Faculty of Law

Faculty of Law
Faculty of Law
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Law Visitor: FLSQ: Rachel Kohut

Law Events - Mon, 09/25/2017 - 13:00

Law Visitor: Ken Watkin

Law Events - Mon, 09/25/2017 - 13:00

Law Visitor: Robert Wintemute

Law Events - Tue, 09/19/2017 - 17:30

REVISION: The Medical Malpractice Landscape in Ontario: Facts, Trends and Analysis of Trials and Appeals

Knutsen on SSRN - Wed, 08/30/2017 - 14:33
This study presents comprehensive analyzed data about medical malpractice trials and appeals in the Ontario civil court system over a 24-year period, from 1992 to 2016. The study looks at the trends in this population of cases with the hopes that there is, for medical malpractice litigants, some predictive value in at least knowing the facts. The study examined not only success rates for parties in these cases but also other trends such as which fundamental legal issues were pursued, how certain issues fared on appeal, the impact of juries, and legal cost trends. The study concludes by offering some insight into what trends occurred in those cases and how that information might inform future medical malpractice litigation decisions. Highlights of the data include: Medical malpractice cases comprise a tiny proportion of civil matters dealt with by Ontario courts – about 0.06% of all civil proceedings and about 0.6% of matters dealt with by the Court of Appeal for Ontario. Patients ...

New: International Taxation Core Concepts

Cockfield on SSRN - Wed, 08/23/2017 - 09:57
The main purpose of International Taxation Core Concepts is to show managers, lawyers, accountants and others how tax laws affect global management decision-making. Part I of the book is a case study (or ‘tax novella’) called La Brienza Winery: Tax Trouble in Wine Country that illustrates how managers confront international tax challenges in the real world. It tells the story of Professor Xavier Montenegro and his tax advice to Dana La Brienza, the owner/manager of a Northern California winery with expanding global operations. Part II of the book contains additional materials on the U.S. and Canadian tax rules governing different cross-border planning strategies, including updates on recent developments. The second edition includes a new chapter on the developing relationship between Xavier and Dana. The attached excerpt provides the table of contents and the first chapter of La Brienza Winery.

New: The Medical Malpractice Landscape in Ontario: Facts, Trends and Analysis of Trials and Appeals

Knutsen on SSRN - Wed, 08/23/2017 - 06:29
This study presents comprehensive analyzed data about medical malpractice trials and appeals in the Ontario civil court system over a 24-year period, from 1992 to 2016. The study looks at the trends in this population of cases with the hopes that there is, for medical malpractice litigants, some predictive value in at least knowing the facts. The study examined not only success rates for parties in these cases but also other trends such as which fundamental legal issues were pursued, how certain issues fared on appeal, the impact of juries, and legal cost trends. The study concludes by offering some insight into what trends occurred in those cases and how that information might inform future medical malpractice litigation decisions.

New: Betterment

Pratt on SSRN - Wed, 08/23/2017 - 04:19
When property is wrongfully damaged the cost of reinstatement is often the appropriate measure of damages. Reinstatement by repair or replacement is, however, often possible only by replacing old materials with new materials that enhance the value of the property, generating “betterment.” In such cases courts are faced with a choice whether to abide the betterment and award the cost of reinstatement, or reduce damages to offset the betterment. Examples of both responses to betterment are found in the cases, but no clear principle has been articulated by Canadian courts as to when one is to be preferred over the other. I advance such a principle here, and use it to resolve some difficulties faced by courts in the assessment of damages where betterment is present.

New: Loyal Opposition and the Political Constitution

Webber on SSRN - Mon, 08/14/2017 - 00:56
In studying Parliament, special attention is regularly awarded to the interactions between government and Commons, with the Commons identified as a singular body, united in its claims against or in support of the government. These and other commonplace understandings trade on an insufficiently political study of the constitution, highlighted by the relative neglect of the Official Opposition in public law thought. With the aim of rehabilitating the place of Her Majesty’s Loyal Opposition in political and constitutional theory, this essay explores the historical rise and present day constitutional responsibilities of the Opposition. It highlights how government and Opposition are carried on by agreement and how the Opposition’s critical function is channelled, facilitated, and complicated by its pursuit of office.

New: Views of the Child Reports: The Ontario Pilot Project – Research Findings and Recommendations

Bala on SSRN - Thu, 06/22/2017 - 04:32
There is increasing use of Views of the Child Reports as a means of involving children in the resolution of parenting disputes in some parts of Canada, but there are significant differences in how these Reports are prepared. Further, until 2016 there was only very limited use of these Reports in Ontario. This paper reports on a study of an Ontario pilot project, funded by the Law Foundation of Ontario, that provided non-evaluative Reports for parenting disputes over custody or access prepared by clinicians based on two interviews with each child; children were offered confidentiality and the opportunity to review and edit the report. Reports were prepared for 86 children. After completion of the Reports, research interviews were conducted with 34 children, 41 parents/guardians, 35 parents’ lawyers, 28 judges, and 29 clinicians about their experiences with the Views of the Child Reports. The majority of professionals and parents stated that having these Reports of children’s views and ...

New: A Justification of Command Responsibility

Robinson on SSRN - Mon, 06/19/2017 - 06:09
In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.

New: Family Violence and Proving ‘Grave Risk’ for Cases under the Hague Convention Article 13(b)

Bala on SSRN - Thu, 06/15/2017 - 08:17
In The Hague Convention on Child Abduction is intended to address and deter wrongful removal and retention of children. Cases under the Convention now often raise issues under the “grave risk” Article 13(b) exception to return. The Convention emphasizes summary resolution of cases and an approach of judicial “self-denial,” avoiding an inquiry into the child’s “best interests.” However, when family violence issues are raised, a court must consider and assess the risks faced by children. Children exposed to domestic violence may face grave risk if returned, even if not direct victims. However, the domestic violence is a “differentiated phenomenon.” The fact that there may have been some acts of domestic violence does not preclude an order of return, but the court rather must assess the nature and serious o the acts, the likelihood of their recurrence and the adequacy of the protection that can be provided in the jurisdiction of the child’s habitual residence. Child sexual abuse ...

New: Sovereignty as a Right and as a Duty: Kant's Theory of the State

Weinrib on SSRN - Thu, 06/01/2017 - 09:29
Critics of Immanuel Kant’s legal and political philosophy argue that his theory of the state collapses into one of two extremes. For some, Kant is a quietist who regards positive law as the instantiation of justice and thereby deprives himself of a moral standpoint for the criticism of positive law. For others, Kant is an anarchist who denies the authority of law whenever it deviates from the demands of justice. I argue that these interpretations are the opposing products of a common error: the failure to distinguish between Kant’s justification of the right of the state to exercise public authority and his corresponding theory of a perfectly just state. Once these aspects of his theory of the state are disentangled, Kant’s transformative vision comes into view. Far from reducing the idea of a state to either an authoritative fiat or a utopian vision of justice, Kant offers a standpoint for recognizing (1) the public authority of existing states, (2) the standard of justice for ...

New: Human Dignity and Its Critics

Weinrib on SSRN - Thu, 06/01/2017 - 09:21
This Chapter explores four prominent objections to the overarching role that human dignity plays in constitutional and human rights law. In the eyes of its critics, human dignity is objectionable because it (1) is too variable to be captured by a coherent constitutional theory; (2) stands in opposition to a liberal vision of constitutional governance; (3) fails to offer guidance for resolving constitutional disputes; and (4) is incapable of justifying anything until it is itself justified. My aim is to unearth the presuppositions that generate these objections, explain why these presuppositions are controversial, and to formulate a set of plausible alternatives that do not give rise to these objections. Since the leading objections stem from presuppositions that need not be accepted, these objections do not preclude the formulation of a comparative constitutional theory of human dignity.

REVISION: When Trumps Clash: Dworkin and the Doctrine of Proportionality

Weinrib on SSRN - Wed, 05/31/2017 - 00:03
If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin’s rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper argues that each of these views is mistaken. On the one hand, Dworkin’s rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously.

New: How to End Mass Imprisonment: The Legal and Cultural Strategies of Bryan Stevenson

Kerr on SSRN - Wed, 04/19/2017 - 09:13
Bryan Stevenson’s Just Mercy, which is part legal history and part memoir, arrives at a moment when the tides may be turning in US criminal justice. Stevenson is a singular catalyst in the emergence of a movement against mass imprisonment, and the topics he is focused on are central to the prospect of lasting systemic reform. In his work as litigator, professor, and public figure, Stevenson has helped to usher in a new common sense that far-reaching reforms to US criminal justice are both required and imminent. Stevenson’s work becomes all the more significant when we consider the scope of change that structural reform requires. He has helped to draw the US Supreme Court away from a stance of extreme deference to legislative judgment in non-capital sentencing review – a meaningful shift in the direction of legal limits on the politics of tough punishment. This review contextualizes the publication of Just Mercy as a component of Stevenson’s legal and cultural strategies aimed at ...

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