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Articles 1 - 28 of 28
Full-Text Articles in Law
Book Review: Vicarious Kinks: S/M In The Socio-Legal Imaginary, By Ummni Khan, Kyle Kirkup
Book Review: Vicarious Kinks: S/M In The Socio-Legal Imaginary, By Ummni Khan, Kyle Kirkup
Osgoode Hall Law Journal
Book review of Vicarious Kinks: S/M In The Socio-Legal Imaginary, by Ummni Khan.
Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen
Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, By Louis Michael Seidman, Carissima Mathen
Osgoode Hall Law Journal
Book review of Nothing To Lose But Our Chains: On Constitutional Disobedience, by Louis Michael Seidman.
Book Review: The Governance Gap: Extractive Industries, Human Rights, And The Home State Advantage, By Penelope Simons & Audrey Macklin, Sara L. Seck
Osgoode Hall Law Journal
Book review of The Governance Gap: Extractive Industries, Human Rights, And The Home State Advantage, by Penelope Simons & Audrey Macklin.
Corruption And Development: The Need For International Investigations With A Multijurisdictional Approach Involving Multilateral Development Banks And National Authorities, Juan G. Ronderos, Michelle Ratpan, Andrea Osorio Rincon
Corruption And Development: The Need For International Investigations With A Multijurisdictional Approach Involving Multilateral Development Banks And National Authorities, Juan G. Ronderos, Michelle Ratpan, Andrea Osorio Rincon
Osgoode Hall Law Journal
We argue that while Multilateral Development Banks (“MDBs”) and national governments have mechanisms to fight corruption, the objectives and 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. This article examines the enforcement objectives articulated in national legislation, namely the US Foreign and Corrupt Practices Act and its Canadian counterpart, the Corruption of Foreign Public Officials Act, as well as several Canadian cases, …
Have We Legalized Corruption? The Impacts Of Expanding Municipal Authority Without Safeguards In Toronto And Ontario, Stanley M. Makuch, Matthew Schuman
Have We Legalized Corruption? The Impacts Of Expanding Municipal Authority Without Safeguards In Toronto And Ontario, Stanley M. Makuch, Matthew Schuman
Osgoode Hall Law Journal
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 abuse of power in planning and other decisions made by municipal governments.
Corruption In Developing Countries: What Keeping It In The Family Means For Everyone Else, Tonita Murray
Corruption In Developing Countries: What Keeping It In The Family Means For Everyone Else, Tonita Murray
Osgoode Hall Law Journal
The United Nations estimates that 30 per cent of all international development funding is lost to corruption. Identifying and understanding the dynamics of how such corruption occurs at the ground level could help to reduce opportunities for the diversion of funds from public purposes to private uses. An analysis of two highly publicized corruption cases in Kenya and one in Afghanistan identifies some common characteristics that may also be present in other cases around the world. The characteristics fall into four categories: (1) political, social, and cultural; (2) governance; (3) people; and (4) international. Different understandings of corruption, weak government …
Corruption At The Intersection Of Business And Government: The Oecd Convention, Supply-Side Corruption, And Canada’S Anti-Corruption Efforts To Date, Milos Barutciski, Sabrina Bandali
Corruption At The Intersection Of Business And Government: The Oecd Convention, Supply-Side Corruption, And Canada’S Anti-Corruption Efforts To Date, Milos Barutciski, Sabrina Bandali
Osgoode Hall Law Journal
Over the last twenty years, international and regional conventions have been concluded to combat the corruption of public officials. Part I of the paper explains the genesis of international anti-corruption law and its focus on the “supply-side” of bribery transactions, drawing on the negotiating history and the experience of practitioners involved in the development of international anti-corruption law. Parts II and III examine Canada’s implementation of its international obligations and its enforcement record to date. Part IV of the paper concludes with an analysis of the challenges faced by Canadian businesses and the limitations of the focus on supply-side of …
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 Hall Law Journal
The role of corporate and securities laws in addressing foreign corrupt business practices have, 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-based …
The Brazilian Clean Company Act: Using Institutional Multiplicity For Effective Punishment, Mariana Mota Prado, Lindsey Carson, Izabela Correa
The Brazilian Clean Company Act: Using Institutional Multiplicity For Effective Punishment, Mariana Mota Prado, Lindsey Carson, Izabela Correa
Osgoode Hall Law Journal
In Brazil’s battle against corruption over the past two decades, there has been significant progress associated with the systems of oversight and investigation but very little progress in holding corrupt actors legally accountable for their transgressions. We suggest that until very recently this could be partially explained by the fact that there was institutional multiplicity (i.e., duplication of functions) in oversight and investigative institutions, while at the punishment stage, a single and underperforming institution—the judiciary—exercised monopolistic authority. To circumvent the limits associated with Brazilian courts, the government is increasingly relying on administrative sanctions for corruption. It is in this context …
Systemic Corruption In An Advanced Welfare State: Lessons From The Quebec Charbonneau Inquiry, Denis Saint-Martin
Systemic Corruption In An Advanced Welfare State: Lessons From The Quebec Charbonneau Inquiry, Denis Saint-Martin
Osgoode Hall Law Journal
The Quiet Revolution in the 1960s propelled the province of Quebec onto the path of greater social justice and better government. But as the evidence exposed at the Charbonneau inquiry makes clear, this did not make systemic corruption disappear from the construction sector. Rather, corrupt actors and networks adjusted to new institutions and the incentive structure they provided. The patterns of corruption emerging from the Charbonneau inquiry bear the imprint of the so-called Quebec model inherited from the Quiet Revolution in at least three ways: (1) the economic nationalism that made public policies partial towards French-speaking and Quebec-based businesses, notably …
Banning Bribes Abroad: Us Enforcement Of The Foreign Corrupt Practices Act, Ellen Gutterman
Banning Bribes Abroad: Us Enforcement Of The Foreign Corrupt Practices Act, Ellen Gutterman
Osgoode Hall Law Journal
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 in terms of both the number of enforcement actions and the application of increasingly expansive interpretations of jurisdiction through which to enforce the FCPA on an extraterritorial basis. Extraterritorial enforcement of the FCPA has promoted anti-corruption policies and the banning of bribes abroad, but three aspects of FCPA enforcement shape and constrain the broader goals of global anti-corruption governance …
Keynote Speech: Global Corruption And The Universal Approach Of The United Nations Convention Against Corruption, John Sandage
Keynote Speech: Global Corruption And The Universal Approach Of The United Nations Convention Against Corruption, John Sandage
Osgoode Hall Law Journal
This keynote lecture describes the challenge of global corruption and the role of the United Nations Convention against Corruption in combatting it.
Understanding And Taming Public And Private Corruption In The Twenty-First Century, Ron Atkey, Margaret E. Beare, Cynthia Williams
Understanding And Taming Public And Private Corruption In The Twenty-First Century, Ron Atkey, Margaret E. Beare, Cynthia Williams
Osgoode Hall Law Journal
We are pleased to present these articles that were originally presented at a symposium held at Osgoode Hall Law School on 6–7 November 2014.1 Our objective was to offer a symposium that looked at corruption from diverse perspectives, with a broad national and international focus on business, financial, governmental, private sector, and enforcement corruption. Both the Symposium and the compilation of this special issue of the Journal were unique. They required an interplay between contributions from professionals working on the ground in various countries around the world (such as practitioners working in the World Bank, the Inter-American Development Bank, and …
No Lawyer For A Hundred Miles?: Mapping The New Geography Of Access Of Justice In Canada, Jamie Baxter, Albert Yoon
No Lawyer For A Hundred Miles?: Mapping The New Geography Of Access Of Justice In Canada, Jamie Baxter, Albert Yoon
Osgoode Hall Law Journal
Recent concerns about the geography of access to justice in Canada have focused on the dwindling number of lawyers in rural and remote areas, raising anxieties about the profession’s inability to meet current and future demands for localized legal services. These concerns have motivated a range of policy responses that aim to improve the education, training, recruitment and retention of practitioners in underserved areas. We surveyed lawyers across Ontario to better understand their physical proximity to clients and how, if at all, that proximity promotes access to justice. We find that lawyers’ scope of practice varies based on a number …
Justice As A Rounding Error?: Evidence Of Subconscious Bias In Second-Degree Murder Sentences In Canada, Craig E. Jones, Micah B. Rankin
Justice As A Rounding Error?: Evidence Of Subconscious Bias In Second-Degree Murder Sentences In Canada, Craig E. Jones, Micah B. Rankin
Osgoode Hall Law Journal
There are few areas of law that grant judges as much discretion as the sentencing of criminal offenders. This discretion necessarily leads to concerns about the influence of biases, including those that result from subconscious processes associated with human cognition; that is to say, heuristics. In this article, the authors explore one heuristic—number preference—through an examination of all reported second degree murder parole ineligibility decisions between 1990 and 2012. Number preference leads individuals to predictably round off measurements to certain favoured numbers. The authors identify a tendency for parole ineligibility decisions to cluster around even numbers and multiples of five, …
Tax Law Within The Larger Legal System, J. Scott Wilkie, Peter W. Hogg
Tax Law Within The Larger Legal System, J. Scott Wilkie, Peter W. Hogg
Osgoode Hall Law Journal
Tax law may be viewed as occupying its own universe, even though tax funds the implementation of public policies that animate Canadian society. This article reminds us that tax law must respond to basic rule-of-law norms in spite of overarching and well-meaning policy goals. It adopts reference points featured in recent cases. One is the Charter, which limits penalties that can be imposed on non-compliant taxpayers and tax advisers without adhering to due process safeguards. Another is the impact of international arrangements among countries in a global business environment to guide consistent regulatory responses and to identify and share information. …
The Responsibility Of Judges In Interpreting Tax Legislation: Japan’S Experience, Yoshihiro Masui
The Responsibility Of Judges In Interpreting Tax Legislation: Japan’S Experience, Yoshihiro Masui
Osgoode Hall Law Journal
This essay examines the Japanese judiciary’s approach to statutory interpretation of tax legislation in Japan. Its goal is to provide a positive, rather than normative, analysis of current Supreme Court of Japan (SCJ) tax jurisprudence. The analysis demonstrates that SCJ justices generally employ a literal approach when interpreting tax legislation, but with due regard to the objective and purpose of specific statutory provisions. This does not mean that SCJ justices constrain their reasoning based on an originalist approach to statutory interpretation. The analysis instead demonstrates that they make their own judgments, taking into account both the plain meaning of the …
Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano
Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano
Osgoode Hall Law Journal
This article presents a novel theory of the concept of substantive equality under section 15(1) of the Canadian Charter of Rights and Freedoms called Substantive Equality as Equal Recognition. This contribution is timely in light of the Supreme Court of Canada’s recent disagreement over the proper jurisprudential approach to interpreting section 15(1) in the 2013 case of Quebec v A. Substantive Equality as Equal Recognition holds that the purpose of section 15(1) is to ensure that the law’s application does not reflect, through its impact or effects, hierarchies of status that exist between citizens within Canadian society. The article argues …
Towards A Pedagogy Of Diversity In Legal Education, Faisal Bhabha
Towards A Pedagogy Of Diversity In Legal Education, Faisal Bhabha
Osgoode Hall Law Journal
There is resounding consensus that diversity in legal education is a priority. Yet, North American law schools continue to be criticized for failing to reflect the diversity of the society that they are training lawyers to serve. This article is a project of conceptual reorientation against a backdrop of critical scholarship and empirical evidence. Parts I and II examine the past twenty years of diversity promotion in legal education, concluding that, while several advances have been made, especially in increasing numerical representation of diverse groups in law schools, the promise of meaningful diversity remains unfulfilled. Part III suggests that reforms …
Faithful Translations?: Cross-Cultural Communication In Canadian Religious Freedom Litigation, Howard Kislowicz
Faithful Translations?: Cross-Cultural Communication In Canadian Religious Freedom Litigation, Howard Kislowicz
Osgoode Hall Law Journal
In three religious freedom cases pursued to the Supreme Court of Canada—Amselem, Multani, and Huterrian Brethren of Wilson Colony—religious freedom claimants engaged in litigation over a religious practice particular to their group. Some have argued that cases like these can be seen as cross-cultural encounters. How did the religious freedom claimants seek to make their practices—the succah, the kirpan, and the prohibition on being photographed—understood to the courts? And how did the courts respond to these claims? In this article, I draw out two central values from the literature on crosscultural communication: respect and self-awareness. I then use these values …
Taxation And Inequality In Canada And The United States: Two Stories Or One?, Richard M. Bird, Eric M. Zolt
Taxation And Inequality In Canada And The United States: Two Stories Or One?, Richard M. Bird, Eric M. Zolt
Osgoode Hall Law Journal
Canada and the United States have both experienced a substantial increase in income inequality over the last several decades. In this article, we examine the complex interaction of income inequality with tax and transfer systems in Canada and the United States. We begin by comparing the data on taxation and expenditure to understand the similarities and differences between the two countries. We then consider how changes to tax and transfer policies have affected the levels of inequality in both countries. The article concludes by offering some policy recommendations that each country may consider to address the increasing levels of inequality.
Originalism And The Good Constitution, By John O Mcginnis And Michael B Rappaport, Stacey Danis
Originalism And The Good Constitution, By John O Mcginnis And Michael B Rappaport, Stacey Danis
Osgoode Hall Law Journal
No abstract provided.
What Kind Of Corporation Tax Regime?, Sijbren Cnossen
What Kind Of Corporation Tax Regime?, Sijbren Cnossen
Osgoode Hall Law Journal
This article explores the taxation of corporations in the wider context of capital income taxation. The article discusses pros and cons of various income-based and cash-flow forms of corporation tax (CT) and concludes that the dual income tax (DIT), which taxes all capital income at the proportional CT rate, is to be preferred over other forms of taxing capital income. The DIT is best attuned to the reality of capital mobility and is not held hostage by the higher tax on labour income. Levied at a uniform flat rate, the DIT minimizes opportunities for tax arbitrage.
Touching Torture With A Ten-Foot Pole: The Legality Of Canada’S Approach To National Security Information Sharing With Human Rights-Abusing States, Craig Forcese
Osgoode Hall Law Journal
In 2011, then-Public Safety Minister Vic Toews issued “ministerial directions” to Canada’s key security and intelligence agencies on “Information Sharing with Foreign Entities.” These directions permit information sharing in exigent circumstances, even where there is substantial risk of mistreatment of an individual. After a brief chorus of condemnation, the directions sank into relative obscurity while remaining part of Canada’s national security policy framework. This article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by the author directly or through journalistic researchers under access to information law. First, I examine dilemmas …
Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez
Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez
Osgoode Hall Law Journal
This article asks whether Quebec has lost relevance in the constitutional politics of language. It proposes a doctrinal analysis of the Supreme Court’s Charter jurisprudence, with an emphasis on the most recent body of case law, and an assessment of its political consequences in the area of language policy in Quebec. The article argues that constitutional review has increasingly protected individual rights over Quebec’s collective right to maintain its language and culture. This can be explained by the move towards an implacable parallel constitutionalism and a redefinition of official minority linguistic rights in the jurisprudence, as well as by the …
The Panopticon Of International Law: B’Tselem’S Camera Project And The Enforcement Of International Law In A Transnational Society, Pini Pavel Miretski, Sascha-Dominik Vladimir Oliver Bachmann
The Panopticon Of International Law: B’Tselem’S Camera Project And The Enforcement Of International Law In A Transnational Society, Pini Pavel Miretski, Sascha-Dominik Vladimir Oliver Bachmann
Osgoode Hall Law Journal
This paper analyzes the influence of transnational non-state actors on compliance with international legal rules as part of Michel Foucault’s power/knowledge structure. In particular, it examines the effects of the Shooting Back project, organized by the Israeli non-governmental organization B’Tselem, on the level of investigations of alleged violations of the law of occupation. In 2007, B’Tselem supplied Palestinians living in high-conflict areas with video cameras in order to capture, expose, and “seek redress for” human rights violations in the Occupied Territories. According to Jeremy Bentham’s principles of panopticism, power should be visible and unverifiable. The implementation of these principles by …
Uncovering Women In Taxation: The Gender Impact Of Detaxation, Tax Expenditures, And Joint Tax/Benefit Units, Kathleen A. Lahey
Uncovering Women In Taxation: The Gender Impact Of Detaxation, Tax Expenditures, And Joint Tax/Benefit Units, Kathleen A. Lahey
Osgoode Hall Law Journal
Women have made great progress in gaining individual civil and political rights since the 1800s. However, for nearly a century, the use of couple-based tax and benefit provisions has increased steadily, enshrouding women in new and extensive forms of fiscal coverture that run counter to democratic ideals of economic equality. While the pros and cons of joint taxation have been well-rehearsed, the reality is that between unequal distributions of new and old varieties of tax and benefit items to women and men and the continued expansion of joint tax and benefit items in recent decades, Canada’s tax and transfer system …
Intimate Partner Criminal Harassment Through A Lens Of Responsibilization, Isabel Grant
Intimate Partner Criminal Harassment Through A Lens Of Responsibilization, Isabel Grant
Osgoode Hall Law Journal
Feminist scholars have demonstrated the gendered nature of intimate violence and the tendency to put the responsibility on women to avoid both sexual and physical violence (“responsibilization”). This article applies these insights to the context of intimate partner criminal harassment, which is committed overwhelmingly by men against former female intimate partners. Using criminal harassment decisions over the past decade, this article argues that the elements of the offence—specifically the requirements that the accused cause the complainant to fear for her safety, that this fear be reasonable, and that he intend to harass her—feed into the tendency towards responsibilization. Women are …