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Articles 1 - 30 of 30
Full-Text Articles in Law
Creating New Pathways To Justice Using Simple Artificial Intelligence And Online Dispute Resolution, Darin Thompson
Creating New Pathways To Justice Using Simple Artificial Intelligence And Online Dispute Resolution, Darin Thompson
Osgoode Legal Studies Research Paper Series
Access to justice in can be improved significantly through implementation of simple artificial intelligence (AI) based expert systems deployed within a broader online dispute resolution (ODR) framework. Simple expert systems can bridge the ‘implementation gap’ that continues to impede the adoption of AI in the justice domain. This gap can be narrowed further through the design of multi-disciplinary expert systems that address user needs through simple, non-legalistic user interfaces. This article provides a non-technical conceptual description of an expert system designed to enhance access to justice for non-experts. The system’s knowledge base would be populated with expert knowledge from the …
No Refuge: Hungarian Romani Refugee Claimants In Canada, Julianna Beaudoin, Jennifer Danch, Sean Rehaag
No Refuge: Hungarian Romani Refugee Claimants In Canada, Julianna Beaudoin, Jennifer Danch, Sean Rehaag
Osgoode Legal Studies Research Paper Series
From 2008 to 2012, large numbers of Hungarian Romani refugee claimants came to Canada. Their arrival was controversial. Some political actors suggested that their claims were unfounded and amounted to abuse of Canada’s refugee processes -- abuse which could only be prevented through wide-scale reforms to the refugee determination system. Many advocates for refugees, by contrast, argued that persecution against Roma was rampant in Hungary and noted that hundreds of Hungarians had been recognized as refugees in Canada. Some went further and contended that Romani refugee claimants fled persecution in Hungary only to be confronted with similar mistreatment in Canada. …
The Bunk House Rules: Housing Migrant Labour In Ontario, Adrian A. Smith
The Bunk House Rules: Housing Migrant Labour In Ontario, Adrian A. Smith
Osgoode Legal Studies Research Paper Series
The paper tackles the recent controversy surrounding an application to convert an abandoned school into housing for migrant agricultural workers in Ontario, Canada. It examines how the written reactions of community residents to a proposed municipal zoning by-law amendment convey and invoke understandings of the legal regulation of temporary labour migration. When viewed through a legal consciousness analytic lens, reconstituted to attend to the material practices and context underpinning residents’ discursive and ideological responses, what I term a ‘materialist legal consciousness studies’, it is evident that the residents’ submissions intervene in the organization and regulation of agricultural production. While framed …
Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten
Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten
Osgoode Legal Studies Research Paper Series
These notes provide a general reaction to a proposal by the German economy and energy ministry for ISDS in a treaty between Europe and the U.S. Overall, the proposal takes only a minority of the steps needed to make ISDS independent, fair, open, subsidiary, and balanced. I suggest that the appropriate approach remains to reject ISDS in new treaties (especially among Western developed countries). The proposal would be a good starting point for replacing ISDS in existing treaties with developing or transition countries – but that is clearly not its purpose.
Sentencing And The Salience Of Pain And Hope, Benjamin Berger
Sentencing And The Salience Of Pain And Hope, Benjamin Berger
Osgoode Legal Studies Research Paper Series
What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the …
The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant
The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant
Osgoode Legal Studies Research Paper Series
The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (ICSID) — a dispute resolution body established in 1966 under the auspices of the World Bank — is a matter of spirited debate. It has been argued by some that ICSID’s ideological and procedural bias impedes fairness and by others that its complexity and cost restrict access to justice; many contend that the absence of an appeal process has exacerbated uncertainty and unpredictability. In 2009, in the wake of rampant dissatisfaction and ideological challenge, especially on the part of Latin American states, Ecuador proposed the creation of …
A History Of Preferential Share In Ontario: Intestacy Legislation And Conceptions Of The Deserving Or Undeserving Widow, Louise M. Mimnagh, Mcnamara Pizzale
A History Of Preferential Share In Ontario: Intestacy Legislation And Conceptions Of The Deserving Or Undeserving Widow, Louise M. Mimnagh, Mcnamara Pizzale
Osgoode Legal Studies Research Paper Series
Ontario’s current method for trying to ensure the fair distribution of an intestate’s estate, or the estate of an individual without a valid Last Will and Testament, is outlined in the Succession Law Reform Act. Specifically, section 45(1) outlines the foundational concept of a “preferential share,” which entitles the surviving spouse to a prescribed financial interest in the estate which is prioritized above all other heirs.
The concept of a preferential share stands in sharp contrast with historical English common law methods of devolving intestate estates in which legal entitlements were heavily influenced by an individual’s gender and marital status. …
The Misguided Search For The Nature Of Law, Dan Priel
The Misguided Search For The Nature Of Law, Dan Priel
Osgoode Legal Studies Research Paper Series
Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence …
Towards A Natural Law Foundationalist Theory Of Universal Human Rights, Anthony Robert Sangiuliano
Towards A Natural Law Foundationalist Theory Of Universal Human Rights, Anthony Robert Sangiuliano
Osgoode Legal Studies Research Paper Series
The contemporary literature on the philosophy of human rights features a clash between two opposing theoretical paradigms. The first paradigm, called Functionalism, grounds the nature of human rights in their practical or political significance. The second paradigm, called Foundationalism, grounds the nature of human rights in a pre-political substratum of moral thought to which positive legal-political institutions ought to conform. What tends to make the first paradigm more appealing is that it avoids the problem of grounding human rights in moral considerations that may be ethnocentric and thus not acceptable to all peoples everywhere. This paper makes a case for …
Origins And Prospects For Employee Life And Health Trusts In Canada, S. B. Archer
Origins And Prospects For Employee Life And Health Trusts In Canada, S. B. Archer
Osgoode Legal Studies Research Paper Series
A discussion of the events and factors behind the establishment of pre-funded health benefit plans in Canada with reference to the experience of voluntary employee benefit associations in the United States and the auto sector restructuring in North America during 2008-2009. It is argued that "employee life and health trusts" are used in effect to defease legacy cost liabilities of employers and only likely to be used in the context of restructuring of a workplace or industry. their structure is compared to other target benefit programs currently being proposed in Canada and elsewhere. The key issues in their negotiation and …
Probate Actions And 'Suspicious Circumstances': A Third Standard Of Proof For Allegations Involving Moral Guilt, Louise M. Mimnagh
Probate Actions And 'Suspicious Circumstances': A Third Standard Of Proof For Allegations Involving Moral Guilt, Louise M. Mimnagh
Osgoode Legal Studies Research Paper Series
When a will is challenged as being executed under suspicious circumstances, Canadian courts have historically sought clear, compelling, and cogent evidence to demonstrate the will’s validity. The associated standard of proof has been described as one residing beyond a balance of probabilities, and is conceptualized as the ‘third standard of proof’ in addition to the civil and criminal standards. This third standard of proof is also particularly appealing when allocating the risk of error in an estates context in which testators are deceased and no longer available to clarify their intentions or perspectives. However, after the 2008 Supreme Court of …
Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Sean Rehaag, Angus Gavin Grant
Unappealing: An Assessment Of The Limits On Appeal Rights In Canada's New Refugee Determination System, Sean Rehaag, Angus Gavin Grant
Osgoode Legal Studies Research Paper Series
Canada’s refugee determination system was revised in 2012. One key feature of the new process is a quasi-judicial administrative appeal, on matters of both fact and law, at the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB). Under the new process, however, many claimants are denied access to the RAD.
This article assesses these limits on access to the RAD, drawing mostly on quantitative data obtained from the IRB and Citizenship and Immigration Canada through access to information requests. Our aim is to provide evidence-based analysis and recommendations for reform. Essentially, our conclusions are that the bars …
Climate Change And Human Rights: How? Where? When?, Basil E. Ugochukwu
Climate Change And Human Rights: How? Where? When?, Basil E. Ugochukwu
Osgoode Legal Studies Research Paper Series
Climate change poses a threat to several internationally recognized human rights, including the rights to food, a livelihood, health, a healthy environment, access to water and the rights to work and to cultural life. Actions taken to mitigate and adapt to the adverse impacts of climate change have to be centred on human rights. In negotiations for a binding international climate change instrument, nation states have been called upon to fully respect human rights in all climate-related actions. As important as this demand is, there is also the need to describe and plan how human rights can be integrated into …
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
Osgoode Legal Studies Research Paper Series
This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …
Foreign Investor Protection And Climate Action: A New Price Tag For Urgent Policies, Gus Van Harten
Foreign Investor Protection And Climate Action: A New Price Tag For Urgent Policies, Gus Van Harten
Osgoode Legal Studies Research Paper Series
From a climate perspective, not all investment is equal. Desirable investment in clean energy needs encouragement and protection, while undesirable investment in fossil fuels needs clear policy signals to avoid further investment in destructive activities and stranding more assets. In this paper, evidence is presented on how foreign investor protection provisions in trade and investment agreements tilt the playing field in favor of entrenched incumbents and against urgent action on climate; on the potential for a massive expansion of investor-state litigation and risks to climate policy in proposed trade deals; and on key flaws in recent European Commission proposals to …
Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill
Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill
Osgoode Legal Studies Research Paper Series
In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to …
Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin
Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin
Osgoode Legal Studies Research Paper Series
This article discusses the reliability of non-expert voice identification evidence. While much attention has been paid to the frailties of eyewitness evidence, little attention has been given to the frailties of ‘earwitness’ evidence, even though it has been tendered in several wrongful conviction cases. The author reviews the results of the empirical literature that has examined the reliability of earwitness evidence. The author also analyzes the principal factors used by Canadian criminal courts to assess earwitness reliability in light of the empirical study of those factors. The general conclusions are that earwitness evidence can often be quite unreliable and that …
Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun
Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun
Osgoode Legal Studies Research Paper Series
It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.
But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of jurisprudence is …
A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten
A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten
Osgoode Legal Studies Research Paper Series
The European Commission's most recent proposal for ISDS reflects a move away from essentially fake reforms to something potentially more meaningful. However, it is insufficient to satisfy the criteria of independence, fairness, openness, subsidiarity, and balance and does not appear reliable until backed by clear language and a negotiating red line for the proposed Canada-Europe CETA and any other agreement providing for ISDS.
The Liabilities Of Sureties, Daniel P. Cipollone
The Liabilities Of Sureties, Daniel P. Cipollone
Osgoode Legal Studies Research Paper Series
This paper provides an overview of when a surety may be released from his or her obligations under a guarantee following a material variation to the principal lending contract. Part I frames the overall discussion by reviewing the role and importance of guarantees in contemporary commerce, outlining the central tenets of guarantee obligations, and distinguishing them as a subset of indemnities. Part II reviews how sureties have traditionally enjoyed a favoured status at law as well as what, in law, is considered to constitute a material variation. Part III introduces and sets out a longstanding rule governing the liability of …
The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten
The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten
Osgoode Legal Studies Research Paper Series
The purpose of this paper is to evaluate the European Commission’s approach to investor-state dispute settlement (ISDS) in the proposed CETA with Canada and FTA with Singapore. The text on ISDS in both agreements is evaluated according to general criteria of independence, fairness, openness, and balance. The main conclusion reached is that there is no significant difference between the CETA and FTA when it comes to ISDS. With the qualified exception of the criterion of openness, both agreements fall well short of satisfying the criteria. As such, neither agreement offers a significant improvement on the U.S. model of ISDS and, …
Beyond The Five Stages Of Grief: Best Practices For Estate Mediation And Advising The Bereaved Client, Louise M. Mimnagh
Beyond The Five Stages Of Grief: Best Practices For Estate Mediation And Advising The Bereaved Client, Louise M. Mimnagh
Osgoode Legal Studies Research Paper Series
In 1789, Benjamin Franklin famously wrote that nothing in this world is certain “except death and taxes.” Yet, as the baby boomer generation increasingly comprises our senior population, a third near-certainty has emerged: family disputes regarding the estate of a deceased family member. This article reviews the Canadian legislative response to these estate disputes thus far through the introduction of Rule 75.1 of the Ontario Rules of Civil Procedure. It is argued that the introduction of mandatory mediation provides the Estates Bar with an opportunity to review emerging demands on lawyers as well as mediation and bereavement literature in order …
Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood
Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood
Osgoode Legal Studies Research Paper Series
Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the …
The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbott, Julia Black, Burkard Eberlein, Errol Meidinger
The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbott, Julia Black, Burkard Eberlein, Errol Meidinger
Osgoode Legal Studies Research Paper Series
Conflict, convergence, cooperation, competition and other interactions among governance actors and institutions have long fascinated scholars of transnational law, yet transnational legal theorists’ accounts of such interactions are for the most part tentative, incomplete and unsystematic. Having elsewhere proposed an overarching conceptual framework for the study of transnational business governance interactions (TBGI), in this article we propose criteria for middle-range theory-building. We argue that a portfolio of theoretical perspectives on transnational governance interactions should account for the multiplicity of interacting entities and scales of interaction; the co-evolution of social agency and structure; the multiple components of regulatory governance; the role …
Systemic Corruption In An Advanced Welfare State: Lessons From The Québec Charbonneau Inquiry, Denis Saint-Martin
Systemic Corruption In An Advanced Welfare State: Lessons From The Québec Charbonneau Inquiry, Denis Saint-Martin
Osgoode Legal Studies Research Paper Series
The Quiet Revolution in the 1960s propelled the province of Québec 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, it adapted to its new institutional environment and was significantly shaped by the incentives structure it provided. The patterns of corruption emerging from the Charbonneau inquiry bear the imprint of the so-called “Québec model” inherited from the Quiet Revolution in at least three ways: (i) in the economic nationalism that made public policies partial towards French-speaking …
Malingerer Or Maligned: A Comparative Study Of Multiple Chemical Sensitivity Case Law, Odelia R. Bay
Malingerer Or Maligned: A Comparative Study Of Multiple Chemical Sensitivity Case Law, Odelia R. Bay
Osgoode Legal Studies Research Paper Series
People with invisible illnesses are challenged both by their impairments and the additional hurdles they face when it comes to being believed by others. This presents particular difficulties when seeking to convince those with the authority to make legal findings of discrimination or entitlement to accommodation. By focusing on the historically contested diagnosis of multiple chemical sensitivities (“MCS”), this paper examines the outer limits of how disability is defined and the legal rights given to people whose claims are viewed as suspect. Specifically, comparison is made between MCS employment cases in the United States and Canada.
In both jurisdictions, plaintiffs …
Regulating Water And War In Iraq: A Dangerous Dark Side Of New Governance, Tracey Leigh Dowdeswell, Patricia Hania
Regulating Water And War In Iraq: A Dangerous Dark Side Of New Governance, Tracey Leigh Dowdeswell, Patricia Hania
Osgoode Legal Studies Research Paper Series
In the legal scholarship, the 'new governance' mode of governance advances an administrative arrangement where decision-making is shared amongst a range of actors, both public and private. The flexible, responsive, and collaborative governance orientation is intended to counter the ill effects of a coercive, top-down, state-centric, command- and-control approach to governance. Critics contend the new governance framework can displace the interests of local communities, disempower individuals, and dislodge basic human rights. The U.S. military has adopted such an adaptive approach in its own governance structure, which in this article is referred to as: the new governance "mentality." This mentality of …
How Atrocity Becomes Law: The Neoliberalisation Of Security Governance And The Customary Laws Of Armed Conflict, Tracey Leigh Dowdeswell
How Atrocity Becomes Law: The Neoliberalisation Of Security Governance And The Customary Laws Of Armed Conflict, Tracey Leigh Dowdeswell
Osgoode Legal Studies Research Paper Series
This article discusses the impact of neoliberal ideologies of security governance on the laws of armed conflict, and describes how neoliberal practices of privatisation, outsourcing, and risk management within the security sector have facilitated the legalisation of atrocities. Neoliberal mentalities of governance have significantly impacted military administration in combat operations by decentralising control, by promoting discretion and freedom of action down the chain-of-command, and by institutionalising intent-based orders and standing Rules of Engagement. In so doing, the military has shifted the criteria for attack from one based upon an individual's status as a combatant to one of defining and containing …
Commodification And Juridification In Football: Reflections On The Study Of Law And Society, S. B. Archer
Commodification And Juridification In Football: Reflections On The Study Of Law And Society, S. B. Archer
Osgoode Legal Studies Research Paper Series
A review of certain themes in the literature discussing football (soccer) in contemporary law and society, with emphasis on commodification and juridification and reference to the 2014 World Cup. Drawing on a variety of literatures it is proposed that to better understand legal dimensions of football, it is useful to review globalization theories rooted in social, economic, and cultural conditions, and contrasts the recent rapid development of literature on football in the social sciences with a narrower treatment in legal literatures. It is speculated that an anxiety informs the treatment of social performances like football as “merely games” in contrast …
Answering Canadian Tax Questions: An Introduction To Tax Law Research, Sas Ansari
Answering Canadian Tax Questions: An Introduction To Tax Law Research, Sas Ansari
Osgoode Legal Studies Research Paper Series
Income taxation is a complicated area of law that requires a researcher to master not only a large volume of complex legislation, but because of its ‘accessory-law’ nature, also requires good knowledge of many other areas of law (both statutes and common law). This paper provides an introduction to tax law research in the Canadian context. It begins by introducing the tax research process in Part 1 before moving on to discuss how to find the law and material with legally enforceable consequences in Part 2. The paper, in Part 3, discusses primary sources of tax law, and explains how …