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Articles 1 - 14 of 14
Full-Text Articles in Law
Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson
Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson
Dalhousie Law Journal
Child pornography is an increasing worldwide concern and is one of the most active fronts in the ongoing battle between freedom of expression and public safety and morality. In 2005, the child pornography provisions of the Canadian Criminal Code were amended in response to the controversial decision of the Supreme Court in R. v. Sharpe. Similar legislative response has occurred in the United States following the U.S. Supreme Court decision inAshcroft v. Free Speech Coalition. A comparative examination of the legislative and judicial treatments of the issue of child pornography in these countries reveals that despite reaching differing rights-balancing positions, …
Regime Tension In The Intellectual Property Rights Arena: Farmers' Rights And Post-Trips Counter Regime Trends, Chidi Oguamanam
Regime Tension In The Intellectual Property Rights Arena: Farmers' Rights And Post-Trips Counter Regime Trends, Chidi Oguamanam
Dalhousie Law Journal
Recognizing the transitions that have occurred in the global intellectual property arena since the TRIPS Agreement, this article identifies and examines key sites of the counter regime trends in intellectual property rights with a focus on farmers' rights. It invokes farmers' rights to highlight the conceptual and juridicalhurdles facing the new issue-linkages that propel attempts to redress the shortcomings of the TRIPS' trade-centred approach to intellectual property. The author argues that the existingjuridical framework for farmers 'rights,especiallyunder the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), although inchoate, is stymied and not competent to realize the expectations …
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Dalhousie Law Journal
The traditional doctrine of testamentary undue influence developed in nineteenth century England. Its utility, however, is limited since the doctrine requires the person alleging undue influence to provide direct proof of coercion according to a high standard. In England the doctrine has remained static and there have been calls for reform. In Canada, some courts have ceased to apply the traditional doctrine so that today there is no one consistent and coherent doctrine of testamentary undue influence. This article explores two possible reforms of the doctrine both of which are evident in recent Canadian case law: a presumption of testamentary …
Building On Strong Foundations: Rethinking Legal Education With A View To Improving Curricular Quality, Veronica Henderson
Building On Strong Foundations: Rethinking Legal Education With A View To Improving Curricular Quality, Veronica Henderson
Dalhousie Law Journal
Recent increases in law school tuition provide an occasion for criticalreflection on precisely what law students are being offered in their formal education. The aim of this article is to help catalyze discussion of what quality legal education entails. It begins by outlining the current underpinnings of Canadian legal education, especially the foundation of issue identification. Newer developments in legal education are also canvassed.A foundational critique is then applied to elucidate the main weakness of thepresent curricular structure: students are graduating with a flat understanding of the law Employing Dr Oliver Sacks's critique of medical education as a starting point, …
The Challenges Of Institutionalizing Comprehensive Restorative Justice: Theory And Practice In Nova Scotia, Bruce P. Archibald, Jennifer J. Llewellyn
The Challenges Of Institutionalizing Comprehensive Restorative Justice: Theory And Practice In Nova Scotia, Bruce P. Archibald, Jennifer J. Llewellyn
Dalhousie Law Journal
The Nova Scotia Restorative Justice Program ("NSRJ") is one of the oldest and by all accounts the most comprehensive in Canada. The program centres on youth justice, and operates through referrals by police, prosecutors, judges and correctional officials to community organizations which facilitate restorative conferences and other restoratively oriented processes. More than five years of NSRJ experience with thousands of cases has led to a considerable rethinking of restorative justice theory andpractice in relation to governing policies, standards for program implementation and responses to controversial issues. The purpose of this paper is to explore the significance of the Nova Scotia …
Assumption Of Responsibility And Loss Of Bargain In Tort Law, Russell Brown
Assumption Of Responsibility And Loss Of Bargain In Tort Law, Russell Brown
Dalhousie Law Journal
The author seeks to justify recovery in negligence law for loss of bargain, which is the pure economic loss incurred by a subsequent purchaser of a defective product or building structure in seeking to repair the defect. The difficulty is that the purchaser is not in a relationship of contractual privity with the manufacturer The conflicting approaches in Anglo-American tort law reveal confusion, owing to loss of bargain's dual implication of the law governing pure economic loss and products liability. These difficulties are overcome by drawing from Hedley Byrne's requirements of a defendant's assumption of responsibility and a plaintiff's reasonable …
Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane
Indigenous Rights Wronged: Extinguishing Native Title In New Zealand, Geoffrey Wg Leane
Dalhousie Law Journal
This article is an account of a recent controversy in New Zealand regarding the common law native title rights of indigenous Maori people to a possible title in certain areas of the foreshore and seabed. In overturning its own precedent the New Zealand Court of Appeal had opened the door to such claims. However, the legislature, overwhelmingly supported by the majority non-Maori population, moved quickly to extinguish the inchoate rights with no guarantee of fair compensation. The lack of any constitutional protection ofcivil and political rights, and the absence of alternative institutional checks and balances, allowed the legislation to proceed …
Licence To Publish: Joseph Howe's Contribution To Libel Law In Nova Scotia, Lyndsay M. Campbell
Licence To Publish: Joseph Howe's Contribution To Libel Law In Nova Scotia, Lyndsay M. Campbell
Dalhousie Law Journal
In 1835, Joseph Howe was prosecuted for criminal libel after an attack on the Halifax magistracy appeared in his newspaper I argue that Howe's acquittal flowed from a combination of factors. Howe's newspaper was a reformist, but not radical, voice at a time when criticism of government was becoming legitimate and newspapers were becoming increasingly vociferous, despite uncertainty about how daring they could be. Howe was popular, and the magistrates and prosecution were not. Most remarkably, however, Howe used Starkies 1830 libel treatise to construct a novel defence-qualified privilege-which had considerable exculpatory potential. The judge declined to put it to …
Dual Class Shares In Canada: An Historical Analysis, Stephanie Ben-Ishai, Poonam Puri
Dual Class Shares In Canada: An Historical Analysis, Stephanie Ben-Ishai, Poonam Puri
Dalhousie Law Journal
Dual class shares have been used by Canadian corporations to access public capital markets for the past sixty years. The debates surrounding the regulation of dual class shares have been reenergized. The authors of this article argue that only by looking to the legitimating role of nationalist policy, legislation and discourse in the historical development of dual class share structures can we derive context to the current debates surrounding the regulation of dual class shares and obtain a fuller understanding of the contemporary issues theypresent. Based on an analysis of the use of dual class shares as a financing technique …
Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer
Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer
Dalhousie Law Journal
This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of "constitutional realism". The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past twentyfive years. The reality of Canadas constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand's constitutional development has seen more power accrue to the political branches ofgovernment. The article considers the reality of the behaviour of these branches of government in each jurisdiction in relation to indigenous rights. It finds …
The Impact Of "Chartervalues" And Campbell V. Jones: Is It Now Easier To Establish Qualified Privilege Against Defamation?, Geoffrey Duckworth
The Impact Of "Chartervalues" And Campbell V. Jones: Is It Now Easier To Establish Qualified Privilege Against Defamation?, Geoffrey Duckworth
Dalhousie Law Journal
The purpose of this case comment is to impel a discourse on whether Campbell v. Jones' has "loosened the test" on qualified privilege. In the aftermath of the Court ofAppeal decision, it might be tempting to suggest that Campbell v. Jones means that the defence of qualified privilege is being re-fabricated in light of the advent of the Charter of Rights and Freedoms, in order to take an expanded account of "Charter values" such as freedom of expression. This case comment adopts the contrary view, and asserts that what Campbell has really done is clarify exactly which type of extraordinary …
On Letters Of Reference As Frames Of Reference, Roderick A. Macdonald, Alexandra Law
On Letters Of Reference As Frames Of Reference, Roderick A. Macdonald, Alexandra Law
Dalhousie Law Journal
Requesting, writing and reading letters of reference are everyday features of academic life. Yet they are neglected as a matter of professorial training and their pedagogical importance is rarely acknowledged. This paper reviews various practical aspects of the reference process, with emphasis on its politics and ethics. It argues that letters of reference frame the lived experience of candidate, writer, reader and community-both for the present and the future.
Re-Thinking Whitbread V. Walley: Liberal Justice And The Judicial Review Of Damages Caps Under Section 7 Of The Charter Of Rights And Freedoms, Jeremy Taylor
Dalhousie Law Journal
This paper advances a theoretically-driven reconstruction of s.7 Charter doctrine, which currently precludes protection for personal injury damages. Proceeding from a standpoint built on deontological strains of tort theory, the author dissects the reasoning in Whitbread v. Walley, the governing authority on the applicability of s. 7 to legislated damages caps. In three stages, the author argues that in the contemporary context, theoretical and doctrinal support for Whitbread is weak. First, when tort rights are theorized non-instrumentally, rights to personal injury damages fall squarely within the irreducible sphere of personal autonomy now protected by s. 7. Second, recent developments, both …
How I Learned To Stop Worrying And Love The Gats: An Examination Of The Impact Of The General Agreement On Trade In Services On The Canadian Health-Care System, Brian N. Zeiler-Kligman
How I Learned To Stop Worrying And Love The Gats: An Examination Of The Impact Of The General Agreement On Trade In Services On The Canadian Health-Care System, Brian N. Zeiler-Kligman
Dalhousie Law Journal
There is perhaps no more cherished Canadian institution than our universal health-care system, Medicare. Despite Canadians' fondness for Medicare, there are often allegations that various external elements threaten Medicare's viability. One of these oft-cited elements is the General Agreement on Trade in Services (GATS), which some have claimed will force the privatization of all public services. The truth in such claims is tested by examining the effect the GATS is likely to have on the Canadian health-care system. The examination includes an interpretation of GATS Article 1.3 through a textual analysis. GATS' impact on this system is explored on three …