Canadian Journal of Law and Jurisprudence最新文献

{"title":"Tort Law, Corrective Justice and the Problem of Autonomous-Machine-Caused Harm","authors":"Pinchas Huberman","doi":"10.1017/cjlj.2020.3","DOIUrl":"https://doi.org/10.1017/cjlj.2020.3","url":null,"abstract":"Developments in artificial intelligence and robotics promise increased interaction between humans and autonomous machines, presenting novel risks of accidental harm to individuals and property.1 This essay situates the problem of autonomous-machine-caused harm within the doctrinal and theoretical framework of tort law, conceived of as a practice of corrective justice. The possibility of autonomous-machine-caused harm generates fresh doctrinal and theoretical issues for assigning tort liability. Due to machine-learning capabilities, harmful effects of autonomous machines may be untraceable to tortious actions of designers, manufacturers or users.2 As a result, traditional tort doctrine—framed by conditions of foreseeability and proximate causation—would not ground liability.3 Without recourse to compensation, faultless victims bear the accident costs of autonomous machines. This doctrinal outcome reflects possible incompatibility between tort’s theoretical structure of corrective justice and accidents involving autonomous machines. As a practice of corrective justice, tort liability draws a normative link between particular defendants and plaintiffs, as doers and sufferers of the same tortious harm, grounding defendants’ agent-specific obligations to repair the harm. Where accidents are caused by autonomous machines, the argument goes, the essential link between defendants and plaintiffs is severed; since resulting harm is not legally attributable to the human agency of designers, manufacturers or users, victims have no remedy in tort.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"34 1","pages":"105 - 147"},"PeriodicalIF":0.6,"publicationDate":"2020-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.3","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47249481","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}

{"title":"Legal Directives and Practical Reasons by Noam Gur","authors":"L. Lonardo","doi":"10.1017/cjlj.2020.9","DOIUrl":"https://doi.org/10.1017/cjlj.2020.9","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"493 - 499"},"PeriodicalIF":0.6,"publicationDate":"2020-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.9","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47586485","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}

{"title":"Governmental-Funded Religious Associations and Non-Discrimination Rules: On Immunity and Public Funding","authors":"Nahshon Perez","doi":"10.1017/cjlj.2020.12","DOIUrl":"https://doi.org/10.1017/cjlj.2020.12","url":null,"abstract":"Many religious associations exhibit internal norms that differ from liberal norms and rules. Such norms often directly contradict the non-discrimination norms and rules that are part and parcel of the liberal democracies in which these associations operate. Religious associations often are considered, in both legal and scholarly writings, exempt from at least some of these norms and rules. This tension between broad societal non-discrimination1 rules and the norms of specific religious associations has won the attention of scholars and courts.2 In many such debates, the background assumption is that these religious groups are voluntary associations functioning within a model of separation between religion and state; that is, such associations operate through the free choices of their members and individuals are as free to leave the associations as they were to form them.3 While theorizing about non-discrimination rules and whether they apply to religious associations that are funded via the contributions of their members is of obvious importance, this article examines a distinct problem: that of discrimination within religious associations that are directly supported by democratic governments. Recent research on religion-state relations4 has pointed out that, in many democratic countries, religious associations are funded by the government to a considerable extent. The tension between non-discrimination norms and the presumed rights of the state-funded religious associations to be exempted from such rules, however, is neglected in the literature. Perhaps this is because the most prominent legal cases of this kind were tried at the European Court of Human Rights5 and the U.K. Supreme Court,6 rather than the more conspicuous U.S. Supreme Court. This article asks the following question: in what way, if at all, does receiving governmental funding change the presumed right of religious associations to be exempted from non-discrimination rules? The ‘immunity thesis’—the idea that religious associations enjoy the right to be exempted from non-discrimination rules—is not challenged here: this article argues that if there is such a right to immunity, receiving governmental funding does not necessarily eliminate it. Much depends on how each case maintains the balance between the autonomy of religious associations7 and the protection of individual citizens from discrimination that impacts important civil interests such as access to jobs or high-quality education. Of the suggested variables identified to test this balance, three are internal to the associations’ structure: the centrality of the potentially illiberal norm to the funded religious association; the kind of violation of non-discrimination rules (either internal or external discrimination, see below); and the willingness of the religious association to internalize the cost of the discrimination. Two additional variables that can be used to test the balance of competing social values are external t","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"341 - 367"},"PeriodicalIF":0.6,"publicationDate":"2020-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.12","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44359306","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}

{"title":"Judicial Discretion as a Result of Systemic Indeterminacy","authors":"Sebastián A. Reyes Molina","doi":"10.1017/cjlj.2020.7","DOIUrl":"https://doi.org/10.1017/cjlj.2020.7","url":null,"abstract":"The topic of ‘judicial discretion’ has been at the center of the debate on legal interpretation in the philosophy of law.1 In a general sense, ‘discretion’ here refers to the exercise of a judgment by a decision-maker due to the lack of legal constraints affecting one’s ability to decide a case. The most fundamental question on this topic is ‘do judges have discretion when interpreting the law?’ There are three kinds of answers to this query. One kind of answer states that judges never have discretion.2 Another kind of answer states that judges always have discretion in interpretation.3 The third kind of answer states that judges sometimes have discretion when interpreting the law, and sometimes they do not.4","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"369 - 395"},"PeriodicalIF":0.6,"publicationDate":"2020-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.7","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48722143","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}

{"title":"‘Not as Bad as…’ The Concept of Disadvantage in the Justification of Positive Action under UK Anti-Discrimination Law","authors":"Victoria Martínez Placencia","doi":"10.14324/111.2052-1871.127","DOIUrl":"https://doi.org/10.14324/111.2052-1871.127","url":null,"abstract":": An essential goal of anti-discrimination law is to break the connection between disadvantage and group membership. There should not be a predictable link between being a member of a group with a protected characteristic and being disadvantaged in society. Positive action is the ultimate tool to achieve this aim, however, its application in the UK has been scarce. In this paper, I argue that the relevant concept of disadvantage in discrimination claims is different from the one used to justify positive action. This distinction impacts on the proportionality test and allows clarification of the potentialities and limitations of positive action to redress inequality. This attempt stands from a theoretical point of view but also highlights the reasoning behind recent cases under UK and EU anti-discrimination law.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"37 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91293504","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}

{"title":"The ‘Great Game’ of Sovereign Debt Restructuring: Solving the Holdout Problem. A Critical Analysis of the Pari Passu and Collective Action Clauses in International Sovereign Bond Contracts","authors":"Akshay Gohil","doi":"10.14324/111.2052-1871.125","DOIUrl":"https://doi.org/10.14324/111.2052-1871.125","url":null,"abstract":"To download this paper, please click  here . This paper critically evaluates the law of sovereign debt restructuring pertaining to the regulation of creditor co-ordination and holdout creditors. More precisely, it provides a detailed examination and analysis of two important non-financial clauses in sovereign bond documentation: the ‘collective action clause’ (CAC) and the ‘pari passu clause’. It leads with one research question: does the pari passu clause and CAC adequately address the holdout problem and encourage the orderly restructuring of sovereign debt? It also provides independent judgment as how best to improve this area of law. Overall, this paper argues that the clauses, albeit not a panacea, both reflect an impressive collaborative effort between private and public sectors and mitigate holdout leverage.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85260237","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}

{"title":"The Measure of Finality: A Dialectical Analysis of Legitimacy Concerns in International Investment Arbitration","authors":"S. Mandelbaum","doi":"10.14324/111.2052-1871.124","DOIUrl":"https://doi.org/10.14324/111.2052-1871.124","url":null,"abstract":"To download this paper, please click  here . Over the last two decades, the institution of investment treaty arbitration has increasingly attracted a particular type of academic criticism. In challenging the overall coherence of an international adjudicative social practice, the spectre of a legitimacy crisis has successively established itself in the scholarly language-game orbiting investor-State dispute settlement. This article offers a structural explanation of legitimacy concerns by exploring the epistemic framework within which legitimacy issues materialise. On the basis of a dialectical analysis, it is argued that legitimacy challenges are intrinsically linked to evaluations of performances of arbitral reasoning, in particular, and to the epistemic condition of the doctrine of finality in general. Procedural autonomy (contract) and the latent dependency of proceedings on State authorities (adjudication) will be conceptualised as the two defining moments underlying the doctrine of finality. The article concludes by applying the developed analytical template of finality as a measure of legitimacy in order to review the legal reasoning in the two cases of Lauder/CME v The Czech Republic, as well as in Ampal-American and Others v Egypt, paradigmatic instances of concurrent treaty arbitration proceedings.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"67 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83915460","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}

{"title":"he Issue of Imminence: Can the Threat of a Cyber-Attack Invoke the Right to Anticipatory Self-Defence under International Law?","authors":"","doi":"10.14324/111.2052-1871.126","DOIUrl":"https://doi.org/10.14324/111.2052-1871.126","url":null,"abstract":"","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"8 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79509352","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}

{"title":"Two Accounts of International Tax Justice","authors":"Ivan Ozai","doi":"10.1017/cjlj.2020.8","DOIUrl":"https://doi.org/10.1017/cjlj.2020.8","url":null,"abstract":"The contemporary international tax regime has been increasingly criticized over the years from varied perspectives, particularly as to the unfairness it produces for developing countries. Some commentators argue it is unjust due to the lack of participation of developing countries in the policymaking process on an equal footing. Others suggest the international tax regime was designed by affluent countries to respond to self-interested goals. Some note that its current institutional design creates opportunities for tax competition and avoidance, which more seriously affect developing economies due to their relative dependence on corporate income tax and their greater vulnerability to capital mobility. Others specifically criticize how taxing rights, that is, the entitlement of countries to tax cross-border transactions, are currently allocated between home and host countries and how they disfavour capital-importing, developing countries.","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"317 - 339"},"PeriodicalIF":0.6,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.8","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43593121","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}

{"title":"Fairness in Allocations of Parental Responsibilities, and the Limits of Law","authors":"Ram Rivlin","doi":"10.1017/cjlj.2020.6","DOIUrl":"https://doi.org/10.1017/cjlj.2020.6","url":null,"abstract":"We love our children. We really do. Yet we also find ourselves happy when they finally fall asleep, or when they go back to school at the end of their summer vacation. We wish we could spend more time with our children, we really do. Yet we also wish to pursue our own projects, both professionally and personally. This ambivalence hints at a basic characteristic of caring for one’s own child, which is known to every person who ever had a child: it involves both a burden and a benefit.1","PeriodicalId":43817,"journal":{"name":"Canadian Journal of Law and Jurisprudence","volume":"33 1","pages":"397 - 433"},"PeriodicalIF":0.6,"publicationDate":"2020-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/cjlj.2020.6","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42508462","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}