Your search

This volume of the Oñati Socio-legal Series consists of revised versions of 15 of the 20 papers presented at a workshop hosted by the Oñati International Institute for the Sociology of Law (IISL) in May 2013. The workshop took its theme from Stéphane Hessel’s cri de coeur, Indignez-vous! and the protest movements it inspired, which we saw as protests against the social inequality that necessarily follows from economic inequality and other power imbalances. This message continues to resonate. In 2015, for example, Oxfam International’s research paper entitled “Wealth: Having it all and wanting more” concludes that by 2016, the world’s richest 1% will have more of the world’s wealth than all of the remaining 99% of people. And a Canadian observer decries the effect of this – which he labels “trickle-down meanness” – on the socio-political fabric of a country.Because of the breadth of the workshop theme and the diversity of its participants – which included a critical mass of doctrinal legal scholars in the mix – participants were asked to choose topics which 1) raised their indignation, 2) reflected economic inequality, 3) led to a violation of socio-economic rights, and 4) involved a possible role for the law (or public policy) either in causing the violation or in providing a solution to it (or both). The papers in this volume show that the participants responded enthusiastically to this request. Este número de la revista Oñati Socio-legal Series recoge las versiones revisadas de 15 de las 20 ponencias que se presentaron en el workshop celebrado en el Instituto Internacional de Sociología Jurídica de Oñati (IISJ), en mayo de 2013. El tema del workshop giró alrededor del lema de Stéphane Hessel, Indignez-vous! y los movimientos de protesta que inspiró, que percibimos como protestas contra la desigualdad social que resulta inevitablemente de la desigualdad económica y otros desequilibrios de poder. Este mensaje sigue resonando. En 2015, por ejemplo, una investigación de Oxfam Internacional titulada “Wealth: Having it all and wanting more” (Riqueza: Tenerlo todo y querer más), concluye que en 2016, el 1% de la población mundial poseerá más riqueza que el 99% restante. Y un observador canadiense condena sus consecuencias -que él denomina “goteo de mezquindad”- en el tejido socio-político de un país. Debido a la amplitud del tema del workshop y la diversidad de sus participantes -que incluía una masa crítica de expertos en doctrinas legales- se pidió a los participantes que eligieran temas que 1) les indignaran, 2) reflejasen desigualdad económica, 3), diesen lugar a una violación de los derechos socioeconómicos, y 4) que implicasen un posible papel del derecho (o políticas públicas) tanto por causar el daño u ofrecer una solución al problema (o ambos). Los artículos de este volumen demuestran que los participantes respondieron con entusiasmo a esta solicitud. DOWNLOAD THIS PAPER FROM SSRN: http://ssrn.com/abstract=2572253

Sylvia McAdam, 2015 20-1 Justice as Healing, 2015 CanLIIDocs 257

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed as self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice. This paper argues that an analysis of labour power as property, and its relationship to contract, emphasizes that both contract and property are enmeshed in the legal regulation of waged employment. Examining the ways in which the courts have given shape to individuals' proprietary rights over their labour power, and have set the terms for its exchange, demonstrates that the limitations on employer's rights of control are not inherent to the contractual form. Instead, they often depend on wider social processes, such as production and labour processes, collective bargaining, and statutory regulation. Examining proprietary rights over labour power provides another window onto the malleability of the contractual form, and the degree to which political choices are made by courts and legislators in determining the terms of the employment contract. This paper therefore investigates the relationship between contract, and labour power as property. To do so the historical evolution of contractual limitations on employers’ rights of control will be canvassed, and the ways in which these limitations are now fraying. In particular, the development of the managerial prerogative from a property to a contract-based interest is described, and the ways in which concepts of working-time have operated, in theory, to separate in law the commodification of labour power from the commodification of self. Finally, the paper concludes by examining the ways in which these limiting mechanisms are beginning to disappear, as collective bargaining protections dissipate and the statutory protections are rolled back.

The inventive concept in patent law, central to the Supreme Court’s test for whether a patent is invalid because of obviousness, lacks clarity. This article discusses that lack of clarity with reference to the vague and inconsistent treatment of the inventive concept in the jurisprudence of the Federal Court, Federal Court of Appeal and Supreme Court of Canada. In particular, this article discusses two unanswered questions: whether the inventive concept is a necessary part of the obviousness inquiry and what the inventive concept actually means. In answering the second question, this article explores three discrete stages in the evolution of the inventive concept: (1) the genesis of the inventive concept in Canadian jurisprudence in Apotex Plavix; (2) a notable dialogue regarding the interpretation of the inventive concept between the Federal Court and Federal Court of Appeal in Apotex Combigan; and (3) the persisting confusion surrounding the current meaning of the inventive concept. This article concludes by urging appellate courts to provide clearer guidance with respect to the significance and meaning of the inventive concept.

Drawing on the fields of human rights and public health, this research explores the covert administration of medication: the concealment of medication in food or drink so that it will be consumed undetected. Adopting a rights-based approach, it explores multiple understandings of the impact of the practice on inpatients' rights-experiences. Relying on critical approaches, it also explores the practice's underlying socio-political-legal structures. The common themes of policies, protocols or guidelines that govern its practice in Ontario are identified. Focus groups and individual interviews were held with three groups of stakeholders (nurses, legal experts and psychiatrists), relying on fictional clinical scenarios. Few policies, protocols or guidelines govern the practice in Ontario's psychiatric settings. The practice impairs access to knowledge by patients and substitute decision-makers. It also precludes healthcare practitioners' access to information about side effects and underlying reasons for medication refusal. It may interfere with therapeutic relationships and patients' meaningful recovery as they transfer from hospital without knowledge of the fact of the covert medication. It may be characterized as autonomy restoring since patients may become capable of making treatment decisions after having received the medication surreptitiously. Covert medication reflects an inflexible approach to capacity determination; it is distinguishable from approaches that imagine capacity as able to be fostered with support. It is primarily concerned with the management of "risky" inpatients in the short-term. The practice relies on a faith that medication will be effective, deferring to medical decision-making. While covert medication is understood to have "something to do" with rights, there is confusion about how those rights play out on the ground. Institutional silences underlie and reinforce the practice. This research will support the development of effective, safe and appropriate approaches to treatment non-adherence that maximize patient dignity. Most pressing, this research concludes that the covert administration of medication warrants an overt discussion.