Law Commons^™

Destination-Based Taxation In The House Republican Blueprint, Wei Cui

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The House Republican Task Force on Tax Reform released its Blueprint for tax reform in June 2016, at the center of which is a destination-based cash-flow tax (DBCFT) to replace the current federal income tax on corporations. The House GOP Blueprint represents the first time that the DBCFT has been promoted by political leaders. Initial commentators have stressed the capacity of such a tax (if adopted in the U.S.) to reduce U.S. companies’ incentives for international tax planning and profit shifting, and to allow the U.S. to “leapfrog to the front of the pack” in its tax competitiveness. This essay …

Micro, Small And Medium Enterprise (Msme) Insolvency In Canada, Janis P. Sarra

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Insolvency law is broadly recognized as an essential tool in well-functioning economies. A balance of mechanisms that allow for timely and effective liquidation, but also for a “fresh start” for individual entrepreneurs and the rehabilitation of viable businesses, tends to enhance creditor recoveries and lender confidence. This study examines the treatment of micro, small and medium enterprises (“MSME”) under the Canada Bankruptcy and Insolvency Act. It undertakes a qualitative examination of 200 business insolvencies in 2015, in order to try to understand the reasons for insolvency, types of debt, and outcomes of proceedings. The study reports on the results of …

The Modern Corporation Statement On Company Law: Summary: Fundamental Rules Of Corporate Law, Lynn Stout Et Al., Carol Liao

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Corporations play a central role in modern economies. Certain beliefs about corporations and corporate law are widely held and relied upon by business experts, the financial press, and economists who study the firm. Unfortunately, some of these widely-held beliefs are mistaken. This has led to numerous common errors in the way corporate law concepts are understood and applied. The authors of this Summary are experts versed in a variety of national legal systems, including those of the U.S. and U.K. as well as the E.U. We provide this simple Summary of certain fundamentals of corporate law, applicable in almost all …

The Sexual Assault Of Older Women: Criminal Justice Responses In Canada, Isabel Grant, Janine Benedet

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This article examines sexual violence against older women, a problem that has been largely hidden from view in the societal and legal discussion of sexual assault. The article identifies a significant disconnect between the social science description of sexual assault against older women, on the one hand, and the available case law, on the other. The social science literature suggests that older women are most likely to be sexually assaulted by somebody they know and that a disproportionate number of the sexual assaults against older women take place within care facilities. The case law, however, paints a very different picture …

Can Pragmatism Function In Administrative Law?, Jocelyn Stacey, Alice Woolley

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This article draws out the ways in which Justice Rothstein grappled with complexity in administrative law. It argues that Justice Rothstein took a pragmatic approach to complexity in administrative law. Specifically, he sought to articulate a framework for judicial review that was workable for administrative decision-makers, litigants, their lawyers and reviewing courts. In addition, he looked to past experience with judicial review, evidenced in judicial precedent, rather than focusing on abstract theoretical norms.

Doctoral Studies In Law: From The Inside Out, Dia Dabby, Bethany Hastie, Jocelyn Stacey

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This article explores the purpose, structure and experience of doctoral studies in Canadian law schools. Relying on an auto-ethnographic methodology, where we draw on our personal experience as doctoral students, we identify three tensions in doctoral studies in law. We explore how these tensions — between practice/theory, structure/space, and supervisory/other relationships — emerge from the structure of doctoral studies in law and how they manifest themselves in the lived experience of doctoral students. We detail how these tensions are product of the ambiguous and underexplored nature of doctoral studies in law. By making these tensions explicit, we encourage doctoral students, …

Preventive Justice, The Precautionary Principle And The Rule Of Law, Jocelyn Stacey

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Despite its largely preventive orientation, environmental law has, with one exception, remained distinct from the burgeoning field of preventive justice. The exception is the precautionary principle, which has become a subject of interest and frequent skepticism amongst preventive justice scholars. The precautionary principle is a central principle in environmental law. Its centrality arises from the pervasiveness of scientific uncertainty in environmental regulation; that is, our inability to reliably predict the consequences of our policy choices on environmental and human health. The precautionary principle squarely addresses the question of how we ought to proceed in the face of unavoidable uncertainty. This …

Alternatives To The Gift And Estate Tax, David G. Duff

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Following the near death experience of the federal gift and estate tax in 2010, the hundredth anniversary of the tax represents an ideal moment to reflect on the role of this tax and whether an alternative approach might be more desirable and sustainable. This Article examines four prominent alternatives to the current tax: an annual wealth tax, taxing unrealized gains at death, including gifts and inheritances in income, and a lifetime accessions tax that would apply to the cumulative value of gifts and inheritances received by individuals over their lifetimes. In order to assess these alternatives, the Article reconsiders the …

The Danger Zone: How The Dangerousness Standard In Civil Commitment Proceedings Harms People With Serious Mental Illness, Sara Gordon

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Almost every American state allows civil commitment upon a finding that a person, as a result of mental illness, is gravely disabled and unable to meet their basic needs for food and shelter. Yet in spite of these statutes, most psychiatrists and courts will not commit an individual until they are found to pose a danger to themselves or others. All people have certain rights to be free from unwanted medical treatment, but for people with serious mental illness, those civil liberties are an abstraction, safeguarded for them by a system that is not otherwise ensuring access to shelter and …

Bonded To The State: A Network Perspective On China's Corporate Debt Market, Li-Wen Lin, Curtis J. Milhaupt

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A corporate bond market is thought to play an important role as a supplement to bank-oriented financial systems in emerging markets – functioning in effect as a “spare tire.” Yet bond markets typically rely upon a formal institutional foundation that is often lacking in developing economies. China’s corporate bond market is huge, yet scholarly analysis of it is relatively scarce and some of its elements remain poorly understood. In this paper, we use a network perspective to explore the formation, operation and function of the Chinese corporate bond market. Our effort begins by unpacking the complexities of the market’s structure …

Cinderella Story? The Social Production Of A Forensic “Science”, Gary Edmond, Emma Cunliffe

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The last decade has witnessed unprecedented criticism of the forensic sciences from academic commentators and authoritative scientific and technical organizations. Simultaneously, podiatrists have begun to promote themselves as forensic scientists, capable of assisting investigators and courts in their endeavors to identify offenders. This article traces the emergence of forensic podiatry, particularly forensic gait analysis. Forensic gait analysis is a practice that involves comparing persons of interest in crime-related images (such as CCTV and surveillance recordings) with reference images of suspects, where the primary focus is on movement and posture. It tends to be applied when other techniques, such as the …

The Strangely Familiar History Of The Unitary Theory Of Perpetration, James G. Stewart

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A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, this Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. …

Regulating Critical Mass: Performativity And City Streets, Alexandra Flynn

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On the last Friday of every month, tens of thousands of cyclists across 300 cities ride their bicycles for about an hour. In these events, cyclists disregard laws and regulations by bursting through red lights, traversing highway overpasses, and occupying multiple lanes of the road. These cyclists form part of Critical Mass. For the time in which Critical Mass takes place, participants are part of a nomos, or “normative universe”, which determines laws for their particular community. Critical Mass’ conception as a nomos, together with its interaction or performance among the legal orders set out in municipal, provincial, and federal …

Pluralizing The 'Sharing' Economy, Erez Aloni

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The so-called sharing economy presents one of the most important and controversial regulatory dilemmas of our time — yet, surprisingly, it remains undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access-to-excess” transactions). The regulatory regime that this Article proposes would distinguish between true access-to-excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible …

Precedent Revisited: Carter V Canada (Ag) And The Contemporary Practice Of Precedent, Debra Parkes

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In addition to the important substantive changes to Canadian law brought about by Carter v Canada (AG), the decision is significant for its consideration of the doctrine of stare decisis. This article examines the circumstances under which Canadian courts, including courts lower in the relevant hierarchy, might be entitled to revisit otherwise binding, higher court precedents and to depart from them. At least in constitutional cases, the Carter trial decision affirms that trial judges may reconsider rulings of higher courts where a new legal issue is raised or where there is a change in circumstances or evidence that “fundamentally shifts …

Tax Policy And The Virtuous Sovereign: Dworkinian Equality And Redistributive Taxation, David G. Duff

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Among the purposes of a tax system, it is generally accepted that one role is to implement a society’s conception of distributive justice. Indeed, if justice is, as John Rawls famously declared, “the first virtue of social institutions,” distributive justice may properly be regarded as the first or sovereign virtue of a society’s tax system – to which a virtuous sovereign should properly attend. This article reviews Ronald Dworkin’s theory of distributive justice as equality of resources and its implications for redistributive taxation. Part II examines the theory itself in contrast to other prominent theories of distributive justice, arguing that …

Bordering The Constitution, Constituting The Border, Efrat Arbel

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It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border …

Review Of Alaska Mental Health Statutes, Sara Gordon, Melissa Piasecki, Gil Khan, Dawn Nielsen

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Review of Alaska Mental Health Statutes produced in 2016.

Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris

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Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (2008-2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be evicted from and forced to sell their …

Reconsidering Copyright's Constitutionality, Graham Reynolds

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In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (Michelin), Teitelbaum J. of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms (Charter) and that, even if they did, these provisions could be justified under s. 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these …

Wsáneć Legal Theory And The Fuel Spill At Selektel (Goldstream River), Robert Clifford

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SELEK̵TEL̵ (Goldstream River), on Coast Salish territory on Southern Vancouver Island in British Columbia, is an important salmon spawning river and fishing location for the WSÁNEĆ (Saanich) people. On April 16, 2011, it was also the site of a diesel and gasoline spill.

In this article, I explore the processes of revitalizing WSÁNEĆ law and how we might think about the revitalization of WSÁNEĆ law in the context of this fuel spill. While I do not present a definitive statement of the application of WSÁNEĆ law, I explore what is needed in order to understand WSÁNEĆ law on its own …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

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Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

Systemic Risk Regulation In Comparative Perspective, Cristie Ford

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This report succinctly compares, with tables and diagrams, the systemic risk regulatory regimes that have been put in place since 2008 in the US, the UK, the EU and Canada. It describes systemic risk as a problem of a different order from the kinds of investor protection and efficient market concerns that animate day-to-day securities and capital markets regulation. Because contemporary markets operate as systems, characterized by interconnectedness, unpredictability, and fast-moving, multiple-round contagion effects, responding to systemic risk demands a different regulatory structure and a separate set of tools. This report was prepared for the Department of Finance, Government of …

Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, Isabel Grant, Peter J. Carver

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In PS v Ontario, the Ontario Court of Appeal held that section 7 of the Charter requires that persons who are civilly committed for six months or more must have access to a meaningful review process that has jurisdiction over the conditions of their detention. In this paper, the authors argue that this decision has broad implications for provincial civil commitment regimes across the country. In particular, the fact that the court analogized to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty that is involved in all civil commitments. …

Lawyers' Empire And The Great Transformation, Douglas C. Harris

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Writing through the years of World War II and attempting to understand its horrors, the carnage of World War I, the great depression, and the rise of communist and fascist regimes, Karl Polanyi posited that Western Europe had undergone The Great Transformation through the nineteenth century. Built around policies of economic liberalism and the gospel of the self-regulating market, this transformation had produced a century of unparalleled peace and material wealth in Europe, but the unmooring of the market from other social forces, and the remaking of land and labour as commodities, would unleash, when the buttressing pillars faltered, the …

Transubstantiation In Canadian Public Law: Processing Substance And Instantiating Process, Mary Liston

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Canadian public law blurs process and substance, a result confirming the prevailing view that this dichotomy ought never to be conceived as a simplistic bright-line distinction. Recent developments have created more than just a blurring but, rather, a strong linking or even fusion of the two. This paper probes the implications of these developments in public law. Section two briefly presents the historic and jurisprudential distinctions between process and substance and assesses its current legal import. Here I argue that judicially created analytic frameworks could assist by bringing a process-substance problem to the surface and constraining its potentially pernicious effects. …

The Modular Approach To Micro, Small, And Medium Enterprise Insolvency, Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, Riz Mokal, Barbara Romaine, Janis P. Sarra, Ignacio Tirado

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Historically, insolvency systems have been designed with larger enterprises in mind. They assume an extensive insolvency estate of significant worth, and the presence of creditors and other stakeholders with sufficient value at stake that they participate in and oversee the process. These assumptions undergird mechanisms by which creditors and other stakeholders may ensure that the insolvency process faithfully serves their interests, for an independent professional to run the business undergoing an insolvency process, and for extensive judicial oversight. These assumptions and features are incongruent with the reality of micro, small, and medium enterprises ('MSMEs'). Mirroring the general population of businesses …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy's Unbearable Licence, Jocelyn Stacey

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This short reply clarifies and defends the argument presented in "The Environmental Emergency and the Legality of Discretion in Environmental Law." It responds to the arguments that were made, and that could have been made, in Pardy's critique "An Unbearable Licence".

The Environmental, Democratic, And Rule-Of-Law Implications Of Harper's Environmental Assessment Legacy, Jocelyn Stacey

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The article argues that Harper’s dramatic changes to federal environmental assessment give rise to a two-dimensional legacy in environmental law: first, a legacy of impoverished environmental decision-making that reflects a narrow, resource-oriented vision of the environment, and second, a legacy of undermining democratic and rule-of-law values in environmental law. The crux of this latter legacy is the argument that environmental assessment law provides an essential framework for publicly-justified decision-making in the Canadian environmental context. Indeed, as I suggest in this article, environmental assessment presently performs a quasi-constitutional role in Canadian environmental decision-making in the sense that it provides the means …

The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds

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In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues …