to human rights and the rule of law has significant implications for Canada, not only for our bilateral relations but also in terms of the impacts on international institutions that are of vital interest to Canada. In response, Canada should pursue a program of selective engagement, that combines attention to China’s abuses of human rights and the …
The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey
The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey
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Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …
When Do Chinese National Ministries Make Law?, Wei Cui
When Do Chinese National Ministries Make Law?, Wei Cui
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This paper documents some basic empirical facts about the issuance of formal regulations (FRs) and informal policy directives (IPDs) by China’s national ministries and agencies from 2000 to 2014. Prior scholarship (e.g. Cui 2011, Howson 2012) depicts specific instances of Chinese national agencies announcing substantive new policies (many ultra vires by statutory standards) through IPDs. I use FR and IPD quantities as measures of the agencies’ propensity to resort to legal as opposed to non-legal, merely bureaucratic mechanisms for announcing policy. I find significant variations across agencies in the quantities of FRs issued, both in absolute terms and relative to …
Remedies In Canadian Administrative Law: A Roadmap To A Parallel Legal Universe, Cristie Ford
Remedies In Canadian Administrative Law: A Roadmap To A Parallel Legal Universe, Cristie Ford
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Administrative law in Canada, as in many other common law countries, centres around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose.
This chapter, which has been revised and updated for the third edition of this leading text on Canadian …
Does Judicial Independence Matter? A Study Of The Determinants Of Administrative Litigation In An Authoritarian Regime, Wei Cui
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Lawsuits against the government form a part of the regular functioning of legal systems in democratic countries, and responding to such lawsuits an unavoidable part of governance. However, in the context of authoritarian regimes, administrative litigation has been viewed as a distinctively valuable institution for promoting the rule of law and individual rights. Moreover, the judiciary is portrayed as the keystone to this institution and to the rule of law in general: the more powerful and competent is the judiciary, the more it is able to “constrain government” through judicial review. Through empirical and comparative analyses of over two decades …
R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore
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The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …
Preventive Justice, The Precautionary Principle And The Rule Of Law, Jocelyn Stacey
Preventive Justice, The Precautionary Principle And The Rule Of Law, Jocelyn Stacey
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Despite its largely preventive orientation, environmental law has, with one exception, remained distinct from the burgeoning field of preventive justice. The exception is the precautionary principle, which has become a subject of interest and frequent skepticism amongst preventive justice scholars. The precautionary principle is a central principle in environmental law. Its centrality arises from the pervasiveness of scientific uncertainty in environmental regulation; that is, our inability to reliably predict the consequences of our policy choices on environmental and human health. The precautionary principle squarely addresses the question of how we ought to proceed in the face of unavoidable uncertainty. This …
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey
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This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
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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 …
The Policing Of Major Events In Canada: Lessons From Toronto's G20 And Vancouver's Olympics, W. Wesley Pue, Robert Diab, Grace Jackson
The Policing Of Major Events In Canada: Lessons From Toronto's G20 And Vancouver's Olympics, W. Wesley Pue, Robert Diab, Grace Jackson
All Faculty Publications
Major events ranging from sporting events to major international conferences too often result in disorder, deployment of riot squads, and mass arrests. Events surrounding a meeting of the G20 in Toronto and those at Vancouver’s Winter Olympics provide insight into the ways in which things can go wrong and the ways in which they can go well at major events. This article employs a “thick history” of events in order to explore gaps in Canadian law, including gaps between “law in the books” and “law in action.”
The legal frameworks governing large-scale events affect the likelihood of success measured in …
The Legal Maladies Of 'Federalism, Chinese-Style', Wei Cui
The Legal Maladies Of 'Federalism, Chinese-Style', Wei Cui
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In the study of Chinese law, the theme of “central-local relations” has rarely been the focus of theoretical, empirical, or even doctrinal analysis. Instead, scholars have privileged judicial institutions, general discourses about the rule of law, and their relations to authoritarianism as themes for inquiry. This is of course not unlike the study of legal systems elsewhere: the literatures on federalism and on the rule of law, while each vast in themselves, rarely overlap. In this chapter, I summarize arguments I make elsewhere that the allocation of power and responsibilities among different tiers of government has in fact had major …
The Rule-Of-Law Underpinnings Of Endangered Species Protection: Minister Of Fisheries And Oceans V. David Suzuki Foundation, 2012 Fca 40, Jocelyn Stacey
The Rule-Of-Law Underpinnings Of Endangered Species Protection: Minister Of Fisheries And Oceans V. David Suzuki Foundation, 2012 Fca 40, Jocelyn Stacey
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Environmental organizations have experienced a string of recent courtroom successes enforcing the federal Species At Risk Act. This case comment examines one of these cases, Minister of Fisheries and Oceans v. David Suzuki Foundation (“Killer Whales”), to expose the rule-of-law underpinnings of the Federal Court of Appeal’s decision. It argues that, while the decision is on its face an ostensible victory for endangered species protection, the conception of the rule of law on which the court relies is incapable of providing meaningful legal constraints for much environmental decision-making.
Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston
Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston
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This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case …
Dogs And Tails: Remedies In Administrative Law, Cristie Ford
Dogs And Tails: Remedies In Administrative Law, Cristie Ford
All Faculty Publications
Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …
Witnessing Arbitrariness: Roncarelli V. Duplessis Fifty Years On, Mary Liston
Witnessing Arbitrariness: Roncarelli V. Duplessis Fifty Years On, Mary Liston
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In Canadian public law, the foundational case of Roncarelli v. Duplessis stands for the proposition that arbitrariness and the rule of law are conceptually antithetical values. This article examines multiple forms of arbitrariness in Roncarelli, going beyond the usual focus on discretionary power arbitrarily exercised by the executive branch of government. A close reading of the case not only brings to the surface other forms of arbitrariness, notably under-acknowledged forms of judicial arbitrariness, but also illuminates how legal actors attempt to constrain arbitrariness within the activity of judging. Furthermore, repositioning the case in its larger social and political context provides …
Assurance Services As A Substitute For Law In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin
Assurance Services As A Substitute For Law In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin
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In this article we examine the rapid emergence and expansion of a private-sector compliance and enforcement infrastructure that we believe may increasingly be providing a substitute for public and legal regulatory infrastructure in global commerce, especially in developing countries where rule of law is weak and court systems are absent or inadequate. This infrastructure is provided by a proliferation of performance codes and standards, and a rapidly-growing global army of privately-trained and authorized inspectors and certifiers that we call the "third-party assurance industry." The growth in the third party assurance business has been phenomenal in the last decade. The business …
The Problem Of Official Discretion In Anti-Terrorism Law: Comment On Khawajah, W. Wesley Pue, Robert Russo
The Problem Of Official Discretion In Anti-Terrorism Law: Comment On Khawajah, W. Wesley Pue, Robert Russo
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This paper assesses the first judicial ruling on key provisions of the Anti Terrorism Act. Rutherford J.'s ruling struck down provisions creating a motive requirement in the definition of terrorist activity while upholding the overall structure of the act against challenges on the basis of overbreadth and vagueness. A fault-line divides the two sides of the ruling. On one side the court looked to the lived-experience of legal rules, concluding that including motive requirements would mislead officials in the direction of improper and unconstitutional racial or religious profiling. On the other side of the fault-line the court restricted itself to …
Criminal Jumping On And Off The Curb - Discretion And The Idea Of An Impartial And Independent Police Force, W. Wesley Pue
Criminal Jumping On And Off The Curb - Discretion And The Idea Of An Impartial And Independent Police Force, W. Wesley Pue
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This paper presents a commentary on the idea of independence of the police, arguing that notions of independence are complicated considerably when the reality of police discretion is taken into account. The notion of colourability is identified as central (where goals not unlawful in themselves are pursued for unlawful reasons - eg. to vicitimize one's political foes) as is the possibility of police powers being deployed lawfully in the strict sense, but in a fashion that is nonetheless constitutionally improper.
The Supreme Court Of Canada Crumbles Mr. Christie's Cookie, Anthony F. Sheppard
The Supreme Court Of Canada Crumbles Mr. Christie's Cookie, Anthony F. Sheppard
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In British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 SCR 873, the unanimous full bench of the Supreme Court of Canada upheld a provincial sales tax ("PST") on legal services, rejecting a Charter challenge and overturning the lower courts' decisions that partially invalidated the tax. The taxpayer, a lawyer practising poverty law in British Columbia, challenged the validity of a provincial sales tax charging 7 percent on fees billed for legal services and payable on billing. The PST on legal services required lawyers and notaries public in private practice to add the tax onto their billings. The …
‘Alert, Alive And Sensitive’: Baker, The Duty To Give Reasons, And The Ethos Of Justification In Canadian Public Law, Mary Liston
‘Alert, Alive And Sensitive’: Baker, The Duty To Give Reasons, And The Ethos Of Justification In Canadian Public Law, Mary Liston
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This chapter argues that the remarkable phrase ‘alert, alive and sensitive’ – coined by Madame Justice L’Heureux-Dubé in the major Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship and Immigration) – signifies two important jurisprudential developments. First, the phrase ‘alert, alive and sensitive’ indicates a set of attributes connoting good judgment which can be used to evaluate the quality of judicial and administrative decisions. Second, the phrase comports with an emergent understanding of Canadian public law as an ‘ethos of justification’ in which citizens and non-citizens are democratically, and often constitutionally, entitled to participate in decisions made …