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2003

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Articles 1 - 16 of 16

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Cultural Projects And Structural Transformation In The Legal Profession, W. Wesley Pue Jan 2003

Cultural Projects And Structural Transformation In The Legal Profession, W. Wesley Pue

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This paper explores the history of professional formation amongst lawyers, pointing to the surprising conclusions that contemporary legal professionalism bears little continuity with supposed roots in British professionalism and that one of the major motors driving professionalism was related to a project of cultural transformation in state and society at large. Whilst legal professions appear exclusionary and xenophobic from an outside perspective, the desire to control difference has deeper, more fully cultural roots, than arguments from self-interest per se might suggest.

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Restorative Cautioning, Theories Of Reintegration, And The Influence Of Japanese Notions Of Shame, Benjamin J. Goold Jan 2003

Restorative Cautioning, Theories Of Reintegration, And The Influence Of Japanese Notions Of Shame, Benjamin J. Goold

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This article explains some of the central notions of restorative justice, drawing particular attention to the influence of Japanese notions of shame and community on cautioning practices in Britain and elsewhere.

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Law, Theory And Aboriginal Peoples, Gordon Christie Jan 2003

Law, Theory And Aboriginal Peoples, Gordon Christie

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Some Aboriginal people see domestic Canadian law as alien and oppressive. This paper explores one source of this perception. By examining the layers of theory and world-view upon which the law is based, it finds conflict with the sensibilities of Aboriginal peoples. The author argues that a liberal vision supports and enlivens the law, and because it is grounded in this vision, the law cannot protect the interests of Aboriginal peoples. In analyzing the current legal approach to the protection of Aboriginal interests, an alternative liberal argument based on group autonomy is also considered. By examining the debate between liberal …

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Towards A Single Definition Of Armed Conflict In International Humanitarian Law: A Critique Of Internationalized Armed Conflict, James G. Stewart Jan 2003

Towards A Single Definition Of Armed Conflict In International Humanitarian Law: A Critique Of Internationalized Armed Conflict, James G. Stewart

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The strict division of international humanitarian law into rules applicable in international armed conflict and those relevant to armed conflicts not of an international nature is almost universally criticized. Even though attempts to abandon the distinction were made at every stage of negotiation of the Geneva Conventions and their Protocols, calls for a single body of international humanitarian law have since died out. This article revives those calls by highlighting the inadequacies of the current dichotomy’s treatment of internationalized armed conflicts, namely, armed conflicts that involve internal and international elements. It concludes that the law developed to determine this “internationalization” …

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Shenpi (Licensing) Reform From The Perspective Of One Municipal Jurisdiction: Ideologies, Institutions, And Law, Wei Cui Jan 2003

Shenpi (Licensing) Reform From The Perspective Of One Municipal Jurisdiction: Ideologies, Institutions, And Law, Wei Cui

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The Administrative Licensing Law (xingzheng xuke fa) will constitute a major addition to Chinese administrative law, and the rhetoric surrounding its drafting promises path-breaking reform of the Chinese regulatory state. This report critically assesses that promise by chronicling the actual course of shenpi (licensing) reform carried out in Shenzhen in 2001. Shenpi reform derives its novelty from questioning the rationale of regulatory policies and not just the procedures by which they are carried out. In Shenzhen, however, the reform revolved around an effort to achieve quantitative reduction in the number of shenpi procedures, which could reflect either changes in the …

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Environmental Management Systems And Public Authority In Canada: Rethinking Environmental Governance, Stepan Wood Jan 2003

Environmental Management Systems And Public Authority In Canada: Rethinking Environmental Governance, Stepan Wood

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Using the example of environmental management systems (EMS) and the ISO 14001 standard, I propose a typology of eight ways in which public authorities interact with voluntary environmental initiatives: 1. Steering (influencing the development, use or content of voluntary initiatives through official policy pronouncements, participation in standards development or creation of legal ground rules or backstops for voluntary initiatives), 2. Self-discipline (applying voluntary initiatives to government operations or agreeing to international trade rules that turn voluntary standards into constraints on regulatory authority), 3. Knowledge production (generating and disseminating ideas, information and expertise about the design, use or value of voluntary …

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Multilateral Management As A Fair Solution To The Spratly Disputes, Wei Cui Jan 2003

Multilateral Management As A Fair Solution To The Spratly Disputes, Wei Cui

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The Spratlys are a scattered group of islands in the South China Sea over which China, the Philippines, Vietnam, Malaysia, and Brunei have made conflicting jurisdictional claims. Although there has been significant academic discussion of this dispute, the Author argues that much of it is hampered by a discourse obsessed with the regional balance of power and security-related strategies that are only tenuously related to each nation's specific legal claims in the Spratlys. In this Article, the Author suggests that a more productive approach to the Spratly disputes is one focused on finding a solution that is fair to all …

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The Federal Income Tax Act And Private Law In Canada: Complementarity, Dissociation, And Canadian Bijuralism, David G. Duff Jan 2003

The Federal Income Tax Act And Private Law In Canada: Complementarity, Dissociation, And Canadian Bijuralism, David G. Duff

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This article examines the relationship between the federal Income Tax Act (ITA) and provincial private law, evaluating judicial decisions and statutory provisions according to the goals of Canadian bijuralism expressed in the policy on legislative bijuralism adopted by the federal Department of Justice in June 1995, the preamble to the first Federal Law-Civil Law Harmonization Act, No. 1, and new sections 8.1 and 8.2 of the federal Interpretation Act. The first part of the article reviews notable cases in which Canadian courts have recognized a relationship of complementarity between the ITA and provincial private law, looking at cases arising in …

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Tax Policy And Global Warming, David G. Duff Jan 2003

Tax Policy And Global Warming, David G. Duff

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The Canadian government announced its ratification of the Kyoto Protocol to the United Nations Framework Convention on Climate Change on December 17, 2002. Under this protocol, Canada has agreed to reduce annual emissions of greenhouse gases (GHGs) to 6 percent below 1990 levels during the period 2008-2012 - a commitment that requires a 30 percent reduction relative to projected GHG emissions for 2010 assuming business as usual. In order to achieve this objective, the Canadian government has established specific reduction targets and proposed various policy instruments in its climate change action plan (CCAP) released in November 2002. Although the main …

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Public Area Surveillance And Police Work: The Impact Of Cctv On Police Behaviour And Autonomy, Benjamin J. Goold Jan 2003

Public Area Surveillance And Police Work: The Impact Of Cctv On Police Behaviour And Autonomy, Benjamin J. Goold

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Drawing on a recent study of the impact of closed circuit television (CCTV) cameras on policing practices in a large English police force, this paper considers whether the presence of surveillance cameras affects the working attitudes and behaviour of individual police officers. In particular, this paper asks whether CCTV makes the police more accountable or more cautious in the exercise of their discretion in public spaces. Although noting that in certain circumstances CCTV may inadvertently help to reduce incidences of police misconduct, this paper concludes by arguing that more needs to be done to prevent the police from interfering with …

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Ballot Boxes Behind Bars: Toward The Repeal Of Prisoner Disenfranchisement Laws, Debra Parkes Jan 2003

Ballot Boxes Behind Bars: Toward The Repeal Of Prisoner Disenfranchisement Laws, Debra Parkes

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This paper takes seriously the objection that allowing prisoners to vote may have an impact on the outcome of elections or on the development of law and policy, given the extraordinarily high incarceration rate currently a reality in the United States. The reality that prisoners may have an impact on the outcome of elections is an argument in favour of allowing them to vote rather than against it. A progressive critique or constitutional challenge of prisoner disenfranchisement should call attention to the instrumental, as well as symbolic and constitutive functions of voting, and must defend the importance of having the …

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The War On Terror: Constitutional Governance In A State Of Permanent Warfare?, W. Wesley Pue Jan 2003

The War On Terror: Constitutional Governance In A State Of Permanent Warfare?, W. Wesley Pue

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This article assesses Canada's principal legal responses to the challenge presented by terrorism in the aftermath of the September 11, 2001 attacks on the United States. A review of major federal anti-terrorism legislation reveals a legislative response that fundamentally violates core constitutional principles while failing to significantly enhance public safety.

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The Corporation As Symphony: Are Shareholders First Violin Or Second Fiddle?, Janis P. Sarra Jan 2003

The Corporation As Symphony: Are Shareholders First Violin Or Second Fiddle?, Janis P. Sarra

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This article focuses on shareholders and whether the current regime affords them adequate protection and participation rights. Recent changes to corporate and securities laws have facilitated the exercise of shareholder voice. These changes are important to capital markets in that they are aimed at increasing investor confidence and hence the strength of markets. The lead in shareholder activism is being taken by institutional shareholders who are utilizing new proxy and proposal provisions to express governance preferences regarding key issues such as independence of audit committees and enhanced transparency in financial disclosures. However, there continue to be barriers that institutional and …

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Burdened By Proof: How The Australian Refugee Review Tribunal Has Failed Lesbian And Gay Asylum Seekers, Catherine Dauvergne, Jenni Millbank Jan 2003

Burdened By Proof: How The Australian Refugee Review Tribunal Has Failed Lesbian And Gay Asylum Seekers, Catherine Dauvergne, Jenni Millbank

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Our argument in this paper is that the evidentiary practices and procedures that have been developed by the Australian Refugee Review Tribunal are operating at a routinely low standard. Such practices contribute to decisions that are manifestly unfair and potentially wrong in law. Our conclusions are drawn from our detailed study of more than 300 refugee tribunal decisions made in Canada and Australia in response to asylum claims brought by lesbians and gay men.

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Special Federal Tax Assistance For Charitable Donations Of Publicly Traded Securities: A Tax Expenditure Analysis, David G. Duff Jan 2003

Special Federal Tax Assistance For Charitable Donations Of Publicly Traded Securities: A Tax Expenditure Analysis, David G. Duff

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This comment questions both the justification offered in the Department of Finance study and tax assistance for charitable giving in the form of a reduced capital gains inclusion rate on gifts of publicly traded securities. The article begins by presenting the most persuasive rationale for special tax treatment of charitable contributions under the income tax and the implications of this justification for the design of an appropriate tax incentive. In light of this analysis, the article turns to the reduced capital gains inclusion rate on gifts of publicly traded securities and the justification offered in the Department of Finance study. …

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Indigenous Territoriality In Canadian Courts, Douglas C. Harris Jan 2003

Indigenous Territoriality In Canadian Courts, Douglas C. Harris

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Territoriality describes the communication or assignment of meaning to particular boundaries in order to assert control over a define space. It encompasses the strategies, used by those attempting to maintain control and those seeking to acquire it, to give meaning to the spatial boundaries that demarcate jurisdiction. This chapter explores the competing territorialities of the Canadian state and indigenous peoples in the context of litigation over Aboriginal rights to fish. Access to and management of the fisheries have been and continue to be one of the principal points of conflict between the state and indigenous peoples. The disputes frequently lead …

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