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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.

Shortlisted for the 2003 Walter Owen Book Prize (first edition)This new edition traces the development in the Canadian law of equitable remedies, greatly influenced by decisions of the Supreme Court of Canada which, since the first edition, has ruled on the availability of Anton Piller orders, specific performance, equitable compensation, and rectification. Beyond these substantive equitable remedies the Supreme Court has also opined on a number of occasions about the nature of modern equity in Canada; in effect, breathing life into equity's distinctive methodology. New areas covered in this edition include the maxims of equity; the appropriate default test for interlocutory injunctions including new discussion on when it is appropriate to allow a view of the merits of the substantive dispute to determine the interlocutory proceedings; the general principles of specific performance, including a critique of the current law on enforcement of keep-open clauses; the contemporary impact of the Supreme Court of Canada's rulings on the availability of specific performance, particularly for those who invest in land; a discussion of equitable damages and equitable compensation which includes new commentary on when damages are assessed that go beyond compensation and toward disgorgement; and new material on rectification, including a section on rectification and taxation cases.

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.

Traditional lawyer self-regulation, which has been abrogated or significantly compromised in most wealthy countries, lives on in anglophone North America. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of "lawyer," (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

This paper argues for a multi-variable approach to identifying analogous grounds under section 15 of the Canadian Charter of Rights and Freedoms. The author begins with a review of Supreme Court of Canada jurisprudence to demonstrate how the Court has consistently applied such a multi-variable approach. In the course of that review, he notes the lack of clarity in the core factors considered by the Court, namely, immutability and constructive immutability. Then, the author argues in favour of a multi-variable approach because it is more sensitive to the complexities of identity formation and because it is more effective at recognizing grounds worthy of protection under the Charter.

The combination of human-computer interaction (“HCI”) technology with sensors that monitor human physiological responses offers state agencies purportedly improved methods for extracting truthful information from suspects during interrogations. These technologies have recently been implemented in prototypes of automated international border kiosks, in which an individual seeking to cross a border would first have to interact with an avatar interrogator. The HCI system uses a combination of visual, auditory, infrared and other sensors to monitor an individual’s eye movements, voice, and various other qualities throughout the interaction. This information is then aggregated and analyzed to determine whether the individual is being "deceptive". This paper argues that this type of application poses serious risks to individual rights such as privacy and the right to silence. Highly invasive data collection and analysis is being integrated into a technology that is designed in a way that conceals the full extent of the interaction from those engaging with it. Border avatars are being misconstrued as technological versions of a human border agent, when in fact the technology enables a substantially more invasive interaction. The paper concludes by arguing that courts, developers, and state agencies institute strict and strong limits on how this technology is implemented and what information this emerging technology can collect from the individuals who engage with it.

Access to information (ATI) dispute resolution is an administrative context in which polyjuralism abounds. This chapter examines the models of dispute resolution used by the legislative officers that have been statutorily created to resolve access to information complaints in Canada. Since the enactment of Canada’s first freedom of information legislation by the federal government in 1983, a debate has emerged as to whether an investigatory approach based on the ombuds tradition or an adversarial adjudicative approach is most suitable for achieving effective regulatory oversight. This chapter contributes to the debate in two ways. First, it defines three typologies for access to information dispute resolution regimes: investigatory, adjudicative, and mixed investigatory-adjudicative, using the access to information statutory regimes of the 14 territorial Canadian jurisdictions as a case study. With respect to mixed investigatory-adjudicative dispute resolution, it argues that the appropriate classification of Access to Information Commissioners endowed with both ombuds-like powers and order-making capacities is to understand them as independent accountability agencies. This avoids concerns about the 'citizen defender' image and denaturing the ombuds’ tradition, and instead properly focuses on the Commissioner as an agent of the policy goal of promoting governmental transparency. Second, this chapter takes an empirical look at how Canada's federal Office of the Information Commissioner is faring with respect to the four theoretical values of: i) institutional competence, ii) access to justice, iii) efficiency, and, iv) effectiveness in promoting government transparency. The empirical data for this discussion is taken from the preliminary results of an online survey administered to access officials in the federal government.

Professor Ladeur argues that administrative law’s postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, account- ability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmod- ern legality and support the creation of norms that will adapt to the complexities of globalisation. Ladeur’s contestation, similar to GAL’s propositions, can be challenged. By taking the International Criminal Tribunal for Rwanda, a significant contributor to the field of international criminal law, as an example, it is suggested that the creation of networks that Ladeur makes visible may not account for ‘regulatory capture’. This paper will argue that from the outside, the proliferation of networks may suggest that spontaneous accountability is possible. A closer look, however, drawing on anthropological insights from the ICTR, reveals that international institutions are suscepti- ble to capture by special interests. Furthermore, there are two central themes that animate the response to Professor Ladeur: the political nature of international institutions and the history of international law, and the role of institutions in this history.

This chapter identifies the intersecting ways in which Israeli approaches to international law are structured around Cohen's three main modes of denial-factual, interpretive, and implicatory-to silence or deflect responsibility for Palestinian suffering. It argues that international law has fed into a process of denial maintenance in Israel, creating the backdrop against which Israeli leaders deny Palestinian suffering. Israel's attitude towards the use of phosphorus as a military weapon compared with its attitude towards stone throwing is striking. The military court's response appears sincere when it emphasises the great risks posed by Palestinian children and youth with stones. The chapter suggests that international law, with its emphasis on domestic implementation, self-reporting, and shaming proves largely ineffective in states of denial. Cohen observes that interpretive denial, in part because it requires familiarity with law and legal concepts and in part because it suggests concern for human rights, can prove more difficult to counter than literal or factual denial.

Evaluating Ombuds Oversight in the Canadian Access to Information Context: A Theoretical and Empirical Inquiry - 1

Corporate and governmental wrongdoing can affect large numbers of people. Such wrongdoing has an institutional victim as well; 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 of mass claims comes at a price; how much rough justice are we prepared to accept? As the contributions to this book illustrate, the difficulty of balancing these competing interests is ubiquitous. Canadian class action settlement practice is no exception. In this chapter, I first explore the realities of this form of litigation, and to some extent debunk the myth that class actions inevitably result in large monetary settlements. I then turn to a brief discussion of the incentives and disincentives to settle large claims, for both plaintiffs’ lawyers and defendants. In Part III, I describe and critique the judicial framework for the approval of proposed settlements.