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1994

Osgoode Hall Law Journal

Articles 1 - 18 of 18

Full-Text Articles in Law

Testing The Limits Of Freedom Of Contract: The Commercialization Of Reproductive Materials And Services, Michael J. Trebilcock, Melody Martin, Anne Lawson, Penney Lewis Oct 1994

Testing The Limits Of Freedom Of Contract: The Commercialization Of Reproductive Materials And Services, Michael J. Trebilcock, Melody Martin, Anne Lawson, Penney Lewis

Osgoode Hall Law Journal

This article examines the cases for and against commercializing, or "commodifying," reproductive materials and services. Using a supply/demand third-party framework, three basic scenarios in which commercial-exchange relationships may be possible-exchange of gametes and zygotes, exchange of gestational services, and exchange of fetal material-and the major parties of interest, or stakeholders, are identified. The study sketches the liberal, essentialist, and radical contingency theories that shape the debate over the commercialization of reproductive materials and services. The article then attempts to derive some basic governing principles that reflect as much common ground as possible amongst these various normative perspectives, while recognizing that …

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The Paradoxes Of National Self-Determination, Brian Slattery Oct 1994

The Paradoxes Of National Self-Determination, Brian Slattery

Osgoode Hall Law Journal

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood …

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Computerized Administrative Decision Making And Fundamental Rights, Jacques Fremont Oct 1994

Computerized Administrative Decision Making And Fundamental Rights, Jacques Fremont

Osgoode Hall Law Journal

Taking as a departure point the introduction of expert systems in the field of administrative adjudication, this paper aims to present some of the issues and problems that the law and jurists will face as a result of "new informational technologies." After an examination of how these technologies would function in a legal context, and a short discussion concerning administrative justice as it is now conceived and experienced, the impact of computerized administrative decision-making is examined. The paper assesses the likely impact of expert systems on administrative normativity, on the decision-making process, and on the quality of decisions made. This …

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Joint Custody As Norm: Solomon Revisited, Alison Harvison Young Oct 1994

Joint Custody As Norm: Solomon Revisited, Alison Harvison Young

Osgoode Hall Law Journal

Most jurisdictions in Canada and the United States have, to a greater or lesser extent, endorsed the notion of joint custody in recent years. The author suggests that-the move toward joint custody has resulted from a combination of two major factors: the notion of parental equality and the application of the best interests of the child test. The growing prominence of equal parental rights has created a strong temptation to approach custody as a Solomonic exercise in dividing the children equally between those with equal rights over them. The indeterminacy of the best interests test may readily encourage custody determinations …

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Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman Oct 1994

Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman

Osgoode Hall Law Journal

The Canadian Crown's fiduciary duty to First Nations is entrenched in Canadian Aboriginal rights jurisprudence. More than ten years after the Supreme Court of Canada's decision in Guerin, however, yet to be ascertained are the various emanations of the Crown bound by that duty. This paper argues that both federal and provincial Crowns are properly bound by fiduciary obligations to First Nations. It also suggests that the basis of this assertion may be found in existing jurisprudence, the Canadian Constitution, the spirit and intent of Indian treaties, and in Aboriginal understandings of "the Crown."

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Changing Opportunities For Partnership For Men And Women Lawyers During The Transformation Of The Modern Law Firm, Fiona M. Kay, John Hagan Jul 1994

Changing Opportunities For Partnership For Men And Women Lawyers During The Transformation Of The Modern Law Firm, Fiona M. Kay, John Hagan

Osgoode Hall Law Journal

Considerable controversy surrounds partnership in law firms, particularly regarding the possibility of systematic gender bias and discrimination. This article contributes to the existing literature by considering explanations of women's under-representation in partnerships within the historical context of changes in the structure of law practice. Such changes include transitions in the organization and scale of contemporary law firms, the emergence of branch offices and international markets, the diversification of recruitment practices and mobility routes through modified firm hierarchies, and rising expectations of billable hours. Using a survey of over 1,000 lawyers in Ontario law firms, the authors examine opportunities for partnership …

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Why Canada Has No Family Policy: Lessons From France And Italy, Philip Girard Jul 1994

Why Canada Has No Family Policy: Lessons From France And Italy, Philip Girard

Osgoode Hall Law Journal

This paper uses a comparative legal history approach to examine the "private" law of the family in France, Italy, and the major English-speaking countries in order to clarify the fundamental notions of the family which predated the welfare state. It is suggested that a major cleavage exists, historically, between an autonomous family law in France and Italy oriented around notions of familial solidarity, sibling interdependence and equality, and intergenerational continuity, and a family law in the English-speaking countries marked by a preoccupation with the protection of property rights and the independence of individual family members. These contrasts reveal differing societal …

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Are Consumer Rights Human Rights?, Sinai Deutch Jul 1994

Are Consumer Rights Human Rights?, Sinai Deutch

Osgoode Hall Law Journal

Consumer protection has gained great importance since World War II. Similarly, the concept of human rights has become increasingly prevalent. Substantive and procedural tests of human rights support the contention that the tendency toward broadening the definition of human rights allows us to include consumer rights within that definition. In a consumer-oriented society, protection of the individual consumer is perceived as part of maintaining human dignity-especially against big business organizations, monopolies, cartels, and multinational corporations. Well-accepted doctrines of human rights, therefore, such as the emphasis on an individual's prosperity, honour, and dignity, can serve as the basis for recognizing consumer …

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Fundamental (In)Justice: The Deportation Of Long-Term Residents From Canada, Russell P. Cohen Jul 1994

Fundamental (In)Justice: The Deportation Of Long-Term Residents From Canada, Russell P. Cohen

Osgoode Hall Law Journal

Under the Immigration Act, permanent residents and illegal immigrants may, for a number of reasons, be deported from Canada for life. Even after residing in this country for many years, immigrants without the formality of citizenship enjoy only a limited right to remain. The author argues that deportation violates an immigrant's right to life, liberty and security of the person under section 7 of the Charter. And where that person has established fundamental connections with Canada, through family relations, education, employment, culture, etc., deportation, moreover, is not in accordance with the principles of fundamental justice. In determining the principles of …

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Unmanly Diversions: The Construction Of The Homosexual Body (Politic) In English Law, Carl F. Stychin Jul 1994

Unmanly Diversions: The Construction Of The Homosexual Body (Politic) In English Law, Carl F. Stychin

Osgoode Hall Law Journal

In this article, the author interrogates the construction of gay male sexuality in legal and popular discourse. Focusing on two events-the decision of the House of Lords in Brown which upheld convictions of sadomasochists for assault, and publicity surrounding a serial killer of gay men in Britain-he argues that gay men are discursively constructed around the concepts of addiction, seduction, and contagion. Through the manipulation of these concepts, a linkage is created between sexual acts, sexual identities, the destruction of the gay male body, and a threat to the health and safety of the body politic as a whole.

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Simple Calculations To Reduce Litigation Costs In Personal Injury Cases: Additional Empirical Support For The Offset Rule, R. A. L. Carter, John P. Palmer Apr 1994

Simple Calculations To Reduce Litigation Costs In Personal Injury Cases: Additional Empirical Support For The Offset Rule, R. A. L. Carter, John P. Palmer

Osgoode Hall Law Journal

This article demonstrates that if the nominal rate of interest equals the growth rate of nominal earnings, then a strong case can be made for calculating lump-sum damage awards by using the offset rule, i.e., by simply multiplying the annual loss by the number of years the loss is expected to continue. An examination of the Canadian data not only supports the offset rule, but also suggests that plaintiffs are being systematically undercompensated by rules currently in use.

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The Evolution Of Coordinate Precedential Authority In Canada: Interprovincial Citations Of Judicial Authority, 1922-92, Peter Mccormick Apr 1994

The Evolution Of Coordinate Precedential Authority In Canada: Interprovincial Citations Of Judicial Authority, 1922-92, Peter Mccormick

Osgoode Hall Law Journal

It comes as no surprise that the provincial courts of appeal frequently cite as authority the decisions of the Supreme Court of Canada or the prior decisions of the court of appeal itself. However, the citation practices of these courts also show (emerging before, and persisting after, 1970) a striking reliance on their counterparts in other provinces. Both the simple existence of this interprovincial conversation and the details of its provenance-such as the dominance of Ontario, the persistent isolation of Quebec, the recent emergence of British Columbia-constitute an important and distinctive element of judicial decision making in Canada.

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Les Représentations De «Société Libre Et Démocratique» A La Cour Dickson : La Rhétorique Dans Le Discours Judiciaire Canadien, Andree Lajoie, Regine Robin, Sebastien Grammond, Henry Quillinan, Louise Rolland, Stéphane Perrault, Armelle Chitrit Apr 1994

Les Représentations De «Société Libre Et Démocratique» A La Cour Dickson : La Rhétorique Dans Le Discours Judiciaire Canadien, Andree Lajoie, Regine Robin, Sebastien Grammond, Henry Quillinan, Louise Rolland, Stéphane Perrault, Armelle Chitrit

Osgoode Hall Law Journal

The expression "free and democratic society" is the focus of our research, which sheds light on the contribution of the Supreme Court to the constitutionalization of this concept. Leaving aside the institutional and psycho-social factors, the study confirms the hypothesis that the interpretation of this expression will vary (1) according to the conceptions formerly held by the individual judges and (2) with respect to the factors favoured by a rhetorical Perelman-like analysis, which considers the factual and judicial context and the expectations of both the universal and specific audiences. At the Supreme Court level, the expectations of the latter should …

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Subordination Agreements, Bruce Macdougall Apr 1994

Subordination Agreements, Bruce Macdougall

Osgoode Hall Law Journal

Subordination agreements are not novel concepts in Canadian law, but the PPSAs ensure their more widespread use. Subordination agreements usefully provide flexibility to creditors and consequently permit enhanced access to credit for debtors. The adaptability of the subordination agreement presents difficult legal problems, the most important of which relates to characterization of their legal nature. Other problems include the resolution of multiple subordinations and the question of the enforceability of subordination agreements in bankruptcy. This paper explores those issues and cautions against undue restrictions being placed on either the availability or the characterization of subordination agreements.

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Taking Uncertainty Seriously: From Permissive Regulation To Preventative Design In Environmental Decision Making, R. Michael M'Gonigle, T. Lynne Jamieson, Murdoch K. Mcallister, Randall M. Peterman Jan 1994

Taking Uncertainty Seriously: From Permissive Regulation To Preventative Design In Environmental Decision Making, R. Michael M'Gonigle, T. Lynne Jamieson, Murdoch K. Mcallister, Randall M. Peterman

Osgoode Hall Law Journal

This paper contrasts two paradigms of environmental regulatory decision making, "permissive regulation" and "preventative design," with respect to their treatment of scientific and legal uncertainty and the allocation of legal standards and burdens of proof. "Permissive regulation," which is the predominant approach in Canada, suffers two types of statistical errors. A type I error occurs when, for example, a pollution control device is unjustly imposed on an industry. A type II error occurs when no action is taken to control an industry when, in fact, damage is taking place. Concern to prevent type I errors often leads to type II …

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Military Justice: From Oxymoron To Aspiration, Janet Walker Jan 1994

Military Justice: From Oxymoron To Aspiration, Janet Walker

Osgoode Hall Law Journal

The mandate for Charter-based judicial review of military law is now in its second decade. Comparative analysis of the relationship between military law and the civilian judiciary in common law countries reveals that Canadian courts benefitting from this mandate are so placed within the constitutional structure as to be uniquely able to engage in substantive review of the adherence to the principles of fundamental justice by Canadian courts martial. Accordingly, the question of the jurisdiction of military tribunals which has formed the focal point internationally for judicial review is of passing significance in Canada. The yet critical issues of civilian …

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"Artificial Conscience": Professional Elites And Professional Discipline From 1920 To 1950, James A. Smith Jan 1994

"Artificial Conscience": Professional Elites And Professional Discipline From 1920 To 1950, James A. Smith

Osgoode Hall Law Journal

Recent historical studies of the British and American Bars have identified their professional elites' willingness to define and enforce a concept of legal ethics which restricted less fortunate members' ability to practice and less fortunate individuals' ability to obtain legal assistance. This essay applies the thesis to the Canadian Bar's and especially the Law Society of Upper Canada's use of their increasing control over professional discipline from 1920 to 1950. Identifying similar trends in the Canadian profession's evolution, while emphasizing effects rather than intentions, it makes similar conclusions about the Canadian professional elite's use of such powers during this period.

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Dealing With Sexual Harrassment In The Workplace: The Promise And Limitations Of Human Rights Discourse, Fay Faraday Jan 1994

Dealing With Sexual Harrassment In The Workplace: The Promise And Limitations Of Human Rights Discourse, Fay Faraday

Osgoode Hall Law Journal

This paper examines the value of liberal rights in launching a political movement against sexual harassment, while reassessing their limitations for changing the practice of harassment. For rights to benefit women, decision makers must mean the same thing women do when speaking of sexual harassment. The paper analyzes how dominant ideology misshapes the delivery of rights against sexual harassment, normalizes male aggression, and reconstructs the struggle into one not about power but about taste, free speech, and a conflict between abstract rights. The paper examines how other rights discourses can empower women to combat harassment in a proactive way.

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