University of Toronto Law Journal最新文献

{"title":"6 The Murder of Lori Dupont: Violence, Harassment, and Occupational Health and Safety in Ontario","authors":"Sarah Jessup","doi":"10.3138/9781487530679-008","DOIUrl":"https://doi.org/10.3138/9781487530679-008","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"1 1","pages":"133-159"},"PeriodicalIF":0.0,"publicationDate":"2020-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147886824","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":"Taking tort seriously","authors":"S. Smith","doi":"10.3138/utlj.2020-0110","DOIUrl":"https://doi.org/10.3138/utlj.2020-0110","url":null,"abstract":"Abstract:In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what 'it looks to be' – and that what it looks to be is a law of wrongs and recourse. It is not necessary, in their view, to turn to economics, sociology, philosophy, or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, Goldberg and Zipursky seek to distinguish themselves from two influential camps in contemporary tort theory: (a) theories that argue that tort law's rights are 'rights' in only a nominal sense and (b) theories that accept that tort law's rights are genuine but defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The qualifications that I explore are twofold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law's appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory); it is also complex, multilayered, and skeletal in its account of tort law's primary duties and, thus, arguably less of a 'theory of tort law' than those offered by their competitors (though I argue that this feature is a virtue of their account).","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"415 - 441"},"PeriodicalIF":0.6,"publicationDate":"2020-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42194234","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":"Private law rights as democratic participation: Kelsen on private law and (economic) democracy","authors":"H. Dedek","doi":"10.3138/utlj-2020-0039","DOIUrl":"https://doi.org/10.3138/utlj-2020-0039","url":null,"abstract":"Abstract:In the first edition of his famous treatise Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik (translated as Introduction to the Problems of Legal Theory), Hans Kelsen makes the claim that the existing liberal, property rights-based private law of his era is a 'democratic form of law' and that private law rights are 'political in the same sense as those rights that are usually characterized as political rights.' In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the 'Pure Theory of Law' and its philosophical underpinnings of relativism and 'value neutrality,' culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often underappreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing 'ideology.' To Kelsen's contemporary audiences, drawing a connection between 'capitalist' private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important – if now almost forgotten – political debates of the Weimar era, the debate on 'economic democracy' ('Wirtschaftsdemokratie'). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards – private, labour, commercial, and corporate law – were 'undemocratic.' I submit that Kelsen's statement – flipping the contemporaneous revisionist-socialist rhetoric on its head – may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing 'bourgeois' parliamentary democracy with a 'true,' 'social' democracy that would realize conditions of social and economic justice. By connecting 'capitalistic' law with 'democracy' and 'socialistic' law with 'autocracy,' Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"376 - 414"},"PeriodicalIF":0.6,"publicationDate":"2020-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46185979","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":"When, And How, Does Property Matter?","authors":"Avihay Dorfman","doi":"10.2139/ssrn.3737952","DOIUrl":"https://doi.org/10.2139/ssrn.3737952","url":null,"abstract":"Abstract:This article seeks to reclaim for property law and theory the centrality of two hitherto neglected questions: when does property matter and, to the extent that it does, precisely how. I argue that, in some cases, the property owner’s entitlement to exclude others has virtually nothing to do with the right to property; property, then, is epiphenomenal. At other times, an entitlement to exclude cannot exist independently of having a right to property. But even then – and this is where the second question concerning how property matters kicks in – there are important differences between excluding others for housekeeping purposes (say, ‘not now’) and denying access categorically (say, ‘not for you’). I therefore argue that the conventional identification of property with exclusion, or with exclusion and inclusion, obscures the difference that the right to property could, and should, make. Addressing the questions of when, and how, does property matter change the way we understand in theory and determine in practice what rights to exclude, and duties to include, do we have.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"124 - 81"},"PeriodicalIF":0.6,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44145326","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 Unified Model of Public Law: Charter Values and Reasonableness Review in Canada","authors":"Richard Stacey","doi":"10.3138/utlj.2020-0056","DOIUrl":"https://doi.org/10.3138/utlj.2020-0056","url":null,"abstract":"Abstract:The Supreme Court of Canada concluded in its 2012 judgment in Doré that the rational connection test and the less restrictive means inquiry from the Oakes analysis are not useful when assessing the justifiability of administrative decisions limiting Charter rights. The Court instead articulated a 'robust' conception of proportionality that requires administrative decision makers to demonstrate only that any rights limitations that their decisions impose are proportionate 'in the strict sense.' This article argues that Charter values should be understood as part of a normative hierarchy of 'justificatory resources' to which administrative decision makers can refer in justifying rights-limiting decisions as proportionate in the strict sense. It argues further that the robust, reasons-first conception of reasonableness that the Court described in Vavilov affirms Doré's logical architecture, marking a shift in Canadian jurisprudence toward a 'culture of justification.' In adopting the same approach to constitutional decisions affecting Charter rights and administrative decisions that do not engage the Charter, Doré and Vavilov construct a unified model of public law in which all public decisions must be shown to be justified by their congruence with a hierarchy of norms which has Charter values at its apex. In this unified model of public law, in which a robust conception of reasonableness is central, it is not clear what room, or need, is left for correctness review.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"338 - 375"},"PeriodicalIF":0.6,"publicationDate":"2020-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41897349","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":"Reflecting back on the future of labour law","authors":"David J. Doorey","doi":"10.2139/SSRN.3536540","DOIUrl":"https://doi.org/10.2139/SSRN.3536540","url":null,"abstract":"Abstract:The future of Canadian labour law will not come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the Wagner model which has governed since the 1940s. Instead, change will come first in the form of smaller foreshocks. Clues as to what those foreshocks may be are found in two important debates that took place during the 1980s. The first debate, led by Paul Weiler, explored comparative labour law and the intersection between the US and Canadian versions of the Wagner model. Weiler's vision of a hybrid Wagner model that drew upon features of both versions to advance worker access to a collective voice at work is instructive of the direction we may be headed in Canada. The second debate related to the potential impact of the Canadian Charter of Rights and Freedoms on the future of Canadian labour law. David Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner model and its replacement with a new model that emphasized equality of individual liberty and that extended the reach of collective bargaining. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence since 2001 may be catching up to that vision even if the Supreme Court has not often formally adopted his arguments. It is therefore important to revisit his ideas to find clues as to where we may be headed in labour law. The article concludes with some predictions about the changes that will come to Canadian labour law drawn from these debates of some forty years ago.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"14 1","pages":"165 - 206"},"PeriodicalIF":0.6,"publicationDate":"2020-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604830","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":"Notwithstanding Rights, Review, or Remedy? On the Notwithstanding Clause and the Operation of Legislation","authors":"Grégoire C. N. Webber","doi":"10.3138/utlj-2020-0066","DOIUrl":"https://doi.org/10.3138/utlj-2020-0066","url":null,"abstract":"The Charter’s notwithstanding clause makes exception to something, but what is that something? Received readings of the notwithstanding clause err in assuming that the clause makes exception to rights or to judicial review. It is argued, instead, that the clause makes exception to the remedy that follows from a finding that legislation is inconsistent with targeted rights and freedoms. That remedy is the one outlined in the Constitution’s supremacy clause: legislation is of ‘no force or effect’ to ‘the extent of the inconsistency’ with such rights and freedoms. By reviewing how the expression ‘no force or effect’ is equivalent to the expression ‘inoperable,’ it is argued that the notwithstanding clause empowers a legislature to affirm that legislation ‘shall have such operation as it would have but for’ targeted rights and freedoms. Such affirmation does not suspend rights and it does not block judicial review. Rather, it secures the operation of legislation even if such legislation is held by a court to be inconsistent with constitutional rights and freedoms. It follows that legislation invoking the notwithstanding clause may be challenged in judicial review and that a court may declare such legislation to be inconsistent with targeted rights and freedoms.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"0 1","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47292047","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 geometry of property","authors":"Yael R Lifshitz","doi":"10.3138/utlj-2020-0059","DOIUrl":"https://doi.org/10.3138/utlj-2020-0059","url":null,"abstract":"Our legal regimes are crafted in a way that asserts control over a certain physical three-dimensional space. Some property regimes assert dominion over a vertical three-dimensional column, such as ownership of land that includes certain resources that are vertically related to it above and below the ground. Other property regimes, however, control resources on the horizontal axis. For example, legal control over a footpath exerts a kind of horizontal dominion over the space of and around the footpath. This Article offers a conceptual framework for unpacking the spatial geometry of our property regimes and underscores its significance for policy and institutional design. It shows, importantly, that the compatibility between the space over which a regime holds control and the space that is occupied by a particular resource, has profound implications. A misalignment between the two – for example, when a vertical regime is applied to a horizontal resource – implicates how well the regime functions. After laying out the conceptual framework, the Article illustrates its application to a contemporary problem of extracting wind energy.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"333 ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515138","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 question of fairness in contract law","authors":"John D. Mccamus","doi":"10.3138/utlj-2020-0100","DOIUrl":"https://doi.org/10.3138/utlj-2020-0100","url":null,"abstract":"Abstract:The law of contracts has developed a variety of techniques for avoiding the enforcement of highly unfair, unreasonable, or burdensome terms. As yet, however, the common law has not directly adopted a straightforward rule to this effect. As a result, existing doctrines have been strained to achieve this objective. Further, there remain large gaps in the law in which such terms remain enforceable. The resulting state of the law contains many anomalies, uncertainties, and injustices. The author offers a sustained and convincing case for the explicit adoption of a rule permitting courts to refuse to enforce such terms. The argument draws support from an extensive review of historical and theoretical sources.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"285 - 300"},"PeriodicalIF":0.6,"publicationDate":"2020-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44097844","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":"Law and macroeconomics as mainstream","authors":"B. Salama","doi":"10.3138/utlj-2020-0084","DOIUrl":"https://doi.org/10.3138/utlj-2020-0084","url":null,"abstract":"Abstract:In spite of its name, economic analysis of law is mostly unconcerned with money and markets. In a recently published book, Law and Macroeconomics: Legal Remedies to Recessions, Yair Listokin challenges this doubtful convention. He advocates 'expansionary legal policies' to stimulate the economy when monetary policy reaches the zero lower bound and becomes ineffective. This proposal is presented as a straightforward application of mainstream economic views, not a heterodox deviation. My review considers how the book's main arguments depart from established views in economic analysis of law and discusses how its applications fare in light of the Keynesian perspective that the book purports to uphold.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"274 - 284"},"PeriodicalIF":0.6,"publicationDate":"2020-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47467599","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}