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Full-Text Articles in Law

Peer Review In Canada: Results From A Promising Experiment, Frederick Zemans, James Stribopoulos Oct 2008

Peer Review In Canada: Results From A Promising Experiment, Frederick Zemans, James Stribopoulos

Osgoode Hall Law Journal

The end point in the access to justice debate often focuses on expanding the availability of legal services for the poor. This article argues that true access to justice requires greater focus on the quality of legal services provided. It tells the story of the introduction of peer review in Canada as a quality assurance tool for evaluating the legal work of a group of criminal lawyers. The article chronicles the various obstacles encountered in making even a very limited form of peer review a reality in Canada, where historically there has been skepticism about the peer review process in ...


Collaborative Family Law And Gender Inequalities: Balancing Risks And Opportunities, Wanda Wiegers, Michaela Keet Oct 2008

Collaborative Family Law And Gender Inequalities: Balancing Risks And Opportunities, Wanda Wiegers, Michaela Keet

Osgoode Hall Law Journal

Collaborative Law (CL) is a unique settlement process increasingly used by family lawyers. In this article, the authors examine the potential of CL to alleviate the impact of gendered differences in bargaining power between family clients. Proponents suggest that the more extensive involvement of lawyers in the CL process can prove more effective in dealing with vulnerable clients than either litigation or family mediation in their current forms. Drawing on the available literature on CL, their own empirical research, and the extensive literature on gender imbalances in mediation, the authors examine the likely impact of both the background norms and ...


Law Commissions And Access To Justice: What Justice Should We Be Talking About?, Patricia Hughes Oct 2008

Law Commissions And Access To Justice: What Justice Should We Be Talking About?, Patricia Hughes

Osgoode Hall Law Journal

In addition to their explicit mandates, law reform commissions have a generic mandate to make recommendations that are designed to increase access to justice. Moreover, contemporary commissions ought to interpret the concept of access to justice broadly. Even though they undertake topics of 'lawyers' law,' or at times limit their focus to the narrower legal system, commissions should also consider how law can be employed to realize economic or social justice. In order to make pragmatic recommendations to increase access to justice, commissions must study the non-legal realm and incorporate into their work the insights of other disciplines and the ...


Lessons In Access To Justice: Racialized Youths In Ontario's Safe Schools, Janet E. Mosher Oct 2008

Lessons In Access To Justice: Racialized Youths In Ontario's Safe Schools, Janet E. Mosher

Osgoode Hall Law Journal

Access to justice is often equated with access to institutionalized dispute resolution processes, and the objective barriers that hinder such access-costs and delay most particularly-are commonly identified as the primary objects of reform efforts. In sharp contrast, when interviews and focus groups were conducted with racialized youths in Toronto regarding their experiences of access to justice in the context of school disciplinary matters, accounts of access to dispute resolution processes being impeded by costs and delay did not figure prominently. The interviews and focus groups revealed that many racialized youths scarcely ever considered accessing institutionalized dispute resolution processes largely because ...


Modern Constitutional Democracy And Imperialism, James Tully Jul 2008

Modern Constitutional Democracy And Imperialism, James Tully

Osgoode Hall Law Journal

To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part III surveys ways in which ...


The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan Jul 2008

The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan

Osgoode Hall Law Journal

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional ...


"Other Worlds Are Actual": Tully On The Imperial Roles Of Modern Constitutional Democracy, Michael Simpson Jul 2008

"Other Worlds Are Actual": Tully On The Imperial Roles Of Modern Constitutional Democracy, Michael Simpson

Osgoode Hall Law Journal

The globalization of modern legal and economic practices has not ushered in a state of perpetual peace as Kantians have famously predicted. Rather, it has reinforced the perpetual crises and violence that is today's realm of the political. This article examines James Tully's claim that the formalization of diverse legal traditions into the modular confines of modern constitutions, as nation-states and international taw, is a project of today's imperial hegemony. The global imperialism of modern constitutionalism is one that suppresses the vast multiplicity of existing legal pluralities and, consequently, fuels war and aggression, not perpetual peace. Tully ...


Judicial Review And American Constitutional Exceptionalism, Miguel Schor Jul 2008

Judicial Review And American Constitutional Exceptionalism, Miguel Schor

Osgoode Hall Law Journal

This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it ...


Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara L. Seck Jul 2008

Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara L. Seck

Osgoode Hall Law Journal

Home state reluctance to regulate international corporate activities in the human rights context is sometimes characterized as an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a regulatory role for home states in preventing and remedying human rights harms is increasingly being suggested. This paper seeks to explore theoretical perspectives that support unilateral home state regulation. Having established that unilateral home state regulation could serve ...


Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque Jul 2008

Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque

Osgoode Hall Law Journal

Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation marked the first in-depth inquiry by non-US scholars into transnational human rights litigation. In this article, the author canvasses a range of new developments in the field since its publication in 2001. Of special note are five transnational human rights claims, decided after September 11, that were brought in Canadian and British courts. The author mines these cases for insights into other important developments involving the American Alien Tort Statute (Part I) corporate complicity in human rights abuses (Part II) the expansion of common law jurisdiction to include ...


Confronting Chronic Pollution: A Socio-Legal Analysis Of Risk And Precaution, Dayna Nadine Scott Apr 2008

Confronting Chronic Pollution: A Socio-Legal Analysis Of Risk And Precaution, Dayna Nadine Scott

Osgoode Hall Law Journal

The central aim of this article is to demonstrate a socio-legal approach to risk and precaution using the example of chronic pollution. Drawing on ongoing empirical work with the Aamjiwnaang First Nation, which is tucked into Sarnia's "Chemical Valley," a secondary aim is to influence and shape how we understand the problem and confront the risks of chronic pollution. This article forwards the argument that the prevailing regulatory approach is incapable of capturing the essence of contemporary pollution harms, because those harms are increasingly linked to continuous, routine, low-dose exposures to contaminants that are within legally sanctioned limits. Community ...


Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson Apr 2008

Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson

Osgoode Hall Law Journal

Ontario recently introduced environmental penalties (EPs), the environmental equivalent of speeding tickets. EPs are widely understood as part of a move toward "smarter" environmental regulation. As part of the EPs regime, facilities with an environmental management system aligned with ISO 14001 or Responsible Care qualify for reduced penalties. The Ontario government's attempt to incorporate voluntary standards-such as ISO 14001-into its EPs regulations was not very smart, however, because it failed to observe six principles that, in our view, should guide the incorporation of standards into smart regulation. First, do not reinvent the wheel. If an existing standard fulfills the ...


Containing The Gmo Genie: Cattle Trespass And The Rights And Responsibilities Of Biotechnology Owners, Katie Black, James Wishart Apr 2008

Containing The Gmo Genie: Cattle Trespass And The Rights And Responsibilities Of Biotechnology Owners, Katie Black, James Wishart

Osgoode Hall Law Journal

Genetically modified organisms (GMOs) have caused substantial economic losses by contaminating non-GMO crops and threatening the economic self-determination of non-GMO farmers. After Monsanto v. Schmeiser, biotech IP owners hold most of the rights in the property "bundle" with respect to bioengineered organisms. This commentary highlights the disequilibrium between these broad patent rights and the lack of legal responsibility for harms caused by GMO products. The authors propose that there is a role for tort law--specifically the tort of cattle trespass--in fairly allocating risk and responsibility. The doctrine of cattle trespass reflects a policy of distributive justice, positing that the unique ...


"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond Apr 2008

"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond

Osgoode Hall Law Journal

In this short article, the author explores the history of the environmental law movement in Canada and explains how this history has affected many of the environmental laws and trends today. With a focus on Ontario, the author reports back from a round table discussion held in Toronto in early 2008. Some of Canada's leading environmental lawyers, as well as many of the pioneers of the environmental law movement, reflected at the round table on the extent to which their aspirations for strong, effective environmental laws have been met and how much more remains to be done. While we ...


Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson Apr 2008

Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson

Osgoode Hall Law Journal

This article argues that environmental law must target the financial sector, which sponsors and profits from environmental pillage. The rise of a system of finance capitalism has made the financial sector a crucial economic sector. A long-standing movement for socially responsible investment (SRI) has recently begun to advocate environmental standards for financiers. While the SRI movement has gained more influence in recent years, it has come at the price of jettisoning its former emphasis on ethical investment in favour of an instrumental, business case approach. Some modest legal reforms to improve the quality and extent of SRI have yet to ...


Representing A Minor: A Shared Dilemma In Ontario And Massachusetts, Andrew L. Kaufman Jan 2008

Representing A Minor: A Shared Dilemma In Ontario And Massachusetts, Andrew L. Kaufman

Osgoode Hall Law Journal

This commentary considers what lawyers should do when confidential information from their minor clients indicates that the minor's instructions either present a substantial risk of harm to the minor or are irrational. The commentary then asks readers to decide whether and how their personal resolution should be generalized into the law of professional responsibility. The author compares current Ontario and Massachusetts law with a new Massachusetts proposal. The author strongly criticizes the proposal as violating the tenuous compromise between "client-directed" and "best- interests" or "substituted judgment" theories that appear to govern in both jurisdictions in favour of a rule ...


Canadian Legal Ethics: Ready For The Twenty-First Century At Last, Adam M. Dodek Jan 2008

Canadian Legal Ethics: Ready For The Twenty-First Century At Last, Adam M. Dodek

Osgoode Hall Law Journal

This article analyzes the transformation in the scholarship of legal ethics that has occurred in Canada over the last decade, and maps out an agenda for future research. The author attributes the recent growth of Canadian legal ethics as an academic discipline to a number of interacting factors: a response to external pressures, initiatives within the legal profession, changes in Canadian legal education, and the emergence of a new cadre of legal ethics scholars. This article chronicles the public history of legal ethics in Canada over the last decade and analyzes the first and second wave of scholarship in the ...


Sustainable Professionalism, Trevor C. W. Farrow Jan 2008

Sustainable Professionalism, Trevor C. W. Farrow

Osgoode Hall Law Journal

This article challenges traditional visions of lawyering by building on current alternative narratives and articulating a new discourse of professionalism that is personally, politically, ethically, economically, and professionally sustainable. It is a discourse that makes space for lawyers' principles, interests, and life preferences by balancing them with other important interests (including, but not dominated by, those of clients). It is a discourse that seeks to make good on aspirational promises of equality, access to justice, and protecting the public interest. And it is a discourse that takes seriously obligations to, as well as benefits from, the culturally complicated makeup of ...


In The Public Interest': The Responsibilities And Rights Of Government Lawyers, Allan C. Hutchinson Jan 2008

In The Public Interest': The Responsibilities And Rights Of Government Lawyers, Allan C. Hutchinson

Osgoode Hall Law Journal

While considerable thought and effort have been put into exploring and fixing the ethical rights and professional responsibilities of private Lawyers, little energy has been directed towards defining and defending the role and duties of government lawyers. As a result, the traditional understanding seems to be that government lawyers are to consider themselves as being under the same regimen and restrictions as their private counterparts. After criticizing this default approach, the article offers a fresh evaluation of what is different about the role of government lawyers and develops a more appropriate model for thinking about their professional responsibilities and ethical ...


The Public Interest, Professionalism, And Pro Bono Publico, Lorne Sossin Jan 2008

The Public Interest, Professionalism, And Pro Bono Publico, Lorne Sossin

Osgoode Hall Law Journal

There is a clear public interest benefit for lawyers to ensure access to the rule of law, especially on the part of the vulnerable. This article seeks to show that the seemingly simple relationship between the legal profession and the public interest is in fact more complicated than it looks. Pro bono may be viewed from two perspectives-that of the lawyer and that of the client. From the perspective of the lawyer, the important question is whether there is ethical motivation to engage in pro bono. If, however, the perspective of the client is paramount, then meeting the client's ...


Does Civility Matter?, Alice Woolley Jan 2008

Does Civility Matter?, Alice Woolley

Osgoode Hall Law Journal

Recent discussion of legal ethics in Canada has focused on the importance of "civility" as a fundamental value and goal of ethical conduct. This comment questions that focus. After defining the content of "civility' and reviewing its treatment in these initiatives by both the law societies and the courts, the author suggests that the emphasis on civility is misplaced. Focusing on civility has the undesirable tendency to impede lawyer reporting of misconduct by other lawyers and potentially undermines the effective representation of client interests. It also shifts emphasis away from the ethical values that should be the focus of our ...