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Articles 1 - 30 of 36
Full-Text Articles in Law
Through The Eyes Of Jurors: The Use Of Schemas In The Application Of 'Plain-Language' Jury Instructions, Sara Gordon
Through The Eyes Of Jurors: The Use Of Schemas In The Application Of 'Plain-Language' Jury Instructions, Sara Gordon
All Faculty Publications
“Through the Eyes of Jurors” is the first law journal article to consider all of the major cognitive psychology studies that examine how “schemas,” or the preexisting notions jurors have about the law, shape jurors’ use of jury instructions, even when those jurors are given “plain-language” instructions. This Article examines the social science research on schema theory in order to advance our understanding of how schemas continue to influence jurors’ use of jury instructions, even when those jurors are given “plain language” instructions. A significant body of legal literature has examined jurors’ use and understanding of jury instructions, and many …
Legality, Criminality And Agency Beyond The State: Forest Governance, Illegal Logging And Associated Trade, Lorraine Elliott
Legality, Criminality And Agency Beyond The State: Forest Governance, Illegal Logging And Associated Trade, Lorraine Elliott
Transnational Business Governance Interactions Working Papers
This paper examines the disconnect between the literature on and practice of legality verification (LV) in the forest sector and what would seem to be a logical extension into the literature on and responses to forest crime and, more specifically, transnational criminality associated with trade in illegally logged timber. The apparently logical overlap between these two areas of endeavour arises because both are dealing with aspects of supply chains or chains of custody involving raw timber, forest products or timber products more generally. The disconnect, I suggest here, arises because of a lack of 'joined up thinking' between the two …
Transnational Business Governance Interaction And Competition Between Standard-Setting Initiatives: Labor Standards In Garment, Toys And Agriculture, Nicole Helmerich, Christopher Kaan
Transnational Business Governance Interaction And Competition Between Standard-Setting Initiatives: Labor Standards In Garment, Toys And Agriculture, Nicole Helmerich, Christopher Kaan
Transnational Business Governance Interactions Working Papers
This paper analyzes interactions within standard-setting networks in the area of social and labor rights. We examine the shape of transnational business governance interactions (TBGI), pathways, and interaction mechanisms in three sectors: garments, toys and agriculture. Our comparative analysis of each of these sectors reveals meaningful differences in both the organization of regulation networks and the resulting level of competition among participants. Overall, we find that the creation of a more inclusive and more coherent standard in a whole business sector comes with the cost of weaker rules and less monitoring. These industry-specific observations provide a springboard for future studies …
Public-Private Regime Interactions In Global Food Safety Governance, Ching-Fu Lin
Public-Private Regime Interactions In Global Food Safety Governance, Ching-Fu Lin
Transnational Business Governance Interactions Working Papers
In response to an apparent decline in global food safety, numerous public and private regulatory initiatives have emerged to restore public confidence. This trend has been particularly marked by the growing influence of private regulators such as multinational food companies, supermarket chains and non-governmental organizations (NGOs), who employ private standards, certification protocols, third-party auditing, and transnational contracting practices. This paper explores how the structure and processes of private food safety governance interact with traditional public governance regimes, focusing on Global Good Agricultural Practices (GlobalGAP) as a primary example of the former. Due to the inefficiency and ineffectiveness of public regulation …
Private Governance, Public Implications And The Tightrope Of Regulatory Reform: The Isda Credit Derivatives Determinations Committees, John Biggins, Colin Scott
Private Governance, Public Implications And The Tightrope Of Regulatory Reform: The Isda Credit Derivatives Determinations Committees, John Biggins, Colin Scott
Transnational Business Governance Interactions Working Papers
Regulatory relationships in financial markets exemplify the importance and changing nature of transnational business governance interactions (TBGI). These interactions involve reciprocal forces of influence between private and public regulators. This paper examines one key case of private governance in financial markets: the emergence, structures and decision-making of Credit Derivatives Determinations Committees (DCs) of the International Swaps and Derivatives Association (ISDA). The paper highlights the mechanisms or 'pathways' of interaction between ISDA, governments, courts and public regulators. Interactions between state and non-state actors are shown to occur in both operational and policy spheres. ISDA is found to be a particularly resilient …
A System Of Transnational Business Interactions: The Case Of The Living Wage, David J. Doorey
A System Of Transnational Business Interactions: The Case Of The Living Wage, David J. Doorey
Transnational Business Governance Interactions Working Papers
The subject of transnational business governance (TBG) interactions is an emerging field of study. These interactions are complex, involving multiple public and private actors crossing vast geopolitical spaces, with sometimes shared, but often conflicting interests. This complexity makes TBG interactions both an exciting new field of inquiry for scholars, but also an extremely challenging one. In these early days of theory development, it is useful to engage in a mapping exercise that will help scholars identify and test the relationships between the many inputs and outputs of TBG interactions. This new systems framework is demonstrated by reference to the complex …
Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui
Cloudy Weather, With Occasional Sunshine: Consumer Loans, The Legislature, And The Supreme Court Of Japan, Shigenori Matsui
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The Supreme Court of Japan, despite its well-known passive and conservative stance towards constitutional adjudication, occasionally shows quite a creative and liberal attitude. Recently, the Supreme Court of Japan has shown this attitude in its development of pro-consumer jurisprudence involving consumer loan cases. This development is still more noteworthy because the Supreme Court of Japan ignored the legislature's intent to overturn its previous judgments and practically wiped out a statutory provision enacted by the legislature. As a result of this development, millions of consumers could demand refunds from consumer loan companies, and consumer loan companies went into serious financial troubles, …
The Other Section 7, Margot Young
The Other Section 7, Margot Young
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The somewhat rudimentary notions of liberty, life and security of the person that are corralled by traditional section 7 jurisprudence are not the sole indicator of what the section potentially ought to, and indeed may ultimately, protect and ensure. It is now fairly well established that the rights section 7 of the Canadian Charter of Rights and Freedoms protects apply well outside the sphere of criminal law. Two strands of expansion exist, one less controversial than the other. First, it is relatively clear that section 7 encompasses executive administration of the law. The second path of expansion allows section 7 …
La Culture De La Protection Des Droits Fondamentaux En Droit Canadien Des Réfugiés: Un Examen Des Affaires De Violence Familiale, Efrat Arbel
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Cet article examine les cas canadiens de droit des réfugiés impliquant de la violence familiale, analysés par le biais d’une comparaison avec les cas de stérilisation forcée et de mutilations génitales. Parcourant 645 décisions publiées, il suggère que les arbitres canadiens ont en général adopté différentes méthodes d’analyse dans le cas des réfugiés de violence familiale, par rapport aux autres affaires. L’article soutient que les arbitres canadiens reconnaissent rarement la violence domestique comme une violation des droits en soi, mais au contraire, ont montré une prédisposition générale à reconnaître des situations violence domestique dans la différence culturelle. Autrement dit, les …
Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston
Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston
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This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case …
Access To Justice For All: Towards An 'Expansive Vision' Of Justice And Technology, Jane Bailey, Jacquelyn Burkell, Graham Reynolds
Access To Justice For All: Towards An 'Expansive Vision' Of Justice And Technology, Jane Bailey, Jacquelyn Burkell, Graham Reynolds
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The Canadian dialogue regarding access to justice has taken an important turn in the last few years, more robustly conceptualizing what is to be accessed (“deliverables”) and who is intended to benefit (“beneficiaries”), as well as recognizing that access to justice initiatives that benefit some citizens or groups of citizens cannot be presumed to benefit all citizens. Recent initiatives shift focus away from particular kinds of deliverables (e.g. access to lawyers and courts) and/or particular groups of beneficiaries (e.g. the middle class) toward a more “expansive vision” of access to justice. The expansive vision not only integrates and prioritizes a …
Tax Treatment Of Charitable Contributions In A Personal Income Tax: Lessons From Theory And Canadian Experience, David G. Duff
Tax Treatment Of Charitable Contributions In A Personal Income Tax: Lessons From Theory And Canadian Experience, David G. Duff
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A hundred years after tax concessions for charitable contributions were introduced as part of the personal income taxes that many countries enacted during the First World War, these countries continue to debate the appropriate level and structure of tax concessions for charitable gifts. This chapter considers the tax treatment of charitable contributions in a personal income tax, reviewing and evaluating alternative rationales for tax recognition of charitable gifts as well as the implications of these rationales for the form that tax recognition should take, and examining recent Canadian experience in light of these rationales.
The Culture Of Rights Protection In Canadian Refugee Law: Examining The Domestic Violence Cases, Efrat Arbel
The Culture Of Rights Protection In Canadian Refugee Law: Examining The Domestic Violence Cases, Efrat Arbel
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This article examines Canadian refugee law cases involving domestic violence, analyzed through a comparison with cases involving forced sterilization and genital cutting. Surveying 645 reported decisions, it suggests that Canadian adjudicators generally adopted different methods of analysis in refugee cases involving domestic violence, as compared with these other claims. The article argues that Canadian adjudicators rarely recognized domestic violence as a rights violation in itself but, instead, demonstrated a general predisposition toward finding domestic violence persecution in cultural difference. That is, adjudicators tended to recognize domestic violence claimants not as victims of persecutory practices but rather as victims of persecutory …
Innovation-Framing Regulation, Cristie Ford
Innovation-Framing Regulation, Cristie Ford
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This paper aims to provide insights into the effective regulation of private sector innovation. It coins a term – “innovation-framing regulation” – to describe a particular quality of the regulation that characterized much of financial regulation in the recent era. After briefly sketching a particular financial innovation (securitization and the marketing of securitized assets on the derivatives markets) it describes three regulatory interactions with that innovation: the Basel II Capital Accords, the Asset-Backed Commercial Paper Crisis in Canada, and the ongoing notice-and-comment rulemaking process surrounding the Volcker Rule in the United States. While each case study is different, in each …
Book Review: Theory And Practice Of Harmonisation, Mads Andenæs & Camilla B. Andersen (Eds), Toby S. Goldbach
Book Review: Theory And Practice Of Harmonisation, Mads Andenæs & Camilla B. Andersen (Eds), Toby S. Goldbach
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"Theory and Practice of Harmonisation" is an edited symposium publication which tackles the ambitious topic of legal harmonisation. Some common themes can be identified. First, several papers deal with the background to or reasons for harmonisation and consider whether harmonisation goals are being met.Second, several papers examine language-textual issues or problems with defining concepts. A third centralizing theme is the role of legal institutions, in particular courts, in facilitating harmonisation. Finally, a fourth theme is evident in those papers that look at the instruments, mechanisms or legal techniques that are used to implement harmonisation. As a whole, the text seems …
The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter J. Katzenstein
The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter J. Katzenstein
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This article examines the transplanting and translating of law in the domains of criminal procedure and administrative law. The transnational movement of law is full of unexpected twists and turns that belie the notion of the United States as a legal behemoth. Furthermore, the movement of legal procedures which occurs both within and across countries with common and civil law legal traditions challenges preconceived notions of an orderly divide between legal families. While the spread of elements of the U.S. jury system and methods of plea bargaining reveals the powerful influence of U.S. legal ideas, the ways that these procedures …
The China-United Kingdom Income Tax Treaty (2011), Wei Cui
The China-United Kingdom Income Tax Treaty (2011), Wei Cui
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The author, in this article, considers some of the key features of the China-United Kingdom Income Tax Treaty (2011), with particular reference to the provisions on technical fees, permanent establishments, passive and other income, and anti-avoidance rules.
A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant
A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant
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Prosecutions for sexual assault most often focus on whether the Crown has proven that the complainant did not consent to the sexual activity in issue, based on her subjective state of mind at the time of the offence. However, Canadian criminal law also provides that no consent is obtained where the complainant is incapable of consenting. In cases where the complainant has a mental disability affecting cognition or decisionmaking, prosecutors in Canada have been reluctant to argue that the complainant was incapable of consenting. In this article, the authors agree that claims of incapacity should be used sparingly, but contend …
Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research, Emma Cunliffe
Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research, Emma Cunliffe
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Austin Sarat has described legal understandings of the transcript as “the verbatim record of a present soon to become past, a mirror/a record/a voice machine in which the “author” exercises no authorial presence.” In this paper I argue that when seeing a transcript as an authorless mirror of court proceedings, lawyers and socio-legal scholars risk overlooking the ways in which the technology of transcripts influences the record that is produced. Paying attention to the laws and practices governing transcript production allows those who engage in transcript research to appreciate how the transcript is defined in relation to the spoken proceedings …
How The Charter Has Failed Non-Citizens In Canada – Reviewing Thirty Years Of Supreme Court Of Canada Jurisprudence, Catherine Dauvergne
How The Charter Has Failed Non-Citizens In Canada – Reviewing Thirty Years Of Supreme Court Of Canada Jurisprudence, Catherine Dauvergne
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This paper presents a study of all of the Supreme Court of Canada’s Charter-era jurisprudence addressing the rights of non-citizens. It traces the jurisprudential evolution from early decisions strongly supportive of non-citizens’ rights claims, to more recent rulings where non-citizens’ rights claims are rejected, sidelined or even ignored. Patterns in decision making are discernible and the decline in protections for non-citizens follows logically enough from a series of interpretive stances made relatively early on. There is evidence here of what I have termed ‘Charter hubris.’ This is a leading factor in explaining the current state of affairs, which works alongside …
Dogs And Tails: Remedies In Administrative Law, Cristie Ford
Dogs And Tails: Remedies In Administrative Law, Cristie Ford
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Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …
The Inefficiencies Of Legislative Centralization: Evidence From Provincial Tax Rate-Setting, Wei Cui, Zhiyuan Wang
The Inefficiencies Of Legislative Centralization: Evidence From Provincial Tax Rate-Setting, Wei Cui, Zhiyuan Wang
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Legislative power in China is centralized to an unusual degree. This arrangement is both positively and normatively significant, but has received little attention in prior scholarship. We devise a novel method for analyzing the consequence of centralization by examining provincial rate setting for the vehicle and vessel tax (VVT). Because all provinces have assigned VVT revenue and VVT administration to sub-provincial governments, provincial rate-setting represents centralized, not decentralized, decision-making. Using spatio-econometric analyses, we find that provincial tax rate choices fail to reflect local economic and demographic conditions and display traces of tax mimicking. Both support the hypothesis that provincial officials …
Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts
Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts
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There is an epistemic crisis in many areas of forensic science. This crisis emerged largely in response both to the mobilization of a range of academic commentators and critics and the rise and influence of DNA typing. It gained popular and authoritative support through the influence of the National Academy of Science (NAS) and a surprisingly critical report produced under its auspices by a committee of the National Research Council (NRC). Interestingly, as this article endeavors to explain, the courts themselves seem to have played a rather indirect, inconsistent and ultimately ineffective role in the supervision and evaluation of forensic …
‘Don't Read The Comments!’: Reflections On Writing And Publishing Feminist Socio-Legal Research As A Young Scholar, Emma Cunliffe
‘Don't Read The Comments!’: Reflections On Writing And Publishing Feminist Socio-Legal Research As A Young Scholar, Emma Cunliffe
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This article responds to reviews written by Eve Darian-Smith and Mehera San Roque and published in Feminists@Law. Darian-Smith and San Roque's reviews focus on the contributions made by my 2011 book, Murder, Medicine and Motherhood. In this response, I have taken the opportunity to reflect a little on the experience of writing Murder, Medicine and Motherhood, and on its reception. In the first section, I trace the choices and unanticipated challenges that structured my research for Murder, Medicine and Motherhood. Both Darian-Smith and San Roque have commented on this methodology, and I have noticed that after publication, the scope and …
Positive Obligations And Criminal Justice: Duties To Protect Or Coerce?, Liora Lazarus
Positive Obligations And Criminal Justice: Duties To Protect Or Coerce?, Liora Lazarus
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This chapter explores the relationship between criminal law, criminal process and human rights from a slightly different perspective. It demonstrates that while human rights may well be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law and criminal justice institutions. Increasingly, human rights, cast as positive rights, have resulted in claims for the extension of the criminal law, the creation of preventative duties or ‘protective policing …
Embodied Conflict Resolution: Resurrecting Roleplay-Based Curricula Through Dance, Nadja Alexander, Michelle Lebaron
Embodied Conflict Resolution: Resurrecting Roleplay-Based Curricula Through Dance, Nadja Alexander, Michelle Lebaron
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Moving on from the authors’ seminal 2009 critique of the overuse of role-plays in negotiation teaching, "Death of the Role-Play" (chapter 13 in Rethinking Negotiation Teaching), Alexander and LeBaron have taken the rapidly increasing enthusiasm for experiential learning in a new direction: multiple intelligences. Their particular interest is in a use of experiential learning that focuses on kinesthetic intelligence, employing actual physical movement, particularly dance, to unlock creativity in other mental domains, as well as to encourage authentic participation by people whose skills are not primarily verbal or mathematical. Those who may be inclined to be skeptical should note that …
Evolving Capacities: The B.C. Representative For Children And Youth As A Hybrid Model Of Oversight, Mary Liston
Evolving Capacities: The B.C. Representative For Children And Youth As A Hybrid Model Of Oversight, Mary Liston
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This paper explores hybrid models of oversight through an examination of a new institutional creation: British Columbia’s Representative for Children and Youth (BC RCY). The paper argues that societal changes in the conception of children’s worth have significantly affected approaches to child welfare and have also stimulated institutional innovation. The paper begins with a historical overview of the legal and moral status of children, focusing on the child as the subject of government protection, and then considers the evolution of children’s rights in the twentieth century. This conceptual shift from children as passive objects of paternal state care to (near) …
Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin
Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin
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Migrant smuggling is a dangerous, sometimes deadly, criminal activity. Failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel, endangers the lives and safety of smuggled migrants, undermines border security, and undermines the integrity and fairness of immigration systems. Introduced in the Canadian House of Commons in June 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes proposed amendments to the Immigration and Refugee Protection Act that would enhance …
Ten Reasons For Adopting A Universal Concept Of Participation In Atrocity, James G. Stewart
Ten Reasons For Adopting A Universal Concept Of Participation In Atrocity, James G. Stewart
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The legal doctrine that assign blame for international crimes are numerous, unclear, ever-changing and often conceptually problematic. In this Essay, I question the prudence of retaining the radical doctrinal heterogeneity that, in large part, produces this state of disarray. Instead of tolerating different standards of participation across customary international law, the ICC statute and national systems of criminal law, I argue for a universal concept of participation that would apply whenever an international crime is charged, regardless of the jurisdiction hearing the case. Although I have argued elsewhere that a unitary theory of perpetration should serve this role, I here …
Social Justice And The Charter: Comparison And Choice, Margot Young
Social Justice And The Charter: Comparison And Choice, Margot Young
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At a time of radical inequality, the changes sought by social justice advocacy are urgently needed. Yet repeatedly, courts fail to respond adequately to this challenge. A core issue plagues social justice jurisprudence under sections 7 and 15: the difficulty inevitable in the contemplation and expression of the social and political forms in which oppression and social injustice occur. This problem manifests doctrinally in ways specific to the rights at issue. In section 15 cases, the casting of comparator groups has been deeply problematic, and in both section 15 and section 7 cases, the courts fail to deliver a nuanced …