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Rethinking the division of tax room and revenue in fiscal federalism University of Toronto Law Journal (IF 0.7) Pub Date : 2022-04-27 Rory Gillis
The division of tax room for shared tax bases, such as income taxes in Canada, the United States, Australia, and Switzerland, is a frequent cause of political conflict between national and sub-national governments. Economists and legal scholars have developed a theory that sets out an optimal division of tax room, but federal nations often substantially depart from this prescription by allocating too
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Frontiers of legality: Understanding the public policy exception in choice of law University of Toronto Law Journal (IF 0.7) Pub Date : 2022-04-12 Joanna Langille
The public policy exception is a notorious part of choice of law doctrine. The exception allows courts to refuse to apply foreign law selected by first-order choice of law rules that violates the forum’s fundamental principles of morality and justice. As a doctrinal matter, public policy is a well-established part of the architecture of choice of law. But scholars have struggled to understand why it
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The reinvention of Canadian tort law, 1945–95: Jordan House as a case study University of Toronto Law Journal (IF 0.7) Pub Date : 2022-03-17 Rande Kostal,Erika Chamberlain
This article employs the case study method to investigate the social history of Canadian tort law and litigation after 1945. Its focus is Menow v Jordan House, the stem precedent of the Canadian common law of tavern-keeper liability for intoxicated patrons. The article examines the historical genesis, pleading, and adjudication of this litigation, probing why – in Canada in the late 1960s and early
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Of linchpins and bedrock: Hope, despair, and pragmatism in animal law University of Toronto Law Journal (IF 0.7) Pub Date : 2022-03-16 Jessica Eisen
The field of animal law is ubiquitously characterized as being split between proponents of ‘animal rights’ and ‘animal welfare.’ While rights advocates seek to end the legal classification of animals as ‘property’ (or pursue the related goal of establishing animals as legal ‘persons’), welfarists aim to improve animal lives within the property paradigm. The common wisdom that all legal approaches to
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Flexibility, choice, and labour law: The challenge of on-demand platforms University of Toronto Law Journal (IF 0.7) Pub Date : 2022-03-16 Tammy Katsabian,Guy Davidov
Working through platforms is a recent but fast-growing phenomenon, with obvious implications for workers’ rights. Discussions have so far focused on the status of platform-based workers, but, recently, a growing consensus is emerging by courts around the world that workers for platforms such as Uber are in fact employees. As a result, legal disputes are likely to shift, to a large extent, from status
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The notwithstanding clause: Legislatures, courts, and the electorate University of Toronto Law Journal (IF 0.7) Pub Date : 2022-03-01 Robert Leckey,Eric Mendelsohn
This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking
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Hanoch Dagan, A Liberal Theory of Property University of Toronto Law Journal (IF 0.7) Pub Date : 2022-03-01 Ezra Rosser
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Remedial consistency in private law University of Toronto Law Journal (IF 0.7) Pub Date : 2022-03-01 Peter Jaffey
This article is concerned with the concept of ‘remedial consistency,’ the consistency of remedial rights with primary rights in the sense I explain. I argue that the requirement of remedial consistency has important implications across private law. It suggests that the ‘continuity thesis’ does not provide a justification for the right to compensation for a wrong, and I argue that rights to compensation
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Automating accountability? Privacy policies, data transparency, and the third party problem University of Toronto Law Journal (IF 0.7) Pub Date : 2022-03-01 David Lie,Lisa M Austin,Peter Yi Ping Sun,Wenjun Qiu
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
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Chronotopes of security legal regimes University of Toronto Law Journal (IF 0.7) Pub Date : 2022-02-01 Irit Ballas
Legal regimes dealing with security have prominent temporal attributes: they are often intended to operate for a specified period of time in response to an imminent danger and allow governments to employ extraordinary measures enabling them to act faster when faced with time-critical scenarios. Such regimes also have prominent spatial attributes: they often protect a physical border, delineate spaces
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Discrimination and the value of lived experience in Sophia Moreau’s Faces of Inequality University of Toronto Law Journal (IF 0.7) Pub Date : 2022-01-19 Erin Beeghly
In Faces of Inequality: A Theory of Wrongful Discrimination, Sophia Moreau embarks on a classic philosophical journey. It is what philosophers nowadays call an explanatory project. The goal of explanatory projects is to deepen our understanding of wrongful actions and what they share in common. In this review essay, I argue that Moreau’s book embodies a valuable explanatory project that ought to be
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‘Within or outside Canada’: The Charter’s application to the extraterritorial activities of the Canadian Security Intelligence Service University of Toronto Law Journal (IF 0.7) Pub Date : 2022-01-05 Leah West
Since the swift passage of the Anti-Terrorism Act in 2015, the Canadian Security Intelligence Service (CSIS) has had the unprecedented and highly controversial authority to take ‘reasonable and proportionate’ measures to reduce threats to Canadian security. While there are some limits to the types of measures CSIS can employ, the Canadian Security Intelligence Service Act permits the use of measures
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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 University of Toronto Law Journal (IF 0.7) Pub Date : 2021-12-17 Sara Gwendolyn Ross
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
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Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law University of Toronto Law Journal (IF 0.7) Pub Date : 2021-12-01 Zoë Sinel
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Farewell to the F-word? Fragmentation of international law in times of the COVID-19 pandemic University of Toronto Law Journal (IF 0.7) Pub Date : 2021-12-01 Sivan Shlomo Agon
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
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When, and how, does property matter? University of Toronto Law Journal (IF 0.7) Pub Date : 2021-12-01 Avihay Dorfman
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
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Stephen P Garvey, Guilty Acts, Guilty Minds University of Toronto Law Journal (IF 0.7) Pub Date : 2021-12-01 Stephanie Classmann
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The judicial review of legality University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-18 Natalie R. Davidson,Leora Bilsky
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
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The death of law? Computationally personalized norms and the rule of law University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-18 Timothy Endicott,Karen Yeung
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
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On the breach: Identifying infringements of section 35 rights University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-17 Kerry Wilkins
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
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Giving reasons as a means to enhance compliance with legal norms University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-11 Daphna Lewinsohn-Zamir,Eyal Zamir,Ori Katz
The threat of sanctions is often insufficient to ensure compliance with legal norms. Recently, much attention has been given to nudges – choice-preserving measures that take advantage of people’s automatic System 1 thinking – as a means of influencing behaviour without sanctions, but nudges are often ineffective and controversial. This article explores the provision of information about the reasons
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The city in the constitutional imagination University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-05 Martin Loughlin
This article reviews Ran Hirschl’s City, State, a study of ‘the great constitutional silence concerning one of the most significant phenomena of our time: urban agglomeration and the rise of megacities’ and which maintains that the solution to contemporary urban problems crucially depends on a ‘constitutional emancipation’ of the city. The article argues that Hirschl is unable to deliver on his major
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Clash of powers: Did Operation Car Wash trigger a constitutional crisis in Brazil? University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Oscar Vilhena Vieira
Brazil descended into a major political crisis after the 2013 mass demonstrations against electoral corruption and failure to fulfil constitutional obligations related to social and economic rights. This turmoil destabilized the political establishment and severely impacted the behaviour of legal institutions. The use of political mandates and institutional prerogatives, contrary to established social
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Combatting corruption and collusion in public procurement: Lessons from Operation Car Wash University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Alison Jones,Caio Mário da Silva Pereira Neto
This article examines the question of how a nation can combat corruption and collusion and prevent these practices from plaguing and undermining public procurement processes. This matter is especially important to Brazil where Operation Car Wash exposed widespread corruption and collusion affecting public procurement. Although focusing on Brazil, this article reflects on a broader academic and policy
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The limits of evidence-based anti-bribery law University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Kevin E Davis
Evidence-based regulation is a term of art that refers to the process of making decisions about regulation based on evidence generated through systematic research. There is increasing pressure to treat evidence-based regulation as a global best practice, including in the area of anti-bribery law. Too little attention has been paid to the fact that under certain conditions evidence-based regulation
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Corruption and the criminal law: Assurance and deterrence University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Vincent Chiao
In this article, I consider the degree to which criminal justice interventions may be expected to ameliorate systemic corruption. I distinguish between two ideal types of corrupt actors – conditional cooperators and autonomous defectors – and argue that the prospects of reform through criminal justice are greatly affected by the relative preponderance of each type. When conditional cooperators predominate
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From birth to agony: The political life of Operation Car Wash (Operação Lava Jato) University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Fernando Limongi
This article reconstructs Operation Car Wash’s (Operação Lava Jato) political project. Three different phases of the operation are analysed: its conception, its encounter with political and administrative corruption, and its attempt to mobilize popular support to combat political and administrative corruption. The analysis characterizes the operation as a particular manifestation of judicial intervention
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Kevin E. Davis, Between Impunity and Imperialism: The Regulation of Transnational Bribery University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Tina Søreide
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Systemic corruption and institutional multiplicity: Brazilian examples of a complex relationship University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Mariana Mota Prado,Raquel de Mattos Pimenta
Systemic corruption is usually described as a stable self-reinforcing equilibrium that traps individuals by reducing incentives to behave honestly. This article assumes that law enforcement institutions may also be trapped in this equilibrium, leaving no alternative to individuals who want to report corruption. Would the existence of multiple institutions performing accountability functions – what
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Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law University of Toronto Law Journal (IF 0.7) Pub Date : 2021-11-01 Zoë Sinel
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Popular sovereignty and constitutional democracy University of Toronto Law Journal (IF 0.7) Pub Date : 2021-09-21 Philip Pettit
In recent times, the idea of popular sovereignty has figured prominently in the rhetoric of neo-populist thinkers and activists who argue that legal and political authority must be concentrated in one single body or individual elected by the people to act in its name. The thesis of this article is that, while the notion of popular sovereignty may seem to offer some support to the neo-populist image
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Religious institutionalism: a feminist response University of Toronto Law Journal (IF 0.7) Pub Date : 2021-09-01 Kathryn Chan
People who are committed to religious freedom are generally also committed to protecting the conditions for the cultivation of religious life. Because of the deep linkages between religious belief and practice and religious institutions, it can seem natural and straightforward to move from championing religious freedom to championing religious freedom for religious institutions themselves. Members
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A unified model of public law: Charter values and reasonableness review in Canada University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-21 Richard Stacey
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
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Notwithstanding rights, review, or remedy? On the notwithstanding clause and the operation of legislation University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-12 Grégoire Webber
The Canadian 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
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The geometry of property University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-12 Yael R Lifshitz
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
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The question of fairness in contract law University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-06 John D. McCamus
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Law and macroeconomics as mainstream University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-06 Bruno Meyerhof Salama
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 for Recessions, Yair Listokin chall...
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The office of ownership revisited University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Christopher Essert
In this article, I revisit the arguments in, and address some concerns about, an earlier article of mine, ‘The Office of Ownership.’ This article makes two main points. The first is about the ways in which a transfer of property from one person to another affects the obligations of third parties. I continue to defend the earlier article’s claim that, by thinking about the obligations owed to owners
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A theory of mistaken assumptions in contract law University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Jennifer Nadler
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Catalytic agents? Lon Fuller, James Milner, and the lawyer as social architect, 1950–69 University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 David Sandomierski
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Conscientious refusal to provide medically assisted dying University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 LW Sumner
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Office and profession in the design of modern institutions University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Arie Rosen
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Between sovereign and subject: the constitutional position of the official University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Janet McLean
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The constitutional office of the legislature University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Lael K Weis
This article argues that constitutional theory requires the concept of ‘constitutional office’ to theorize the place of the legislature. ‘Constitutional office’ is both distinct from, and complemen...
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Bureaucracy without alienation University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Colin Grey
In The Public’s Law, Blake Emerson proposes a ‘Progressive theory’ of administrative law that fuses Hegelian and democratic elements. The Progressive theory calls on administrators to make autonomo...
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Ownership and offices: the building blocks of the legal order University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Larissa Katz
Ownership is not likely to stand out in most people’s minds as either the most central or the most illuminating case of an office. And, yet, I will argue in this article that the idea of ownership as an office is especially revealing of a tension between the concept of an office and the normative significance of offices in a legal order, a tension that property law resolves in a particularly revealing
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Office-holding and officiality University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Nicole Roughan
Much of positivist jurisprudence and public law theory celebrates an idea of the ‘legal official’ as one appointed and identified by law to claim and wield law’s powers over subjects. That idea tre...
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Contracts, markets, and justice University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Felipe Jiménez
Peter Benson’s Justice in Transactions offers a compelling internal, non-instrumental Hegelian conception of the law of contracts. It also connects this non-instrumental conception with broader iss...
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Office and contracting-out: An analysis University of Toronto Law Journal (IF 0.7) Pub Date : 2020-11-01 Kristen Rundle
This article investigates whether the phenomenon of ‘office’ might be sensitive to the legal forms within which it might manifest or with which it might come to interact. It does so by considering the fate of office in the context of contracted-out government service delivery. After establishing the jurisprudential foundations for its inquiry, the article outlines and analyses two case studies of contracting-out
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Elaborate imaginings: Rethinking environmental obligations in Canadian insolvency law University of Toronto Law Journal (IF 0.7) Pub Date : 2020-10-16 Anna Lund
Abstract:Environmental obligations fit uncomfortably into the framework of federal insolvency law. Canadian courts have struggled to articulate which environmental obligations should be stayed, compromised, and discharged in insolvency proceedings and which should remain fully enforceable. In its 2019 decision, Orphan Well Association v Grant Thornton Ltd, the Supreme Court of Canada drew a distinction
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The domain of private law University of Toronto Law Journal (IF 0.7) Pub Date : 2020-10-09 Hanoch Dagan,Avihay Dorfman
Private law theories tend to narrowly delineate their ambitions: many theories limit private law’s normative aspirations to a circumscribed set of liberalism’s core commitments, restrict its horizo...
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David Beatty’s redemption (and other thoughts on the future of labour law) University of Toronto Law Journal (IF 0.7) Pub Date : 2020-10-09 David J. Doorey
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 W...
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Sarah Seo, Policing the Open Road: How Cars Transformed American Freedom University of Toronto Law Journal (IF 0.7) Pub Date : 2020-08-01 Wesley M Oliver
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The artificial morality of private law: The persistence of an illusion University of Toronto Law Journal (IF 0.7) Pub Date : 2020-08-01 Liam Murphy
In the public at large, property and contract law are commonly thought to reflect moral proprietary and promissory rights. Contemporary philosophers are mostly sceptical about natural property righ...
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The implications of property as self-government University of Toronto Law Journal (IF 0.7) Pub Date : 2020-08-01 Malcolm Lavoie
Recent scholarship has argued that many of the distinctive features of Indigenous land tenure in common law countries can be explained by a single basic idea: under these regimes, property in land ...
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The capabilities approach: A panacea for labour law’s ills? University of Toronto Law Journal (IF 0.7) Pub Date : 2020-08-01 David Cabrelli
In recent years, there has been a tendency to view the subject of labour law and its goals through the prism of philosophy, and political philosophy in particular. A veritable ‘cottage industry’ ha...
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Parenthood is a fiduciary relationship University of Toronto Law Journal (IF 0.7) Pub Date : 2020-08-01 Lionel Smith
Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of con...
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Modern treaty making and the limits of the law University of Toronto Law Journal (IF 0.7) Pub Date : 2020-07-22 Harry Hobbs, Stephen Young
In recent years, several Australian states have formally committed to treaty negotiations with the First Peoples whose traditional lands they claim. The emerging treaty processes in Australia build...
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Fifty Years Later: The Legacy of the 1969 Criminal Law Reforms University of Toronto Law Journal (IF 0.7) Pub Date : 2020-06-01 Brenda Cossman
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Angela Fernandez, Pierson v. Post, The Hunt for the Fox: Law and Professionalization in American Legal Culture University of Toronto Law Journal (IF 0.7) Pub Date : 2020-06-01 Jennifer Nadler