University of Toronto Law Journal最新文献

{"title":"Joseph Heath, The Machinery of Government","authors":"Vincent Chiao","doi":"10.3138/utlj-2023-0026","DOIUrl":"https://doi.org/10.3138/utlj-2023-0026","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139457308","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ableism’s New Clothes: Achievements and Challenges for Disability Rights in Canada","authors":"Jonas-Sébastien Beaudry","doi":"10.3138/utlj-2022-0082","DOIUrl":"https://doi.org/10.3138/utlj-2022-0082","url":null,"abstract":"This article offers a critical examination of disability rights in Canada in four policy domains: (a) the concept of disability; (b) non-discrimination and equality; (c) accessibility and inclusion; and (d) income support. The Convention on the Rights of Persons with Disabilities and scholarship from disability legal studies and the applied philosophy of disability provide normative benchmarks for the inquiry. The article identifies several shortcomings within political arrangements, policies, laws, and judicial decisions and traces them back to outdated but enduring conceptions of disability – namely, the ‘medical model,’ the ‘charity model,’ as well as other impacts of an ableist ideology, such as the normalization and disenfranchisement of persons with disabilities.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134946204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How important are the groundbreaking cases in administrative law?","authors":"Andrew Green","doi":"10.3138/utlj-2021-0056","DOIUrl":"https://doi.org/10.3138/utlj-2021-0056","url":null,"abstract":"The story of Canadian administrative law could be seen as a move toward deference driven by some fundamental decisions of the Supreme Court of Canada. Debates about this move centre on the proper role for reviewing courts as well as the politics lying behind administrative law decisions. Most recently, the 2019 Supreme Court decision in Vavilov raised concerns that it licenses judges to undertake more intrusive review. Key to this story is the assumption that these groundbreaking decisions of the Supreme Court influence how lower court judges decide challenges in the administrative law context. Prior empirical studies have found that the 2008 Supreme Court decision in Dunsmuir increased the use of the reasonableness standard of review as well as the rate at which judges affirm administrative decisions. However, it can be difficult to empirically account for the variety of contexts and decision makers involved. This article uses decisions of the Federal Court to examine whether Dunsmuir and Vavilov changed how judges decide. It finds that, while the use of reasonableness has dramatically increased, the rate at which judges affirm administrative decisions has not changed over time. The article discusses these results and what they imply about the influence of these groundbreaking Supreme Court decisions.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136119324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Interpreting Dicey","authors":"Matthew Lewans","doi":"10.3138/utlj-2023-0023","DOIUrl":"https://doi.org/10.3138/utlj-2023-0023","url":null,"abstract":"Mark Walters’s book examines the intellectual development and legacy of Albert Venn Dicey, one of the most influential constitutional theorists of the twentieth century. By sifting through an impressive array of published and unpublished sources, Walters reconstructs Dicey’s characteristic legal turn of mind and invites readers to interpret it in the best possible light by highlighting implicit, but unarticulated, connections between his theory of constitutional law and the much older tradition of common law constitutionalism. The book deepens one’s understanding of the historical context that enveloped and informed Dicey’s distinct legal perspective and convincingly debunks the popular assumption that his influential constitutional theory repurposes Austinian conceptions of law and sovereignty. Furthermore, the book questions whether other aspects of Dicey’s constitutional theory – particularly, his provocative excursus on the relationship between the rule of law and droit administratif – should be reconsidered in light of subtle revisions in his later works. While Walters’s pluralistic interpretation of Dicey’s assessment of droit administratif is more tentative, it sheds an important new light on how his highly influential constitutional theory might be rehabilitated to enable contemporary public lawyers and theorists to grapple with otherwise intractable problems through the common law method of reasoning.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136092496","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Person Suffering: On Danger and Care in Mental Health Law","authors":"Abraham Drassinower","doi":"10.3138/utlj-2022-0043","DOIUrl":"https://doi.org/10.3138/utlj-2022-0043","url":null,"abstract":"The law of mental health authorizes involuntary detention in a psychiatric facility, in the absence of wrongdoing, of competent persons suffering from mental disorder likely to result in harm. Some jurisdictions are said to justify detention exclusively on the basis of danger prevention alone, thus predicating any ensuing treatment on the detainee’s categorical dignitary right to refuse treatment even while detained. Other jurisdictions are said to justify detention also on the basis of the detainee’s need of treatment, thus rendering the authorization to detain as a concomitant authorization to apply compulsory treatment. This article argues that ‘dangerousness’ is conceptually insufficient to justify detention in a psychiatric facility. If danger prevention per se were the only purpose of detention, then a psychiatric facility could perhaps be viewed as a permissible, but certainly not as the necessary, locus of authorized detention. Two propositions follow from this observation. The first is that need of treatment, in addition to danger prevention, must be a criterion of mental health law detention. The article formulates this proposition through a detailed reading of the detention provision in the Ontario (widely regarded as a ‘dangerousness’ jurisdiction) Mental Health Act and relevant case law. The second proposition is that, as much as the right to refuse treatment, regular and ongoing access to treatment is, therefore, a necessary condition of the justifiability, if any, of mental health law detention. The article develops this proposition through analysis of recent Ontario case law on the constitutionality of mental health law detention. The upshot is that failure to offer treatment is as inconsistent with constitutionally recognized liberty interests as the imposition of treatment in the absence of consent. By way of conclusion, the article focuses on what might be called the turn to criminal law to elaborate and affirm, by analogy, the rights of mental health law detainees. The article suggests that, while helpful, the turn to criminal law, because it brings into relief the dimension of danger to others, may also obscure the specific conceptual core of mental health law addressing danger to self.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136059119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Against Moralism in Anti-Discrimination Law","authors":"Anthony Sangiuliano","doi":"10.3138/utlj-2022-0056","DOIUrl":"https://doi.org/10.3138/utlj-2022-0056","url":null,"abstract":"This article argues against a moralist interpretation of the purpose of statutory anti-­discrimination law. On this interpretation, there are instrumental reasons to legally prohibit discriminatory acts to achieve a collective goal that the state ought to pursue as a matter of political morality. But the fact that a discriminatory act is morally wrong according to interpersonal morality additionally gives a separate non-instrumental or moralist reason to legally prohibit it. According to moralism, the best interpretation of anti-­discrimination law’s purpose ascribes both moralist and instrumental justifying reasons for the law’s main features. Most writing in the philosophical literature on anti-­discrimination law proceeds under a dominant, yet inarticulate, assumption that moralism is true. Indeed, I explain that we might be persuaded to invoke moralist reasons to confer intelligibility on why the law prohibits directly discriminatory acts, why certain traits are included in the prohibited grounds of discrimination, why legal regulation is limited to certain spheres of private life such as employment and housing, and why the law is enforced through a mechanism of private recourse. I argue, however, that the attractions of moralism are illusory. We ought to invoke only instrumental reasons to explain these features of the law. A thoroughgoing instrumentalist account of anti-discrimination law as a tool for achieving an egalitarian political goal offers a unifying account of legal prohibitions of direct and indirect discrimination that coheres with a justification for the law’s protection of certain prohibited grounds and its application to the typical regulated spheres. I show how this conclusion has the important implication that, to the extent that anti-discrimination law’s private recourse enforcement method is inconsistent with the law’s overall instrumental purpose of reducing inequality, it ought to be reformed to place the onus of enforcement more squarely on administrative officials. In the final analysis, anti-discrimination law’s point is not to embody the morality of anti-discrimination as between private persons. It is to function as a means for realizing public justice.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136092565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Autonomy of Administration","authors":"P. Daly","doi":"10.2139/ssrn.4373554","DOIUrl":"https://doi.org/10.2139/ssrn.4373554","url":null,"abstract":"Abstract:Justice Rosalie Abella is closely associated with deference to administrative decision makers. I will argue that her deferential approach was multifaceted, much more sophisticated than might typically be assumed. Abella J's administrative law jurisprudence is as much about administrative autonomy as it is about judicial deference. On one level, Abella J's jurisprudence is a jurisprudence of judicial restraint, preaching limited judicial oversight of the administrative process. This reflects the conventional way of thinking about deference in administrative law as a doctrine requiring judicial restraint: it is a shield protecting administrative decision makers from judicial interference. Accordingly, she supported a broad presumption of deference to administrative decision makers and articulated a fairly non-interventionist conception of reasonableness review. But, on a deeper level, Abella J's jurisprudence is more radical. As I explain, Abella J was not committed simply to a restrained approach to judicial review but, rather, to promoting the autonomy of public administration: she furnished swords to administrative decision makers, allowing them to carve out additional space in which to operate and articulate applied versions of legal norms. Her commitment to administrative autonomy, rather than simply to judicial restraint, prompts reflection about the basis of Abella J's administrative law philosophy, which must ultimately be grounded in her trust of the administrative process, aligning her with the so-called 'functionalist' school of thought associated with progressive thinkers. I then turn to the Supreme Court of Canada's recent rearticulation of Canadian administrative law in the Vavilov case–a rearticulation with which Abella J expressed firm disagreement. I reflect on why the majority and Abella J diverged in Vavilov and suggest that the key features of Abella J's jurisprudence–restraint and autonomy–are rooted in a mode of thinking about administrative law that has fallen out of favour.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2023-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41703878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Substantive Equality and Its Remedial Consequences","authors":"Sabine Tsuruda","doi":"10.3138/utlj-2023-0073","DOIUrl":"https://doi.org/10.3138/utlj-2023-0073","url":null,"abstract":"In ‘Equality, Equity, and Algorithms: Learning from Justice Rosalie Abella,’ Martha Minow illustrates the practical import of Abella J’s equality jurisprudence by way of a contrast to US anti-discrimination law. Whereas US anti-discrimination law deploys a largely formal conception of equality focused on discriminator conduct, Abella J’s jurisprudence deploys a contextual and impact-centred conception of substantive equality. After highlighting key philosophical differences between these two conceptions of equality, this article considers whether substantive equality’s focus on impact, in contrast to the US focus on conduct, limits the law’s potential to condemn discrimination as a serious wrong.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135690844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reflections on ‘Equality, Equity, and Algorithms: Learning from Justice Rosalie Abella’","authors":"Elizabeth Shilton","doi":"10.3138/utlj-2023-0066","DOIUrl":"https://doi.org/10.3138/utlj-2023-0066","url":null,"abstract":"This article responds to Martha Minow’s article ‘Equality, Equity, and Algorithms: Learning from Justice Rosalie Abella,’ from the perspective of a Canadian labour lawyer, equality rights litigator, and quondam academic. The article considers Minow’s concerns about whether algorithmic decisions are justiciable against the backdrop of Abella J’s superb synthesis of Canadian constitutional equality law in Fraser v Canada. It also comments on the extent to which the Supreme Court of Canada’s subsequent decision in R v Sharma has undermined that synthesis.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135690840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Joy of Justice: <i>Les Misérables</i> and Rosalie Abella","authors":"Susanne Baer","doi":"10.3138/utlj-2023-0062","DOIUrl":"https://doi.org/10.3138/utlj-2023-0062","url":null,"abstract":"What makes a person a good judge? Which characteristics, abilities and commitments matter in the practice of adjudicating fundamental rights? Some factors seem crucial, or even indispensable, as illustrated by the work of Rosalie Abella before and on the bench. The first factor is a commitment to the rule of law not as an empty concept, but as a substantive guarantee, last not least a ‘never again’ to fascism and similarly autocratic regimes. Second, judges need a particular realism, informed by asking questions and giving people voice, to approach the world with a distinctly strong humility. Third, radical pragmatism allows for legal arguments that matter, both based in doctrine and moving beyond, while fourth, a nuanced understanding of universalism must inform any judges’ take on fundamental rights in the entangled world we live in today.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135690841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}