Law Commons^™

Somethings Old, Somethings New And A Lot That’S Blue: Political Economic Reflections On Worker Subordination And The Law In Contemporary Capitalism, Eric Tucker

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Debates over worker subordination are central to discussions of the efficacy of protective labour and employment law whose central mission in a capitalist political economy, after all, is to reduce but not eliminate subordination. When protective labour and employment law seems to be fulfilling its mission discussions of worker subordination seem to ebb, but the topic becomes more urgent as the efficacy of the law declines. Not surprisingly, as labour law’s efficacy has been declining over the past several decades, we are in the midst of a revival of debates over worker subordination, the premise of this special issue. While …

Enforcing International Human Rights Law Against Corporations, Barnali Choudhury

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International human rights law is generally thought to apply directly to states, not to corporations since the latter is not a subject of international law. Some domestic courts are, however, enforcing these norms against corporations in domestic settings. Canadian courts have, for instance, recognized that corporations can be liable for breach of customary international law norms while UK courts have enforced international human rights norms indirectly against corporations relying on a combination of domestic corporate and tort law.

At the same time, some states are choosing to enforce international human rights norms against corporations using regulatory initiatives. These initiatives, known …

Corporations As International Economic Law Actors, Barnali Choudhury

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Actors in international law are presumed to be states. Yet in the international economic law arena, the corporation is one of the most prominent non-state actors. Indeed, in some instances, the corporation may even be more influential than the state in some arenas of international economic law. This short piece examines three instances of this influence. First, it looks at the role of corporations in law-making; second, it examines corporations’ role in monitoring and compliance; and, third, it explores corporations’ legal personality in international economic law. Finding corporations’ immense influence on law-making and monitoring and compliance, combined with a robust …

Labour, Labour Law And Capitalist Rent-Seeking: Rentier Capitalism And Labour In Historical Perspective, Eric Tucker

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The rise of rentier capitalism in advanced capitalist countries has detrimentally affected large numbers of worker and impaired the efficacy of protective labour and employment laws. However, capitalist rent-seeking is not unique to rentier capitalism, but rather has taken a variety of forms over time. This chapter begins by exploring the evolving meaning of rent and changing practices of capitalist rent-seeking. It then considers the ways in which workers responded to those practices in both rent-rich and rent-poor sectors of the economy, including through the enactment of labour and employment laws appropriate to, but only partially successful in addressing labour …

The Constitution And Charter In 2022: The Court, The Chief Justice, And Justice Brown, Jamie Cameron

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Osgoode Hall’s 26^th Annual Constitutional Cases Conference – the 2022 Year in Review – was held on April 14, 2023. This paper is drawn from the Opening Address, which provides an overview of the Supreme Court’s jurisprudence and is a longstanding feature of the conference. As it explains, the Court’s thirteen decisions in 2022 focused almost exclusively on the Charter’s legal rights and remedies, though R. v. Sharma considered and dismissed a claim under s.15, and the Court rendered one decision on public interest standing. The paper provides a quantitative and qualitative analysis of the 2022 jurisprudence, adding …

Bibliography On Indigenous Rights In Canada, 1995-2023, Leslie Haddock, Kent Mcneil

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No abstract provided.

“The Biggest Problem With You…”: Racial Profiling And Canada’S Program Of Extra-Territorial Migrant Interdiction, Simon Wallace, Benjamin Perryman, Gábor Lukács, Sean Rehaag

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On April 3, 2019, Andrea and Attila Kiss tried to board an Air Canada Rouge flight from Budapest to Toronto. Andrea’s sister was ailing, and the couple planned to visit Canada for two months to support her family. Their travel was legitimate and lawful. Their documents were in order. But when they lined up to check in, Andrea made a mental note of a fact that was about to become relevant: as members of the Hungarian Roma community, they were the only racialized people in line.

Andrea and Attila did not reach the check-in counter. They were stopped and pulled …

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

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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 …

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

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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 …

Do Automated Legal Threats Reduce Freedom Of Expression Online? Results From A Natural Experiment, J. Nathan Matias, Merry Ember Mou, Jonathon W. Penney, Maximilian Klein, Lucas Wright

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Automated law enforcement systems support privately-operated enforcement bots to take legal action in hundreds of millions of cases a year. In the area of copyright, legal scholars have hypothesized the existence of “chilling effects” that harm public discourse by influencing people to self-censor protected speech. We test this hypothesis in a large-scale quasi-experiment with 9,818 accounts on Twitter that made 5,171,111 tweets. In a confirmatory interrupted time-series analysis, we find evidence that people reduce how much they post online after receiving a take-down notice from a copyright enforcement bot. On average, accounts sent fewer tweets after enforcement (p<0.001). Accounts also changed from a daily increase in public tweets to a decline on average (p<0.001). We also report on novel software that conducts third-party monitoring of the behavioral outcomes of automated law-enforcement systems. Since automated law enforcement can influence public discourse, third-party monitoring like this report will be essential to governing the power of enforcement algorithms in society.

Luck Of The Draw Iii: Using Ai To Examine Decision‐Making In Federal Court Stays Of Removal, Sean Rehaag

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This article examines decision‐making in Federal Court of Canada immigration law applications for stays of removal, focusing on how the rates at which stays are granted depend on which judge decides the case. The article deploys a form of computational natural language processing, using a large‐language model machine learning process (GPT‐3) to extract data from online Federal Court dockets. The article reviews patterns in outcomes in thousands of stay of removal applications identified through this process and reveals a wide range in stay grant rates across many judges. The article argues that the Federal Court should take measures to encourage …

The Future Of The Corporate Form In Income Tax: A Case Study Of Canada, Jinyan Li

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A corporation is nothing but a piece of paper. And yet, this piece of paper enjoys the status of a person and has an independent identity as a taxpayer (the “separate entity principle”). It can generate tremendous value for its shareholders through tax savings resulted from tax deferral, tax shifting, and tax subsidies. Why does tax law allow such value to exist? Is there any hard line constraining the scope of the tax benefits associated with the corporate form? To what extent can the two pillars (Pillar One and Pillar Two) crush the corporate form? What is the future of …

Transgender Erasure: Barriers Facing Transgender Refugees In Canada, Sean Rehaag, Alexandra Verman

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This paper explores the experiences of transgender refugee claimants in Canada’s refugee status determination system, using mixed methods: quantitative analysis of data obtained from the Immigration and Refugee Board (IRB), reviews of published and unpublished decisions, country condition documentation packages and IRB guidelines, as well as interviews with refugee lawyers. Using these methods, we explore how credibility arises in transgender refugee claims, noting the impact of medicalization and country conditions materials on transgender claims, and drawing parallels between medical gatekeeping and credibility assessments in refugee claims. We identify potential explanations for low recorded numbers of transgender claims as rooted in …

Islamic Law And Colonialism, Rabiat Akande, Halimat Adeniran

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No abstract provided.

Lloyd And The Legislative Void: Representative Actions In Transatlantic Context, Suzanne E. Chiodo

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The Canadian class action regimes have had a strong influence on the development of collective redress procedures in England. Canadian class proceedings legislation provided a model for the competition law class action regime in the UK, and before then, it featured prominently in the Civil Justice Council’s report that recommended the enactment of generic class actions legislation in England. It is fitting, then, that the UK Supreme Court’s recent decision in Lloyd v Google referred to the Canadian jurisprudence on the representative rule, which allows one or more claimants to represent a group with the ‘same interest’. While Lloyd did …

Canadian “Dreamers”: Access To Postsecondary Education, Elise Mercier, Sean Rehaag, Francisco Rico-Martinez

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Youth with precarious legal status (PLS) in Canada are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for postsecondary education are highly constrained. This article sets out an argument for expanding postsecondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program”. The article considers possible legal impediments to the establishment of such programs, including offenses under Canadian immigration legislation, and argues that charges against postsecondary institutions or …

Against Integrity: A Feminist Theory Of Moral Rights, Creative Agency & Attribution, Carys Craig, Anupriya Dhonchak

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This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. It begins by explaining why certain facets of conventional moral rights theory are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. In particular, to the extent that strong moral rights of integrity and association limit dialogic engagement with, and transformation of, protected works, they risk suppressing critical and counter-hegemonic expression, and support an individualized and romanticized conception of the (patriarchal) author-figure. Employing alternative feminist conceptions of situated selfhood, relationality and dialogic authorship, the Chapter then explores …

Fiscal Contract And The Canada Disability Benefit: Lessons From Income Tax Law, Jinyan Li

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This paper adopts a fiscal contract approach to examining the design of the Canada Disability Benefit and advocates using the CCB as a design model. It argues that a fiscal contract underlies the Income Tax Act which collects taxes as well as spends public money on poverty-reduction programs. In a tax state, the government’s spending is tied to taxing. The current fiscal contract reflects key Canadian values, such as equity and fairness, ability to pay, work, family and the rule of law. The CCB, which is implemented through the Income Tax Act, is a superior design model to the Guaranteed …

Tawdry Or Honourable? Additional Payments To Representative Plaintiffs In Ontario And Beyond, Suzanne E. Chiodo

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Additional payments to representative plaintiffs upon the resolution of a class action are widespread in Ontario and elsewhere. However, this subject has received very little attention from appellate courts (at least in Canada), law reformers, and academics. Two conflicting judgments from the Ontario Superior Court have put a spotlight on this practice, however, and it will soon be receiving appellate treatment. The practice has also recently been subject to conflicting appellate decisions in the US. This brings to the fore crucial questions not only about the purpose of such payments, but also about the purposes of class actions in general. …

Workers’ Boards: Sectoral Bargaining And Standard-Setting Mechanisms For The New Gilded Age, Sara Slinn

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This article explores the potential of sectoral standard-setting models (often referred to as “wage boards” or “workers’ boards”) as a solution for contemporary workplace issues, which existing labor relations and minimum standards regulatory systems continue to struggle to address. This argument, the article examines three historical statutory systems of sector-based minimum workplace standard-setting established in the early 20th century as a response to unacceptable wages and working conditions: the British Wages Council system, the Canadian Industrial Standards Act, and the US Fair Labor Standards Act. The article applies the conceptions of fairness identified in Seth Harris's study of the origins …

Renewing Freedom Of Expression, Part Two: From The Contextual Approach To Proportionality Balancing, Jamie Cameron

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This article continues the project to renew the Charter’s methodology of expressive freedom in two parts. Part One explained that the Court’s approach to s.2(b) decision making is skewed against expressive freedom and must be addressed holistically, under ss.2(b) and s.1. (see J. Cameron, “Resetting the Foundations: Renewing Freedom of Expression under Section 2(b) of the Charter”, in B. Bird and D. Ross, eds., Forgotten Foundations of the Canadian Constitution. (LexisNexis Canada, 2022). Part One provided a critique of the current methodology, addressed the meaning of freedom under s.2(b), proposed a revised standard of breach, and sketched a …

Gripe Sites & Trademark User Rights: Lessons From Canada’S Cooperstock Case, Carys Craig

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This Chapter is concerned with the nature of trademarks as vehicles of expression. It takes, as its lesson study, the unfortunate Canadian Federal Court case of United Airlines v. Cooperstock in which a disgruntled United passenger quite spectacularly failed in his efforts to defend a trademark parody on his consumer complaints “gripe” site. The case demonstrates the risks of relying on trademark law’s internal limits and implicit exceptions to define the boundaries of the trademark owner’s control. I argue, first, that the case therefore underscores the need for explicit statutory exceptions to ensure breathing space for parody, criticism, and other …

Regulating Health And Safety In Capitalist Workplaces: History, Practices And Prospects, Eric Tucker

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The chapter provides a broad overview of occupational health and safety (OHS) regulation in advanced capitalist countries with a focus on the English-speaking world. It views OHS regulation through a political economy lens in which protective legislation is enacted and implemented against the imperative of a profit-driven system of production. The chapter provide examines the historical development of OHS regulation beginning with the rise of industrial capitalism leading up to modern OHS regimes that increasing embrace mandated partial self regulation. It then considers contemporary debates over the efficacy of these regimes, focusing on the scope of self regulation, the practice …

Stuck In Neutral? Reforming Corporate Purpose And Fiduciary Duties, Barnali Choudhury, Martin Petrin

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After decades of corporate leadership based on shareholder wealth maximization, momentum is now gathering behind a shift towards the recognition of stakeholder interests. However, from voluntary actions by business to changes in soft and hard law, the steps taken thus far have been insufficient to result in meaningful changes. Instead, we are stuck in neutral. A more decisive push is needed to ensure that business contributes to tackling the most pressing societal issues of our times in a substantial and timely manner. The Canadian corporate landscape, although beginning to shift away from shareholder primacy, is still not settled and in …

Impossibility And Frustration, Jennifer Nadler

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No abstract provided.

An Imperial History Of Race-Religion In International Law, Rabiat Akande

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More than half a century after the United Nations General Assembly’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination (ICERD), efforts are underway to formulate a protocol to the landmark convention. Much of the momentum for that endeavor comes from sustained local and global advocacy against racism. An integral part of contemporary anti-racism efforts is a push for legal recognition of the intersectional dimensions of racial domination and subjugation to address the unique precarity of persons inhabiting marginalized axes of identities and experiences. United Nations (UN) debates over repowering the ICERD have therefore featured …

Indigenous Peoples In Canada: A Bibliography Of Legal And Other Works To 1994, Kristen Clark, Leslie Haddock, Kent Mcneil

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No abstract provided.

Hallmarks Of Abusive Transactions And The Role Of Economic Substance: Comments On Modernizing And Strengthening The General Anti-Avoidance Rule Consultation Paper, Jinyan Li

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I support the initiative to revisit the GAAR for purposes of making it more effective. I find the Modernizing and Strengthening the General Anti-Avoidance Rule Consultation Paper (“GAAR Consultation Paper”) helpful in providing some background and context for diagnosing the issues and setting out some proposed solutions. I appreciate the opportunity to offer some comments on two specific questions raised in the Consultation Paper:

(a) How to clarify the object, spirit and purpose of provisions of the Act?

(b) What is the role of economic substance in strengthening the GAAR?

Procedural Injustice: Indigenous Claims, Limitation Periods, And Laches, Kent Mcneil, Thomas Enns

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When Indigenous peoples go to court to seek justice for the historical wrongs they have endured, the Crown often tries to prevent their claims from even being heard by pleading statutes of limitations and laches. The application of these barriers raises serious constitution issues that have been taken account of by the Supreme Court only in the context of declarations of constitutional invalidity. Arguments based on the constitutional division of powers and section 35(1) of the Constitution Act, 1982 have not been addressed by the Court. As a result, limitations statutes that vary from province to province have been applied …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

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An unprecedented COVID-19-induced explosion in digital surveillance has reconfigured power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the augmentation of 1

managerial prerogatives in physical and digital workplaces. It identifies excessive supervision as the common denominator of “essential” and “remotable” activities, besides discussing the various drawbacks faced by the two categories of workers during (and after) the pandemic. It also assesses the adequacy of the current European Union legal framework in addressing the expansion of data-driven management. Social dialogue, workers’ empowerment and digital literacy are identified as effective solutions to promote …