OSGOODE HALL LAW JOURNAL最新文献

{"title":"The Right of Publicity: Privacy Reimagined for a Public World, by Jennifer E. Rothman","authors":"A. Choi","doi":"10.60082/2817-5069.3596","DOIUrl":"https://doi.org/10.60082/2817-5069.3596","url":null,"abstract":"In The Right of Publicity, Professor Jennifer E. Rothman of Loyola Law School offers an in-depth genealogy of the right of publicity, while navigating through scholarly narratives surrounding its origin. The book contests the current body of literature, which situates the origin of the right of publicity in privacy law. Instead of conceptualizing the right of publicity as another form of intellectual property right, the work traces the right of publicity law to (re-) articulate it as a personal right. Stemming from the author’s expertise in intellectual property law and the right of publicity, this book challenges readers to consider the implications of interpreting the right of publicity as a transferrable property right. The author masterfully parses through and critiques the current understandings of the right of publicity to offer an alternative model to be implemented in publicity law. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss1/10","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47075935","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":"Searching for “Superchief” and Other Fictional Indians: A Narrative and Case Comment on R v Bernard","authors":"Naiomi Metallic","doi":"10.60082/2817-5069.3591","DOIUrl":"https://doi.org/10.60082/2817-5069.3591","url":null,"abstract":"In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts’ reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particular subgroup of Mìgmaq who were at St. John at the time of contact with Europeans. In deciding so, the Court of Appeal rejected the argument that the Mìgmaq, as a nation, are the appropriate rights holders and ought to be the body deciding who can exercise the Mìgmaw right to hunt in the province. This argument was rejected based on the evidence of an expert historian who testified that Mìgmaq could not be a “nation” because they had a decentralized form of government and lacked a “Super Chief.” The case also exhibits undertones of floodgate fears of over-hunting as a consequence of finding the Mìgmaq nation to be the right-holders. This, however, ignores the role Mìgmaq laws and protocols will play in responsibly regulating Mìgmaq hunting and avoiding overuse of resources (not to mention the Crown’s ability to address conservation issues through the Sparrow justification framework). This article tells the story of the Bernard case and provides critical commentary on it. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/7","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46025877","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":"Strange Trips: Science, Culture, and the Regulation of Drugs by Lucas Richert","authors":"Irmak Aydemir","doi":"10.60082/2817-5069.3594","DOIUrl":"https://doi.org/10.60082/2817-5069.3594","url":null,"abstract":"In Strange Trips: Science, Culture, and the Regulation of Drugs, Lucas Richert sets out to “investigate the myths, meanings and boundaries of certain recreational drugs and pharmaceuticals,” a goal motivated by the call to “move beyond examining substances in silos” and “put drugs in conversation with each other.” The book’s theme is bolstered by wide-ranging and thorough research across such diverse media as medical journals, political speeches, pop culture, and news reports, with an investigative dive showcasing Richert’s expertise as a historian of pharmacology. Strange Trips’ ambitious scope—from the use of heroin as an end-of-life painkiller to the American public’s obsession with weight loss and the diet pills—sets the stage for a broad discussion as to the role and meaning of drug use and abuse in the North American context. Ultimately, Strange Trips serves as an excellent introductory text to the socio-political dimensions of drug regulation in Canada and the United States and is a readable resource for anyone interested in the politics of drug regulation. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss2/9","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42849537","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 Constitution of the Environmental Emergency, by Jocelyn Stacey","authors":"G. Reeder","doi":"10.60082/2817-5069.3593","DOIUrl":"https://doi.org/10.60082/2817-5069.3593","url":null,"abstract":"Jocelyn Stacey’s The Constitution of the Environmental Emergency is a unique text in the area of environmental law. It argues for reframing environmental law from the premise that environmental issues confront lawmakers as emergencies that are impossible to reliably predict. Stacey relies on a constructive tension between two somewhat overlapping theories of legitimate government action: common law constitutionalism and deliberative democracy. When Stacey argues that environmental issues constitute emergencies, she shows how lawmakers are confronted with problems that entail “deep uncertainty where the possibility of a catastrophe cannot be reliably eliminated in advance.” This approach allows her to draw on insights from scholarship on emergencies and the rule of law to reimagine the purpose and orientation of environmental law, namely the centrality of having government institutions publicly justify important decisions. This book review is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/ iss1/8","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43858130","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 Founders: Four Pioneering Individuals Who Launched the First Modern-Era International Criminal Tribunals, Edited by David M. Crane, Leila N. Sadat and Michael P. Scharf","authors":"C. Rubin","doi":"10.60082/2817-5069.3595","DOIUrl":"https://doi.org/10.60082/2817-5069.3595","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42453357","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 Re-Emergence of Previously Slayed Metis Rights-Denial Dragons: The Dangers and Duplicity in Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta","authors":"J. Madden","doi":"10.60082/2817-5069.3589","DOIUrl":"https://doi.org/10.60082/2817-5069.3589","url":null,"abstract":"In 2003, the Supreme Court of Canada (SCC) released its unanimous reasons for judgment in R v Powley. Powley was—and remains—the high court’s only consideration of Métis rights, as “[A]boriginal rights,” protected by section 35 of the Constitution Act, 1982. In addition to setting out the legal test for the establishment of Métis section 35 rights, Powley slayed a multitude of Métis rights denial dragons that had emerged over the generations, including two of the dragons most often relied on by governments: (1) that difficulties in identifying Métis rights-holders, and, (2) competing Métis representation claims made Crown inaction in relation to Métis rights justifiable. Instead of accepting these arguments, the SCC in Powley recognized a positive Crown duty to negotiate with the Métis. The author, who is a Métis lawyer that has been involved in much of the Métis rights litigation and negotiations that have occurred over the last seventeen years, argues that Powley and this duty have been effectively leveraged by rights-bearing Métis communities from Ontario westward to secure several significant negotiated agreements as well as keep most of the slayed Métis rights denial dragons at bay. This article goes on to review a disconcerting 2016 decision of the Alberta Court of Queen’s Bench on Métis consultation, which, if applied further, has the potential to re-invigorate these most duplicitous dragons. In Fort Chipewyan Métis Nation of Alberta Local #125 v Alberta, while the trial judge recognized that Métis harvesting rights had been accommodated in the Fort Chipewyan area, the court accepted the Alberta government’s arguments that difficulty in identifying the “proper rights-holder” and the potential of competing Métis claims were justifications for Crown inaction and its position of consulting with no Métis whatsoever. The author argues that the court’s flawed reasoning in Fort Chipewyan turns Powley and the Crown’s positive duties owing to the Métis on their head as well as has the potential to see the two above-noted Métis rights denial dragons take flight again. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss1/6","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44965579","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 “Majestic Equality” of the Law: Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853","authors":"William N. T. Wylie","doi":"10.60082/2817-5069.3582","DOIUrl":"https://doi.org/10.60082/2817-5069.3582","url":null,"abstract":"The mid-nineteenth century was an age of reform in the civil courts of the common-law world. Why, in spite of the clamour for change within Upper Canada and the introduction of reforms in adjacent common-law jurisdictions, were Upper Canada’s leading lawyers and politicians so reluctant to act? The answer is found in the conservatism of the province’s leaders, which stemmed not only from the legal training of the lawyers, but also from the moderate conservative ideology of the Upper Canadian leadership as a whole. At an almost unprecedented time of public debate, when resentment to lawyers and the courts was being expressed and a radical critique of the courts and the profession was emerging, Upper Canada’s most influential residents managed to maintain political control and steadfastly refused to act in advance of the mother country. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/3","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45798569","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":"Hunting Down a Lasting Relationship with Canada—Will UNDRIP Help?","authors":"Sara Mainville","doi":"10.60082/2817-5069.3583","DOIUrl":"https://doi.org/10.60082/2817-5069.3583","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43202782","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":"Towards an Account of Linguistic Equality","authors":"Érik Labelle Eastaugh","doi":"10.60082/2817-5069.3586","DOIUrl":"https://doi.org/10.60082/2817-5069.3586","url":null,"abstract":"The Canadian Charter of Rights and Freedoms contains not one but two kinds of equality rights—general equality rights, set out in section 15, and linguistic equality rights, set out in sections 16 to 23—but the relationship between them is not well understood. Do official language rights rest on a distinct set of values, or do they simply instantiate the same general principle expressed in section 15? If the former, what are these values, and how do they relate to other principles of constitutional justice? The matter is further complicated by the need to account for the special constitutional status of Indigenous peoples, who also claim a form of equality. If we are to do justice to all concerned, we need to determine if and how these different claims to equality can and should fit together. However, this requires that we have a clear account of their underlying principles, and our understanding of linguistic equality in this respect lags far behind. While the concept of general equality and the status of Indigenous peoples have both received sustained theoretical attention, linguistic equality has not, leaving a number of fundamental questions—namely its basic analytical structure and its moral foundations—unresolved. The purpose of this article is to lay the groundwork for a theoretical account of linguistic equality, one that situates this concept within a broader framework of constitutional values that includes general equality rights and the rights of Indigenous peoples. Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/5","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45178793","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":"Protection for Owners under the Law on Adverse Possession: An Inconsistent Use Test or a Qualified Veto System?","authors":"Una Woods","doi":"10.60082/2817-5069.3580","DOIUrl":"https://doi.org/10.60082/2817-5069.3580","url":null,"abstract":"This article will assess the case for reforming the Irish law on adverse possession to confer additional protection on the owner. Assuming such reform is warranted, it is possible that an existing judicial solution, known as the rule in Leigh v Jack, has already been devised. Ontario’s experience with an equivalent rule, known as the inconsistent use test, is of interest in this context and certain academic literature is discussed which explains why the inconsistent use test was developed and argues in favour of its retention or resurrection. An alternative model of protection is then analyzed: the English Qualified Veto System of adverse possession introduced by the Land Registration Act 2002. I argue that a judicial or legislative reincarnation of the rule in Leigh v Jack would be an extremely flawed method of reforming the law in jurisdictions, such as Ireland, which are considering reform, as the Qualified Veto System more effectively responds to the difficulties which the inconsistent use test appears to be attempting to resolve. I conclude that such a Qualified Veto System, similar, although not identical to the one introduced in England, should be introduced in Ireland. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/2","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2021-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45307828","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}