Law Commons^™

The (Lack Of) Women Arbitrators In Investment Treaty Arbitration, Gus Van Harten

Articles & Book Chapters

Investment treaty arbitration appears to be a boy’s club. Just 4% of individuals appointed as arbitrators in known cases to May 2010 were women. This casts doubt on the system’s ad hoc and partly-privatized appointments process. A roster-based model would enable a more deliberative and merit-based process of appointments and ensure public accountability and independence in the system.

Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal

Comparative Research in Law & Political Economy

Most of us have an instinctive understanding of what “whistleblowing” is: the act of alerting the public to scandal, danger, malpractice, corruption or other immoral or unethical behaviour. For a long time, whistleblowers were treated poorly – today, they are now acknowledged, and sometimes even admired, but there is still some way to go. We believe that a strongly developed and distinct freedom of conscience, as expressed in s. 2(a) of the Canadian Charter of Rights and Freedoms, could go some way towards achieving that goal. In law, however, conscience is often treated as inseparable from religion, without any meaningful …

The Cost Of Justice: Weighing The Costs Of Fair And Effective Resolution To Legal Problems, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

There is a growing belief that our civil and family justice system2 is in crisis. Evidence is mounting that the public cannot afford to resolve their legal problems through the formal processes of our courts, and it is unclear whether they are accessing other civil justice system services to reach resolution or whether their legal problems remain unresolved. This is a vital concern not only for the individuals who are unable to pursue their claims, but also for the health, economic, and social well-being of all Canadians. There is increasing evidence that unresolved disputes have a significant negative impact on …

Addressing The Needs Of Self-Represented Litigants In The Canadian Justice System, Trevor C. W. Farrow, Diana Lowe, Martha E. Simmons, Bradley Albrecht, Heather Manweiller

Commissioned Reports, Studies and Public Policy Documents

How can the Canadian justice system better assist self-represented litigants (SRLs) with their legal needs?

There is a service gap that exists in the Canadian justice system between what SRLs need and what is currently being provided. The system needs to better address how SRLs understand, avoid, manage and resolve their legal issues.

While the entire justice system has a role to play in understanding and addressing this question, courts and court administrators in particular have a central role to play. Some important efforts have begun to address the needs of SRLs. However, major challenges persist in providing adequate court …

The Brilliant Career Of Section 7 Of The Charter, Peter W. Hogg

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Section 7 of the Charter of Rights was not intended by the framers to be a provision that authorized extensive judicial review of legislation. The protection of property was deliberately not included in its text in order to reduce its scope — and the potential for judicial review. and the phrase “the principles of fundamental justice” was intended to cover only procedural due process. Contrary to expectations in 1982, over the succeeding 30 years the Supreme Court of Canada has given an expansive interpretation to section 7 and used it to strike down a variety of laws, including the criminalization …

Mabo Misinterpreted: The Unfortunate Legacy Of Legislative Distortion Of Justice Brennan’S Judgment, Kent Mcneil

Articles & Book Chapters

The High Court's bold decision in Mabo v Queensland [No 2] undoubtedly changed the legal landscape in Australia in very positive ways. For the first time, Australian common law acknowledged that the Indigenous peoples have land rights based on occupation of land in accordance with their traditional laws and customs. The Court denounced the racial discrimination inherent in past denial of these rights and outlined legal doctrines that could be used to resolve Indigenous land claims in present-day Australia. This led to the enactment of the Native Title Act 1993 (Cth) (NTA), by which the Commonwealth Parliament created a complex …

Law Via The Internet: Report On The Conference, Yemisi Dina

Articles & Book Chapters

Cornell University, located in Ithaca, New York hosted the LVI (Law via the Internet) 2012. The conference also marked the twentieth anniversary of the LIIs (Legal Information Institutes) of the world, which have grown exponentially. The anniversary was not a cake-eating celebration but a two-day deliberation with members of an open access society who have been striving to make legal information freely available on the Internet. Many of the speakers at the sessions shared their experiences from the different projects they have been working on over the past twenty years or more, and the LIIs continue to improve. It was …

Love It Or Hate It, But For The Right Reasons: Pragmatism And The New Haven School's International Law Of Human Dignity, Hengameh Saberi

Articles & Book Chapters

This Article presents a novel understanding of pragmatism in the New Haven School of international law. The New Haven Jurisprudence is wrapped in layers of mystification and the scant accounts of its pragmatism in the literature are either entirely mistaken or only partially helpful, betray a vernacular or truncated understanding of pragmatism, and fail to engage with the internal, epistemic structure of the policy-oriented jurisprudence. In response, this Article uncovers a contradictory form of foundationalist pragmatism in the Yale Jurisprudence in a peculiar relationship between its contextualist and problem-solving promises and its unreflective normative commitments to a set of postulated …

Post-9/11 Lawyers, Trevor C. W. Farrow

Articles & Book Chapters

Based on notes made by the author during a visit to the World Trade Center site in lower Manhattan.

Judicial Review Of Refugee Determinations: The Luck Of The Draw?, Sean Rehaag

Articles & Book Chapters

Judicial review is often the only way to correct errors made by the Immigration and Refugee Board in refugee determinations. Applicants must seek leave from the Federal Court, where a judge will decide if their case is suitable for judicial review. The stakes are high for refugee claimants confronting deportation to countries where they may face persecution, torture or death. The author reviews over 23 000 applications for judicial review from 2005 to 2010, and finds troubling inconsistency in leave grant rates at the Federal Court. Over 36 per cent of judges deviated by more than 50 per cent from …

Administrative Justice And Adjudicative Ethics In Canada, Lorne Sossin

Articles & Book Chapters

In this article, I explore both the idea and practice of adjudicative ethics in the context of administrative justice in Canada. This is a large topic and one which is particularly timely as accountability, transparency and conflict of interest are all renewed areas of interest for governments across Canada. Elsewhere, I have suggested it is time to approach administrative justice as a justice system rather than as a disparate set of tribunals and boards. One way in which this coordination can be expressed is through a shared process of accountability for the conduct of adjudicators. My hope in elaborating adjudicative …

Three Recent Works On Contractual Interpretation [Part 2], John D. Mccamus

Articles & Book Chapters

No abstract provided.

The South Of The North: Building On On Critical Approaches To International Law With Lessons From The Fourth World, Amar Bhatia

Articles & Book Chapters

As both practice and discipline, international law has been the subject of serious and sustained internal and external critiques since its inception. In fact, the "inception" of international law itself has been the subject of serious and sustained critique for some time now. This debate is of special relevance for Indigenous peoples, most of whom suffer from a double burden in international law, as they are neither Europeans nor dominant political actors within the states whose borders now contain and divide their traditional territories. Apart from the changing role, place, and agency of Indigenous peoples in international law and fora …

Empirically Evaluating The Impact Of Adjudicative Tribunals In The Health Sector: Context, Challenges And Opportunities, Lorne Sossin, Steven J. Hoffman

Articles & Book Chapters

Adjudicative tribunals are an integral part of health system governance, yet their real-world impact remains largely unknown. Most assessments focus on internal accountability and use anecdotal methodologies; few, studies if any, empirically evaluate their external impact and use these data to test effectiveness, track performance, inform service improvements and ultimately strengthen health systems. Given that such assessments would yield important benefits and have been conducted successfully in similar settings (e.g. specialist courts), their absence is likely attributable to complexity in the health system, methodological difficulties and the legal environment within which tribunals operate. We suggest practical steps for potential evaluators …