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Policing in the Shadow of Legality: Pretext, Leveraging, and Investigation Cascades
Get PDFPolice officers often exercise their authority at the boundary of legality. Two of policing’s features contribute to this tendency: first, the scope of certain police powers is unclear; second, officers enjoy broad discretion to initiate proactive police encounters. This article argues that these interrelated features of policing result in three law enforcement phenomena: pretext, leveraging, and investigation cascades. Pretext denotes that police officers invoke lawful justifications to pursue unlawful aims. Leveraging implies that officers exploit individuals’ psychological vulnerabilities to secure compliance or to receive consent to engage in more intrusive investigatory tactics. Investigation cascades occur when officers gather information through police powers with low burdens of proof to exercise more invasive investigation tactics with stricter burdens of proof. This article demonstrates how criminal procedure fails to adequately protect individuals against pretext, leveraging, and investigation cascades. It concludes with a set of concrete proposals to address these three law enforcement phenomena
Gripe Sites & Trademark User Rights: Lessons from Canada’s Cooperstock Case
Get PDFThis Chapter is concerned with the nature of trademarks as vehicles of expression. It takes, as its lesson study, the unfortunate Canadian Federal Court case of United Airlines v. Cooperstock in which a disgruntled United passenger quite spectacularly failed in his efforts to defend a trademark parody on his consumer complaints “gripe” site. The case demonstrates the risks of relying on trademark law’s internal limits and implicit exceptions to define the boundaries of the trademark owner’s control. I argue, first, that the case therefore underscores the need for explicit statutory exceptions to ensure breathing space for parody, criticism, and other fair and expressive uses of protected marks. Second, the case reveals the need for a positive conception of “user rights” in the trademark scheme parallel to that already recognized in Canada’s copyright law. But finally, I argue, if user rights are to have any real traction in the legal landscape of trademark law, a fuller appreciation is needed of the communicative and social value of marks—not just as indicators of source and incubators of commercially valuable meaning, but also as public sites of dialogic engagement and discursive struggle. Canada’s United case is a paradigmatic example—and a cautionary tale—of what happens when owners’ rights are overprotected, users’ rights are disregarded, and trademark limits are irresolutely drawn
Law at Work : The Coercion and Co-Option of the Working Class
No full textThe renowned Harry Glasbeek unpacks how law has been used to ensure that workers\u27 aspirations are kept in check.Law at Work uncovers how the legal system, through its structures and mechanisms, legitimizes and reinforces the exploitation of workers. Using historic and contemporary examples, Glasbeek illustrates how conscious manipulations of law are part and parcel of how law protects capitalists at the expense of workers. He proves how the very laws designed to safeguard rights and freedoms often act as invisible shackles, compelling readers to reflect on their own struggles as they navigate a world where the legal system fails to serve their interests. These manipulations are made to look innocent because the underlying structures and ideology which give rise to specific rules are not challenged or challengeable. This thought-provoking book is an indispensable resource for those seeking to understand the hidden dynamics of worker oppression, empowering readers to question prevailing narratives and envision a future where the law truly serves the interests of all. -- Provided by publisher.https://digitalcommons.osgoode.yorku.ca/faculty_books/1417/thumbnail.jp
‘Somebody’s street’: Eviction of Homeless Encampments as a Reflection of Interlocking Colonial and Class Relations
Get PDFHomelessness, as a construct, is premised on settler colonial technologies of land ownership and private property. Encampments, as one of the most visible forms of homelessness, compel us to confront how our socio-legal processes undermine human rights and perpetuate inequity and oppression. How municipalities engage in the legal governance of encampments, often through eviction, exclusion, and criminalization, is a result of interlocking colonial and classist political economies. Borrowing from Collins’ “matrix of domination” and Smith’s “ruling relations”, this article examines the management and ultimate eviction of No Place Like Home, a tent encampment in a mid-size city in Western Canada. Drawing on fifty-four interviews with people experiencing homelessness, law enforcement, and other community members, as well as legal documents that ultimately led to the eviction of the encampment, we unpack the political domination of encampments that legitimize and prioritize the desires and social position of the housed population over the human rights of encampment residents. We argue that in their efforts to retain public property as an exclusive commodity for housed people, political actors used three tactics through which to justify the displacement of unhoused people and ultimately the denial of encampment residents as rights holders: 1) the invisibilization of Indigenous Peoples, and Indigenous women specifically, experiencing homelessness; 2) the construction of fire safety in the encampment as a public concern; and, 3) the prioritization of perceptions of safety among the general public to the detriment of the safety of encampment residents. Illuminating the intersection of colonial and class-based regimes embedded in the legal governance of encampments provides an avenue through which to advocate for the human rights of encampment residents
The Future of the Corporate Form in Income Tax: A Case Study of Canada
Get PDFA corporation is nothing but a piece of paper. And yet, this piece of paper enjoys the status of a person and has an independent identity as a taxpayer (the “separate entity principle”). It can generate tremendous value for its shareholders through tax savings resulted from tax deferral, tax shifting, and tax subsidies. Why does tax law allow such value to exist? Is there any hard line constraining the scope of the tax benefits associated with the corporate form? To what extent can the two pillars (Pillar One and Pillar Two) crush the corporate form? What is the future of corporate form in income taxation? This paper seeks to answer these questions through examining the Canadian income tax system
Constitutional Cases (Pt 7) | Substantive Justice and Criminal Law (Panel D)
No full textThe 26th iteration of the Constitutional Cases conference was held on Friday, April 14, 2023. Osgoode Hall Law School’s Annual Constitutional Cases Conference, recognized as the leading constitutional law conference in Canada, brings together many highly respected constitutional scholars, lawyers, students, and experts for an insightful and practical analysis of the Supreme Court’s significant constitutional judgments of the past year.
Panel D | Substantive Justice and Criminal Law
This panel will explore decisions that, despite their disparate topics, are connected by efforts to sort through a vision of substantive justice in the criminal legal system. Panelists will discuss the constitutionality of limits on defence of extreme intoxication (Brown/Sullivan), the SCC’s constitutional assessment of Parliament’s private records regime (JJ), and the Court’s most recent foray into defining cruel and unusual treatment or punishment (Bissonnette).
Panelists:
00:01:35 Professor Michelle Lawrence, University of Victoria, Faculty of Law
00:17:18 Professor Lisa Dufraimont, Osgoode Hall Law School
00:29:07 Megan Stephens, Megan Stephens Law
Professor Terry Skolnik, University of Ottawa, Faculty of Law
Chair: Professor François Tanguay-Renaud, Osgoode Hall Law Schoo
Selected Dispute Resolution Bibliography
Get PDFIncluded in this bibliography is a selected set of dispute resolution and related professional responsibility and access to justice readings, primarily (although not exclusively) with a general negotiation and mediation focus. This bibliography is not comprehensive. Rather – given the breadth of dispute resolution, legal process, professional responsibility, and access to justice materials available – this bibliography includes a brief sampling of available readings that may be of interest to those studying, practicing, or thinking about dispute resolution
Social Rights and Transformative Private Law
Get PDFAlthough constitutional social rights continue to attract much scholarly attention, their role in shaping private law is often overlooked. This neglect has led some scholars to underestimate social rights’ transformative potential. This article considers social rights’ influence over contract and property law in India, Colombia, and South Africa—three leading jurisdictions of the Global South. It argues that social rights can promote redistributive outcomes and inspire important shifts in private law’s values and modes of reasoning. However, it cautions that the depth of this transformation will depend on how judges choose to cross the public– private divide. One tradition rejects any role for social rights in the private sphere. Another approach is comfortable imposing positive social duties, but only on firms that resemble the state. One notch further along, there are approaches that prefer maximum flexibility and pragmatism, but which fail to invest much effort in elaborating legal doctrine or a theory of relationships. The final method integrates constitutional aspirations into private law. Integration transforms private law’s modes of reasoning and offers the clearest language for confronting private domination and inequality. However, it can also threaten wide swaths of private law and risk a legitimacy crisis for the judiciary. This article charts each of these paths of influence. It considers the legal environments that foster each path, as well as their normative dynamics, internal limits, and shortcomings. This effort is meant to mirror developments in the literature on comparative public law, where scholars have mapped diverging strategies for enforcing social rights in litigation against the state. More fundamentally, this article aims to recentre private law in discussions of how social rights participate in transformative constitutionalism
Osgoode Hall Law School Class of 2023
No full texthttps://digitalcommons.osgoode.yorku.ca/class_comp/1131/thumbnail.jp