Canadian Journal of Law and Jurisprudence最新文献_第6页

CJL volume 34 issue 2 Cover and Back matter CJL第34卷第2期封面和封底

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-08-01 DOI: 10.1017/cjlj.2021.16

引用次数: 0

CJL volume 34 issue 2 Cover and Front matter CJL第34卷第2期封面和正面问题

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-08-01 DOI: 10.1017/cjlj.2021.15

引用次数: 0

Why Is Aboriginal Title Property if It Looks Like Sovereignty? 如果看起来像主权，为什么土著所有权是财产?

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-07-27 DOI: 10.1017/cjlj.2021.13

Douglas Amo Sanderson Binashii, Amitpal C. Singh

{"title":"Why Is Aboriginal Title Property if It Looks Like Sovereignty?","authors":"Douglas Amo Sanderson Binashii, Amitpal C. Singh","doi":"10.1017/cjlj.2021.13","DOIUrl":"https://doi.org/10.1017/cjlj.2021.13","url":null,"abstract":"According to the Supreme Court of Canada, Aboriginal title is a property right, albeit of a distinctive kind. Most significantly, the right is subject to an inherent limit: title lands cannot be used in a way that deprives present and future generations of the right to use the land. Aboriginal title is also encumbered by a restraint on alienation, and has its source in Aboriginal legal systems that predate and survive the assertion of Crown sovereignty. In this paper, we argue that these features of Aboriginal title are not burdensome judicial innovations on a property right, but are instead the essential contours of a sovereign right. That is, the Court’s own description of Aboriginal title does not comport with sound theoretical understandings of a property right. Aboriginal title is much more akin to a right of sovereignty—the right to make laws about the use of a territory. Aboriginal title is the right of law-making jurisdiction over the title lands. The existing literature, while edging towards the view that Aboriginal title is a sovereign right, has lacked the unifying theoretical basis needed to decisively dispatch the Court’s property paradigm. In particular, all extant accounts find the inherent limit inexplicable. The account in this article theorizes and explains the inherent limit, as well as all of the sui generis elements of Aboriginal title, and shows their interconnectedness. Our view additionally answers a number of questions that the Court’s property paradigm does not, including: (1) what laws primarily govern title lands; (2) who has standing to question whether any particular use of title land violates the inherent limit; (3) what is the status of private land interests that overlap with Aboriginal title lands; and (4) how should the doctrine of Aboriginal title be updated in light of jurisprudential developments emphasizing that Indigenous peoples never ceded their sovereignty?","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"417 - 460"},"PeriodicalIF":0.6,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.13","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46383138","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Justifying (or Not) the Office of Trusteeship With Particular Reference to Massively Discretionary Trusts 证明(或不证明)托管办公室的合理性，特别是大规模全权委托信托

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-07-22 DOI: 10.1017/cjlj.2021.7

James Penner

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The Question To Be Faced Is One of Fact: H.L.A. Hart’s Legal Theory Through His View of International Law 面对的问题是一个事实问题:从哈特的国际法观看他的法学理论

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-07-15 DOI: 10.1017/cjlj.2021.11

Giovanni Bisogni

引用次数: 1

Corrective Justice and Reparations for Black Slavery 黑人奴隶制的矫正正义与赔偿

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-07-14 DOI: 10.1017/cjlj.2021.10

Adrienne D. Davis

{"title":"Corrective Justice and Reparations for Black Slavery","authors":"Adrienne D. Davis","doi":"10.1017/cjlj.2021.10","DOIUrl":"https://doi.org/10.1017/cjlj.2021.10","url":null,"abstract":"Over the last two decades, legal scholarship has been catching up with the more than century old calls by black Americans for reparations.1 Tax scholar Boris Bittker (in)famously launched the viability of black reparations into legal scholarship with his now classic monograph, The Case for Black Reparations.2 However, it would take more than twenty years for mainstream legal scholarship to take up the robust and wide-ranging set of questions raised by the possibility of reparations for American slavery.3 In the late 1990s private law scholars leapt into the debate, discussing unjust enrichment and torts-based models of black reparations.4 While these scholars made a variety of distinct arguments, collectively, their model rested on the contention that America had wrongfully expropriated the labor of generations of enslaved African Americans and the result had been systemic unjust enrichment, or a species of mass torts. Grounded in various conceptions of corrective justice, these models conceive black reparations as a set of claims that would be litigated through the courts. Over the ensuing two decades, the private law model has become somewhat of an outlier in reparations discussions, largely set aside in favor of broader, more explicitly political approaches.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"329 - 340"},"PeriodicalIF":0.6,"publicationDate":"2021-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.10","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46045401","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Arbitrariness as Discrimination 作为歧视的任意性

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-07-12 DOI: 10.1017/cjlj.2021.8

Meital Pinto

引用次数: 3

Making What Present Again? A Critique of Argumentative Judicial Representation 再次制作什么礼物？辩论性司法代表批评

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-06-25 DOI: 10.1017/cjlj.2021.6

Donald Bello Hutt

引用次数: 4

That’s None of Your Business! On the Limits of Employer Control of Employee Behavior Outside of Working Hours 这不关你的事!论雇主对员工非工作时间行为控制的限度

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-06-07 DOI: 10.1017/cjlj.2022.6

Matthew Lister

引用次数: 1

Recognizing One More Wrong 再认识一个错误

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Canadian Journal of Law and Jurisprudence Pub Date : 2021-05-26 DOI: 10.1017/cjlj.2021.4

Allan Beever

{"title":"Recognizing One More Wrong","authors":"Allan Beever","doi":"10.1017/cjlj.2021.4","DOIUrl":"https://doi.org/10.1017/cjlj.2021.4","url":null,"abstract":"Recognizing Wrongs is the latest instalment from the leading civil recourse theorists John Goldberg and Benjamin Zipursky. It is a defence of the theory of tort law that they have developed, together and apart, for more than two decades. Unlike their earlier book on tort,1 this instalment does not focus on tort doctrine. Instead, it presents, elucidates, and defends from criticism the position that underlies its authors’ analysis of that doctrine. The book is both welcome and important. It is also very well-written: clear and accessible. Because of this, the book is not only the authors’ latest statement of their theoretical position, it will also serve as a good entry point for those coming to the debate for the first time. If, for instance, you have ever wondered with respect to rights-based approaches to tort law generally, ‘Why do people think like this?’, this book provides a very accessible answer. As usual, when reviewing a book, it is important to interpret the work in the light of its intended audience. Who is this book for? In the case of Recognizing Wrongs, the answer is very clear. It is for American legal scholars. Its arguments are explicitly aimed at US academics. Its authors maintain that US academic thought is unable to understand tort law, because it approaches that law via theoretical frameworks inconsistent with that law’s structure. The two main aims of the book are to demonstrate this and to defend an alternative framework that better fits the law and so renders that law intelligible. Though I am very sympathetic with this project, I should immediately confess that I am not a member of this intended audience. I am a New Zealander whose work on tort has focussed primarily on the laws of what we somewhat erroneously label the Commonwealth.2 I am, then, an outsider looking in. Thankfully, given the geographical location of this journal, that seems fitting. Most of the readers of this review will also be outsiders looking in. Because","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"493 - 514"},"PeriodicalIF":0.6,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2021.4","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49593027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1