Digital Commons Network^™

Arbitrator Behaviour In Asymmetrical Adjudication (Part Two): An Examination Of Hypotheses Of Bias In Investment Treaty Arbitration, Gus Van Harten

Osgoode Hall Law Journal

This article reports on a study of potential systemic bias in the resolution of ambiguous legal issues by investment treaty arbitrators. It outlines tentative but significant findings that the arbitrators in general tended to favour (1) foreign investors over states overall, (2) foreign investors from major Western capital-exporting states over other foreign investors, and, albeit based on more limited data, (3) the United States as a respondent state over other respondent states. The evidence is derived from an extensive content analysis of the arbitrators’ resolution of fourteen legal issues that are contested among arbitrators or in secondary literature. The findings …

Equality Before The Law? Evaluating Criminal Case Outcomes In Canada, Michael Trebilcock, Albert Yoon

Osgoode Hall Law Journal

One of our most strongly held ideals is that individuals receive equal treatment under the law. Incidents of wrongful conviction or wide disparities in sentencing, however, challenge this premise. While legal scholars have recently examined this premise, our understanding remains largely normative or anecdotal. Scholars have begun to identify factors that influence legal outcomes, yet this question has remained largely unexplored in Canada. This article seeks to advance this inquiry. Using unique data from both the Ontario courts and Legal Aid Ontario during 2007–2013, we find that outcomes in routine criminal cases vary in ways not summarily explained by differences …

Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik

Osgoode Hall Law Journal

As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey

Osgoode Hall Law Journal

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 reply further develops the public-justification conception of the rule of law, arguing that it is at home within Canadian public law. It also argues that this conception of the rule of law highlights possibilities for future research directions in Canadian environmental law.

The Doctrine Of Discovery Reconsidered: Reflecting On Discovering Indigenous Lands: The Doctrine Of Discovery In The English Colonies, By Robert J Miller, Jacinta Ruru, Larissa Behrendt, And Tracey Lindberg, And Reconciling Sovereignties: Aboriginal Nations And Canada, By Felix Hoehn, Kent Mcneil

Osgoode Hall Law Journal

This is a review essay discussing two books: Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn.

Book Review: The Corporate Criminal: Why Corporations Must Be Abolished By Steve Tombs And David Whyte, Joan Brockman

Osgoode Hall Law Journal

This is a book review of The Corporate Criminal: Why Corporations Must Be Abolished by Steve Tombs and David Whyte

Compact Is Back: The Supreme Court Of Canada’S Revival Of The Compact Theory Of Confederation, Sébastien Grammond

Osgoode Hall Law Journal

The compact theory of Canadian Confederation is the idea that the Constitution is the product of a political agreement (or “compact”) among the country’s constitutive parts. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the Constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s …

Bordering The Constitution, Constituting The Border, Efrat Arbel

Osgoode Hall Law Journal

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site at which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS)--a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation--I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border in two fundamentally different …

From Principles To Rules: The Case For Statutory Rules Governing Aspects Of Judicial Disqualification, Jula Hughes, Philip Bryden

Osgoode Hall Law Journal

The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact- and context-specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for a judge to sit in a marginal case. This article explores statutory judicial disqualification regimes in the United States, Germany, and Quebec to gain insights into how statutory rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise …

The Objectives And Principles Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade

Osgoode Hall Law Journal

Article 7 (Principles) and Article 8 (Objectives) are prominent within the text of the WTO TRIPS Agreement, yet have figured sparingly in the reasoning of the Dispute Settlement Body (DSB). This discrepancy is accentuated when considered in light of three key factors. First, the pioneering step taken by TRIPS negotiators to include broad declarations of intent within the operative text. Second, the 2001 reinforcement given to these provisions in the Doha Declaration on TRIPS and Public Health. Finally, the verbatim replication of these provisions within other international IP instruments, notably, the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and the WIPO …

Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, Isabel Grant, Peter J. Carver

Osgoode Hall Law Journal

In PS v Ontario, the Ontario Court of Appeal held that section 7 of the Charter requires that persons who are civilly committed for six months or more must have access to meaningful review over the conditions of their detention. In this paper, the authors argue that the decision has broad implications for provincial civil commitment regimes across the country. In particular, the Court’s analogy to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty involved in civil commitments. An expanded role for civil review tribunals may be required, including …

Why I Don’T Teach Administrative Law (And Perhaps Why I Should?), Allan C. Hutchinson

Osgoode Hall Law Journal

This Commentary reflects upon the challenges of teaching Administrative Law today. Drawing upon the author’s own career trajectory and his commitment to a critical account of law and adjudication, the article seeks to question the foundations of both administrative law and critical theory. It offers no comprehensive or cogent plan as to what to do, but insists upon the relevance and importance of combining both legal theory and legal doctrine in a convincing pedagogical approach.

“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick

Osgoode Hall Law Journal

What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment—the explanation as to why the outcome is the legally and constitutionally appropriate one—are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT. Very few Supreme Court decisions take this form, and there was a time not that long ago when …

Book Review: The Liberty Of Non-Citizens: Indefinite Detention In Commonwealth Countries, By Rayner Thwaites, Colin Grey

Osgoode Hall Law Journal

This is a book review of The Liberty of Non-citizens: Indefinite Detention in Commonwealth Countries by Rayner Thwaites.

Book Note: What’S Wrong With Copying?, By Abraham Drassinower, James A. Hayes

Osgoode Hall Law Journal

“IN THE WORLD OF COPYRIGHT, an author is no sovereign despot in an inverted world of commodities. She is rather a citizen among others in the great Republic of Letters.”2 Abraham Drassinower thus concludes What’s Wrong With Copying? with an eloquent expression of its thesis. In this provocative book, Drassinower critiques fundamental copyright theory and posits a move to an inclusive philosophy that compensates for increasingly blurred lines between authors and publics. Drassinower argues for the construction of authors as speakers, works of authorship as instances of communication, audiences as interlocutors, and the public domain as a set of conditions …

Book Note: Literature & The Law Of Nations 1580-1680, By Christopher N. Warren, Sarah Mackenzie

Osgoode Hall Law Journal

WHAT IS THE HISTORY OF THE TERMS international and globalization? How have they evolved, and what is their relevance? These are the questions Christopher N. Warren attempts to answer in Literature & the Law of Nations. Warren explores how the modern concept of law of nations has evolved and developed, tracing how it has passed from one age, culture, or language to the next. Warren argues the law of nations has evolved through literature, and that the recurrence of key words can be used to explore its roots. By examining literary works through the ages, the historical meaning of “nation” …

Book Note: Other People’S Houses: How Decades Of Bailouts, Captive Regulators, And Toxic Bankers Made Home Mortgages A Thrilling Business, By Jennifer Taub, Keton Motta Freeman

Osgoode Hall Law Journal

OTHER PEOPLE’S HOUSES ADDS TO A GROWING LITERATURE on the origins of the Financial Crisis of 2008. Jennifer Taub’s contribution provides one of the most comprehensive studies to date. She outlines the many causes of the crisis, dispels myths, and explains what has been done—or how little has been done—in the wake of the crisis, while keeping the perspectives of struggling homeowners front and center. Taub begins by showing how the 2008 crisis was a continuation of the savings and loans crisis of the 1980s and 1990s that brought countless farmers and banks to ruin. In both crises, the “same …

Book Note: The End Of The Charter Revolution: Looking Back From The New Normal By Peter J Mccormick, Lillianne Cadieux-Shaw

Osgoode Hall Law Journal

CANADA’S CONSTITUTIONALIZED BILL OF RIGHTS, the Charter of Rights and Freedoms,2 unified the country under a set of principles that were designed to encapsulate liberty and equality, and safeguard an expansive set of rights and freedoms. Entrenched in 1982, the Charter fundamentally changed the Canadian legal landscape and allowed the Supreme Court of Canada to take center stage as the “best show in town,”3 generously sketching out rights for all in a golden age of Canadian law. But, as Peter McCormick argues in his new book The End of the Charter Revolution, that golden age may be finished. The Charter …

Book Note: Dying From Improvement: Inquests And Inquiries Into Indigenous Deaths In Custody, By Sherene H. Razack, Daphne Papadatos

Osgoode Hall Law Journal

INDIGENOUS DEATHS IN CUSTODY have long told a story of alcoholism and mental illness, suggesting a fundamental incapacity of Canada’s Indigenous populations to survive and prosper in modern society. In Dying from Improvement Sherene H. Razack tells a different story, one of colonial aggression which constructs the state as a body that secures its own legitimacy through encounters with Indigenous bodies. Running parallel to this examination is a question for all Canadians: In the face of police aggression and the profound indifference that underlies so many Indigenous deaths in custody, “why do we fail to care?”2 By examining inquests and …

Book Note: Ruin And Redemption: The Struggle For A Canadian Bankruptcy Law, 1867-1919, By Thomas Gw Telfer, Larissa Lucas

Osgoode Hall Law Journal

BANKRUPTCY—A LEGAL PROCESS DESIGNED to relieve honest but unfortunate debtors of their debts—allows for “a statutory exception to the common law and interferes with the ordinary relations between debtors and creditors.”2 While modern bankruptcy scholarship recognizes that bankruptcy law is a commercial necessity, the debate in nineteenth- and twentieth-century Canada focused on whether it should exist at all.3 Why did Canada enact bankruptcy legislation after Confederation and repeal it in 1880? After repeal, why did Parliament take nearly forty years to enact the Bankruptcy Act of 1919? These are the central questions that Thomas GW Telfer answers in Ruin and …

Book Note: Natural Law In Court: A History Of Legal Theory In Practice, By R. H. Helmolz, Adam Giancola

Osgoode Hall Law Journal

AFTER THE FALL OF NATIONAL SOCIALISM, the German legal theorist and former Minister of Justice Gustav Radbruch famously wrote “[w]here there is not even an attempt at justice, where equality, the core of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely ‘flawed law’, it lacks completely the very nature of law.”2 For Radbruch, courts needed to have in certain circumstances recourse to principles of justice beyond those available in the written statute; a kind of natural law. Radbruch’s call for an application of natural law at court evokes the central question in …

Book Note: Why Love Leads To Justice: Love Across The Boundaries, By David A.J. Richards, Hannah Ordman

Osgoode Hall Law Journal

MUCH FEMINIST SCHOLARSHIP HAS GRAPPLED with the concept of love in its many forms. Modern love has been understood as a manifestation of harmful patriarchal values, a “curse”2 that confines women to rigid gender norms of femininity and passivity.3 However, love has been reclaimed and reconceptualised by some feminists as a powerful force for resisting these patriarchal norms and encouraging self-realization among women, men, and others.4 David A.J. Richards’s Why Love Leads to Justice makes a valiant effort on the latter understanding.5 His thesis is simple: love leads to justice.6 In particular, love that is transgressive, which crosses the boundaries …

A Case-Control Study In An Orcadian Population Investigating The Rrelationship Between Human Plasma N-Glycans And Metabolic Syndrome, Fiona Mclachlan, Maria Timofeeva, Mairead Bermingham, Sarah Wild, Igor Rudan, Gordon Lauc, Wei Wang, Harry Campbell, James Wilson, Evropi Theodoratou

Research outputs 2014 to 2021

Background:

Alterations in glycosylation patterns have long been known to reflect changes in cell metabolism. In this study, we investigated the relationship between human N-glycan profiles and metabolic syndrome.

Method:

Between 2005 and 2011, 2,155 individuals from the Orkney Islands (UK) were recruited and biological material, alongside phenotypic measures were collected. Individual N-glycan profiles were measured in plasma using weak anion exchange high performance liquid chromatography and calibrated hydrophilic interaction liquid chromatography. Pre-specified criteria were used to identify 564 cases with metabolic syndrome and 1475 controls. We applied logistic regression to test for association between this binary outcome against measured …

Accelerating Tropicalization And The Transformation Of Temperate Seagrass Meadows, Glenn A. Hyndes, Kenneth L. Heck, Jnr, Adriana Verges, Euan S. Harvey, Gary A. Kendrick, Paul Lavery, Kathryn Mcmahon, Robert J. Orth, Alan Pearce, Mathew Vanderklift, Thomas Wernberg, Scott Whiting, Shaun Wilson

Research outputs 2014 to 2021

Climate-driven changes are altering production and functioning of biotic assemblages in terrestrial and aquatic environments. In temperate coastal waters, rising sea temperatures, warm water anomalies and poleward shifts in the distribution of tropical herbivores have had a detrimental effect on algal forests. We develop generalized scenarios of this form of tropicalization and its potential effects on the structure and functioning of globally significant and threatened seagrass ecosystems, through poleward shifts in tropical seagrasses and herbivores. Initially, we expect tropical herbivorous fishes to establish in temperate seagrass meadows, followed later by megafauna. Tropical seagrasses are likely to establish later, delayed by …

Appetite Control With Relevance To Mitochondrial Biogenesis And Activation Of Post-Prandial Lipid Metabolism In Obesity Linked Diabetes, Ian J. Martins

Research outputs 2014 to 2021

In various communities in the developing and developed world the understanding of the ingestion of a healthy diet [1] and hepatic fat metabolism has become of critical importance to the treatment of obesity linked Type 2 diabetes that is now linked to various organ diseases [2]. In the developing world transition to healthy diets has become urgent to prevent insulin resistance [3,4] and the obesity pandemic [5-8]. The liver is the major organ for the metabolism of dietary fat and after consumption of a meal in healthy individuals the fat is rapidly metabolized by the liver. In obesity linked Type …

The Joondalup Story : A City And A University Campus In The Making, John Renner, Sybe Jongeling

Research outputs 2014 to 2021

'The Joondalup Story' is a record of creative planning and urban development of the City of Joondalup and within it Edith Cowan University's northern campus at Joondalup. It's a remarkable story of urban planning initiated by Professor Gordon Stephenson and the evolution of a planned urban community in its first decade, 1987 to 1996. Finally, in the last two chapters, 'Joondalup Story' profiles the challenges and impressive achievements of the Joondalup community, city and campus, two decades later in 2015.

Istar First Light: Characterizing Astronomy Education Research Dissertations In The Istar Database, Stephanie J. Slater, Coty B. Tatge, Paulo S. Bretones, Timothy F. Slater, Sharon P. Schleigh, David H. Mckinnon, Inge Heyer

Research outputs 2014 to 2021

There is widespread interest among discipline-based science education researchers to situate their research in the existing scholarly literature base. Unfortunately, traditional approaches to conducting a thorough literature review are unduly hindered in astronomy education research as the venues in which scholarship is reported are fragmented and widely dispersed across journals of varying disciplines. The international STudies of Astronomy education Research (iSTAR) online repository is the result of a concerted international community effort to collect and categorize existing research from peer-reviewed journal articles, dissertations/theses, and grey literature. In a “first light” survey of over 300 U.S. dissertations, we find: (i) work …

Extractability And Chemical Forms Of Radioactive Cesium In Designated Wastes Investigated In An On-Site Test, Yoko Fujikawa, Hiroaki Ozaki, Xiaming Chen, Shogo Taniguchi, Ryouhei Takanami, Aiichiro Fujinaga, Shinji Sakurai, Paul Lewtas

Research outputs 2014 to 2021

In the aftermath of the 2011 accident at Fukushima Daiichi Nuclear Power Plant (F1 hereafter), municipal solid waste (MSW) contaminated with radioactive cesium (rad-Cs hereafter) has been generated in 12 prefectures in Japan. The Japanese Minister of Environment classified MSW that contained rad-Cs in the concentration more than 8,000 Bq/kg as “designated (solid) waste (DSW hereafter), and prescribed the collection, storage and transportation procedures. When MSW containing rad-Cs was incinerated, rad-Cs was concentrated in fly ash, and the ash often fell into the category of DSW. We have investigated a technique that can reduce the volume of the rad-Cs-contaminated fly-ash …

Finding Chemopreventatives To Reduce Amyloid Beta In Yeast, Ian Macreadie, Costa Arvanitis, Prashant Bharadwaj

Research outputs 2014 to 2021

Alzheimer's disease (AD) is the most common form of age-related dementia with the latest report (WorldAlzheimerReport, 2015) showing 46.8 million people are currently affected by dementia. That number is expected to double every 20 years unless there is effective therapeutic intervention.

Developmental Transcription Factors In Age-Related Cns Disease: A Phoenix Rising From The Ashes?, Robert White, Meghan Thomas

Research outputs 2014 to 2021

Few would doubt that understanding the developmental landscape from which a mature neuron is derived is essential to understand its biology. The temporal and spatial position of a cell from the very earliest stages of development predicts the unique combinations of growth factors it will subsequently be exposed to. This combination of factors determines the transcriptional platform set within the cell by its specific combination of transcription factors, who direct the show. This, in turn, determines what cell type it will differentiate into, and what connections it will make. How this developmental platform translates to maintenance of a differentiated neuron …