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Articles 1 - 30 of 44
Full-Text Articles in Law
Reconsidering Copyright's Constitutionality, Graham Reynolds
Reconsidering Copyright's Constitutionality, Graham Reynolds
Osgoode Legal Studies Research Paper Series
In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (Michelin), Teitelbaum J. of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms (Charter) and that, even if they did, these provisions could be justified under s. 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these …
Cosmopolitanism, Custom And Complexity: Kant's Cosmopolitan Norms In Action, Tracey Leigh Dowdeswell
Cosmopolitanism, Custom And Complexity: Kant's Cosmopolitan Norms In Action, Tracey Leigh Dowdeswell
Osgoode Legal Studies Research Paper Series
Immanuel Kant's Cosmopolitanism has come to stand alongside Political Realism and Liberal Internationalism as one of three broad theories of ethics in international relations. Yet Cosmopolitanism has been subjected to criticisms that the universal norms identified by Kant - including such norms as hospitality, reciprocity, and publicity (transparency and free political participation) - are Western and Eurocentric in nature, incompatible with cultural pluralism, and lack the justification and legitimacy for the broad-based consensus required for a Cosmopolitan politicalsphere to emerge among the world’s diverse peoples. This paper seeks to address these criticisms of Cosmopolitanism by studying examples of Cosmopolitan norms …
Banning Bribes Abroad: U.S. Enforcement Of The Foreign Corrupt Practices Act, Ellen Gutterman
Banning Bribes Abroad: U.S. Enforcement Of The Foreign Corrupt Practices Act, Ellen Gutterman
Osgoode Legal Studies Research Paper Series
The United States has been at the forefront of international efforts to combat corruption in the global economy for almost forty years, chiefly through its Foreign Corrupt Practices Act (FCPA). Over the past decade, US enforcement of the FCPA has surged - both in increased numbers of enforcement actions and through the application of increasingly expansive interpretations of jurisdiction through which to enforce the FCPA on an extraterritorial basis. On one hand, extraterritorial enforcement of the FCPA has promoted anti-corruption policies and the banning of bribes abroad. At the same time, three aspects of FCPA enforcement shape and constrain the …
Who Has Benefited Financially From Investment Treaty Arbitration? An Evaluation Of The Size And Wealth Of Claimants, Gus Van Harten
Who Has Benefited Financially From Investment Treaty Arbitration? An Evaluation Of The Size And Wealth Of Claimants, Gus Van Harten
Osgoode Legal Studies Research Paper Series
We collected data on the size and wealth of the foreign investors that have brought claims and received compensation due to ISDS. Our main findings are that the beneficiaries of ISDS, in the aggregate, have overwhelmingly been companies with more than USD1 billion in annual revenue – especially extra-large companies with more than USD10 billion – and individuals with more than USD100 million in net wealth. ISDS has produced monetary benefits primarily for those companies or individuals at the expense of respondent states. Incidentally, we also found that extra-large companies’ success rates in ISDS, especially at the merits stage, exceeded …
Evaluating The Impact Of Remedial Authority: Adjudicative Tribunals In The Health Sector, Steven J. Hoffman, Lorne Sossin
Evaluating The Impact Of Remedial Authority: Adjudicative Tribunals In The Health Sector, Steven J. Hoffman, Lorne Sossin
Osgoode Legal Studies Research Paper Series
Adjudicative tribunals play an important role in the health sector yet their actual influence, as part of the health system, remains undetermined. Most of the studies that have evaluated their work have focused on measures of accountability and independence, rather than the indicators of societal impact. As efforts to reform health systems continue internationally, it is crucial that we understand the benefits and costs of adjudicative tribunals for providers and consumers of heath. In this regard, empirically evaluating the impact of adjudicative tribunals will help inform policymaking through the collection of objective data. A strong and accountable health care system …
Will It Ever Be 50/50?: Diversity And Gender In The Law Firm And On Corporate Boards, Kathleen Killin
Will It Ever Be 50/50?: Diversity And Gender In The Law Firm And On Corporate Boards, Kathleen Killin
Osgoode Legal Studies Research Paper Series
Today, women account for 50% of graduates from university programs in Canada and abroad. Traditional gender roles are a growing “thing of the past” with women taking on more responsibility and leadership positions within law and business. However, a gap still remains between the sexes in partner track and directorships. This paper explores regulatory bodies, both in law and finance, which have voiced for change and sparked conversation to bridge this gap. As one will find, major successes have occurred in recent years, however a commitment must be maintained in order to continue to advance gender diversity in law and …
Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel
Islamic Law And Constitution-Making: The Authoritarian Temptation And The Arab Spring, Mohammad Fadel
Osgoode Legal Studies Research Paper Series
The political dynamics that have characterized post-Mubarak Egypt have often been understood to be a battle between "religious" forces, represented by the Muslim Brotherhood and its supporters, and "secularist" forces, represented by a diverse group of civil society actors. Opposition of this latter group to the "religious" politics of the Muslim Brotherhood is therefore understood to be the primary cause of the events that led to the July 3, 2013 military coup that overthrew Egypt's only freely elected President, Mohammed Morsi. Without denying the salience of a religious-secularist divide in Egypt, this narrative of post-Mubarak politics fails to appreciate the …
Investment Treaties And The Internal Vetting Of Regulatory Proposals: A Case Study From Canada, Gus Van Harten, Dayna Nadine Scott
Investment Treaties And The Internal Vetting Of Regulatory Proposals: A Case Study From Canada, Gus Van Harten, Dayna Nadine Scott
Osgoode Legal Studies Research Paper Series
In this paper, we report findings on whether trade and investment agreements that allow for investor-state dispute settlement (ISDS) contribute to regulatory chill. The study focused on whether ISDS contributed to changes in internal vetting of government decisions related to environmental protection in the province of Ontario, Canada. Our main source of information was confidential interviews with insiders, mostly current or former officials in ministries with an environmental or trade mandate. We aimed to advance understanding of litigation risk and government decision-making with a focus on ISDS.
Everyday Legal Problems And The Cost Of Justice In Canada: Overview Report, Trevor C. W. Farrow, Ab Currie, Nicole Aylwin, Lesley Jacobs, David Northrup, Lisa Moore
Everyday Legal Problems And The Cost Of Justice In Canada: Overview Report, Trevor C. W. Farrow, Ab Currie, Nicole Aylwin, Lesley Jacobs, David Northrup, Lisa Moore
Osgoode Legal Studies Research Paper Series
Law and legal problems are part of everyday life. If you have ever been harassed at work, unfairly fired or evicted, divorced, not received support payments, disputed a will or a cell phone contract, or had your credit rating challenged, you may have already experienced one of these types of everyday legal problems. If so, you are not alone. Almost half (48.4%) of Canadians over 18 will experience at least one civil or family justice problem over any given three-year period. Even though many Canadians do not understand, feel connected to or welcomed by the justice system, essentially all of …
Payment Law: Legislative Competence In Canada, Benjamin Geva
Payment Law: Legislative Competence In Canada, Benjamin Geva
Osgoode Legal Studies Research Paper Series
This article addresses the legislative competence in Canada in relation to regulatory and transactional aspects of payment of law. Setting out the parameters of "payment law", the article examines the federal legislative powers in relation to bills and notes as well as baking, in broader constitutional and historical context, and argues for federal jurisdiction. A possible legislative role for the provinces is also discussed.
Have We Legalized Corruption?: The Impacts Of Expanding Municipal Authority Without Safeguards In Toronto And Ontario, Stanley Makuch, Maathew Shuman
Have We Legalized Corruption?: The Impacts Of Expanding Municipal Authority Without Safeguards In Toronto And Ontario, Stanley Makuch, Maathew Shuman
Osgoode Legal Studies Research Paper Series
This article discusses the importance of rule of law values such as predictability, certainty, equality, and procedural safeguards in controlling corruption at the municipal level of government and how those values are being replaced by political and economic values such as efficiency, discretion, responsiveness, and need. Particular attention is placed on how this change in values may lead to corruption and the abuse of power in planning and other decisions made by municipal governments.
‘By The Court’: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick
‘By The Court’: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick
Osgoode Legal Studies Research Paper Series
The Supreme Court of Canada has for several decades used an anonymous and unanimous decision format – ‘By the Court’ – for a subset of its constitutional decisions; although some of the specific cases (such as the Quebec Secession Reference) have been closely examined, the practice itself has never received focused consideration. This article establishes a chronology, an inventory, and a typology for the Supreme Court’s ‘By the Court’ judgments, and concludes by suggesting that it use has become more frequent under the current Chief Justice.
Indigenous Territorial Rights In The Common Law, Kent Mcneil
Indigenous Territorial Rights In The Common Law, Kent Mcneil
Osgoode Legal Studies Research Paper Series
This chapter compares Indigenous territorial rights in the United States, Canada, Australia and New Zealand thematically under four headings: the sources, nature and content, proof, and protection of Indigenous rights. The first two are closely linked, as the nature and content of Indigenous rights are determined largely by their sources. Likewise, proof of Indigenous rights also depends on their sources. The protection they are accorded in any particular nation-state depends mainly on its constitution, with recent additional protection emerging in international law. The major premise of the chapter is that Indigenous rights are territorial, encompassing real property rights and governmental …
Contested Citizenship In Bosnia And Herzegovina, Elena Cirkovic
Contested Citizenship In Bosnia And Herzegovina, Elena Cirkovic
Osgoode Legal Studies Research Paper Series
According to Article 15 of the Universal Declaration of Human Rights (UDHR), the right to nationality and citizenship can be considered as a universal human right: ‘(1) everyone has the right to nationality’ and ‘(2) no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. However, the qualifications of the bearer of ‘universal’ rights are unspecified. Equating nationality with citizenship has contributed to a situation where people(s) have to fit the category of being a ‘national’ in order to obtain citizenship. The question of access to national and international rights remains the question …
A Law Of Just Transitions?: Putting Labor Law To Work On Climate Change, David J. Doorey
A Law Of Just Transitions?: Putting Labor Law To Work On Climate Change, David J. Doorey
Osgoode Legal Studies Research Paper Series
Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept …
From Paper To Electronic Order: The Digitalization Of The Check In The Usa, Benjamin Geva
From Paper To Electronic Order: The Digitalization Of The Check In The Usa, Benjamin Geva
Osgoode Legal Studies Research Paper Series
This article explores the various stages in the check payment in which electronic transmission has replaced physical delivery. Part I discusses converting the check into an electronic entry at a point of sale of goods and services. Part II addresses the electronic presentment of a check. Part III deals with the possible conversion of the check from paper to electronic, and vice versa, within the interbank check collection system. Interbank exchange of check images is the subject of Part IV. Part V addresses the electronic order that operates like a check but that has never been in a paper format. …
The ‘Objectives’ And ‘Principles’ Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade
The ‘Objectives’ And ‘Principles’ Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade
Osgoode Legal Studies Research Paper Series
Articles 7 and 8 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are entitled ‘Objectives’ and ‘Principles’ respectively. These provisions occupy a prominent position within the text of the Agreement, yet have figured sparingly in the legal reasoning of the WTO Dispute Settlement Body (DSB). The illogical nature of this discrepancy is accentuated when considered in light of four key factors. First, the pioneering step taken by the negotiators of the TRIPS Agreement to include broad declarations of intent within the legally operative text. Second, the 2001 reinforcement given to the authority of these provisions through …
Reassessing The Quality Of Government In China, Margaret Boittin, Greg Distelhorst, Francis Fukuyama
Reassessing The Quality Of Government In China, Margaret Boittin, Greg Distelhorst, Francis Fukuyama
Osgoode Legal Studies Research Paper Series
How should the quality of government be measured across disparate national contexts? This study develops a new approach using an original survey of Chinese civil servants and a comparison to the United States. We surveyed over 2,500 Chinese officials on two organizational features of their bureaucracies: meritocracy and individual autonomy. They report greater meritocracy than U.S. federal employees in almost all American agencies. China's edge is smaller in autonomy. Differences between the U.S. and China diminish, but do not disappear, after adjusting for respondent demographics. The meritocracy gap is also robust to excluding the Chinese respondents most likely to be …
As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson
As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson
Osgoode Legal Studies Research Paper Series
This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision-makers to deport individuals who pose de jure security risks to face torture …
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Alastair Neil Craik
Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Alastair Neil Craik
Osgoode Legal Studies Research Paper Series
As the duty to consult Aboriginal peoples becomes operationalized within the frameworks of government decision-making, the agencies responsible for these decisions 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 duties 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 …
Taxing State-Owned Enterprises: Understanding A Basic Institution Of State Capitalism, Wei Cui
Taxing State-Owned Enterprises: Understanding A Basic Institution Of State Capitalism, Wei Cui
Osgoode Legal Studies Research Paper Series
State-owned enterprises (SOEs) have become active investors in global markets in the last decade, challenging policymakers in Canada and other OECD countries to confront the logic of “state capitalism.” This article develops a novel theory of the income taxation of SOEs. Many countries subject their SOEs to the income tax, but economists tend to dismiss SOE taxation as superfluous. A contrary, popular belief holds that SOE taxation is necessary to ensure fair competition. This article shows that both views are mistaken and explains SOE taxation in terms of the agency problem for dividend policy. Because typical devices to give private …
The Unbearable License Of Being The Executive: A Response To Stacey's Permanent Environmental Emergency, Bruce Pardy
The Unbearable License Of Being The Executive: A Response To Stacey's Permanent Environmental Emergency, Bruce Pardy
Osgoode Legal Studies Research Paper Series
This article responds to Jocelyn Stacey's "The Environmental Emergency and the Legality of Discretion in Environmental Law". In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it …
The Role Of Corporate Governance In Curbing Foreign Corrupt Business Practices, Poonam Puri, Andrew Nichol
The Role Of Corporate Governance In Curbing Foreign Corrupt Business Practices, Poonam Puri, Andrew Nichol
Osgoode Legal Studies Research Paper Series
The role of corporate and securities laws in addressing foreign corrupt business practices has, to date, received limited consideration. Departing from the substantial literature on the criminal and public law response to international corruption, the authors analyze Canada’s Corruption of Foreign Public Officials Act in comparison with British and American legislation and conclude that the Canadian regime relies too heavily on the use of criminal sanctions and fails to contemplate the role of behaviour modification in its legislative structure. Recognizing that multinational corporations are well placed to identify, expose and prevent corrupt business practices, the authors propose a private law …
Law, Politics, And Legacy Building At The Mclachlin Court In 2014, Jamie Cameron
Law, Politics, And Legacy Building At The Mclachlin Court In 2014, Jamie Cameron
Osgoode Legal Studies Research Paper Series
This Article was written for Osgoode Hall Law School’s annual Constitutional Cases conference, and provides the keynote overview of the McLachlin Court’s 2014 constitutional jurisprudence. The Court’s 2014 constitutional decisions (Appointment and Senate References; Tsilqot’in Nation; Trial Lawyers) and restrictions on Mr. Big operations (Hart), in combination with a tsunami of Charter decisions early in 2015 (the 2015 Labour Trilogy; Carter v. Canada; R. v. Nur; and others), made this a legacy-building year. More than an overview, this Article probes the nature of the McLachlin Court’s legacy this year and the relationship between legal and political dynamics, to ask: in …
Corruption And Development: The Need Of International Investigations With A Multijurisdictional Approach And The Involvement Of Multilateral Development Banks With National Authorities, Juan Ronderos, Michelle Ratpan, Andrea Osorio Rincon
Corruption And Development: The Need Of International Investigations With A Multijurisdictional Approach And The Involvement Of Multilateral Development Banks With National Authorities, Juan Ronderos, Michelle Ratpan, Andrea Osorio Rincon
Osgoode Legal Studies Research Paper Series
The authors argue that while both Multilateral Development Banks (MDBs) and national governments have mechanisms to fight corruption, the outcomes of these enforcement mechanisms diverge. MDBs are interested in the causes and effects of corruption from a development perspective and, as such, tend to sanction Small and Medium Enterprises and individuals, while national governments are focused on a more punitive outcome, targeting larger multinational corporations. The article examines the enforcement objectives articulated in national legislation, namely the American Foreign and Corrupt Practices Act and its Canadian counterpart (the CFPOA) as well as several Canadian cases, on the one hand, and …
Is The Death Of The Paper Cheque Upon Us?: The Electronic Presentment And Deposit Of Cheques In Canada, Benjamin Geva
Is The Death Of The Paper Cheque Upon Us?: The Electronic Presentment And Deposit Of Cheques In Canada, Benjamin Geva
Osgoode Legal Studies Research Paper Series
Over the years, banks have been introducing automation to their own respective cheque collection podecures. Particularily, interbank facilities and large institutions have developed automated systems using cutting age technology in which very little is done manually and at the branch level.
Conservatives, The Supreme Court, And The Constitution: Judicial-Government Relations, 2006-15, Christopher P. Manfredi
Conservatives, The Supreme Court, And The Constitution: Judicial-Government Relations, 2006-15, Christopher P. Manfredi
Osgoode Legal Studies Research Paper Series
Three high profile government losses in the Supreme Court in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between the Conservative government of Prime Minister Stephen Harper and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning aboriginal rights and the elimination …
Electronic Verification Of Wire Payment Orders, Benjamin Geva
Electronic Verification Of Wire Payment Orders, Benjamin Geva
Osgoode Legal Studies Research Paper Series
Over the years, albeit less so in connection with consumer accounts, the bank's absolute liability became subject to exceptions. Particularly, bypassing a classical text explicitly to the contrary, it had been recognized that a customer's fault can lead to the forgery of the customer's own signature and hence to forgery losses.
Book Review: The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed The History Of Free Speech In America, By Thomas Healy, Jamie Cameron
Osgoode Legal Studies Research Paper Series
Thomas Healy’s The Great Dissent re-treads the familiar story of US Supreme Court Justice Holmes’s First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy’s book demonstrates that fresh perspectives on this vital and ever-intriguing change of mind or transformation on Holmes’s part remain possible. The review offers its own perspective by highlighting the process of “reverse mentoring” which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day – Laski, Frankfurter, …
Legality, Legitimacy And Constitutional Amendment In Canada, Jamie Cameron
Legality, Legitimacy And Constitutional Amendment In Canada, Jamie Cameron
Osgoode Legal Studies Research Paper Series
It is accepted that Canada’s Constitution is almost impossible to amend, and that this amendment rigidity stems from the Constitution’s patriation in 1982 and two failed reform initiatives, the Meech Lake and Charlottetown Accords. The high-stakes drama of 1982, threat of Quebec separation and denouement of the post-patriation Accords were events of singular urgency which have dominated the literature and consigned the longer history of amendment to the background. This article provides a corrective which explores Canada’s two uneven periods of constitutional change – before and after textual rules – and in doing so theorizes that rich insights into the …