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Articles 1 - 30 of 56
Full-Text Articles in Law
The Alberta Legal Services Mapping Project: Pilot District Interim Report, Glynnis Lieb
The Alberta Legal Services Mapping Project: Pilot District Interim Report, Glynnis Lieb
Canadian Forum on Civil Justice
Our justice system is a fundamental and far-reaching component of Canada=s system of democracy. It is complex with four broad divisions of law: civil, family, criminal and administrative. Lack of public understanding of our justice system is therefore a key and fundamental concern for the administration of justice.
Lessons In Access To Justice: Racialized Youths In Ontario's Safe Schools, Janet E. Mosher
Lessons In Access To Justice: Racialized Youths In Ontario's Safe Schools, Janet E. Mosher
Osgoode Hall Law Journal
Access to justice is often equated with access to institutionalized dispute resolution processes, and the objective barriers that hinder such access-costs and delay most particularly-are commonly identified as the primary objects of reform efforts. In sharp contrast, when interviews and focus groups were conducted with racialized youths in Toronto regarding their experiences of access to justice in the context of school disciplinary matters, accounts of access to dispute resolution processes being impeded by costs and delay did not figure prominently. The interviews and focus groups revealed that many racialized youths scarcely ever considered accessing institutionalized dispute resolution processes largely because …
Collaborative Family Law And Gender Inequalities: Balancing Risks And Opportunities, Wanda Wiegers, Michaela Keet
Collaborative Family Law And Gender Inequalities: Balancing Risks And Opportunities, Wanda Wiegers, Michaela Keet
Osgoode Hall Law Journal
Collaborative Law (CL) is a unique settlement process increasingly used by family lawyers. In this article, the authors examine the potential of CL to alleviate the impact of gendered differences in bargaining power between family clients. Proponents suggest that the more extensive involvement of lawyers in the CL process can prove more effective in dealing with vulnerable clients than either litigation or family mediation in their current forms. Drawing on the available literature on CL, their own empirical research, and the extensive literature on gender imbalances in mediation, the authors examine the likely impact of both the background norms and …
Peer Review In Canada: Results From A Promising Experiment, Frederick Zemans, James Stribopoulos
Peer Review In Canada: Results From A Promising Experiment, Frederick Zemans, James Stribopoulos
Osgoode Hall Law Journal
The end point in the access to justice debate often focuses on expanding the availability of legal services for the poor. This article argues that true access to justice requires greater focus on the quality of legal services provided. It tells the story of the introduction of peer review in Canada as a quality assurance tool for evaluating the legal work of a group of criminal lawyers. The article chronicles the various obstacles encountered in making even a very limited form of peer review a reality in Canada, where historically there has been skepticism about the peer review process in …
Law Commissions And Access To Justice: What Justice Should We Be Talking About?, Patricia Hughes
Law Commissions And Access To Justice: What Justice Should We Be Talking About?, Patricia Hughes
Osgoode Hall Law Journal
In addition to their explicit mandates, law reform commissions have a generic mandate to make recommendations that are designed to increase access to justice. Moreover, contemporary commissions ought to interpret the concept of access to justice broadly. Even though they undertake topics of 'lawyers' law,' or at times limit their focus to the narrower legal system, commissions should also consider how law can be employed to realize economic or social justice. In order to make pragmatic recommendations to increase access to justice, commissions must study the non-legal realm and incorporate into their work the insights of other disciplines and the …
Community-Based Mapping: A Research Tool For Justice System Research, Mary Stratton
Community-Based Mapping: A Research Tool For Justice System Research, Mary Stratton
Canadian Forum on Civil Justice
Mapping research is a form of collaborative needs assessment or environmental scan that recognizes, includes and values local knowledge as essential to understanding communities.
A Case For An International Investment Court, Gus Van Harten
A Case For An International Investment Court, Gus Van Harten
All Papers
The article elaborates on the lack of objective guarantees of independence and impartiality in the existing system of investment treaty arbitration. This founds a case for an international investment court to replace the existing system. The argument proceeds in three steps: (1) investment treaty arbitration is uniquely a form of public law adjudication, constituted at the international level; (2) as constituted it does not satisfy standards of independence and impartiality in public law adjudication; and (3) various reasons that might be offered to justify this failing are unsatisfactory in light of the importance of these standards. For this reason, states …
Modern Constitutional Democracy And Imperialism, James Tully
Modern Constitutional Democracy And Imperialism, James Tully
Osgoode Hall Law Journal
To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part III surveys ways in which …
The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan
The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan
Osgoode Hall Law Journal
This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …
"Other Worlds Are Actual": Tully On The Imperial Roles Of Modern Constitutional Democracy, Michael Simpson
"Other Worlds Are Actual": Tully On The Imperial Roles Of Modern Constitutional Democracy, Michael Simpson
Osgoode Hall Law Journal
The globalization of modern legal and economic practices has not ushered in a state of perpetual peace as Kantians have famously predicted. Rather, it has reinforced the perpetual crises and violence that is today's realm of the political. This article examines James Tully's claim that the formalization of diverse legal traditions into the modular confines of modern constitutions, as nation-states and international taw, is a project of today's imperial hegemony. The global imperialism of modern constitutionalism is one that suppresses the vast multiplicity of existing legal pluralities and, consequently, fuels war and aggression, not perpetual peace. Tully's important analysis of …
Judicial Review And American Constitutional Exceptionalism, Miguel Schor
Judicial Review And American Constitutional Exceptionalism, Miguel Schor
Osgoode Hall Law Journal
This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it …
Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara L. Seck
Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara L. Seck
Osgoode Hall Law Journal
Home state reluctance to regulate international corporate activities in the human rights context is sometimes characterized as an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a regulatory role for home states in preventing and remedying human rights harms is increasingly being suggested. This paper seeks to explore theoretical perspectives that support unilateral home state regulation. Having established that unilateral home state regulation could serve …
Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque
Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque
Osgoode Hall Law Journal
Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation marked the first in-depth inquiry by non-US scholars into transnational human rights litigation. In this article, the author canvasses a range of new developments in the field since its publication in 2001. Of special note are five transnational human rights claims, decided after September 11, that were brought in Canadian and British courts. The author mines these cases for insights into other important developments involving the American Alien Tort Statute (Part I) corporate complicity in human rights abuses (Part II) the expansion of common law jurisdiction to include …
Reaching Out With Research: Engaging Community In Mapping Legal Service Accessibility, Effectiveness And Unmet Needs, Mary Stratton
Reaching Out With Research: Engaging Community In Mapping Legal Service Accessibility, Effectiveness And Unmet Needs, Mary Stratton
Canadian Forum on Civil Justice
Emerging international research demonstrates that high economic and social costs accrue when individuals cannot access timely and effective resolutions to legal problems. Canadian research also shows that most people lack knowledge and understanding of legal rights, legal processes and services, and experience significant barriers when attempting to seek legal information and assistance. Within the Canadian justice community there is strong interest in engaging all relevant stakeholders in collaborative processes of research and policy development. This paper discusses how community-based mapping research can facilitate such engagement in compiling evidence that informs the development of legal processes and services that are more …
The Civil Justice System And The Public Justice For Nunavummiut: Partnerships For Solutions, Travis Anderson, Mary Stratton
The Civil Justice System And The Public Justice For Nunavummiut: Partnerships For Solutions, Travis Anderson, Mary Stratton
Canadian Forum on Civil Justice
As part of the Civil Justice System and the Public (CJSP), a national collaborative research project, we first visited Iqaluit in June 2003. At that time the Research Coordinator met with key contacts in the Nunavut justice and social service community to talk about the research and make plans for conducting the field research. As a result of these initial meetings, the CJSP team made contact with Inuit services in Ottawa. In July 2003, during the Ontario phase of the CJSP research, we met Inuit service providers and several Nunavummiut who were at that time living in Ottawa.1 In September …
Access To Justice: Report On Selected Reform Initiatives In Canada, Canadian Judicial Council
Access To Justice: Report On Selected Reform Initiatives In Canada, Canadian Judicial Council
Canadian Forum on Civil Justice
When the Sub-committee on Access to Justice (Trial Courts) first met we confirmed that we are concerned with access to justice, and in particular with mounting costs in the justice system. While Subcommittee members are aware of important initiatives designed to respond to the issue of costs at the trial level, it was felt that it would be helpful to know more about what is happening across the country so that we can identify promising practices to reduce costs. To that end we agreed that the starting point for the work of the Subcommittee is to develop a focused inventory …
Evaluation Of Criminal Law Offices - Third Year, Robert Hann, Frederick H. Zemans, Joan Nuffield
Evaluation Of Criminal Law Offices - Third Year, Robert Hann, Frederick H. Zemans, Joan Nuffield
Commissioned Reports, Studies and Public Policy Documents
Report submitted to Legal Aid Ontario.
Containing The Gmo Genie: Cattle Trespass And The Rights And Responsibilities Of Biotechnology Owners, Katie Black, James Wishart
Containing The Gmo Genie: Cattle Trespass And The Rights And Responsibilities Of Biotechnology Owners, Katie Black, James Wishart
Osgoode Hall Law Journal
Genetically modified organisms (GMOs) have caused substantial economic losses by contaminating non-GMO crops and threatening the economic self-determination of non-GMO farmers. After Monsanto v. Schmeiser, biotech IP owners hold most of the rights in the property "bundle" with respect to bioengineered organisms. This commentary highlights the disequilibrium between these broad patent rights and the lack of legal responsibility for harms caused by GMO products. The authors propose that there is a role for tort law--specifically the tort of cattle trespass--in fairly allocating risk and responsibility. The doctrine of cattle trespass reflects a policy of distributive justice, positing that the unique …
Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson
Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson
Osgoode Hall Law Journal
This article argues that environmental law must target the financial sector, which sponsors and profits from environmental pillage. The rise of a system of finance capitalism has made the financial sector a crucial economic sector. A long-standing movement for socially responsible investment (SRI) has recently begun to advocate environmental standards for financiers. While the SRI movement has gained more influence in recent years, it has come at the price of jettisoning its former emphasis on ethical investment in favour of an instrumental, business case approach. Some modest legal reforms to improve the quality and extent of SRI have yet to …
Research In Action: Understanding Civil Justice In The Everyday World: Developing Networks For Evidence Based Socio-Legal Research Workshops, Mary Stratton
Canadian Forum on Civil Justice
The overall objective of the Supporting Civil Justice Reform Through Research grant was to increase the focus and capacity for research on the civil justice systems. The Research in Action - Developing Networks for Evidence Based Socio-legal Research workshop series was an integral component in meeting that objective.
"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond
"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond
Osgoode Hall Law Journal
In this short article, the author explores the history of the environmental law movement in Canada and explains how this history has affected many of the environmental laws and trends today. With a focus on Ontario, the author reports back from a round table discussion held in Toronto in early 2008. Some of Canada's leading environmental lawyers, as well as many of the pioneers of the environmental law movement, reflected at the round table on the extent to which their aspirations for strong, effective environmental laws have been met and how much more remains to be done. While we are …
Confronting Chronic Pollution: A Socio-Legal Analysis Of Risk And Precaution, Dayna Nadine Scott
Confronting Chronic Pollution: A Socio-Legal Analysis Of Risk And Precaution, Dayna Nadine Scott
Osgoode Hall Law Journal
The central aim of this article is to demonstrate a socio-legal approach to risk and precaution using the example of chronic pollution. Drawing on ongoing empirical work with the Aamjiwnaang First Nation, which is tucked into Sarnia's "Chemical Valley," a secondary aim is to influence and shape how we understand the problem and confront the risks of chronic pollution. This article forwards the argument that the prevailing regulatory approach is incapable of capturing the essence of contemporary pollution harms, because those harms are increasingly linked to continuous, routine, low-dose exposures to contaminants that are within legally sanctioned limits. Community residents …
Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson
Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson
Osgoode Hall Law Journal
Ontario recently introduced environmental penalties (EPs), the environmental equivalent of speeding tickets. EPs are widely understood as part of a move toward "smarter" environmental regulation. As part of the EPs regime, facilities with an environmental management system aligned with ISO 14001 or Responsible Care qualify for reduced penalties. The Ontario government's attempt to incorporate voluntary standards-such as ISO 14001-into its EPs regulations was not very smart, however, because it failed to observe six principles that, in our view, should guide the incorporation of standards into smart regulation. First, do not reinvent the wheel. If an existing standard fulfills the objectives …
Investment Provisions In Economic Partnership Agreements, Gus Van Harten
Investment Provisions In Economic Partnership Agreements, Gus Van Harten
Commissioned Reports, Studies and Public Policy Documents
No abstract provided.
Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel
Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel
All Papers
Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of …
Better Never Than Late, But Why?: The Contradictory Relationship Between Law And Abortion, Shelley A. M. Gavigan
Better Never Than Late, But Why?: The Contradictory Relationship Between Law And Abortion, Shelley A. M. Gavigan
Articles & Book Chapters
"I am honoured to have been invited to be a panelist in such distinguished company at this important event. I am particularly attracted to the invitation in the title of the Symposium to reflect upon the 1988 decision of the Supreme Court of Canada in R. v. Morgentaler. In reflecting upon the case, its significance and legacy, I want to talk about the importance of history, the contradictory nature of law and the enduring importance of ideology."
Does Civility Matter?, Alice Woolley
Does Civility Matter?, Alice Woolley
Osgoode Hall Law Journal
Recent discussion of legal ethics in Canada has focused on the importance of "civility" as a fundamental value and goal of ethical conduct. This comment questions that focus. After defining the content of "civility' and reviewing its treatment in these initiatives by both the law societies and the courts, the author suggests that the emphasis on civility is misplaced. Focusing on civility has the undesirable tendency to impede lawyer reporting of misconduct by other lawyers and potentially undermines the effective representation of client interests. It also shifts emphasis away from the ethical values that should be the focus of our …
Public Justice, Private Dispute Resolution And Democracy, Trevor C. W. Farrow
Public Justice, Private Dispute Resolution And Democracy, Trevor C. W. Farrow
Comparative Research in Law & Political Economy
This paper is about the widespread and systematic privatization of the public civil justice system. In particular, it: (1) documents the move to privatize civil disputes across all aspects of the justice system (including courts, administrative tribunals and state-sanctioned arbitration regimes), (2) looks at some of the benefits and drawbacks of privatization, specifically including negative impacts on systems of democratic governance, and (3) identifies justice - rather than efficiency - as the primary benchmark by which civil justice reform initiatives should be judged.
Criminal Law On The Aboriginal Plains: The First Nations And The First Criminal Court In The North-West Territories, 1870 - 1903, Shelley A. M. Gavigan
Criminal Law On The Aboriginal Plains: The First Nations And The First Criminal Court In The North-West Territories, 1870 - 1903, Shelley A. M. Gavigan
Shelley A. M. Gavigan
This study undertakes an in-depth analysis of the relationship between the First Nations and the criminal law in the 'Saskatchewan' region of the North-West Territories, taking as its temporal point of departure the creation of the Territories in 1870. Through data derived from criminal court records from Hugh Richardson's tenure on the territorial bench (1876 - 1903), this study analyses the role of Canadian criminal law in a watershed period of social and legal transformation in and for the lives of the First Nations.The dissertation critically engages with discourses of criminalization in the historiography and calls for greater precision in …
Cyberlaws And Cybercafés: Analysis Of Operational Legislation In Some Commonwealth Jurisdictions And The United States, Yemisi Dina
Librarian Publications & Presentations
This chapter will discuss the existing cyber laws in some commonwealth countries and the United States. It compares the various definitions accorded to cyber crimes in these countries. It examines and discusses when cyber crime occurs in the various jurisdictions regardless of where it originates, the laws that apply to pornographv, the significance of jurisdiction for Internet criminals in all these countries, as well as when cybercafe operators are liable in cyber related crimes.