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At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence.
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This chapter provides a historical sketch of the events leading to the Georgia-Russia conflict of 2008, including South Ossetia’s de facto independence and gradual absorption by Russia. It then considers the legal status of South Ossetia under Soviet, Georgian and international law, and analyses the findings of the Independent International Fact-Finding Mission on the Conflict in Georgia. While the chapter concludes that South Ossetia’s right to self-determination does not, at this stage, include a right to secession, it argues that the emphasis now should be on restoring confidence between the parties and addressing humanitarian issues. This is a precondition for genuine negotiations over status within the international law framework on self-determination.
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Many scholars have theorized that judicial review can provide a “friendly hand” to the elected branches by enforcing legislative bargains, taking on politically difficult decisions, clarifying vague or conflicting legislation, and/or buttressing federal power against state actors. Other scholars contend that empowering the judiciary to have an active role in policymaking has undesirable consequences – to these scholars, the judicialization of politics unwisely reframes the policy debate in legal terms, disempowers social movements by removing issues from traditional political contestation, and generates public and political backlash. This paper addresses these claims by examining an area where the courts, through either actively declining jurisdiction or passively acquiescing to executive power, have deliberately abstained from claiming a role in policymaking. We examine the negative space caused by such willful “un-juridification” by looking at American immigration policy.
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English Abstract: Clinical work in law offers important opportunities for students to learn critical, reflective and politicized approaches to legal identity and practice. Such an approach is most meaningful when it is engaged by supervising lawyers and social workers in a clinical placement. The authors of this article, the Academic Clinic Director and Executive Director of two Windsor-based clinic programs, offer context, perspective and examples of how critical pedagogy (influenced by, but distinct from, critical legal studies) provides a roadmap for supervising lawyers and the programs in which they work. The paper briefly sets the context of the authors' teaching and practice. The authors then set out some of the interested parties in clinical legal education, including law schools, communities, students and clients. The paper concludes with ideas on how a clinical program might set out to strengthen critical pedagogy in the supervisory relationship.
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The past decade has seen an upsurge in temporary foreign worker (“guest worker”) programs, which have been described as being “close to slavery” because they indenture the worker to work for a specific employer to maintain their visa status and limit access to permanent residence in the host country. The programs exemplify the dilemma between sovereignty and universalism. States claim to support universal labour rights but maintain absolute sovereignty over the legal status of foreign workers, providing limited, differentiated rights. The paper offers a normative argument, supported by empirical data from Canada, Hong Kong, United States, and Israel, that citizenship status continues to be paramount for accessing even universal (personhood-based) labour rights for these workers.
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International criminal law, like all areas of law, must continue to evolve to reflect contemporary realities. This article demonstrates that the current subject matter jurisdiction of the International Criminal Court under the Rome Statute is very much an artefact of history, and it argues that the historical and reactive line that the statute draws between "core" international crimes and other serious international or transnational crimes is inadequate. In order to ensure that international criminal law continues to evolve in a reasoned and principled manner, states need to better articulate the criteria by which conduct is included within the category of "the most serious crimes of concern to the international community as a whole." Using a primarily inductive approach, the article considers a number of such criteria that have been considered over the years. It concludes that, when assessed in the context of their systematic and organized perpetration, many other serious international and transnational crimes raise some of the same concerns that underpin the current core international crimes, suggesting that it may be time for the international community to consider redrawing the line.
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Commissioned by the Association of Family and Conciliation Courts, Ontario Chapter.
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There has been a proliferation of writing about commercial litigation funding (“CLF”) over the past few years, in both the academic and popular press. Too often, the literature presents a narrative of extremes. Commentators are either wholly against CLF on the basis that it gives rise to unethical behaviour and the commodification of our civil justice system, or wholly in support of it on the basis that it promotes access to justice and levels the playing field. A conference held at the University of Windsor Law School in July, 2013 brought together leading scholars, judges and lawyers from the United States, Australia and Canada to engage in a nuanced discussion about CLF that mediated between these extreme polarities. The first conference of its kind in Canada, discussion was focused on four themes: regulation, access to justice, ethics and impacts on class actions. In this article, the conference organizers, Dean Camille Cameron and Professor Jasminka Kalajdzic, survey the principal issues in the debates around CLF, summarize the key points in the conference papers, and identify the basic principles that might inform the regulation of litigation funding in Canada and elsewhere.
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In this article, I investigate the nature of exceptions to copyright infringement or users' rights. Are exceptions to copyright infringement rights or privileges? Are they mandatory? While copyright users' rights and interests have triggered interest and debate amongst scholars, relatively less attention has been given to defining their precise nature, and on the consequences of the main characteristics of exceptions to copyright infringement on copyright law and policy. I examine the interplay between the users' rights set out in the Copyright Act and how they can be altered or overridden by non-negotiated standard end-user agreements and TPMs. To this end, I refer to a sample of non-negotiated standard terms of use for the online distribution of books, musical recordings and films. I investigate the nature of exceptions to copyright infringement, including through Hohfeld's theory of jural correlatives. I look at the policy considerations behind these questions and conclude by reflecting on the damaging effects of the uncertain nature of users' rights on the coherence and, ultimately, the legitimacy of copyright law.
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What does access to justice have to do with legal services regulation? Can we make it easier for people to defend their legal rights and pursue social justice by liberalizing rules about the provision of legal services? This brief paper will begin by reviewing the economic argument that legal services regulation impedes access to justice. Although this argument has strong appeal in theory, deregulatory reforms have not always delivered their accessibility benefits which the economic critique promises. Moreover, economic criticism of legal services regulation tends to assume that lawyers are simply market actors, as opposed to members of an independent profession whose maintenance has value to clients and to the public. The paper will therefore conclude by suggesting that empirical inquiry using a new legal realist (NLR) methodology can make a constructive contribution to this debate.
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Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (GLP) by Paul Schiff Berman is a legal pluralist’s contribution to the study of local and global regulation. In a tour de force, Berman articulates clear and concise arguments in support of adopting a pluralist lens (coined as a cosmopolitan pluralist perspective). He magnificently traverses the multiple and complex bodies of literature that seek to understand the various inchoate regulatory regimes, actors, norms, and processes, to simply state that we must harness the benefits of the overlapping legal authorities. The overlapping legal authorities for Berman produce legal hybridity, which is a product of globalization(s).
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Mass harm exerts enormous pressure on civil justice systems to provide efficient but fair procedures for redress. In this context, settlement of mass disputes is easily understood as a common good. Yet settlements involving hundreds or thousands of claims, often across jurisdictions, raise concerns about the substantive fairness of the compromise reached by lawyers, and the ability of the court system to ensure meaningful oversight. Unburdening the judicial system from mass claims comes at a price; how much rough justice are we prepared to accept?
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Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which changed the law on the availability of specific performance for breach of contract, property developers have found the door to that remedy effectively closed. The recent decision of the Supreme Court in Southcott Estates Inc. v. Toronto Catholic District School Board confirms that trajectory despite the valiant attempts by some developers to bring their cases within the rubric of the Semelhago decision. However, Southcott is not so much a case about specific performance, as it is a case about the obligation to mitigate, and how a defendant can prove that a plaintiff has failed to make reasonable efforts to mitigate. It is also a case where the plaintiff sought to plead that it was a ‘volume buyer’, the obverse of a ‘volume seller’, and whether this fact meant that it did not have to take the profit from a subsequent purchase into account as an act of mitigation.
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Class actions have an established place in Canadian and Australian legal systems but still attract considerable debate in practice, politics and the academy. One debate concerns whether there is any legitimate justification for class actions beyond the procedural facilitation of grouped proceedings. ‘Access to justice’ and ‘judicial economy’ are the goals commonly said to justify class action provisions. On one view, these goals can be achieved through civil procedures that have compensation as their sole remedial goal. At the same time, many jurisdictions that have created class action regimes also provide as another justification, the promotion of behavioural modification and deterrence of wrongdoers. The principal way behaviour is modified and deterrence is achieved is by ensuring that the wrongdoer is forced to internalise all the costs of any harm that may have resulted from the wrongful act, and - depending on the particular facts of the case and whether the cause of action supports recovery of profits - to disgorge any profits earned from the wrongful conduct. Compensating victims may partially and concurrently achieve deterrence if all victims can be identified and the true nature of their loss quantified. However, in many claims where a class action may be the most advantageous mechanism to compensate victims, not all victims may be able to be identified or, because the amount of each class member’s claim is small, the cost of administering the claim may outweigh any benefit to individual class members.
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High prices and lack of innovation have placed expert legal services beyond the reach of too many Americans and Canadians. Is legal services regulation exacerbating common law North America’s access to justice problem? Does regulatory maintenance of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for people here to meet their legal needs? This article argues that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand, and work to reduce, the effects of their policies on the accessibility of justice.
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‘Inquisitorial processes’ refers to the inquiry powers of administrative governance and this book examines the use of these powers in administrative law across seven jurisdictions. The book brings together recent developments in mixed inquisitorial-adversarial administrative decision-making in a hitherto neglected area of comparative administrative process and institutional design. Reaching important conclusions about their own jurisdictions and raising questions which may be explored in others, the book's chapters are comparative. The contributors to this collection, who are leaders in the field, explore the terminology and scope of the concept of inquisitorial process, justifications for the use of inquiry powers, the effectiveness of inquisitorial processes and the implications of the adoption of such powers. The book will set in motion continued dialogue about the inherent challenges of balancing policy goals, fairness, resources and institutional design within administrative law decision-making by offering theoretical, practical and empirical analyses.
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This paper assesses the Supreme Court of Canada's elaboration of 'user rights' in two significant copyright law decisions rendered after its landmark ruling in CCH v. Law Society of Upper Canada.
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Every week in Canada, a woman is killed by a current or former intimate partner. It is a serious systemic problem. To put it in perspective, the number of women killed by their intimate partners in 2011 was roughly comparable to the number of gang-related homicides. Many, if not most, of these cases involve intimate femicide, a term used to give effect to the gendered nature of the crime. R v. Angelis (2013) 99 CR (6th) 315 (Ont CA) appears to have been a case of intimate femicide. Unfortunately, the Court of Appeal did not construct the case in this fashion and, in ordering a new trial, failed to properly assess the relevance of the accused’s post-offense conduct on the critical issue of intent.
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This essay will analyze William Twining’s work from a post-colonial perspective. It will be argued that Twining is constrained by the structural limitations inherent in his ‘general jurisprudence,’ reflected in three aspects of his analysis: firstly, Twining appears to disregard the imperialistic historical roots of the Western legal tradition. Secondly, Twining’s definition of globalization, which marginalizes the economic dimensions of globalization, fails to grasp the important historical role of capitalism in the emergence of globalization, and how this affects his very understanding of 'space' and 'proximity'. Finally, this essay will end with an examination of the relationship between the attainment of knowledge and power relations in the context of the Third World. It will be shown that Twining disregards how Western representations of non-Western legal traditions could eventually develop into a discourse that ultimately perpetuates new forms of domination.
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Over the past several years, the regulation and accreditation of legal education in most common law jurisdictions is shifting significantly, with greater emphasis on ‘outcomes’ or ‘outputs’. In Canada, the Federation of Law Societies of Canada is entering more boldly into the approval and accreditation of law schools. In Australia, legal regulators are increasingly nationalizing their approach to legal education, and developing new ‘threshold learning outcomes’ for law schools. In the United States, the American Bar Association is shifting to a more outcomes-focused regulatory regime. The result of these accreditation processes is not entirely clear: however, most jurisdictions have set out their respective approaches in later-stage draft form, allowing an initial comparative view. While debate on regulation, accreditation and assessment in all three countries has been vigorous, a notable gap exists in discourse around the role of clinical legal education, particularly in Canada and Australia. This article then explores how clinical education fits either explicitly or implicitly in these accreditation schemes, focusing on the strengths and weaknesses of competency/outcome regulation from a clinical legal education perspective. Although there is potential for clinical legal education to be used as a ‘competency boot camp’, weakening the reflective, deep and integrative assessment approach that is the cornerstone of mature, ‘third wave’ clinical legal education, there is also potential for greater commitment to integration of clinical legal education into the law school curriculum more generally. This article then sets out the importance of curricular integration and self-assessment to realize the full potential of not only clinical legal education, but the aspirational vision of lawyering many hope to achieve.
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