University of Toronto Law Journal最新文献

{"title":"6. Queer and Trans Migrants, Colonial Logics, and the Politics of Refusal","authors":"Edward Ou Jin Lee","doi":"10.3138/9781487541392-008","DOIUrl":"https://doi.org/10.3138/9781487541392-008","url":null,"abstract":"I was interested in the larger picture, in the discursive, material and moral territory that was simultaneously historical and contemporary ... and the ways in which Kahnawakero:non, the \"people of Kahnawake,\" had refused the authority of the state at almost every turn.The ways in which their formation of the initial membership code ... was refused; the ways in which their interactions with border guards at the international boundary line were predicated upon a refusal; how refusal worked in everyday encounters to enunciate repeatedly to ourselves and to outsiders that \"this is who we are, this who you are, these are my rights.\"-Audra Simpson, \"On Ethnographic Refusal\"[T]he path to the wild beyond is paved with refusal.In The Undercommons if we begin anywhere, we begin with the right to refuse what has been refused to you.Citing Gayatri Spivak, [Fred] Moten and [Stefano] Harney call this refusal the \"first right\" and it is a game-changing kind of refusal in that it signals that refusal of the choices as offered.-Jack Halberstam, \"The Wild Beyond\"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"1 1","pages":"143-172"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.degruyter.com/document/doi/10.3138/9781487541392-008/pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"147922262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Liability Without Wrongdoing","authors":"R. Stone","doi":"10.3138/utlj-2021-0062","DOIUrl":"https://doi.org/10.3138/utlj-2021-0062","url":null,"abstract":"Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs do not seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person, for example, may be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs do not generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability. Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff’s moral permission to enforce her apparent rights. Switching our gaze from the defendant’s wrongdoing to the plaintiff’s moral permission to enforce her rights will not be normatively consequential if the plaintiff’s moral permission arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and the plaintiff’s moral permission. Thus, by reconceptualizing private liability in terms of a plaintiff’s moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"0 1","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45823167","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":"Heritage preservation easements, urban property, and heritage law: Exploring Canadian common law and civil law tools for responding to international cultural preservation frameworks for cities","authors":"Sara Gwendolyn Ross","doi":"10.3138/utlj-2021-0059","DOIUrl":"https://doi.org/10.3138/utlj-2021-0059","url":null,"abstract":"Abstract:This article will first situate cultural heritage preservation in the urban context through an overview of notions of outstanding universal value, the role of cities in cultural heritage and municipal archaeology generally, paths toward the equitable and sustainable development of cities, and inclusive urban cultural rights in the context of cultural heritage where these appear within international law and guiding international legal frameworks for the protection of cultural heritage. The article will also discuss the notion of the ‘public good’ as it is applied within heritage preservation decisions and will also address the balancing of public and private interests in built heritage preservation. This article will further turn to the broad legal framework of cultural heritage protection for built spaces in Canada before narrowing in on the common law concept of a heritage easement agreement – notably, how it is and can be deployed in Canada – and the civil law conservation servitude as it is available in the Civil Code of Quebec.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"436 - 467"},"PeriodicalIF":0.6,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46677498","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":"Automating accountability? Privacy policies, data transparency, and the third party problem","authors":"D. Lie, Lisa M. Austin, Peter Yi Ping Sun, Wen Qiu","doi":"10.3138/utlj-2020-0136","DOIUrl":"https://doi.org/10.3138/utlj-2020-0136","url":null,"abstract":"Abstract:We have a data transparency problem. Currently, one of the main mechanisms we have to understand data flows is through the self-reporting that organizations provide through privacy policies. These suffer from many well-known problems, problems that are becoming more acute with the increasing complexity of the data ecosystem and the role of third parties – the affiliates, partners, processors, ad agencies, analytic services, and data brokers involved in the contemporary data practices of organizations. In this article, we argue that automating privacy policy analysis can improve the usability of privacy policies as a transparency mechanism. Our argument has five parts. First, we claim that we need to shift from thinking about privacy policies as a transparency mechanism that enhances consumer choice and see them as a transparency mechanism that enhances meaningful accountability. Second, we discuss a research tool that we prototyped, called AppTrans (for Application Transparency), which can detect inconsistencies between the declarations in a privacy policy and the actions the mobile application can potentially take if it is used. We used AppTrans to test seven hundred applications and found that 59.5 per cent were collecting data in ways that were not declared in their policies. The vast majority of the discrepancies were due to third party data collection such as advertising and analytics. Third, we outline the follow-on research we did to extend AppTrans to analyse the information sharing of mobile applications with third parties, with mixed results. Fourth, we situate our findings in relation to the third party issues that came to light in the recent Cambridge Analytica scandal and the calls from regulators for enhanced technical safeguards in managing these third party relationships. Fifth, we discuss some of the limitations of privacy policy automation as a strategy for enhanced data transparency and the policy implications of these limitations.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"155 - 188"},"PeriodicalIF":0.6,"publicationDate":"2021-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49620805","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":"10.3138/utlj-2020-0132","DOIUrl":"https://doi.org/10.3138/utlj-2020-0132","url":null,"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":"5 4","pages":"81-124"},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519884","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":"Farewell to the F-word? Fragmentation of international law in times of the COVID-19 pandemic","authors":"Sivan Shlomo Agon","doi":"10.3138/utlj-2021-0007","DOIUrl":"https://doi.org/10.3138/utlj-2021-0007","url":null,"abstract":"The proliferation of international legal regimes, norms, and institutions in the post-Cold War era, known as the ‘fragmentation’ of international law, has sparked extensive debate among jurists. This debate has evolved as a dialectical process, seeing legal scholarship shifting from grave concern about fragmentation’s potentially negative impacts on the international legal order to a more optimistic view of the phenomenon, with recent literature suggesting that the tools needed to contain fragmentation’s ill-effects are today all at hand, thus arguing that the time has come ‘to bid farewell to the f-word.’ Drawing on the COVID-19 crisis as a test case and considering the unresolved problems in existing fragmentation literature that this crisis brings to the fore, this article asks whether such calls have perhaps been premature. Existing works on fragmentation, the article submits, including those bidding farewell to the f-word, have mainly focused on the problems of conflicts between international norms or international institutions, especially conflicts between international courts over competing jurisdictions and interpretations of law. But, as the COVID-19 case – and, particularly, the deficient cooperation marked between the numerous international organizations reacting to the crisis – shows, the fragmentation of the international legal order does not only give rise to the potential consequences of conflicts of norms and clashes between international courts. Fragmentation also gives rise to pressing challenges of coordination when a proactive and cohesive international response is required to address global problems like COVID-19, which cut across multiple international organizations playing critical roles in the creation, administration, and application of international law. By foregrounding cooperation between international organizations as a vital-yet-deficient form of governance under conditions of fragmentation, the article argues, the COVID-19 crisis not only denotes that the time is not yet ripe to bid farewell to the f-word. It further points to the need to expand the fragmentation debate, going beyond its conflict- and court-centred focus, while probing new tools for tackling unsettled problems that arise from the segmentation of international law along sectoral lines.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"5 1","pages":"1-49"},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519886","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":"Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law","authors":"Zoë Sinel","doi":"10.3138/utlj-2021-0066.br","DOIUrl":"https://doi.org/10.3138/utlj-2021-0066.br","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"29 58","pages":"125-147"},"PeriodicalIF":0.6,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519914","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 judicial review of legality","authors":"N. R. Davidson, Leora Bilsky","doi":"10.3138/utlj-2021-0088","DOIUrl":"https://doi.org/10.3138/utlj-2021-0088","url":null,"abstract":"Abstract:In comparative constitutional law, the various models of judicial review require courts to examine either the substantive content of legislation or the procedure through which legislation was passed. This article offers a new model of judicial review – ‘the judicial review of legality’ – in which courts review instead the forms of law. The forms of law are the ways in which law communicates its norms to the persons who are meant to comply with them, and they include generality, clarity, avoidance of contradiction, and non-retroactivity. Drawing on recent writing on the jurisprudence of Lon Fuller, this article argues that Fuller’s linking of the forms of law to a relationship of reciprocity between government and governed can ground judicial review and that such review provides a missing language to address important legislative pathologies. Moreover, through an analysis of recent developments in Israel, the article demonstrates that the judicial review of legality targets some of the key legal techniques of contemporary processes of democratic erosion which other models of judicial review struggle to address, all the while re-centring judicial review on the lawyer’s craftsmanship and thus reducing problems of court legitimacy. This article therefore offers a distinctive and normatively appealing way for courts to act in troubling times.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"403 - 435"},"PeriodicalIF":0.6,"publicationDate":"2021-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48467814","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 death of law? Computationally personalized norms and the rule of law","authors":"Timothy Endicott, K. Yeung","doi":"10.3138/utlj-2021-0011","DOIUrl":"https://doi.org/10.3138/utlj-2021-0011","url":null,"abstract":"Abstract:The emergent power of big data analytics makes it possible to replace impersonal general legal rules with personalized, particular norms. We consider arguments that such a move would be generally beneficial, replacing crude, general laws with more efficiently targeted ways of meeting public policy goals and satisfying personal preferences. Those proposals pose a radical, new challenge to the rule of law. Data-driven legal personalization offers some benefits that are worth pursuing, but we argue that the benefits can only legitimately be pursued where doing so is consistent with the agency that the law ought to accord to individuals and with the agency that the law ought to accord to public bodies. The principle of public agency is a prerequisite for the rule of law. The principle of private agency depends on the rule of law. Each is incompatible with the unrestrained computational personalization of law.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"373 - 402"},"PeriodicalIF":0.6,"publicationDate":"2021-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42664174","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":"On the breach: Identifying infringements of section 35 rights","authors":"K. Wilkins","doi":"10.3138/utlj-2021-0028","DOIUrl":"https://doi.org/10.3138/utlj-2021-0028","url":null,"abstract":"Abstract:Section 35 of the Constitution Act, 1982, the Supreme Court of Canada has said, protects existing Aboriginal and treaty rights from unjustified infringement at the hands of federal and provincial legislatures and governments. To give meaningful effect to section 35’s protection, we need, therefore, to understand what counts as infringement of such rights and why. The Supreme Court’s own jurisprudence to date on this question, alas, disappoints; it does not withstand close critical scrutiny. This article calls attention to several shortcomings and inconsistencies in that jurisprudence and proposes for initial consideration a more inclusive approach to infringement identification, one that draws a sharper distinction between the infringement and justification inquiries. Adoption of such an approach, however, could have unwelcome substitution effects, prompting cautious courts to be more selective when asked to authenticate future claims of Aboriginal right, more penurious when construing the constitutionally protected scope of particular treaty or Aboriginal rights and/or more generous to governments during the justification inquiry. If the goal is to optimize the protection that Canadian constitutional law affords to treaty and Aboriginal rights, we shall need to be mindful of the interdependence among the authentication, infringement, and justification inquiries, and we shall need to understand much more clearly than we currently do just where the outer limits are beyond which mainstream Canadian law cannot, or will not, countenance Indigenous ways and why.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"287 - 315"},"PeriodicalIF":0.6,"publicationDate":"2021-11-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48053976","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}