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Articles 1 - 30 of 40
Full-Text Articles in Law
Freedom Of Expression, Academic Freedom, And Equality: Seven Institutional Responsibilities, Emma Cunliffe
Freedom Of Expression, Academic Freedom, And Equality: Seven Institutional Responsibilities, Emma Cunliffe
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This paper considers the institutional responsibilities that arise from the separate but related values of freedom of expression, academic freedom, and equality rights at Canadian public universities.
It introduces some applicable Canadian legal principles and considers whether freedom of expression can properly be limited. It also addresses the importance of institutional support for those who face threats or unfair criticism as a result of activities performed in the course of their university role.
The paper argues that universities should actively foster a robust and inclusive institutional culture that advances substantive equality while ensuring that policies and procedures do not place …
Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra
Fiduciary Obligations In Business And Investment: Implications Of Climate Change, Janis P. Sarra
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Fiduciary obligation, under both corporate law and the common law, requires directors and officers to identify and address climate-related financial and other risks. In fulfilling their obligations to act in the best interests of the company, directors and officers must directly engage with developments in knowledge regarding physical and transition risks related to climate change and how these risks may impact their corporation. Depending on the firm’s economic activities, the risk may be minor or highly significant, but directors and officers have an obligation to make the inquiries, to devise strategies to address risks, and to have an ongoing monitoring …
Intersecting Challenges: Mothers And Child Protection Law In Bc, Isabel Grant, Judith Mosoff, Susan B. Boyd, Ruben Lindy
Intersecting Challenges: Mothers And Child Protection Law In Bc, Isabel Grant, Judith Mosoff, Susan B. Boyd, Ruben Lindy
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This paper is concerned with how courts in British Columbia adjudicate applications by the state to remove children permanently from their parents, usually their mothers. Overwhelmingly, these cases are about single mothers who experience mental disability and addiction, domestic violence, and poverty. Indigenous women are over-represented in our sample. The intergenerational effects of the child protection system also are clear as many of the mothers in our study were themselves raised in state care. The paper highlights the degree to which judges blame women for the precarious circumstances in which they live, which are often a product of austerity measures …
Sedimentary Innovation: How Regulation Should Respond To Incremental Change, Cristie Ford
Sedimentary Innovation: How Regulation Should Respond To Incremental Change, Cristie Ford
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As captivating as paradigm-changing "radical" innovations may be, “sedimentary”, or incremental, innovation – incremental improvements based on imitation, tweaking, bricolage and diffusion – are in fact the main way in which innovation actually develops. In finance, sedimentary innovation is shaped by forces including structural and social networks, a strong first mover advantage, and collective action problems. This piece, which is Chapter 8 in a forthcoming book that considers financial innovation as a regulatory challenge, examines sedimentary innovation in particular. Like innovation generally, sedimentary innovation can profoundly undermine regulation across time. It can bury structures designed to contain it and can …
Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra
Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra
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The European Commission published a draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to “keep the lights on” for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and where possible, to finance implementation of a restructuring plan, called “new financing” in the draft Directive. Creating such a financing regime is a complex and difficult issue, …
Law And Economics Scholarship And Supreme Court Antitrust Jurisprudence, 1950–2010, Camden Hutchison
Law And Economics Scholarship And Supreme Court Antitrust Jurisprudence, 1950–2010, Camden Hutchison
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Although law and economics has influenced nearly every area of American law, few have been as deeply and as thoroughly "economized" as antitrust. Beginning in the 1970s, antitrust law—traditionally informed by populist hostility to economic concentration—was dramatically transformed by a new and overriding focus on economic efficiency. This transformation was associated with a provocative new wave of antitrust scholarship, which claimed that economic efficiency (or "consumer welfare") was the sole legitimate aim of antitrust policy. The U.S. Supreme Court seemingly agreed, issuing decision after decision rejecting traditional antitrust values and adopting the efficiency norm of the law and economics movement. …
Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds
Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds
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Cities concern themselves with the organization of space. Their principal work involves the mapping, zoning, regulating, taxing, developing, owning, protecting, patrolling, and servicing of land. As a result, cities exert considerable control over the rights of use that property owners enjoy, but they also make many uses possible through the building of infrastructure and the provision of services. However, the effects are not unidirectional; the institution of property is not simply inert clay in the hands of a city. Cities govern the actions of owners and, by extension, shape the institution of property, but this multidimensional institution is, in turn, …
Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison
Progressive Era Conceptions Of The Corporation And The Failure Of The Federal Chartering Movement, Camden Hutchison
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Despite the economic integration of the several states and the broad regulatory authority of the federal government, the internal affairs of business corporations remain primarily governed by state law. The origins of this system are closely tied to the decentralized history of the United States, but the reasons for its continued persistence—in the face of significant federalization pressures—are not obvious. Indeed, federalization of corporate law was a major political goal during the Progressive Era, a period which witnessed significant expansion of federal involvement in the national economy. By examining the historical record of Progressive Era policy debates, this Article bridges …
Aesthetics In Negotiation: Part One: Four Elements, Nadja Marie Alexander, Michelle Lebaron
Aesthetics In Negotiation: Part One: Four Elements, Nadja Marie Alexander, Michelle Lebaron
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No abstract provided.
The Use And Abuse Of Mutual Support Programs In Drug Courts, Sara Gordon
The Use And Abuse Of Mutual Support Programs In Drug Courts, Sara Gordon
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There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court. Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment. This disconnect between our understanding of addiction and available addiction treatment has widereaching impact for individuals who attempt to receive medical care for addiction in …
Destination-Based Cash-Flow Taxation: A Critical Appraisal, Wei Cui
Destination-Based Cash-Flow Taxation: A Critical Appraisal, Wei Cui
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This article offers the first comprehensive scholarly response to proposals for destination-based, cash-flow taxation (DCFT). DCFT proposals have attracted heightened public attention in 2016 because of its incorporation into the U.S. House Republican Blueprint for tax reform and Donald Trump’s subsequent election to the White House. They also continue to fascinate tax specialists by suggesting that corporate profit can not only be taxed in countries of “source” or “residence,” but also (or even exclusively) in the countries where sales to final consumers occur. This Article clarifies the logical structure of DCFT proposals and exposes substantial gaps between their rhetoric and …
Transparency Evolution: More Than The Right To Know, Ljiljana Biuković, Pitman B. Potter
Transparency Evolution: More Than The Right To Know, Ljiljana Biuković, Pitman B. Potter
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Providing an analysis of global regulation and the impact of international organizations on domestic laws, this collection grew out of a central objective to explore methods of domestic engagement with international trade and human rights norms, and the inherent difficulties in establishing balanced links between these two international law regimes. The common thread of the papers in this collection is a focus on the application of socio-legal normative paradigms in building knowledge and policy support for coordinating local performance with international trade and human rights standards in ways that are mutually sustaining.
The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty
The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty
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Although the past few decades have seen numerous cases of human rights violations within corporate supply chains, companies are frequently not held accountable for the abuses because there is a significant governance gap in the regulation of corporate activity abroad. In response, governments have begun to pass mandatory disclosure laws that require companies to release detailed information on their supply chains in the hopes that these laws will create pressure that will improve corporate accountability. In this paper, we argue that supply chain disclosure regimes are unlikely to have a large effect on consumer behavior, and as a result, their …
The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang
The Selection Of Litigation Against Government Agencies: Evidence From China, Wei Cui, Zhiyuan Wang
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We test the relevance of the selection theory of litigation in a contemporary, civil law setting, using Chinese judicial data that span 25 years regarding lawsuits against government agencies. Civil law systems may be characterized by lower costs of litigation and lower rates of settlement than the U.S. legal system, and therefore the presence of selection effects cannot be assumed. We show that selection effects are indeed manifest in Chinese administrative litigation, and suggest that this may be explained by hidden or intangible litigation costs. Our test for selection effects builds on the approach of previous U.S. studies and potentially …
Flexible Regulation Scholarship Blossoms And Diversifies: 1980-2012, Cristie Ford
Flexible Regulation Scholarship Blossoms And Diversifies: 1980-2012, Cristie Ford
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This piece reviews the 198 US law review articles that were most influential within flexible regulation scholarship (which includes meta regulation, responsive regulation, reflexive law, principles based regulation, new governance, and more) between 1980 and 2012, which also discussed innovation. It is chapter 4 of a forthcoming book on financial innovation and regulation. The analysis demonstrates that across this time period, flexible regulation scholars advocated for regulatory structures that were permeable to three main non-legal forces: market forces, deliberation and community norms, and industry standards. The image that emerges is of a diverse scholarly community, within which many adopted economics-derived …
Henry V. British Columbia: Still Seeking A Just Approach To Damages For Wrongful Conviction, Emma Cunliffe
Henry V. British Columbia: Still Seeking A Just Approach To Damages For Wrongful Conviction, Emma Cunliffe
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Henry v. British Columbia (Attorney General) was the first case in which a claimant sought damages under section 24(1) of the Canadian Charter of Rights and Freedoms for breaches of rights that led to a wrongful conviction and imprisonment. In its 2015 decision, the Supreme Court of Canada clarified the criteria for the award and quantum of such damages. In June 2016, Hinkson C.J.S.C. awarded $8,086,691.80 in damages to Ivan Henry in compensation, special damages and “to serve both the vindication and deterrence functions of s. 24(1) of the Charter”.
In this article, I describe the events that led to …
Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam
Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam
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Article 28A(1)(13) of the Protocol to the Statute of the African Court of Justice and Human Rights lists ‘Illicit exploitation of natural resources’ as a criminal offense within the Court’s jurisdiction. In conjunction with the new mandate of the African Court, which includes the exercise of jurisdiction over corporations for the first time in an international treaty, the prohibition of “illicit exploitation of natural resources” creates an offense with especially sharp teeth, for business people, their corporations, military actors and politicians. The crime constitutes an important innovation in international law, since it offers a distinct legal basis for prosecution of …
Owning And Dissolving Strata Property, Douglas C. Harris
Owning And Dissolving Strata Property, Douglas C. Harris
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Strata or condominium property creates multiple privately owned lots or units within an association of owners. Dissolving strata property involves winding-up the association and terminating the private interests. As a result, the non-consensual dissolution of strata property involves the taking of property from those owners who oppose dissolution. The owners of individual lots become co-owners of the land formerly within the association, but the non-consenting owners have their property interests in separate lots taken from them. Beginning with the observation that non-consensual dissolution of strata property results in a taking of property, this article analyzes British Columbia’s move to facilitate …
Taxation Without Information: The Institutional Foundations Of Modern Tax Collection, Wei Cui
Taxation Without Information: The Institutional Foundations Of Modern Tax Collection, Wei Cui
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A prominent strand of recent economic and legal scholarship hypothesizes that third-party information reporting (TPIR) is essential to modern tax collection. The slogan, “no taxation without information,” has captured researchers’ imagination and is even often presented as self-evident truth. This Article offers a fundamentally different perspective, arguing that the emphasis on TPIR is misplaced. TPIR is used largely in the collection of the personal income tax but not of many other types of modern taxes. Even for the personal income tax, TPIR also has close substitutes which do not involve information transmission to the government. Theoretically, the appeal to TPIR …
Equality And The Defence Of Provocation: Irreconcilable Differences, Isabel Grant, Debra Parkes
Equality And The Defence Of Provocation: Irreconcilable Differences, Isabel Grant, Debra Parkes
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Recent amendments to the defence of provocation have limited access to the defence to those who are provoked by conduct that, if prosecuted, would have been an indictable offence punishable by at least five years imprisonment. The paper argues that these amendments are both over- and under-inclusive and fail to confront the central problem surrounding provocation which is that it privileges loss-of-control rage often in the context of male violence against women or in response to same-sex advances. The paper supports the abolition of the defence of provocation but only if mandatory minimum sentences for murder are abolished providing trial …
Resistance, Resonance And Restoration: How Generative Stories Shape Organisational Futures, Michelle Lebaron, Nadja Marie Alexander
Resistance, Resonance And Restoration: How Generative Stories Shape Organisational Futures, Michelle Lebaron, Nadja Marie Alexander
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Stories are powerful. They reflect our past and shape our futures, but are never complete. Stories connect us to people in organisations – present and past – with whom we feel belonging, and disconnect us from others. Always abstractive, they give incomplete pictures of what was, weaving past accounts into what is and what will be. Because choice-points in storytelling are mostly unconscious, biases and perceptions are always part of narration, tending to reinforce preferred images, identities and trajectories. Storytelling habits, in turn, often accent negative histories and escalate conflict.
Because stories are so powerful, it is essential to critically …
Maori Preserved Heads: A Legal History, Robert K. Paterson
Maori Preserved Heads: A Legal History, Robert K. Paterson
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For the first three decades of the nineteenth century New Zealand remained untouched by outside law. Foreign contacts mostly involved visits by traders, whalers, and missionaries. The latter sought to discourage the Maori practice of tattooing (ta moko), while the former quite soon began to see opportunities for trade in preserved tattooed heads. Early accounts of New Zealand described these heads and their mode of preservation. Ob-servers noted that both the heads of enemy warriors slain in battle, along with those of deceased chiefs and others of high rank, were preserved. The process involved the removal of interior soft tissue …
R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore
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The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …
Capturing Excess In The On-Demand Economy, Erez Aloni
Capturing Excess In The On-Demand Economy, Erez Aloni
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Activities facilitated by on-demand platforms (such as Airbnb or Uber) produce varying levels of negative and positive externalities. In this Article I submit that the type and quantity of externalities produced are determined by the location of the activity along a spectrum of increased utilization. Transactions that make use of excess capacity produce the fewest negative externalities and produce more positive externalities. The more we move along the spectrum away from use of excess capacity and toward new capacity created for the platform use, the more negative externalities the activity produces. Thus, unique sets of rules should govern the categories …
A Critical Canadian Perspective On The Benefit Corporation, Carol Liao
A Critical Canadian Perspective On The Benefit Corporation, Carol Liao
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There has been much fanfare surrounding the possible implementation of a legal model of social enterprise similar to the American benefit corporation in Canada. This article points out that some of the fundamental legal characteristics of the benefit corporation are already reflected in existing Canadian corporate laws, and in some instances Canadian laws are comparatively more progressive. Directors owe fiduciary duties to the best interests of the corporation, and minority protections such as the oppression remedy oblige directors to consider non-shareholder stakeholders. Landmark judgments from Canada’s highest court have affirmed the board requirement to consider stakeholder interests, and that directors …
The Court Jurisdiction And Proceedings Transfer Act And The Hague Conference’S Judgments And Jurisdiction Projects, Joost Blom
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The Court Jurisdiction and Proceedings Transfer Act (CJPTA) codifies the substantive law of jurisdiction in British Columbia, Nova Scotia and Saskatchewan. One of the questions that may be posed by the future of the CJPTA is how the jurisdictional system that it enacts would function in relation to two potential international conventions that are contemplated by the Hague Conference on Private International Law. One, a convention on the enforcement of judgments, is in an advanced stage of negotiation and may well be adopted by the Hague Conference. It deals with jurisdiction indirectly, by defining jurisdictional standards or “filters” that must …
Behind The Numbers: State Capitalism And Executive Compensation In China, Li-Wen Lin
Behind The Numbers: State Capitalism And Executive Compensation In China, Li-Wen Lin
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The rapid rise of Chinese companies in the global economy has attracted great scholarly attention to Chinese corporate governance. Among the various areas of Chinese corporate governance, executive compensation is an important yet difficult part to research. The common research method of Chinese executive pay literature relies on pay figures disclosed in listed companies’ annual reports and tends to take the disclosed numbers at face value. This Article discusses three informal pay practices that constrain the usefulness and reliability of executive pay data formally disclosed in annual reports of Chinese listed companies, especially those owned by the state. A valid …
The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani
The Ahistoricism Of Legal Pluralism In International Criminal Law, James G. Stewart, Asad Kiyani
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International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal …
Solitary Confinement, Prisoner Litigation, And The Possibility Of A Prison Abolitionist Lawyering Ethic, Debra Parkes
Solitary Confinement, Prisoner Litigation, And The Possibility Of A Prison Abolitionist Lawyering Ethic, Debra Parkes
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This paper considers the role that litigation might play in ending the human rights crisis of solitary confinement in Canada while also examining the relationship of prisoner rights litigation to broader, anti-carceral social movements. The paper proceeds in four parts. The first section provides a brief overview of the widespread use of solitary confinement in Canada’s federal prisons and in provincial and territorial jails. Next, current litigation seeking an end to solitary confinement in the federal prisons system is located in the context of a long history of prisoner rights litigation in both the US and Canada. The third section …
The Inaccessibility Of Justice For Migrant Workers: A Capabilities-Based Perspective, Bethany Hastie
The Inaccessibility Of Justice For Migrant Workers: A Capabilities-Based Perspective, Bethany Hastie
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This article examines the barriers migrant workers face in accessing justice, including the ability to assert legal rights in the workplace, and to access mechanisms for legal redress or remedy. Drawing on empirical research, and using the capabilities approach as a conceptual framework through which to examine these issues, this article demonstrates that the regulatory structure of the Temporary Foreign Worker Programs operates to actively constrain the ability for migrant workers to assert their rights in the workplace, and seek effective legal remedies in the face of rights violations.