bluuebunny/crossref_metadata_2025 huggingface dataset:
Affective Aporetics: Complementary Contradictions in the Interpretation of Friedrich Nietzsche
Authors: MELLAMPHY NANDITA BISWAS
Published: April 2017

In 1971, Wolfgang Müller-Lauter introduced his study of Nietzsche as an investigation into the history of modern nihilism in which “contradiction” forms the central thread of the argument. For Müller-Lauter, the interpretive task is not to demonstrate the overall coherence or incoherence of Nietzsche’s philosophy, but to examine Nietzsche’s “philosophy of contradiction.” Against those such as Karl Jaspers, Karl Löwith and Martin Heidegger, Müller-Lauter argued that contradiction is the foundation of Nietzsche’s thought, and not a problem to be corrected or cast aside for exegetical or political purposes. For Müller-Lauter, contradiction qua incompatibility (not just mere opposition) holds a key to Nietzsche’s affective vision of philosophy. Beginning with the relationship between will to power and eternal recurrence, in this paper I examine aspects of Müller-Lauter’s account of Nietzsche’s philosophy of contradiction specifically in relation to the counter-interpretations offered by two other German commentators of Nietzsche, Leo Strauss and Karl Löwith, in order to confirm Müller-Lauter’s suggestion that contradiction is indeed an operative engine of Nietzsche’s thought. Indeed contradiction is a key Nietzschean theme and an important dynamic of becoming which enables the subject to be revealed as a “multiplicity” (BGE §12) and as a “fiction” (KSA 12:9[91]). Following Müller-Lauter’s assertion that for Nietzsche the problem of nihilism is fundamentally synonymous with the struggle of contradiction experienced by will to power, this paper interprets Nietzsche’s philosophy of contradiction in terms of subjective, bodily life (rather than in terms of logical incoherences or ontological inconsistencies). Against the backdrop of nihilism, the “self” (and its related place holder the “subject”), I will argue, becomes the psycho-physiological battlespace for the struggle and articulation of “contradiction” in Nietzsche’s thought.
I CAN SEE CLEARLY NOW: VIDEOCONFERENCE HEARINGS AND THE LEGAL LIMIT ON HOW TRIBUNALS ALLOCATE RESOURCES
Authors: Sossin Lorne , Yetnikoff Zimra
Published: April 2017

Videoconferencing has generated ambivalence in the legal community.Some have heralded its promise of unprecedented access to justice,especially for geographically remote communities. Others, however, havequestioned whether videoconferencing undermines fairness. The authorsexplore the implications of videoconferencing through the case studyof the Ontario Landlord and Tenant Tribunal, which is one of thebusiest adjudicative bodies in Canada. This analysis highlights concernsboth with videoconferencing in principle and in practice. While suchconcerns traditionally have been the province of public administration,the authors argue that a tribunal’s allocation of resources and thesuffi ciency of its budget are also core concerns of administrative law.Administrative law reaches beyond conventional doctrines of proceduralfairness on the one hand and substantive rationality on the other. Howthe legislature structures and funds decision-making bodies is not just amatter of political preference but also of legal suffi ciency. The commonlaw, the Charter of Rights, and unwritten constitutional principles suchas the rule of law and access to justice all provide potential constraintsboth on governments and tribunals as to the organization and conductof adjudicative hearings, especially in settings like the Landlord andTenant Tribunal, where the rights of vulnerable people are at stake.While a challenge to the videoconferencing practices of the Landlordand Tenant Tribunal has yet to be brought, the authors conclude thateventually the intersection of tribunal resources with the fairness andreasonableness of that tribunal’s decision-making will reach the courts.How the courts resolve these challenges may represent the next frontierof administrative law.
Dishing up Israel: Rethinking the Potential of Legal Mixité
Authors: Drummond Susan G.
Published: April 2017

The field of mixed legal studies has recently been engaged in discussions about the virtues of merit-driven versus integritydriven judgments in law making. Integrity-driven judgements aspire to locate solutions in a way that will generate greater coincidence with one overall legal tradition in settings where two or more are mixed. The latter style of judgement has historically preoccupied mixed jurisdictions where the Civil law has felt the need to struggle for its place when paired with a dominating Common law alter. A more pragmatic merit-driven approach has been advocated for by some mixed jurisdiction scholars as a means of allowing the mixité to flourish according to its contemporary context and bundle of sociological needs. This paper reexamines the tension between these two approaches to judgement. It does so by taking a slightly off-kilter look at mixité in one of the more vexed and volatile mixed jurisdictions in the world: Israel/Palestine. The paper does not take as a point of inquiry either the classic Civil law/Common law mix of the jurisdiction, nor its increasingly more strident religious law/secular law tension. The paper, rather, focuses and elaborates upon one of the reigning metaphors of mixed legal studies – food – through the most prominent tension of the jurisdiction – Israeli/Palestinian – and pushes that metaphor in ways that might better reflect the dialogic and contested nature of all mixités.
The Exploitation of Vulnerability: Dimensions of Citizenship and Rightlessness in Canada’s Security Certificate Legislation
Authors: Wilke Christiane , Willis Paula
Published: April 2017

Why do policies with the stated purpose of protecting national security often exclusively target non-citizens as security threats? This article examines how prevalent ideas about security and citizenship impact on the rights of non-citizens through an analysis of the Canadian security certificate procedure and the Supreme Court’s decision in Charkaoui. A multidimensional understanding of citizenship and statelessness shows that the security certificates detainees share complex vulnerabilities that remain unacknowledged in Charkaoui. Instead, Charkaoui reiterates and exploits the detainees’ rightlessness by placing them outside of Canadian society and investing them with a fictional agency in choosing between detention and deportation.
On There Being Wide Reflective Equilibria: Why it is Important to Put it in the Plural
Authors: Nielsen Kai
Published: April 2017

Wide reflective equilibrium [WRE] is a distinctive coherentist method of justification or explanation or both, depending on the domain or purpose for which it is deployed. I deploy it principally as a method of justification for accounts of morality and normative political and social theory. But it is also used in many domains from the philosophy of mathematics and science to ethics and aesthetics. When deployed in domains as I deploy it for here, WRE starts with a cluster of societies’ specific considered judgments and uncontroversial empirical beliefs and theories and seeks to forge them into a coherent whole along with other considered judgments at all levels of generality. I use it here principally for a justification of political liberalism where it can and should be used for an internal justification, as John Rawls uses it, and as an external justification as Richard Rorty uses it. I use it for both. While these two modes of justification are distinct, they are compatible and importantly so. And for a more complete justification, both are required.
What Does it Take to Travel Philosophically Light? A Response to Nielsen
Authors: Boran Idil
Published: April 2017

In his reply to criticism raised against his reading of Rawls’s constructivist method in light of Rorty’s pragmatism, Kai Nielsen defends his position on the basis that it provides the tools for an external defence of liberalism. An external defence seeks to justify a liberal conception of justice in a way that will be acceptable not only to those who have already accepted the core substantive principles of liberal theory, but to those who reject these core principles. This paper assesses Nielsen’s proposal and shows that Rortian pragmatism is a limited way of achieving an external defence of liberal political and legal institutions. I propose to develop instead the idea of Kantian constructivism to this end. This discussion also brings to light broader questions about the idea of practical philosophy, and thus pays tribute to the works of John Rawls, Richard Rorty, and Kai Nielsen.
Reflective Equilibrium: Epistemological or Political?
Authors: Lister Andrew
Published: April 2017

One of the reasons for ongoing interest in the work of political philosopher John Rawls is that he developed novel methods for thinking systematically about the nature of justice. This paper examines the moral and epistemological motivations for Rawls’s method of “reflective equilibrium,” and the tension between them in Kai Nielsen’s use of “wide reflective equilibrium” in the service of critical and emancipatory social theory.
Legislation’s Influence on Judiciarization: Examining the Effects of Statutory Structure and Language on Rates of Court Use in Child Welfare Contexts
Authors: Campbell Angela , Springate Mairi , Trocmé Nico
Published: April 2017

This paper investigates the extent to which legislation influences decisions of child welfare workers regarding the referral of cases to court. It studies three Canadian jurisdictions: Quebec, Ontario, and Alberta, each of which takes a different legislative approach to the issue of court involvement in child protection. A critical examination of child welfare statutes in these provinces led to the prediction that rates of court use – or ‘judiciarization’ – would be highest in Quebec, followed by Ontario, and then Alberta. These predictions were then compared with data reflecting actual judiciarization rates in these three provinces for the year 2006. This data contradicted our initial predictions, in that Ontario’s rate of court use for child welfare cases was the highest of the three provinces, followed by Alberta, and then Quebec. Our research results thus suggest that legislation alone does not drive judiciarization in the child welfare context. As such, this paper illuminates the need for further study of the way in which child protection workers understand legislation as influencing their professional responsibilities and choices. Moreover, it indicates that further consideration is needed into how the use of judicial versus extra-judicial institutions might affect child welfare outcomes.
Oren Ben-Dor, Thinking About Law: In Silence with Heidegger
Authors: Conklin William E.
Published: April 2017

Thinking about Law is a fascinating and rich study about access to justice. It is a rich study because it draws heavily from the pre-Socratic view of justice and the relation of the Hebrew language with justice.
Marian Roberts, Developing the Craft of Mediation: Reflections on Theory and Practice
Authors: Lanteigne Ghislaine M.
Published: April 2017

In Developing the Craft of Mediation, Marian Roberts proposes that mediation is akin to a craft with its focus on learning from experience and from others working in the field to develop and master knowledge and skills.
Gender and Professionalism in Law: The Challenge of (Women’s) Biography
Authors: Mossman Mary Jane
Published: April 2017

This paper explores the story of a woman who “created” her life in the law in the late nineteenth and early twentieth centuries. Although now almost unknown, Cornelia Sorabji achieved prominence as a woman pioneer in the legal profession, who provided legal services to women clients in northern India, the Purdahnashins. Sorabji’s experiences as a woman in law were often similar to the stories of other first women lawyers in a number of different jurisdictions at the end of the nineteenth century: all of these women had to overcome gender barriers to gain admission to the legal professions, and they were often the only woman in law in their jurisdictions for many years. Yet, as Sorabji’s story reveals, while ideas about gender and the culture of legal professionalism could present formidable barriers for aspiring women lawyers, these ideas sometimes intersected in paradoxical ways to offer new opportunities for women to become legal professionals. In exploring the impact of gender and legal professionalism on Sorabji’s legal work, the paper also suggests that her story presents a number of challenges and contradictions that may require new approaches to gender history so as to capture the complexity of stories about women lawyers.
Peter Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism
Authors: Conklin William E.
Published: April 2017

Law as Resistance reprints fourteen previously published essays. Although one might question such an enterprise with respect to other books i n this series, the essays in Law as Resistance have been published in the U.K. in anthologies which would likely be unavailable in the usual law school library. More i mportantly, when the essays are chronologically ordered, as they are here, the product is greater than the sum of i ts parts.
The Scope of the Obligation to Respect and to Ensure Respect for International Humanitarian Law
Authors: Zych Tomasz
Published: April 2017

This article disputes what seems to have become the dominant interpretation of the obligation to respect and to ensure respect for International Humanitarian Law, as codified in common Article 1 of the Geneva Conventions and in Article 1(1) of Additional Protocol I. According to this dominant interpretation, States are required to take all appropriate measures to ensure that IHL is observed universally, including by other States and by non-State actors operating in other States. It is argued that the intention of the High Contracting Parties, coupled with their subsequent practice, calls for a much more narrow interpretation of that obligation.
Prisonniers de Guerre aux Mains de Leur Puissance D’origine : Pour Une Application des Conventions de Genève Jusqu’à Leur « Libération et Rapatriement Définitifs »
Authors: Gouin Frédéric
Published: April 2017

This paper assumes that at least some of the persons detained within the framework of the global confrontation against terrorism should have been granted the status of prisoners of war. This raises the question of what should be happening to these prisoners of war once they are transferred to their country of origin. Persons deprived of freedom within the framework of theglobal confrontation against terrorism are considered as enemies by both the detaining authorities and the authorities from their country of origin. This is happening either because the latter changed between the moment they were made prisoners and the moment they were transferred (e.g. Afghanistan, Iraq) or because the have always been part of the opposition to their authorities. Being transferred to a country which should have offered them at least consular protection, and did not, means that they are once again jailed, abused, tortured, threatened, deprived of contacts with their family, etc. This paper argues that prisoners of war should continue to benefit from this status if they are transferred to a country that will continue to detain them essentially because of their participation to an armed conflict, even if the receiving country is the prisoner of war’s country of origin. This position is founded on three arguments: (1) the Geneva POW Convention specifies it continues to apply until “final release and repatriation”; (2) international obligations forbid transferring someone to a country where they fear persecution; (3) loyalty instead of nationality should be the basis to determine whether an individual is entitled to the protection of the Geneva POW Convention.
Laverne A. Jacobs & Justice Anne L. Mactavish, eds., Dialogue Between Court And Tribunals – Essays In Administrative Law And Justice (2001- 2007)
Authors: Heckman Gerald P.
Published: April 2017

“Dialogue between Courts and Tribunals,” a title that could describe the interplay between judges and decision-makers in the context of the judicial review of administrative decisions, in fact refers to a series of annual roundtables organized by the Canadian Institute for the Administration of Justice [CIAJ].
Pre-Trial Detention and Control Orders Under British Anti-Terror Legislation Post 9/11: Balancing a Need for Security with the European Convention on Human Rights – An Overview
Authors: Bachmann Sascha-Dominik , Galvin Peter
Published: April 2017

Contemporary British anti-terror legislation has been characterised by an extensive use of extra-ordinary detention measures: the Terrorism Act 2000 and Terrorism Act 2006 contain provisions, which enable the extended pre-charge detention of terror suspects beyond the limits of normal criminal procedure. The now repealed provisions of Part IV of the Anti-terrorism, Crime and Security Act 2001 allowed the indefinite detention of foreign national terror suspects on a quasi-judicial basis. Its successor, the Prevention of Terrorism Act 2005, enables the use of Control Orders, effectively a form of house arrest characterised by restrictions on an individual’s liberty. In short, these measures have in common the extensive limitation of the individual’s right to liberty under Article 5 of the European Convention on Human Rights. Whilst the judiciary have curtailed the most abhorrent manifestations of such extraordinary measures, as detailed, the legal framework as it exists today, still raises ECHR compliancy issues. Legal reformation should be sought to end such an impasse by amending at the very least the statutory framework already in place. Ideally anti-terror detention provisions should be brought back within the sphere of criminal law and in compliance with the ECHR.
Converging Feminist and Queer Legal Theories: Family Feuds and Family Ties
Authors: Craig Elaine
Published: April 2017

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being uncritically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests of women and sexual minorities. A recent decision from the Ontario Court of Justice addressing a three-parent family law dispute involving gay and lesbian litigants demonstrates why recognition of the convergences between feminist and queer legal theories can advance both queer and feminist justice projects. The objective of this article is to demonstrate, through different and converging interpretations of this case that draw on some of the theoretical insights offered in a new anthology called Feminist and Queer Legal Theory, one rather straight-forward claim. The claim advanced here is that activists, advocates, litigants and judges are all well served by approaching complex legal problems involving sex, sexuality and gender with as many “methods” for pursuing and achieving justice as possible.
William Twining, General Jurisprudence: Understanding Law from a Global Perspective
Authors: Norrie Alan
Published: April 2017

William Twining claims that it is time for a radical rethink of the way jurisprudenceis taught. Adopting a global and pluralistic perspective can point the wayto what is wrong and how things may be changed. Twining’s earliest intellectualexperiences concerning law were garnered at Oxford under the influence of HLAHart. These experiences were plainly powerful and long lasting, for his argumentrests on an engagement with and radical resetting of the role of legal positivismin legal theory.
The Merits of “Merits” Review: A Comparative Look at the Australian Administrative Appeals Tribunal
Authors: Asimow Michael , Lubbers Jeffrey S.
Published: April 2017

This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal [AAT], a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation [the Tribunals, Courts and Enforcement Act] merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. An upper tribunal hears appeals from the first tier and largely supplants judicial review. The article concludes by asking whether the U.S. could learn anything from the Australian and U.K. experience and suggests that a single tribunal to adjudicate federal benefits cases might be a significant improvement over the existing model.
Agency Design in the European Union
Authors: Hofmann Herwig C.H.
Published: April 2017

This article gives a brief overview of the main features, functions and future perspectives of agencies in the European Union [EU]. It highlights the specific notion of the EU’s highly integrated, multi-level legal system as an explanatory factor for the specificities of agency design. The article looks at agencies in the EU through the lens of the structural and procedural arrangements for their independence and their accountability. The article comes to the conclusion that, generally speaking, accountability and independence are defined by and adapted to the position of an agency within the structure of administrative networks implementing EU law and policy. Their raison d’être is usually to coordinate Member State implementing activities rather than taking on these responsibilities themselves.
The Elusive Search for Accountability: Evaluating Adjudicative Tribunals
Authors: Sossin Lorne , Hoffman Steven J.
Published: April 2017

Evaluating the success of adjudicative tribunals is an important but elusive undertaking. Adjudicative tribunals are created by governments and given statutory authority by legislatures for a host of reasons. These reasons may and often do include legal aspects, policy aspects and partisan aspects. While such tribunals are increasingly being asked by governments to be accountable, too often this devolves into publishing statistics on their caseload, dispositions, budgets and staffing. We are interested in a different and more basic question – are these tribunals successful? How do we know, for example, whether the remedies ordered by a tribunal actually do advance the purposes for which it was created? Can the success of an adjudicative tribunal be subject to meaningful empirical validation? While issues of evaluation and accountability cut across national and jurisdictional boundaries, the authors argue that this type of question can only be addressed empirically, by actually looking to the practice of a particular board or boards, in the context of a particular statute or statutes, and in particular jurisdictions at particular times. Such accounts can and should form the basis for comparative study. Only through comparative study can the value and limitations of particular methodologies become apparent. This study takes as its case study the role of adjudicative tribunals in the health system. The authors draw primarily from Canadian tribunal experience, though examples from other jurisdictions are used to demonstrate the potential of empirical evaluation. The authors discuss the relative dearth of empirical study in administrative law and argue that it ought to be the focus of the discussion on accountability in administrative justice.
Consultation During Rule-Making: A Case Study of the Immigration and Refugee Protection Regulation
Authors: Houle France
Published: April 2017

Since it prescribed its first regulatory policy in 1986, the Federal government implemented a consultation process with stakeholders and the general public during the rule-making process. This process is not legally mandatory (unlike in the province of Quebec). However, failure to conduct a consultation process results in an administrative sanction: the refusal to approve the new regulation by Cabinet. This article reports on the results of an empirical research project we conducted in 2004 within the Immigration Division of the Citizenship and Immigration Canada Department [CIC]. Our general research question was exploratory in nature. We wanted to know how CIC civil servants understood their obligation to consult with citizens. Our case-study indicates that it is difficult to implement a consultative culture within a department that has a strong long-term commitment to protect the integrity of the Canadian territory.
The Deliberative City
Authors: Kong Hoi
Published: April 2017

In this paper, I will argue that general administrative law concerns about thelegitimacy and effectiveness of rule-making have special force in the municipalzoning by-law context. In particular, I will argue that a particular, civicrepublican conception of legitimate state action offers the best justification formunicipal regulation and provides the best normative foundation fordevelopments in municipal consultation processes. In Part II, I will argue thatthe consultative processes in Quebec’s zoning laws reflect a commitment to civicrepublican ideals, but that because of specific features of municipal regulation,these ideals are incompletely realized. In Part III, I will argue that aparticular municipal institution – the ward council – enables the zoningprocess to better approximate civic republican ideals. I conclude this paper byarguing that ward councils not only strengthen the normative justifications formunicipal regulation, they contribute to its effectiveness.
It’s Not Working: Barriers to the Inclusion of Workers with Mental Health Issues
Authors: Sheldon C. Tess
Published: April 2017

This article examines the judicial treatment of complaints of discrimination from workers with mental health issues. Equality protections promise full inclusion in social, work and community life. The principle of inclusion is understood in three inter-related parts: inclusion in the workforce, inclusion in decision-making and, in the most broad and prospective sense, inclusion in Canadian society. The current framework of equality protections has not effectively addressed these core values of inclusion for workers with mental health issues. The workplace continues to be a site of discrimination and harassment. Barriers prevent workers with mental health issues from getting or keeping employment, discourage their participation in decision-making, and entrench the devaluation, isolation and exclusion of persons with mental health issues. Accommodative measures must be alive to the concrete and attitudinal barriers experienced by workers with mental health issues.
Assessing Stakeholder Participation in Sub-Arctic Co-Management: Administrative Rulemaking and Private Agreements
Authors: Graben Sari M.
Published: April 2017

This paper argues that participatory governance initiatives like co-management can be made effective through agency rulemaking. Using the Mackenzie Valley Environmental Impact Review Board as a case study, this paper affirms that it is possible for marginalized stakeholders to participate in co-management and alter decision-making. By using its formal authority to generate rules that reflect community perspectives, this board contextualized environmental assessment in community-based perspectives. The study of participation presented here illustrates: 1) that a high level of agency support for community participation in rule-making can lead to rules which reflect community perspectives; and 2) that agency implementation of community perspectives has led to the increased use of stakeholder collaboration through private agreement. Nonetheless, the paper also addresses limitations on the ability to translate social needs into privately negotiated agreements where negotiations depart from highly commoditized terms. Consequently, this paper questions the use of negotiated agreements to meet the goals of stakeholder participation, as conceived by deliberative democratic strands of new governance.
THE “NAKED FACE” OF SECULAR EXCLUSION: BILL 94 AND THE PRIVATIZATION OF BELIEF
Authors: Fournier Pascale , See Erica
Published: April 2017

This article will consider the case study of Québec’s Bill 94 (An Act to establish guidelines governing accommodation requests within the Administration and certain institutions), introduced in March 2010, one of many recent bans imposed on the wearing of the niqab in the West. Citing the importance of “the right to gender equality and the principle of religious neutrality of the State,” Bill 94 emphasizes the necessity of “un visage découvert” or “naked face” when giving or receiving a broad range of public services in Québec, including all government services, childcare centres, hospitals, and health and social service agencies. According to section 6 of the Act, “If an accommodation involves an adaptation of that practice and reasons of security, communication or identification warrant it, the accommodation must be denied.” While quasi-neutral, this bill clearly has a disproportionate impact on religious women who wear the niqab. In fact, as a direct result of the legislation, Muslim women will likely disappear from the public sphere and be restricted to the private home where they might effectively be dependent on male family members to navigate the “market place” on their behalf. Borrowing from Charles Taylor’s A Secular Age, this paper will consider the distributive consequences of the niqab ban, a critical juncture of “religion-state relations” in which belief is more and more relegated to the private sphere in Quebec. The article will use Bill 94 to explore this peculiar manifestation of “secularism” with the concurrent existence of “governance feminism”— how the privatization of belief goes hand in hand and is perversely reinforced by a colonial discourse on gender equality, leaving some already marginalized women out of the public gaze. Is this legislated demand for a “naked face” truly the logical outcome of a successful feminist movement (as some have asserted) or isthis erasure of religious women in fact the latest veil of patriarchy?
DU MAUVAIS USAGE DE LA TRADITION RECONSTITUÉE : LA MÉDIATION EXTRAJUDICIAIRE EN CHINE
Authors: Piquet Hélène
Published: April 2017

L’étude porte sur le renouveau de la médiation extrajudiciaire en Chine abordé sous l’angle de l’accès à la justice. Ce renouveau est situé dans son contexte politique, notamment dans l’appel aux paradigmes locaux lui servant de toile de fond. Le régime de la Loi sur la médiation populaire de République Populaire de Chine, en vigueur depuis le 1er janvier 2011, est présenté pour ensuite faire place à une étude des problèmes de mise en oeuvre de la loi.
SCORCHED EARTH: THE USE OF RESTRICTIVE COVENANTS TO STIFLE COMPETITION
Authors: Ziff Bruce , Jiang Ken
Published: April 2017

Restrictive covenants running with freehold land are sometimes used as a means of impeding commercial competition. For example, when a firm elects to relocate a retail operation and sell the existing site, a covenant may be placed on the title to that site designed to prohibit a competing retail business from operating on those lands. It is known, for example, that the multinational grocery chain Safeway has adopted this practice extensively in Edmonton. Likewise, the practice is found in other Canadian and American cities, in relation not only to grocery stores, but also concerning a range of other retail businesses. Still, little is known about the extent to which covenants are used in this manner.This article contains an empirical inquiry into the use of covenants in a commercial setting in Edmonton, Alberta. It also explores the manner in which the law responds, and should respond, to mediate public values and private interests within this context.
OPPORTUNITY LOST: THE SUPREME COURT MISSES A HISTORIC CHANCE TO CONSIDER QUESTION OF PUBLIC INTEREST STANDING FOR ANIMAL INTERESTS
Authors: Sankoff Peter
Published: April 2017

The Supreme Court of Canada recently denied leave to appeal in Reece v. Edmonton (City), a 2-1 decision of the Alberta Court of Appeal, which focused on the right of private parties to seek judicial intervention on behalf of animals. In this article, the author examines the implications of this "lost opportunity" to develop an important area of law relating to public interest standing, explores the important questions that were at stake in the appeal, and suggests why the Supreme Court should have decided otherwise.
‘A FORUM FOR DISCUSSION’ AND A PLACE OF RESPITE: JEWISH LAWYERS AND TORONTO’S READING LAW CLUB
Authors: Sperdakos Sophia
Published: April 2017

This article considers the history of the Reading Law Club, which Toronto’s Jewish lawyers established in 1947 in response to the exclusion of Jews from membership in the Lawyers Club of Toronto. It also discusses the Lady Reading Club, an association of the wives of Jewish lawyers that continued after the men’s club disbanded in the mid-1960s. The article explores the social and legal context in which the Clubs were established and the perseverance of Jewish lawyers in the face of Canadian society’s and the “elite” legal community’s efforts to exclude and marginalize them. The author also highlights the importance of community to Jewish lawyers’ success.
WARMING UP THE “CHILLING EFFECT”: A COMMENT ON THE MOTIVE CLAUSE DISCUSSIONS IN R V KHAWAJA (2010) AND R V KHAWAJA (2012)
Authors: Savarese J.L.
Published: April 2017

Following the attacks on September 11, 2001, biased surveillance and discriminatory law enforcement approaches gained momentum. In 2003, Reem Bahdi published “No Exit: Racial Profiling and Canada‟s War Against Terrorism.” She analyzed the influence that the declaration of a war against terrorism by Western nations, including Canada, was having on Arabs and Muslims. Other scholars critiqued aspects of Canada‟s anti-terrorism response, including the incorporation of a motive clause into the Criminal Code sections prohibiting terrorist offences. In R. v. Khawaja (2006), the Superior Court reviewed the constitutionality of the motive element in the definition of terrorism. It held that the motive clause facilitated the targeted law enforcement practices that Bahdi and others advocated against. This paper reports on a review of the appellate decisions, R. v. Khawaja (2010) and (2012), which held that the motive clause was consistent with the Canadian Charter of Rights and Freedoms. The appellate decisions are critiqued for their failure to adequately promote human dignity and equality in keeping with the Charter‘s spirit. As a result, the paper concludes by arguing for a return to the insights of Bahdi and others who encourage a rethinking of Canadian social policy after 9/11 to ensure commitment to human rights doctrines, particularly in regard to the racial profiling that the motive clause seemed to animate.
(2012) 30 Windsor Y B Access Just 247 SO LONG AS YOU HAVE YOUR HEALTH: HEALTH CARE DISTRIBUTION IN CANADA AND PROCEDURALIST HUMAN RIGHTS
Authors: Klein Alana
Published: April 2017

Health resource distribution in Canada has been criticized for being opaque and increasingly inequitable, with its disproportionate emphasis on curative over preventive care. Yet there has been relatively little scrutiny of priority-setting in publicly funded health care in Canada from bodies monitoring the international human right to health. Recently, however, domestic health governance on the one hand, and international health and human rights on the other, have converged around the promotion of evidence-based policy, accountability, transparency and participation as drivers of more equitable distribution of health care resources. This paper tracks the paths toward this convergence. The emphasis in health policy was largely driven by cost containment and service integration concerns, while democratic and institutional concerns around socio-economic rights protection are at the root of the health and human rights shift toward proceduralist approaches. This shared emphasis nonetheless opens new terrains of struggle for human rights approaches to health care distribution in Canada, around (i) managing indeterminacy in social determinants of health; (ii) addressing power imbalances that shape how health information is produced, communicated, and acted upon and (iii) the role of fundamental normative values that limit substantive policy around health.
ADVANCING ACCESS TO JUSTICE THROUGH GENERIC SOLUTIONS: THE RISK OF PERPETUATING EXCLUSION
Authors: Hughes Patricia
Published: April 2017

Recent reports about access to justice have focused on issues of affordability, with little reference to the differences of equity-seeking groups. They have tended to recommend “generic” solutions intended to help people represent themselves better and to access limited legal services that fail to consider characteristics that exclude people from using them effectively. The author argues that if factors such as low literacy or living in remote areas are not taken into account, generic solutions run the risk of perpetuating exclusion rather than increasing access to justice.
LA CYBERJUSTICE COMME RÉPONSE AUX BESOINS JURIDIQUES DES PERSONNES ITINÉRANTES: SON POTENTIEL ET SES EMBÛCHES
Authors: Bouclin Suzanne , Denis-Boileau Marie-Andrée
Published: April 2017

This aim of this paper is to determine whether the expansion of cyberjustice will improve or impede access to justice for individuals who are homeless. We begin with a detailed review of the current literature on cyberjustice, followed by our definition of cyberjustice and the role it plays in promoting access to justice. The last section, which is more exploratory in nature, offers a number of informal proposals for answering the question of whether cyberjustice, in its present forms, can help to meet the legal needs of homeless persons. Further research will be done in order to evaluate those answers.
UN GRAIN DE SABLE DANS L’ENGRENAGE DU SYSTÈME JURIDIQUE. LES JUSTICIABLES NON REPRÉSENTÉS: PROBLÈMES OU SYMPTÔMES?
Authors: Bernheim Emmanuelle , Laniel Richard-Alexandre
Published: April 2017

The number of self-represented litigants [SRL] that are trying to defend by themselves their rights are increasing constantly, even in the highest tribunals. This situation is not without consequences for both the actors of the legal system and the SRL themselves. In the last years, many initiatives have been taken in order to contain the negative effects of the presence of SRL in the system.

In this article, the authors are analysing the discourse coming from the legal doctrine on the phenomenon of self-representation. First of all, they find that SRL are generally held as the only responsible for the annoying consequences provoked by their very presence. Secondly, they demonstrate that the majority of the solutions submitted in the literature are meant to maintain the normal functioning of the legal system, without submitting any holistic or systematic solutions. Finally, they consider the possibility that it would be the paradigmatic basis of the legal thinking that is the principal barrier for a global assessment of the problematic and for the implementation of efficient solutions.
SEX WORK, LAW, AND VIOLENCE: BEDFORD V. CANADA AND THE HUMAN RIGHTS OF SEX WORKERS
Authors: Hudson Graham , Van der Meulen Emily
Published: April 2017

In Bedford v. Canada, two levels of Ontario courts ruled that a selection of criminal laws prohibiting prostitution-related activities unjustifiably deprive sex workers of their right to liberty and security of the person.The courts struck down or modified some of the offending provisions to ensure that sex workers are better able to take precautions against violence. While sex workers consider the Ontario Superior Court of Justice ruling a victory and the Ontario Court of Appeal ruling a partial victory, the government, some women’s rights groups, and other defenders of the provisions argue that courts ventured into a “policy thicket”, which is to suggest that they had stepped outside of their legitimate institutional role. Associated concerns include that the decisions effectively constitutionalize prostitution and will pre-empt or curtail Parliament’s consideration of legislative options.

     In this paper, the authors clarify misconceptions about the constitutional foundations and implications of Bedford, and explore how the ruling might affect legal and policy-based interactions among various stakeholders. Approaching constitutional rights as discursive mechanisms, rather than as “trumps”, we argue that Bedford will not hinder the continuation of democratic debate about whether, how, and why aspects of sex work should be regulated. To the contrary, Bedford is more likely to enhance the quality of debates by making them more inclusive of the perspectives of sex workers as well as accommodative of growing empirical research that has hitherto been ignored or misrecognized.
INSTITUTIONAL INEQUALITY AND THE DYNAMICS OF COURAGE
Authors: Sheppard Colleen
Published: April 2017

One of the greatest challenges of anti-discrimination law is institutionalized inequality.  Recognized in law as systemic discrimination, it is embedded in processes, practices, norms, and relationships that reproduce and accentuate inequality.  Legal recognition of the phenomenon, though of critical importance, has not led to effective remedies.  Retroactive individual remedies are often too little, too late, following years of slow-moving and difficult litigation. Systemic, proactive laws have been thwarted by institutional resistance to externally imposed change and/or captured by the power of the institutional status quo.  This paper explores the challenges of institutional transformation using the idea of courage – the experience of discouragement, encouragement by institutional change-makers, and the power of solidarity to encourage change from the bottom up.
THE LAW SOCIETY OF UPPER CANADA AND ACCESS TO JUSTICE: LESSONS FROM LAWYER-LICENSING REFORM
Authors: Wiseman David
Published: April 2017

The process for licensing new lawyers in Ontario is in the midst of significant change following the Law Society of Upper Canada’s approval of a recommendation by it’s Articling Task Force to introduce of a 3-year pilot project that will provide a program of practical legal training as an alternative to articling.  This article describes and critically analyzes these changes and the process that led to them in relation to three aspects of access to justice: access to the legal profession, access to legal services, and access to legal governance.  The analysis reveals numerous shortcomings that provide lessons that could be applied to the proposal for evaluating the pilot project as well as to the Law Society’s recently announced initiative to overhaul its institutional approach to access to justice.
SHIFTING JUDICIAL CONCEPTIONS OF 'RECONCILIATION': GEOGRAPHIC COMMITMENTS UNDERPINNING ABORIGINAL RIGHTS DECISIONS
Authors: McCrossan Michael
Published: April 2017

Over the course of the past twenty years, the Supreme Court of Canada’s discourse concerning ‘reconciliation’ has shifted from moderating federal power to reconciling the preceding presence of Aboriginal people with an established sovereign (Crown) presence.  While scholars postulated that the Court was attempting to maintain colonial relations of power, substantive answers for this discursive shift are lacking within the literature.  This paper provides a comprehensive explanation of this shift by comparing the hearing transcripts in the ‘Aboriginal rights trilogy’ to their corresponding written decisions.  It argues that particular judicial and geographic commitments underlie the concept of ‘reconciliation’ and ultimately serve to represent Aboriginal identity as inescapably ‘Canadian.’
EXPLORING A LAW FIRM BUSINESS MODEL TO IMPROVE ACCESS TO JUSTICE
Authors: Pilliar Andrew
Published: April 2017

Recent research on unmet legal need in Canada suggests that access to justice problems may represent a latent market for some legal services. But there is relatively little Canadian research on how lawyers organize and run their practices, and on how those practices could improve access to justice. This paper provides a case study of Pivot Legal LLP, an innovative law firm in Vancouver’s Downtown Eastside neighbourhood that aimed to improve access to justice for community members. Interviews with the lawyers involved suggest that a similar firm could survive and thrive in the future. These findings have implications for legal entrepreneurs, and also for how the legal profession and the legal academy could better support practice-level innovations to improve access to justice in Canada.
RELIGION AND LAW IN R V NS: FINDING SPACE TO RE-THINK THE BALANCING ANALYSIS
Authors: Major Blair
Published: April 2017

In this article, the author argues against the balancing approach used in the recent case of the Supreme Court of Canada R v NS (2012).  It is argued that this approach inhibits critical reflection on the complex philosophical issues that underlie the decision, and that it closes itself off to meaningful engagement with diverse perspectives.  These arguments are developed by reflecting on the idea of incommensurability and on Alasdair MacIntyre’s theory of tradition.  The author concludes that this analysis provides a starting point for developing an approach that has greater capacity for critical reflection and is more capable of embracing diversity.
IMMIGRATION AND DISABILITY IN THE UNITED STATES AND CANADA
Authors: Weber Mark C.
Published: April 2017

Disability arises from the dynamic between people’s physical and mental conditions and the physical and attitudinal barriers in the environment. Applying this idea about disability to United States and Canadian immigration law draws attention to barriers to entry and eventual citizenship for individuals who have disabilities. Historically, North American law excluded many classes of immigrants, including those with intellectual disabilities, mental illness, physical defects, and conditions likely to cause dependency. Though exclusions for individuals likely to draw excessive public resources and those with communicable diseases still exist in Canada and the United States, in recent years the United States permitted legalization for severely disabled undocumented immigrants already in the country, and both countries abolished most exclusions from entry for immigrants with specific disabling conditions. Liberalization also occurred with regard to U.S. naturalization requirements.  

     Challenges continue, however. Under U.S. law, vast discretion remains with regard to the likely-public-charge exclusion, because consular officers abroad decide unilaterally whether to issue immigrant visas. Moreover, conduct related to mental disability, including petty criminality, can result in removal from the United States, and individuals with mental disabilities have only modest safeguards in removal proceedings. In Canada, families who have children with disabilities find themselves excluded from legal status because of supposed excessive demands on public resources, although an individual’s disability may provide grounds for avoiding removal in certain cases. The relaxation of some immigration exclusions in Canada and the U.S. and of some U.S. requirements for citizenship illustrates a significant, though conspicuously incomplete, removal of disability-related barriers in North American law and society.