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Access to Justice and Class Actions in England and Wales
No full textIntroduces a special issue on the development of the class action regime, in light of the reforms reflected in the Supreme Court decisions in Mastercard Inc v Merricks and Google LLC v Lloyd, and a conference hosted by the Bonavero Institute of Human Rights at the University of Oxford entitled Access to Justice and Class Actions in England and Wales
Fiscal Contract and the Canada Disability Benefit: Lessons from Income Tax Law
Get PDFThis paper adopts a fiscal contract approach to examining the design of the Canada Disability Benefit and advocates using the CCB as a design model. It argues that a fiscal contract underlies the Income Tax Act which collects taxes as well as spends public money on poverty-reduction programs. In a tax state, the government’s spending is tied to taxing. The current fiscal contract reflects key Canadian values, such as equity and fairness, ability to pay, work, family and the rule of law. The CCB, which is implemented through the Income Tax Act, is a superior design model to the Guaranteed Income Supplement for designing the new benefit
Freedom of Expression and the Charter: 1982-2022
Get PDFIn 2022, on the 40th anniversary of the Canadian Charter of Rights and Freedoms, I wrote a 5-part blog series that reviewed the Supreme Court of Canada’s s.2(b) jurisprudence. These blogs were published by the Centre for Free Expression (CFE) at Toronto Metropolitan University (TMU), and can be found on the CFE website (See author page: https://cfe.torontomu.ca/blog?issues=All&authors=117). The five blogs, which are consolidated here, begin with a comment on the Court’s 2021 landmark decisions in City of Toronto v. Ontario and Ward v. Quebec. The second blog shifts, providing a quantitative and qualitative survey of the jurisprudence, and is followed by the third blog’s analysis of Irwin Toy and the contextual approach, s.2(b)’s building blocks. The fourth blog addresses newsgathering, open court, and freedom of the press and media, leaving the fifth in the series to comment on s.2(b)’s future. In doing so, the final blog considers the role of positive obligations in the s.2(b) jurisprudence and sketches a proposal for the renewal of s.2(b)’s concepts of breach and jurisprudence
Hart, Fuller, and Everything After: The Politics of Legal Theory
No full textMore has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship – too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different – it is not to rework these already-rehashed ideas, but to reject them entirely.
Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions.https://digitalcommons.osgoode.yorku.ca/faculty_books/1405/thumbnail.jp
Research Visibility: Research Platforms, Author Profiles, and Author Rights
Get PDFPresented as part of the in the Know lecture series at Osgoode Hall Law School
Revisiting the Defence of Diminished Responsibility
Get PDFMy goal in this article is to revisit the defence of diminished responsibility. There are three things that, taken together, suggest to me that a defence of diminished responsibility ought to be made available to certain individuals accused of certain criminal offences. The first is that Canadian criminal law already recognizes a number of defences that reflect ideas about diminished responsibility. The second is that despite the availability of these specific defences to criminal liability, no general defence of diminished responsibility is formally recognized in Canadian criminal law. And the third is that given the Supreme Court of Canada’s ongoing interest in the connection between criminal liability, fundamental justice, and the principle of normative involuntariness, we should take seriously the idea that a defence of diminished responsibility ought to be recognized and made available to certain offenders who suffer from substantial volitional impairments. My paradigmatic example of a volitional impairment is Fetal Alcohol Spectrum Disorder (FASD)
How Antitrust Failed Workers by Eric A. Posner
Get PDFIN RECENT YEARS, GROWING ECONOMIC INEQUALITY and anxieties about market power, monopolization, and other such concerns have rejuvenated competition and antitrust law and policy. It is well known that antitrust enhances competition by addressing issues of monopolization, price-fixing arrangements, and cartels, among other anticompetitive practices in markets. This allows dynamic competition to flourish in markets and ensures that consumers are provided with competitive prices and product choices. Although the negative impacts of market concentration are frequently recognized in the context of product markets, its impact on labour markets and the workers therein have largely been unexplored until recently. Professor Eric A. Posner’s How Antitrust Failed Workers attempts to fill this gap in the scholarship
International Status in the Shadow of Empire: Nauru and the Histories of International Law by Cait Storr
Get PDFIN 2007, THE PARLIAMENT OF NAURU, a (formerly) phosphorus-rich island nation located in the southwest of the Pacific Ocean, was presented with a report completed by its appointed Constitutional Review Commission that sought to explain, in short, “‘[w]hat’…had gone ‘wrong’ with the Republic of Nauru.” The Commission, funded by the United Nations Development Programme, produced a scathing report, which concluded that Nauru was in dire need of constitutional reform and that the nation needed to better its institutions, laws, and training of leaders in the business of governance in order to address thefailures of the state. The government initiated a referendum vote to address the gaps identified in the 2007 report. In 2010, that vote was held: The referendum campaign failed, with 67 per cent of the population of Nauru voting no and 33 per cent voting yes
A Call for Evidence-Based Research in ADR
Get PDFIn any three-year period, almost half the adult population in Canada will experience at least one justiciable civil or family problem. Few, however, will have the resources to resolve their legal problems, thus highlighting longstanding barriers that make access to justice such a pressing issue in Canada. Among many global justice initiatives, a prominent call to action is Goal 16 of the 2030 United Nations Sustainable Development Goals, which commits nations to work towards ensuring equal access to justice for all by 2030. Although there is no single strategy to achieve this, evidence-based practices in all areas of civil and family justice can help close the access-to-justice gap by shining a light on where gaps exist and suggesting how they may be closed
The Use of Arguments about Myths and Stereotypes to Appeal Sexual Assault Convictions in Canada
Get PDFCanadian defence counsel have recently begun appealing sexual assault convictions by arguing that a trial judge applied myths and stereotypes (M&S) against the accused. This phenomenon is surprising because this country’s focus on M&S in sexual assault law has almost exclusively concerned improper assumptions that operate against the complainant and the Crown and risk producing perverse acquittals. This thesis reviews this new defence strategy with reference to three decades of appellate case law and scholarship. It advances definitions of M&S as well as principles for understanding the evidentiary effects of their recognition as such, and it categorizes various defence attempts to invoke M&S in conviction appeals, concluding that some have more merit than others. Emerging from this analysis is a more consistent, coherent role for the M&S doctrine in sexual assault law – one which should assist the Canadian bench, bar and academy in distinguishing legitimate M&S arguments from strained ones