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Osgoode Hall Law School of York University

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Full-Text Articles in Law

Legalbench: A Collaboratively Built Benchmark For Measuring Legal Reasoning In Large Language Models, Neel Guha, Julian Nyarko, Daniel E. Ho, Christopher Ré, Adam Chilton, Aditya Narayana, Alex Chohlas-Wood, Austin Peters, Brandon Waldon, Daniel Rockmore, Diego A. Zambrano, Dmitry Talisman, Enam Hoque, Faiz Surani, Frank Fagan, Galit Sarfaty, Gregory M. Dickinson, Haggai Porat, Jason Hegland, Jessica Wu, Joe Nudell, Joel Niklaus, John Nay, Jonathan H. Choi, Kevin Tobia, Margaret Hagan, Megan Ma, Michael A. Livermore, Nikon Rasumov-Rahe, Nils Holzenberger, Noam Kolt, Peter Henderson, Sean Rehaag, Sharad Goel, Shang Gao, Spencer Williams, Sunny Gandhi, Tom Zur, Varun Iyer, Zehua Li Sep 2023

Legalbench: A Collaboratively Built Benchmark For Measuring Legal Reasoning In Large Language Models, Neel Guha, Julian Nyarko, Daniel E. Ho, Christopher Ré, Adam Chilton, Aditya Narayana, Alex Chohlas-Wood, Austin Peters, Brandon Waldon, Daniel Rockmore, Diego A. Zambrano, Dmitry Talisman, Enam Hoque, Faiz Surani, Frank Fagan, Galit Sarfaty, Gregory M. Dickinson, Haggai Porat, Jason Hegland, Jessica Wu, Joe Nudell, Joel Niklaus, John Nay, Jonathan H. Choi, Kevin Tobia, Margaret Hagan, Megan Ma, Michael A. Livermore, Nikon Rasumov-Rahe, Nils Holzenberger, Noam Kolt, Peter Henderson, Sean Rehaag, Sharad Goel, Shang Gao, Spencer Williams, Sunny Gandhi, Tom Zur, Varun Iyer, Zehua Li

All Papers

The advent of large language models (LLMs) and their adoption by the legal community has given rise to the question: what types of legal reasoning can LLMs perform? To enable greater study of this question, we present LegalBench: a collaboratively constructed legal reasoning benchmark consisting of 162 tasks covering six different types of legal reasoning. LegalBench was built through an interdisciplinary process, in which we collected tasks designed and hand-crafted by legal professionals. Because these subject matter experts took a leading role in construction, tasks either measure legal reasoning capabilities that are practically useful, or measure reasoning skills that lawyers …

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Deeper Into The Knight: Exploring Deans Knight And Its Effects On The Canadian Gaar, Jinyan Li, Marshall Rothstein, Steve Suarez, Jeffrey Trossman Sep 2023

Deeper Into The Knight: Exploring Deans Knight And Its Effects On The Canadian Gaar, Jinyan Li, Marshall Rothstein, Steve Suarez, Jeffrey Trossman

Articles & Book Chapters

This article discusses the most recent decision of the Supreme Court of Canada in Deans Knight Income Corporation v. Canada (2023) and explores its implications for the Canadian GAAR.

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Does Labour Law Trust Workers? Questioning Underlying Assumptions Behind Managerial Prerogatives, Valerio De Stefano, Ilda Durri, Charalampos Stylogiannis, Mathias Wouters Aug 2023

Does Labour Law Trust Workers? Questioning Underlying Assumptions Behind Managerial Prerogatives, Valerio De Stefano, Ilda Durri, Charalampos Stylogiannis, Mathias Wouters

Articles & Book Chapters

This article explores the relationship between modern labour law, trust-based management, and collective labour relations. It begins by examining the historical origins of labour law, which was established to give employers the means to govern their workforce, based on the assumption that workers were untrustworthy.We argue that this notion still persists, albeit in a refined form, and that advancements in technology can exacerbate the negative consequences of managerial prerogatives. The article highlights the need to re-examine the extent of managerial prerogatives and provides several examples of businesses that have adopted trust-based models of organization, leading to positive outcomes. However, the …

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Corporate Law’S Threat To Human Rights: Why Human Rights Due Diligence Might Not Be Enough, Barnali Choudhury Aug 2023

Corporate Law’S Threat To Human Rights: Why Human Rights Due Diligence Might Not Be Enough, Barnali Choudhury

Articles & Book Chapters

The take-up of mandatory human rights due diligence (HRDD) initiatives by states is continuously gaining momentum. There are now numerous states adopting some form of HRDD laws. While corporations being duly diligent in respecting human rights is a positive step towards addressing problems of business and human rights, these HRDD initiatives on their own may only be a form of window-dressing, that is, enabling states to put a smart spin on their efforts to address business and human rights issues without addressing some of the root causes of that predicament. As a result, HRDD laws are likely to be a …

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Assisted Suicide In Canada: Moral, Legal, And Policy Considerations By Travis Dumsday, Anita Singh Jul 2023

Assisted Suicide In Canada: Moral, Legal, And Policy Considerations By Travis Dumsday, Anita Singh

Osgoode Hall Law Journal

THE SUPREME COURT OF CANADA’S (SCC) decision in Carter v Canada (“Carter”) was a landmark moment in Canadian jurisprudence. In Carter, the SCC declared two sections of the Criminal Code to be of no force and effect because the “prohibition on physician assisted dying…deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irredeemable medical condition…that causes enduring suffering that is intolerable to the individual.” Not only did Carter overturn an earlier decision in Rodriguez v British Columbia (Attorney General) (“Rodriguez”), which had …

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Digitally Rethinking Hunter V Southam, Lisa M. Austin, Andrea Slane Jul 2023

Digitally Rethinking Hunter V Southam, Lisa M. Austin, Andrea Slane

Osgoode Hall Law Journal

Lawful access—the legal regime that authorizes various methods used by law enforcement to intercept, search, or seize information for investigatory purposes—has been subject to much debate in Canada. However, those debates need a new solution space for the digital age. This must be able to incorporate new technological solutions for minimizing rights infringements and provide new forms of accountability and safeguards against misuse. This is not simply a matter of adopting the popular framework of “privacy by design,” or even a reworked “lawful access by design.” We argue that an appreciation of the challenges of the digital world requires us …

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Oversight Of Police Intelligence: A Complex Web, But Is It Enough?, Lyria Bennett Moses Jul 2023

Oversight Of Police Intelligence: A Complex Web, But Is It Enough?, Lyria Bennett Moses

Osgoode Hall Law Journal

This article analyzes the jurisdiction, function, powers, and expertise of oversight mechanisms with reference to capacity to oversee the legality of emerging police intelligence practices such as facial recognition, social media analytics, and predictive policing. It argues that oversight of such practices raises distinct issues ranging from the general oversight of policing, given the secrecy associated with police intelligence generally, to the use of complex software in particular. It combines doctrinal analysis with analysis of interviews with policing intelligence analysts, intelligence managers, lawyers, and IT professionals in three jurisdictions: Canada, Australia, and New Zealand. It brings together the roles of …

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Social Rights And Transformative Private Law, Edward BéChard-Torres Jul 2023

Social Rights And Transformative Private Law, Edward BéChard-Torres

Osgoode Hall Law Journal

Although constitutional social rights continue to attract much scholarly attention, their role in shaping private law is often overlooked. This neglect has led some scholars to underestimate social rights’ transformative potential. This article considers social rights’ influence over contract and property law in India, Colombia, and South Africa—three leading jurisdictions of the Global South. It argues that social rights can promote redistributive outcomes and inspire important shifts in private law’s values and modes of reasoning. However, it cautions that the depth of this transformation will depend on how judges choose to cross the public– private divide. One tradition rejects any …

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How Antitrust Failed Workers By Eric A. Posner, Maria Arabella M. Robles Jul 2023

How Antitrust Failed Workers By Eric A. Posner, Maria Arabella M. Robles

Osgoode Hall Law Journal

IN RECENT YEARS, GROWING ECONOMIC INEQUALITY and anxieties about market power, monopolization, and other such concerns have rejuvenated competition and antitrust law and policy. It is well known that antitrust enhances competition by addressing issues of monopolization, price-fixing arrangements, and cartels, among other anticompetitive practices in markets. This allows dynamic competition to flourish in markets and ensures that consumers are provided with competitive prices and product choices. Although the negative impacts of market concentration are frequently recognized in the context of product markets, its impact on labour markets and the workers therein have largely been unexplored until recently. Professor Eric …

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International Status In The Shadow Of Empire: Nauru And The Histories Of International Law By Cait Storr, Jordan Crocker Jul 2023

International Status In The Shadow Of Empire: Nauru And The Histories Of International Law By Cait Storr, Jordan Crocker

Osgoode Hall Law Journal

IN 2007, THE PARLIAMENT OF NAURU, a (formerly) phosphorus-rich island nation located in the southwest of the Pacific Ocean, was presented with a report completed by its appointed Constitutional Review Commission that sought to explain, in short, “‘[w]hat’…had gone ‘wrong’ with the Republic of Nauru.” The Commission, funded by the United Nations Development Programme, produced a scathing report, which concluded that Nauru was in dire need of constitutional reform and that the nation needed to better its institutions, laws, and training of leaders in the business of governance in order to address thefailures of the state. The government initiated a …

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Clamouring For Legal Protection: What The Great Books Teach Us About People Fleeing From Persecution By Robert F. Barsky, Julia Schabas Jul 2023

Clamouring For Legal Protection: What The Great Books Teach Us About People Fleeing From Persecution By Robert F. Barsky, Julia Schabas

Osgoode Hall Law Journal

THE POWER OF STORIES and storytelling is central to the refugee experience, both from a legal and social perspective. In the refugee claim context, seeking asylum after fleeing one’s home country due to a well-founded fear of persecution requires, as Anthea Vogl explains, “that refugee applicants tell a good story—that is, one that predominantly conforms to the conventions of model narratives.” This demand for narrative requires the refugee to draw on well-known genres and stories of how certain people act in the face of fear and persecution.

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Revisiting The Defence Of Diminished Responsibility, Andrew Botterell Jul 2023

Revisiting The Defence Of Diminished Responsibility, Andrew Botterell

Osgoode Hall Law Journal

My goal in this article is to revisit the defence of diminished responsibility. There are three things that, taken together, suggest to me that a defence of diminished responsibility ought to be made available to certain individuals accused of certain criminal offences. The first is that Canadian criminal law already recognizes a number of defences that reflect ideas about diminished responsibility. The second is that despite the availability of these specific defences to criminal liability, no general defence of diminished responsibility is formally recognized in Canadian criminal law. And the third is that given the Supreme Court of Canada’s ongoing …

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Transfer Theory And The Assignment Of Contractual Rights, Stéphane Sérafin Jul 2023

Transfer Theory And The Assignment Of Contractual Rights, Stéphane Sérafin

Osgoode Hall Law Journal

The possibility of assigning contractual rights to third parties has often been taken to suggest that they amount to a form of “property” or “asset.” This point has been seized upon by proponents of transfer-based accounts of contract law, which understand contract as a means of transferring existing rights instead of creating new rights and duties between its parties. In this article, I set out to critically examine the extent to which this assumed compatibility between transfer theories of contract and the assignment of contractual rights can truly be sustained. As I argue, only one version of transfer theory is …

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Neutralizing Secularism: Religious Antiliberalism And The Twentieth-Century Global Ecumenical Project, Rabiat Akande Jul 2023

Neutralizing Secularism: Religious Antiliberalism And The Twentieth-Century Global Ecumenical Project, Rabiat Akande

Articles & Book Chapters

A marked feature of the contemporary U.S. constitutional landscape is the campaign by an Evangelical- Catholic coalition against the idea of secularism, understood by this alliance to mean the exclusion of religion from the state and its progressive marginalization from social life. Departing from the tendency to treat this project as a national phenomenon, this article places it within a longer global genealogy of an earlier international Christian ecumenical effort to combat secularism. The triumph of that campaign culminated in the making of Article 18 of the Universal Declaration of Human Rights, now considered the paradigmatic international legal provision on …

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Book Review: Canadian Justice, Indigenous Injustice: The Gerald Stanley And Colten Boushie Case, F. Tim Knight Jul 2023

Book Review: Canadian Justice, Indigenous Injustice: The Gerald Stanley And Colten Boushie Case, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

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Introduction: Domestic Violence And Access To Justice Within The Family Law And Intersecting Legal Systems, Jennifer Koshan, Wanda Wiegers, Janet Mosher, Wendy Chan, Michaela J. Keet Jun 2023

Introduction: Domestic Violence And Access To Justice Within The Family Law And Intersecting Legal Systems, Jennifer Koshan, Wanda Wiegers, Janet Mosher, Wendy Chan, Michaela J. Keet

Articles & Book Chapters

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law's intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children.

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Political Theory And The Volunteer: Lessons From Kahn’S Ethnography Of ‘Our Unhappy Politics’, Benjamin Berger May 2023

Political Theory And The Volunteer: Lessons From Kahn’S Ethnography Of ‘Our Unhappy Politics’, Benjamin Berger

All Papers

This article offers a reading of Paul Kahn’s Democracy in Our America that places this intimate “work of local political theory” in a central position in the landscape of his political thought. The article argues that the figure of the volunteer, as it appears in the volume, holds a space for love and meaning—and for political happiness—that secures for it a critical role in the system of beliefs and practices that sustain self-government in the United States. That framing draws the volunteer into relationship with Kahn’s thinking about the family, the veteran, and law. But it also means that the …

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Digital Updates, Yemisi Dina May 2023

Digital Updates, Yemisi Dina

Librarian Publications & Presentations

A presentation on recent updates in digital scholarship at Osgoode Hall Law School.

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The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson May 2023

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Articles & Book Chapters

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

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A Pattern Of Violence: How The Law Classifies Crimes And What It Means For Justice By David Alan Sklansky, Ainsley Doell May 2023

A Pattern Of Violence: How The Law Classifies Crimes And What It Means For Justice By David Alan Sklansky, Ainsley Doell

Osgoode Hall Law Journal

What is violence? What may appear in its face to be a simple question does not have a simple answer, especially when we are searching for it within our legal systems. The answer is not clear, and yet it has wide-reaching and potentially life-changing implications. Professor and former Assistant United States Attorney David Alan Sklansky does not seek to answer this question, but rather suggests that there is no definition of violence “that will allow the category of violence to do the work that we have asked it to do.”3 In A Pattern of Violence, Sklansky instead turns to the …

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Statutory Interpretation: Pragmatics And Argumentation By Douglas Walton, Fabrizio Macagno And Giovanni Sartor, Matthew Traister May 2023

Statutory Interpretation: Pragmatics And Argumentation By Douglas Walton, Fabrizio Macagno And Giovanni Sartor, Matthew Traister

Osgoode Hall Law Journal

Statutory Interpretation is a comprehensive and nuanced account of some of the most fundamental features of the law: legal reasoning and interpretation. The book draws on philosophy, argumentative theory, linguistics, artificial intelligence, and dialectics to develop a robust theory of argumentation and pragmatics both in and outside of the law. The work is written by Douglas Walton, former Distinguished Research Fellow at the University of Windsor’s Centre for Research in Reasoning, Argumentation and Rhetoric; Fabrizio Macagno, professor at Universidade NOVA de Lisboa; and Giovanni Sartor, professor at the University of Bologna. This work represents a balance, most of all, of …

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Navigating The Free Trade—Fair Trade Fault-Lines By Michael Trebilcock, Nicholas Slagter May 2023

Navigating The Free Trade—Fair Trade Fault-Lines By Michael Trebilcock, Nicholas Slagter

Osgoode Hall Law Journal

The COVID-19 pandemic came with several revelations about our pre-pandemic lives. One of these revelations was the importance of international trade law in the lives of average individuals. Headlines about food supplies, shortages of essential medical supplies, and countries’ plans to acquire and produce vaccines dominated the media following March 2020. It was a time that spurred the public’s interest in international trade law and how it functions. Indeed, media headlines showcased the growing concern about international trade during the pandemic. This is the context in which Michael Trebilcock’s Navigating the Free Trade—Fair Trade Fault-Lines situates itself. At a time …

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The Business Judgment Rule, The Public Interest Powers, And The “Fair And Reasonable” Test: Fellow Travellers Or Ships In The Night?, Jeffrey Macintosh May 2023

The Business Judgment Rule, The Public Interest Powers, And The “Fair And Reasonable” Test: Fellow Travellers Or Ships In The Night?, Jeffrey Macintosh

Osgoode Hall Law Journal

In the most controversial corporate transaction in Canadian history, Magna repurchased all of the Class B superior voting shares from its controlling shareholder, Frank Stronach, at a 1799 per cent premium to the otherwise identical but inferior voting Class A shares, thus ending Stronach’s long reign as de jure controller of Magna. Despite this massive and unprecedented premium, the transaction generated about three billion US dollars in aggregate value, or about 40 per cent of the pre-transaction market cap of Magna. I nonetheless argue that the transaction was massively flawed from both a procedural and substantive point of view and …

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Litigating The Carceral Soundscape, David Howes, Simcha Walfish May 2023

Litigating The Carceral Soundscape, David Howes, Simcha Walfish

Osgoode Hall Law Journal

Sound has always been a material issue in prisons, whether it be in connection with sonic surveillance, the “silent cell,” or the insistence of sound (excessive noise, counter-carceral music making). This article asks: How and when does the carceral soundscape become a litigable issue? Our article opens with a discussion of the challenges involved in attempting to study the sonic ambiance of the penitentiary through the medium of written documents and proposes a methodology of “sensing between the lines” by way of a solution. It goes on to analyze the “moral architecture” at the foundation of the modern prison in …

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The Notwithstanding Clause In Canada: The First Forty Years, Tsvi Kahana May 2023

The Notwithstanding Clause In Canada: The First Forty Years, Tsvi Kahana

Osgoode Hall Law Journal

This article evaluates the use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause (NWC), over the first forty years of its existence. It provides a comprehensive account of all uses of the NWC in this period, introduces the notion of tyrannical use of the NWC, and develops criteria to evaluate whether a particular use is tyrannical. It then demonstrates that most NWC uses have not been tyrannical; rather, the NWC was used for temporary, ameliorative, or transitional purposes. That said, in the studied period, there have been three instances of tyrannical …

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Sin Of Omission: Exploring A Key Credibility Inference In Canadian Refugee Status Rejections, Hilary Evans Cameron May 2023

Sin Of Omission: Exploring A Key Credibility Inference In Canadian Refugee Status Rejections, Hilary Evans Cameron

Osgoode Hall Law Journal

Refugee claimants in Canada must submit a “Basis of Claim” form to the Refugee Board before attending a hearing with the adjudicator who will decide their claim. On this form, they are expected to produce a written narrative that explains “everything that is important” about their experiences. At their hearing, many claimants encounter, for the first time, a key principle of Canadian refugee law: The omission of any “important information” from this narrative suggests that they have invented their claim. This study takes a close look at how this “omission from the narrative” inference is operating within a set of …

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Saving The News: Why The Constitution Calls For Government Action To Preserve Freedom Of Speech By Martha Minow, Ishaan Kapur May 2023

Saving The News: Why The Constitution Calls For Government Action To Preserve Freedom Of Speech By Martha Minow, Ishaan Kapur

Osgoode Hall Law Journal

In Saving the News, Martha Minow, former Dean of the Harvard Law School and the 300th Anniversary University Professor at Harvard University, analyzes how the rise of internet platforms and social media has led to a decline in the viability of the American press and the spread of misinformation. Arguing that a viable press is fundamental to a constitutional democracy, Minow makes a case for the need for change and outlines the legal basis and specific policy initiatives that could be instituted to remedy the failures of the contemporary ecosystem of the news. She does so while navigating the potential …

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Interlinking Between Income Tax, Citizenship And Democracy? A Case Study Of Canada And China, Jinyan Li May 2023

Interlinking Between Income Tax, Citizenship And Democracy? A Case Study Of Canada And China, Jinyan Li

Conference Papers

The interlink between taxation, citizenship and democracy appears to be obvious in Western democracies: citizens are voters, taxpayers and beneficiaries of public spending funded by tax revenues. The literature on the politics of taxation suggests that democratic institutions affect taxation at every stage of the policy-making process, the type of elections and governance model influence the level of redistribution and complexity of the tax system, democracies generally choose policies that are more favorable to the poor than non-democracies, the tax mix varies with the nature of the political regime, and more repressive governments rely less on personal income taxation. Political …

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Disaster Risk In The Carceral State, Saptarishi Bandopadhyay, Joshua R. Coene May 2023

Disaster Risk In The Carceral State, Saptarishi Bandopadhyay, Joshua R. Coene

Articles & Book Chapters

The overlap between prisoner vulnerability and disasters in the United States is undeniable. During 2020 and 2021, the United States endured a series of natural hazards such as wildfires, floods, and hurricanes, many of which exposed the country’s 2.1 million inmates to additional risks and compounded the danger posed by COVID-19. Yet policymakers and scholars are only beginning to appreciate the centrality and magnitude of disaster risk management for the millions of people currently held in penal institutions around the country. Unsurprisingly, the production of “lessons learned” documents that follow in the aftermath of disasters overlook how prisoner vulnerability is …

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Introduction To The Future Of Remote Work, Nicola Countouris, Valerio De Stefano, Agnieszka Piasna, Silvia Rainone May 2023

Introduction To The Future Of Remote Work, Nicola Countouris, Valerio De Stefano, Agnieszka Piasna, Silvia Rainone

Articles & Book Chapters

Debates on the future of work have taken a more fundamental turn in the wake of the Covid-19 pandemic. Early in 2020, when large sections of the workforce were prevented from coming to their usual places of work, remote work became the only way for many to continue to perform their professions. What had been a piecemeal, at times truly sluggish, evolution towards a multilocation approach to work suddenly turned into an abrupt, radical and universal shift. It quickly became clear that the consequences of this shift were far more significant and far-reaching than simply changing the workplace’s address. They …

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