Law Commons^™

Reimagining Disability: The Screening Of Donor Gametes And Embryos In Ivf, Isabel Karpin, Roxanne Mykitiuk

Articles & Book Chapters

In this article,we examine how disability is figured in the imaginaries that are given shape by the reproductive projects and parental desires facilitated by the bio-medical techniques and practices of assisted reproductive technologies (ARTs) that involve selection and screening for disability. We investigate how some users of ARTs understand and deploy these imaginaries in ways that are both concordant with and resistant to the understanding of disability embedded within the broader sociotechnical and social imaginaries. It is through users’ deliberations, choices, responses, and expectations that we come to understand how these imaginaries are perpetuated and resisted, and how maintaining them …

Non-State Community Virtual Currencies, Benjamin Geva, Dorit Geva

Articles & Book Chapters

Community currencies are means of payment issued other than by the State, for voluntary use side by side with State-issued (that is, national) currency, either in a particular geographical area or by a group of users. This chapter deals with them as their media have been transforming from paper to digital. Discussing legal aspects of digital community currencies as monetary objects, this chapter combines an analysis general to the law of community currencies, as applied to community currencies regardless of the media in which they are embodied, with an analysis of the general law governing digital currencies as applied to …

'Pyrates' Of The Lyceum: Big Pharma, Patents, And Academic Freedom In Neoliberal Times, James Mcgillivray

PhD Dissertations

Academic freedom and freedom of expression are threatened by the corporatised university. As neoliberal policies embed themselves in all aspects of public (if not private) life, freedom of expression and academic freedom are being degraded and denigrated in the university, in the popular press, in the law, and in public life. The influence of intellectual property rights and proprietary claims surrounding patents are muzzling freedom of thought by corporate interests. Universities and the freedom of academic researchers to explore their fields have become casualties on this neoliberal battlefield. This political economy seeks to expose the free market contagion involved with …

Narratives Of Self Government In Making The Case, Benjamin Berger

Articles & Book Chapters

This is a book about persuasion. In Making the Case: The Art of the Judicial Opinion, Paul Kahn draws the judicial opinion into the centre of our field of vision and invites us to join him in inquiring into the role that it plays shaping our legal and political communities, and in seeking to understand how it does its work. Ultimately, he shows that persuasion is at the heart of the judicial opinion and, with that, at the heart of the rule of law.

Lost In Translation? The Difference Between Hearsay Rule's Historical Rationale And Practical Application, Christopher Lloyd Sewrattan

LLM Theses

An examination of the difference between the hearsay rules historical rationale and current application. The analysis occurs in three steps. In section 1, the historical rationale of the hearsay rule is identified through a reconciliation of competing theories. Section 2 analyses the difference between the hearsay rules historical rationale and the application of the exclusionary hearsay rule. Section 3 analyses the difference between the hearsay rules historical rationale and the application of some categorical hearsay exceptions.

Overall, the thesis finds that the hearsay rules historical rationale has three aspects: concern with the inherent reliability of hearsay evidence, concern with procedural …

Legal Anarchism: Does Existence Need To Be Regulated By The State, Sirus Kashefi

PhD Dissertations

This thesis asks does existence need to be regulated by the State? The answer relies on legal anarchism, an interdisciplinary, particularly criminal law and philosophy, and unconventional research project based on multiple methodologies with a specific language. It critically analyzes and consequently rejects State law because of its unjustified and unnecessary nature founded on unlimited violence and white-collar crime (Chapters 1-4), on the one hand, and suggests some alternatives to the Governmental legal system founded on agreement and peace (Chapter 5), on the other hand. It furthermore takes into account the elements of time and space, which means the ecological, …

Conceptions Of Authority And The Anglo-American Common Law Divide, Dan Priel

Articles & Book Chapters

This essay seeks to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory. I argue that there are four competing ideal-type theories of the authority of the common law: reason, practice, custom, and will. The reason view explains the authority of the common law in terms of correspondence to the demands of pure practical reason; the practice view sees the authority of the common law as derived from the expertise of practitioners (especially judges and practice-oriented academics) who try to develop the common law as a …

The Right To Self-Determination Of A People: A Twailian Analysis Of Icj Decisions In Cameroon V. Nigeria, East Timor, And Western Sahara Cases, Ngozi Sunday Nwoko

LLM Theses

The various post-colonial armed conflicts bedeviling Third World States have claimed numerous lives and properties, drained its resources, displaced millions and have put the territory’s development move on the reverse gear. This thesis, from the theoretical perspective of Third World Approaches to International Law (“TWAIL”) is a contribution to the various on-going discussions on the roles that colonialism played in triggering bitter conflicts, confusion, and unhealthy rivalries amongst Third World peoples. Not losing sight of the internal dimensions to these conflicts, the thesis also examines the degree of contributions by some power-drunk and despotic Third World governments to these conflicts. …

Unionization At Justice Canada: A Case Study, Andrij Roman Kowalsky

PhD Dissertations

In April 2005, non-management lawyers working at the federal Department of Justice Canada (DOJ) were recognized by the Public Service Labour Relations Act (PSLRA) as employees. This dissertation explores DOJ lawyers unionizing by addressing two research questions: (1) what led DOJ lawyers to unionize with the Association of Justice Counsel (AJC)? and (2) what was the AJC’s experience in negotiating a first collective agreement?

The dissertation is organized using a conventional structure. The literature review presented in Chapter 2 maps the academic study of lawyer unionization. Chapter 3 elaborates on the dissertation’s research design as a case study. Chapter 4 …

The Globalization Of Crime Control: The Use Of Non-Criminal Justice Responses For Countering Organized Crime, Bjarni Halldor Sigursteinsson

LLM Theses

This thesis examines domestic authorities’ use of non-criminal justice responses to counter organized crime. Examples of responses used to counter outlaw motorcycle gangs in Canada, Germany, and Iceland are provided. These responses are significantly different from most international efforts focusing on criminal norms and cooperation in criminal matters.

As harmonization of legislation, policies and practices in this field become an international focus, I examine the role currently played by the European Union in promoting these non-criminal justice 'alternative' enforcement strategies for the purpose of furthering the development of international and domestic efforts to counter organized crime.

This study concludes that …

Tracking Queer Kinships: Assisted Reproduction, Family Law And The Infertility Trap, Stewart Donnell Marvel

PhD Dissertations

The global advent of assisted human reproduction has brought with it an upheaval in social, cultural and legal norms of the family. The centrality of biological reproduction to the traditional heterosexual family has been challenged by reproductive intervention, further destabilizing nuclear family norms already unmoored by same-sex marriage, single mothers, unwed fathers, and increased access to divorce, contraceptives and abortion. As these challenges have shifted EuroAmerican social norms of family, the law has increasingly been called upon to preside over the re-organization of intimate life, operating as a central vehicle to reframe the relationship of the family to the state. …

Changing Our Tune: A Music-Based Approach To Teaching, Learning, And Resolving Conflict, Linda Marie Ippolito

PhD Dissertations

The need for change within the legal profession and legal education is critical. To remain relevant and responsive to twenty-first century challenges and complexities the next generation of professionals must be creative, imaginative, and innovative thinkers. Emotional and social intelligence, the ability to collaboratively problem-solve, negotiate, and mediate complex conflict are essential skills needed for success particularly in increasingly settlement-oriented environments. Studies and reports have noted, however, that practitioners are lacking these key skills. How can these new perspectives and essential skills be taught and developed? This mixed methods research study involved five professional musicians and thirty-eight first year law …

Increasing Innovation In Legal Process: The Contribution Of Collaborative Law, Martha Emily Simmons

PhD Dissertations

This dissertation examines the role of innovation in resolving complex disputes, using Collaborative Law as its case study. Innovation, for the purposes of this research, can be defined as applied creativity that leads to optimal resolution for clients. The process of innovation is required to resolve complex problems, which are increasingly prevalent in legal, economic and social spheres. Collaborative Law indeed has the capacity to resolve such issues in the legal realm. Collaborative Law is a process by which parties and their lawyers enter into a binding contract that limits the representation to a facilitative problem-solving process with the intent …

The Political Economic Dimensions Of Executive Compensation Reform: Can The Foundations Of Shareholder Primacy Be Sustained In The Post - Crisis Regulatory Environment?, Dezso Peter Arpad Farkas

LLM Theses

What is absent in much of the literature on executive compensation reform is a deeper appreciation of the shift that has occurred since the latest financial crisis away from performance-based corporate governance arrangements to an approach that seeks to put the brakes on a runaway train, the shareholder value model and its relentless pursuit of shareholder wealth at all costs. By situating this debate into a broader discussion of corporate purpose, corporate governance and the law’s role in how business corporations are run in their social, economic and political environment this project seeks to shed some light onto what really …

Workplace Harassment: A Cross-Jurisdictional Comparative Analysis Of Legislative Responses To This Workplace Phenomenon In Canada, Kayla Alice Carr

LLM Theses

This thesis investigates different statutory models Canadian legislatures have enacted to address workplace harassment. It adopts a qualitative, comparative case study approach, providing an in-depth comparative analysis of legislation from Québec, Saskatchewan, Ontario, Manitoba and British Columbia. Through this analysis, this thesis outlines the ways in which workplace harassment has been regulated in Canada, why that model was adopted by the jurisdiction and how that model measures against other models for legislating workplace harassment. Through an examination of existing literature relating to workplace harassment stemming from three theoretical paradigms and an analysis of a model legislative framework, this thesis creates …

Unanimous Shareholder Agreements, Nicolas William Juzda

PhD Dissertations

The unanimous shareholder agreement is a feature of most Canadian corporate statutes that allows the shareholders to, by creating an agreement meeting the necessary criteria, restrict the powers of the directors to manage the business and affairs of the corporation. One possible justification for this is the "nexus of contracts" theory that all corporations are notionally reducible to voluntary agreements. Three key areas of ambiguity surrounding unanimous shareholder agreements are examined in this dissertation, with specific reference to existing judgments. The requirements for their formation are reviewed, including the exact meaning and strictness of the unanimity criterion and the necessity …

Coercing Justice? Exploring The "Aspirations And Practice" Of Law As A Tool In Struggles Against Social Inequalities, Karen Schucher

PhD Dissertations

This dissertation examines the role of law as a tool in struggles against social inequalities, by tracing the history of Ontario’s human rights legislation and enforcement from the enactment of fair practices statutes in the 1950s through the restructuring of the enforcement regime in 2006. Ontario was the first Canadian province to pass anti-discrimination legislation and to establish a human rights commission enforcement process. This legislation and the commission enforcement process were the models for all other Canadian jurisdictions.

The dissertation approaches the role of law through the framework of tensions between the “aspirations” and the “practices” of law. On …

Labour Law And Triangular Employment Growth, Timothy John Bartkiw

LLM Theses

This thesis is concerned with understanding the relationship between labour law and triangular employment growth, and particularly in "staffing services" contexts. A review of alternative explanations for growth in triangular employment within three theoretical paradigm (neoclassical, institutionalist, and critical) illustrates the theoretical space for conceiving of a relationship between the particularities of labour law and triangular employment growth. To this end, the thesis develops the concept of a regulatory differential, or ways in which a legal regime may produce differential regulatory effects as between direct and triangular forms of employment. A typology of regulatory differentials is outlined. Further, a discussion …

Recovering The Promise Of Public Truth: Juridification And The Loss Of Purpose In Public Inquiries, Jessica Mckeachie

LLM Theses

My intention in this work is to investigate the apparent disconnect between the intended social purposes of inquiries and the impact pressures of juridification have had on them, and consider what steps inquiries may take to resist these pressures. Public inquiries, formerly relied on as an alternative to criminal and civil proceedings and as a means to engage the public on issues of policy, now seem to exhibit more intense procedures akin to those found in the alternative processes they were designed to resist. Under increasing juridification pressures, what function should public inquiries fulfil? In short, my aim is to …

The Application Of Gladue To Bail: Problems, Challenges, And Potential, Jillian Anne Rogin

LLM Theses

This paper argues that the principles articulated by the Supreme Court of Canada in R. v. Gladue and re-iterated in R. v. Ipeelee are being interpreted and implemented at the bail phase in a manner that exacerbates, rather than ameliorates the systemic failures of the criminal justice system in its dealings with Aboriginal people. Aboriginal people are grossly over-represented in Canadian prisons including those being detained in remand custody. It is now settled that the principles expressed in Gladue are applicable outside of the context of sentencing and in many jurisdictions have been found to be applicable to judicial interim …

Creating A Cultural Analysis Tool For The Implementation Of Ontario's Civil Mental Health Laws, Roby Dhand

PhD Dissertations

The purpose of the study was to develop a Cultural Analysis Tool (CAT). The CAT consists of specific thematic questions that can serve as a cultural and equity analysis instrument for practitioners to use in the implementation of Ontario’s civil mental health laws. The rationale behind creating the CAT is based on research suggesting that ethno-racial people with mental health disabilities experience inequities and differential outcomes while interacting with Ontario’s civil mental health laws. Given the increasing multi-racial population in Ontario, there is a need to develop mechanisms to address these intersecting issues. Other countries that have created evaluative tools …

Rights And Responsibilities: What Are The Prospects For The Responsibility To Protect In The International/Transnational Arena?, Carolyn Helen Filteau

PhD Dissertations

The dissertation involves a study of the emerging international norm of ‘The Responsibility to Protect’ which states that citizens must be protected in cases of human atrocities, war crimes, ethnic cleansing and genocide where states have failed or are unable to do so. According to the work of the International Commission on the Responsibility to Protect (ICISS), this response can and should span a continuum involving prevention, a response to the violence, when and if necessary, and ultimately rebuilding shattered societies. The most controversial aspect, however, is that of forceful intervention and much of the thesis focuses on this aspect. …

Adjudicating Human Rights In Transitional Contexts: A Nigerian Case-Study, 1999-2009 , Basil Emeka Ugochukwu

PhD Dissertations

While transitional justice and democracy literature bristles with the expectation that human rights conditions would improve with the progression from the “darkness” of a dictatorship to the “light” of democratic rule, Nigeria’s transition to civil rule in 1999 would seem to provide a sobering contra-reality. Democracy does not seem to have produced a better human rights environment in the post-transition Nigerian context. This dissertation answers the question why the restoration of civil rule in Nigeria has not translated to results in human rights practices that come close to matching the expectations of its citizens and the predictions of transitional justice …

Rules Of Disengagement: "Low Skill" Migrant Workers, Law And The Social Dimensions Of Exclusionary Inclusion, Brendan Breckman Jowett

LLM Theses

This thesis interrogates social exclusion among migrant workers under the NOC C & D (“low skill”) occupational stream of Canada’s Temporary Foreign Worker Program, a relatively new, fast-growing, and highly diverse stream which brings migrant workers into industry sectors and social settings where they were never seen before. The author develops a framework for understanding law’s role in producing social exclusion, and applies it to ethnographic data collected through interviews with migrant justice advocates and migrant workers in Brandon, Manitoba. This thesis ultimately establishes that migrant workers need not face spatial separation, discrimination from the community, or a historically gendered …

Fuller And Godel: Prophets Against The Evils Of Positivism: How The Natural Law Is Necessary To Provide Legal Meaning And Consistency, Henry James Garon

LLM Theses

Gödel showed that formal systems which discuss natural numbers cannot be complete or prove their own consistency. Incompleteness in this sense is limited to formal systems, and so is not applicable to law by it own terms.

Looking to the philosophy behind the Incompleteness Theorem, Gödel intended to show that positivism was a bankrupt world-view, and this resonates strongly with Lon Fuller. Fuller is analogous to Gödel in his condemnation of the positivist philosophy because he showed that a system of rules, by itself, was not capable of rendering judgments. A legal system is dependent upon an external morality, but …

What It Is-What It Should Be: An Empirical Analysis Of The Effect Of Procedures And Substantive Arguments On Adjudicative Tribunal Resource Allocation Decisions, Lydia Christine Stewart Ferreira

PhD Dissertations

Our current understanding of tribunal resource allocation decision-making is via judicial review of tribunal decisions and/or the capacity, independence and appointment process of tribunal members. This analysis of tribunals provides incomplete information. This qualitative five year case study, however, asked the three following questions: Research Question #1: Do procedures statistically affect the resource allocation decisions of the Board? If so, what elements of the procedures create this statistical effect? The author analyzed the quantitative research results relative to the A4R theory’s four procedural conditions of transparency and concluded that the A4R theory it was not ‘fine grain’ enough to identify …

Bisexuals Need Not Apply: A Comparative Appraisal Of Refugee Law And Policy In Canada, The United States, And Australia, Sean Rehaag

Articles & Book Chapters

This paper offers an analysis of refugee claims on grounds of bisexuality. After discussing the grounds on which sexual minorities may qualify for refugee status under international refugee law, the paper empirically assesses the success rates of bisexual refugee claimants in three major host states: Canada, the United States, and Australia. It concludes that bisexuals are significantly less successful than other sexual minority groups in obtaining refugee status in those countries. Through an examination of selected published decisions involving bisexual refugee claimants, the author identifies two main areas for concern that may partly account for the difficulties that bisexual refugee …

Law And Feminism: Foreword, Mary Jane Mossman

Osgoode Hall Law Journal

No abstract provided.

Legal Pluralism And Human Agency, Jeremy Webber

Osgoode Hall Law Journal

Much legal-pluralist scholarship tends to naturalize "the law of the context," treating that law as though it were inherent in social interaction, emerging spontaneously, without conscious human decision. This view overstates the role of agreement in human societies and mischaracterizes the nature of law, including non-state law. All law is concerned with establishing a collective set of norms against a backdrop of normative disagreement, not agreement. It necessarily contains mechanisms for bringing contention to a provisional close, imposing a collective solution. This article presents a theory of legal pluralism that takes human disagreement seriously. The theory retains four themes crucial …

Beyond Territoriality: The Case Of Transnational Human Rights Litigation, Peer Zumbansen

All Papers

Cases for civil damages that have been brought before Western courts by victims of torture and persecution against states officials or corporations, challenge the principles of state sovereignty and jurisdictional competence. While national courts can in cases of serious crimes hear cases that grow out of acts committed in another country, the same is not true for cases for civil compensation. A persisting and rising number of private law cases that attempts to empower disenfranchised victims of crime and abuse, points to the necessity of reconsidering the prevailing procedural and substantial obstacles that govern the so-far unsuccessful civil law suits. …