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2020

All Faculty Publications

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Full-Text Articles in Law

Taxpayer Self-Inspections, Audits, And Optimal Tax Administration: Evidence From China, Wei Cui Nov 2020

Taxpayer Self-Inspections, Audits, And Optimal Tax Administration: Evidence From China, Wei Cui

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I document an important tax collection practice that is previously unknown to research on tax administration: mandatory taxpayer self-inspections. The practice emerged spontaneously across China in the 1990s and persists to this day despite having no basis in law. If taxpayers report additional liabilities after self-inspections, no penalties are imposed. Unlike tax amnesties, self-inspections are (i) backed up by the threat of government inspections with a significantly higher-than-normal audit probability, and (ii) used as a basic, routine revenue-generation technique. I show that self-inspections represent roughly 50% of the activity in China’s “tax inspection” (jicha) system and assume even greater importance …

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Human Rights And The Rule Of Law: Implications For Canada-China Relations, Pitman B. Potter Oct 2020

Human Rights And The Rule Of Law: Implications For Canada-China Relations, Pitman B. Potter

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China’s rise to prosperity has seen increased tension with international standards of human rights and the rule of law such that, after a lengthy period of tentative engagement China has more recently worked to change international standards to accommodate its interests. China’s approach to human rights and the rule of law has significant implications for Canada, not only for our bilateral relations but also in terms of the impacts on international institutions that are of vital interest to Canada. In response, Canada should pursue a program of selective engagement, that combines attention to China’s abuses of human rights and the …

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Submission To The Justice And Electoral Committee On The Search And Surveillance Bill 2009, Samuel Beswick, William Fotherby Sep 2020

Submission To The Justice And Electoral Committee On The Search And Surveillance Bill 2009, Samuel Beswick, William Fotherby

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This submission to the Justice and Electoral Select Committee of the New Zealand Parliament addresses the surveillance regime created by the Search and Surveillance Bill 2009.

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Revisiting The New Politics Of Immigration, Catherine Dauvergne Aug 2020

Revisiting The New Politics Of Immigration, Catherine Dauvergne

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This article follows from the workshop that Professor Mireille Paquet organized in Montreal in June 2018, to discuss my book, The New Politics of Immigration and the End of Settler Soci- eties (Cambridge, 2016; Dauvergne 2016). In relation to this event and the articles of this spe- cial issue, this paper embarks on revisiting The New Politics of Immigration, now more than three after it first appeared in print. In this paper, I reflect on whether my arguments stand up to the test presented by the events of the past three years. Recent events lead me to nuance some of …

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Should Covid-19 Empower Strata Corporations To Ban Non-Residents?, Douglas C. Harris Apr 2020

Should Covid-19 Empower Strata Corporations To Ban Non-Residents?, Douglas C. Harris

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Stories are appearing of condominium developments that have banned non-residents in response to the COVID-19 pandemic. In doing so, they are following governments in Canada at many levels, including national, provincial, and Indigenous, that have prohibited non-residents who are not essential service workers from entering their jurisdictions.

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An Unknown Past, An Unequal Present, And An Uncertain Future: Transnational Environmental Law Through Three Research Challenges, Natasha Affolder Apr 2020

An Unknown Past, An Unequal Present, And An Uncertain Future: Transnational Environmental Law Through Three Research Challenges, Natasha Affolder

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This chapter seeks to bring into focus three broad research challenges facing transnational environmental law – an unknown past, an unequal present, and an uncertain future. Transnational law theory invites scholars to stand at a distance from current orthodoxies and to contemplate environmental law and its practice from new vantage points. The study of transnational environmental law thus prompts new ways of thinking about where to look for environmental law and its foundational influences. New research agendas emerge organically from such shifts of gaze. By identifying future research agendas, we can illuminate both the diversity of sites of past and …

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Workplace Sexual Harassment And The "Unwelcome" Requirement: An Analysis Of Bc Human Rights Tribunal Decisions From 2010 To 2016, Bethany Hastie Jan 2020

Workplace Sexual Harassment And The "Unwelcome" Requirement: An Analysis Of Bc Human Rights Tribunal Decisions From 2010 To 2016, Bethany Hastie

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Legal complaints concerning workplace sexual harassment are anticipated to increase, following in the wake of the #MeToo movement and a number of high-profile cases in Canada. Yet little contemporary research has analyzed sexual harassment laws in Canada. This article contributes to further research on sexual harassment laws through a case analysis of BC Human Rights Tribunal decisions from 2010 to 2016. This article analyzes trends in assessing credibility and character in sexual harassment complaints and establishes that the requirement that a complainant prove that the conduct in question was “unwelcome” improperly shifts the focus of the legal inquiry towards her …

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The Meaning Of Life: A Study Of The Use Of Parole Ineligibility For Murder Sentencing, Isabel Grant, Crystal Choi, Debra Parkes Jan 2020

The Meaning Of Life: A Study Of The Use Of Parole Ineligibility For Murder Sentencing, Isabel Grant, Crystal Choi, Debra Parkes

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A number of legal developments in recent years suggest that murder sentencing may be becoming increasingly punitive. This study examines two aspects of setting parole ineligibility. First, using cases from three two-year time periods spanning the past three decades, the authors explore whether judicial calculations of parole ineligibility for second degree murder have changed over time. Second, the authors examine changes enacted in 2011 to allow parole ineligibility to be imposed consecutively for those who commit more than one murder. The study finds a national trend towards reduced reliance on the minimum 10-year period of parole ineligibility, a slight increase …

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Retroactive Adjudication, Samuel Beswick Jan 2020

Retroactive Adjudication, Samuel Beswick

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This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a …

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A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner Jan 2020

A Colonial Castle: Defence Of Property In R V Stanley, Alexandra Flynn, Estair Van Wagner

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In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property.

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The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey Jan 2020

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

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Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision making about major development projects with implications for environmental protection and the rights and title of Indigenous peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern environmental assessment can be understood through three public law frames: procedural fairness, public inquiry, and framework for the duty to consult and accommodate. It further …

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Environmental Law, Jocelyn Stacey Jan 2020

Environmental Law, Jocelyn Stacey

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In commemoration of their 50th anniversary, this chapter examines the Federal Courts’ role in shaping environmental law in Canada. The chapter uses well-known environmental principles – the precautionary principle, sustainable development and access to (environmental) justice – as focal points for examining environmental law as well as the legal culture of the Federal Courts. The chapter identifies four distinct interpretive roles that the Federal Courts have ascribed to the precautionary principle and it argues that three of these roles have the potential to generate more coherent and transparent doctrine that upholds the rule of law in the environmental context. In …

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Rethinking The "Crisis" Of Indigenous Mass Imprisonment, Efrat Arbel Jan 2020

Rethinking The "Crisis" Of Indigenous Mass Imprisonment, Efrat Arbel

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In R v Gladue, the Supreme Court of Canada famously remarked that the incarceration of Indigenous people represents a “crisis.” Since Gladue’s release, the language of “crisis” has been used with frequency in Canadian legal discourse. In this article, I analyze how this language has shaped the broader legal under- standing of Indigenous mass imprisonment. My focus is not on speci c iterations or uses, but on the cumulative impact of the language of “crisis” over the last twenty years. I suggest that however well-meaning these representations may be, their cumulative impact is harmful. In the face of the relentless …

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The Interpretive Exercise Under The General Anti-Avoidance Rule, David G. Duff Jan 2020

The Interpretive Exercise Under The General Anti-Avoidance Rule, David G. Duff

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This chapter examines the interpretive exercise under the Canadian GAAR, contrasting this interpretive exercise with ordinary interpretation under the textual, contextual and purposive (TCP) approach, and considering the way in which the object, spirit, and purpose of the relevant provisions is determined in order to decide whether an avoidance transaction is subject to the GAAR. The first part distinguishes the interpretive exercise under the GAAR from the TCP approach, explaining that ordinary interpretation under the TCP approach is rightly constrained by the text of the applicable provisions in a way that the interpretive exercise under the GAAR is not. The …

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Robots, Regulation, And The Changing Nature Of Public Space, Kristen Thomasen Jan 2020

Robots, Regulation, And The Changing Nature Of Public Space, Kristen Thomasen

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Robots are an increasingly common feature in North American public spaces. From regulations permitting broader drone use in public airspace and autonomous vehicle testing on public roads, to delivery robots roaming sidewalks in major US cities, to the announcement of Sidewalk Toronto — a plan to convert waterfront space in one of North America’s largest cities into a robotics-filled smart community — the laws regulating North American public spaces are opening up to robots. In many of these examples, the growing presence of robots in public space is associated with opportunities to improve human lives through intelligent urban design, environmental …

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Bringing Rule Of Law And Fairness To The Dysfunctional World Of Sovereign Debt: A Role For Canada?, Maziar Peihani, Mark Jewett Qc Jan 2020

Bringing Rule Of Law And Fairness To The Dysfunctional World Of Sovereign Debt: A Role For Canada?, Maziar Peihani, Mark Jewett Qc

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Restructuring sovereign debt has long proved challenging: There is no formal regime for sovereign insolvencies similar to those that that govern domestic bankruptcy and insolvency and attempts to create one by international treaty have been met with political resistance. Currently, sovereign debt restructuring is governed by the debt contracts themselves along with the background law in the jurisdiction in which the debt is issued. Sovereign immunity also protects most state assets from seizure. These ad hoc restructuring processes are plagued by unpredictability, however, and there are incentives for individual creditors to “hold out,” demanding full repayment of their claims and …

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Intimate Partner Violence And Covid-19 In Rural, Remote, And Northern Canada: Relationship, Vulnerability And Risk, Pertice Pertice Moffitt, Wendy Aujla, Crystal J. Giesbrecht, Isabel Grant, Anna-Lee Straatman Jan 2020

Intimate Partner Violence And Covid-19 In Rural, Remote, And Northern Canada: Relationship, Vulnerability And Risk, Pertice Pertice Moffitt, Wendy Aujla, Crystal J. Giesbrecht, Isabel Grant, Anna-Lee Straatman

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In rural, remote, and northern parts of Canada, the pre-existing vulnerability and risk for intimate partner violence has been exacerbated by COVID-19. The purpose of this commentary is to identify the unique impact of COVID-19 on intimate partner violence both in terms of the bearing on those experiencing abuse and on the service sector in rural, remote and northern communities where the rates of intimate partner violence and intimate partner femicide pre-pandemic are higher than in larger cities. The recommendations offered in this paper include enhanced safety planning, alternate housing for victims fleeing violence, and suggestions for service providers. We …

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Responsible Scholarship In A Crisis: A Plea For Fairness In Academic Discourse On The Carbon Pricing References, Stepan Wood, Meinhard Doelle, Dayna Nadine Scott Jan 2020

Responsible Scholarship In A Crisis: A Plea For Fairness In Academic Discourse On The Carbon Pricing References, Stepan Wood, Meinhard Doelle, Dayna Nadine Scott

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The Canadian federal government’s carbon pricing legislation has generated substantial public and academic debate. In this paper we argue that academic debate should adhere to standards for responsible conduct of research during crises such as the current climate emergency, and avoid the nastiness and distortion that infect populist political rhetoric and social media. We discuss the norms of responsible scholarship that apply to Canadian legal academics, with a focus on standards that demand scrupulous fairness to other scholars and to the materials one is analyzing. We argue that a recent article by Professor Dwight Newman on the Saskatchewan and Ontario …

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Cash On The Table? Imperfect Take-Up Of Tax Incentives And Firm Investment Behavior, Wei Cui, Jeffrey Hicks, Jing Xing Jan 2020

Cash On The Table? Imperfect Take-Up Of Tax Incentives And Firm Investment Behavior, Wei Cui, Jeffrey Hicks, Jing Xing

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We investigate whether tax incentives are effective in stimulating private investment in less developed countries, by exploiting the introduction of accelerated depreciation for fixed assets investment in China as a natural experiment. In contrast to the large positive impact of similar tax incentives in the U.S. and U.K. found in recent studies, accelerated depreciation appeared ineffective in stimulating Chinese firms’ investment. Using confidential corporate tax returns from a large province, we find that firms fail to claim the tax benefits on over 80 percent of eligible investments. Firms’ take-up of the tax incentive is significantly influenced by their taxable positions …

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Rethinking 'Duty': The City Of Toronto, A Stretch Of The Humber River, And Indigenous-Municipal Relationships, Doug Anderson, Alexandra Flynn Jan 2020

Rethinking 'Duty': The City Of Toronto, A Stretch Of The Humber River, And Indigenous-Municipal Relationships, Doug Anderson, Alexandra Flynn

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The nation-to-nation relationship between Indigenous peoples and cities remains largely unexplored in the Canadian context. This oversight is especially problematic in light of the significant percentage of Indigenous people who live in urban areas, and the many concerns that Indigenous and non-Indigenous peoples share. These shared concerns include the environment, land use, housing, social services, and much more, and modern municipalities do make attempts to address Indigenous-specific needs in these areas; but Indigenous-municipal relationships have implications that far exceed the technocratic and siloed ways in which Canadian systems generally approach these broad areas of concern - implications not only with …

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Municipal Power And Democratic Legitimacy In The Time Of Covid-19, Alexandra Flynn Jan 2020

Municipal Power And Democratic Legitimacy In The Time Of Covid-19, Alexandra Flynn

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As COVID-19 swept through Canada, cities were at the front lines in curbing its spread. From March 2020, municipalities introduced such measures as restricting park access, ticketing those lingering in public places, and enforcing physical distancing requirements. Local governments have also supplemented housing for the vulnerable and given support to local “main street” businesses. Citizens expected their local governments to respond to the pandemic, but few people know how constrained the powers of municipalities are in Canadian law. Municipalities are a curious legal construct in Canadian federalism. Under the constitution, they are considered to be nothing more than “creatures of …

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What Is Unilateralism In International Taxation?, Wei Cui Jan 2020

What Is Unilateralism In International Taxation?, Wei Cui

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The OECD recently emerged as the site of unprecedented, multilateral, and seemingly high-stakes negotiations about the future of international business income taxation. Judging by the political resources deployed in these negotiations, international tax has entered unchartered territory. Professor Ruth Mason offers a timely and balanced portrayal of the OECD process so far. But explanations of this process remain highly contestable. On the one hand, international institutions that address externalities from uncoordinated actions and produce mutual benefits for participating nations can be highly stable. On the other hand, the OECD has struggled, whether in its BEPS (Base Erosion and Profit Shifting) …

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Income Taxation Of Small Business: Toward Simplicity, Neutrality And Coherence, David G. Duff Jan 2020

Income Taxation Of Small Business: Toward Simplicity, Neutrality And Coherence, David G. Duff

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Among the many contributions that Judith Freedman has made to tax law and policy in the United Kingdom and around the world, one of the most sustained and significant involves the regulation and taxation of small business. This article reviews Professor Freedman’s contributions to tax law and policy regarding small business, and evaluates Canadian experience with the taxation of private companies and their shareholders in light of Professor Freedman’s work. Part II summarizes Professor Freedman’s main conclusions regarding the taxation of small business, addressing both the taxation of similar economic activities conducted through different legal forms and the rationale and …

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Charter Rights, State Expertise: Testing State Claims To Expert Knowledge, Emma Cunliffe Jan 2020

Charter Rights, State Expertise: Testing State Claims To Expert Knowledge, Emma Cunliffe

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This article considers the individual and collective significance of two decisions issued by the Supreme Court of Canada in 2018: Ewert v. Canada and R. v. Gubbins.

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Breaking The Silence On Father-Daughter Sexual Abuse Of Adolescent Girls: A Case Law Study, Janine Benedet, Isabel Grant Jan 2020

Breaking The Silence On Father-Daughter Sexual Abuse Of Adolescent Girls: A Case Law Study, Janine Benedet, Isabel Grant

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Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men that they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen inclusive over a three-year …

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Does 'No, Not Without A Condom' Mean 'Yes, Even Without A Condom'?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant Jan 2020

Does 'No, Not Without A Condom' Mean 'Yes, Even Without A Condom'?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant

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In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …

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Building The Aboriginal Conference Settlement Suite: Hope And Realism In Law As A Tool For Social Change, Toby S. Goldbach Jan 2020

Building The Aboriginal Conference Settlement Suite: Hope And Realism In Law As A Tool For Social Change, Toby S. Goldbach

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In 2014, the provincial government unveiled a new courthouse in Thunder Bay, Ontario, featuring a conference area designed to emulate an Anishinaabe roundhouse. The “Aboriginal Conference Settlement Suite” epitomizes efforts to support Indigenous justice within the criminal justice system. However, despite similar efforts in the past, the circumstances of Indigenous peoples in Canada have not improved. This ongoing commitment to legal solutions is emblematic of mainstream views of law as a problem-solving instrument. Notwithstanding awareness of its failings, law reformers remain dedicated to using law as a tool for social change. Employing a case study method focusing on the new …

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Platform Workers And Collective Labour Action In The Modern Economy, Bethany Hastie Jan 2020

Platform Workers And Collective Labour Action In The Modern Economy, Bethany Hastie

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This article surveys existing efforts by platform workers to collectively organize and advance their labour interests, with a view to improving their working rights and conditions. After reviewing the status of platform workers, the challenges and contours of their work, and the needs and interests that may be served through collective labour action in Section I, this article describes and comments on identified forms of collective labour action undertaken by platform workers across a number of jurisdictions in Section II. As this article discusses, collective labour action, in its many modalities, both formal and informal, creates a context in which …

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First Comes Marriage, Then Comes Baby, Then Comes What Exactly?, Erez Aloni Jan 2020

First Comes Marriage, Then Comes Baby, Then Comes What Exactly?, Erez Aloni

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Taiwan’s legalization of same-sex marriage is an event of international importance concerning the rights of LGBTQ+ individuals and partners; further, it constitutes an opportunity to examine the state of LGBTQ+ equality in Taiwan and elsewhere. To this end, through theoretical and comparative lenses, this Article asks what equality for LGBTQ+ means and what comes after marriage. It offers perspectives on the past, present, and future of the intersection of same-sex marriage and equality. Looking at the path to same-sex marriage in Taiwan, the Article argues that the Taiwanese Constitutional Court’s ruling legalizing same-sex marriage maintained a line between domesticated liberty …

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General Anti-Avoidance Rules Revisited: Reflections On Tim Edgar’S 'Building A Better Gaar', David G. Duff Jan 2020

General Anti-Avoidance Rules Revisited: Reflections On Tim Edgar’S 'Building A Better Gaar', David G. Duff

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In addition to the requirement of a tax benefit or advantage, the application of most modern general anti-avoidance rules turns on two elements: a so-called "subjective element" which considers the purpose for which the transaction or arrangement resulting in the tax benefit or advantage was undertaken or arranged; and an "objective element" which considers the object or purpose of the relevant provisions to determine if the tax benefit resulting from the transaction or arrangement is or is not consistent with this object or purpose.

Although these two elements are present in most modern GAARs, the function of each element within …

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