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 much or too little tax room to national governments. This article argues that the divergence between theory and actual practice can be partially explained by a ‘credit assignment problem’ that affects the political economy of government decision making. To illustrate, the article develops a model to identify the incentives governments face when dividing tax room. The model’s central observations are that (a) the optimal division of tax room requires robust intergovernmental contracting, but (b) the necessary contracts are difficult or impossible to perform due to problems in allocating political credit – electoral rewards and punishments – between the two levels of government. The result is political conflict and, frequently, a sub-optimal division of tax room and the revenue that results. This article argues that law can perform two functions in responding to the credit assignment problem: (a) it can facilitate credit assignment, so that the necessary contracts over tax room and revenue are politically feasible, and (b), failing perfect credit assignment, it can mitigate the welfare effects of a sub-optimal division of tax room. The article shows how a credit assignment perspective should lead to reconsideration of constitutional law doctrines, such as the federal spending power and various doctrines that enable or limit concurrent expenditure jurisdiction. While these doctrines are the subject of long-running debates in legal scholarship, the credit assignment perspective offers new insights and new doctrinal prescriptions.
{"title":"Rethinking the Division of Tax Room And Revenue in Fiscal Federalism","authors":"R. Gillis","doi":"10.2139/ssrn.4011369","DOIUrl":"https://doi.org/10.2139/ssrn.4011369","url":null,"abstract":"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 much or too little tax room to national governments. This article argues that the divergence between theory and actual practice can be partially explained by a ‘credit assignment problem’ that affects the political economy of government decision making. To illustrate, the article develops a model to identify the incentives governments face when dividing tax room. The model’s central observations are that (a) the optimal division of tax room requires robust intergovernmental contracting, but (b) the necessary contracts are difficult or impossible to perform due to problems in allocating political credit – electoral rewards and punishments – between the two levels of government. The result is political conflict and, frequently, a sub-optimal division of tax room and the revenue that results. This article argues that law can perform two functions in responding to the credit assignment problem: (a) it can facilitate credit assignment, so that the necessary contracts over tax room and revenue are politically feasible, and (b), failing perfect credit assignment, it can mitigate the welfare effects of a sub-optimal division of tax room. The article shows how a credit assignment perspective should lead to reconsideration of constitutional law doctrines, such as the federal spending power and various doctrines that enable or limit concurrent expenditure jurisdiction. While these doctrines are the subject of long-running debates in legal scholarship, the credit assignment perspective offers new insights and new doctrinal prescriptions.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48167122","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}
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 should be part of choice of law doctrine, given the normative structure of the field; how to differentiate between the fundamental and non-fundamental norms that inform its use; and how to understand the leading public policy cases in a coherent way. In this Article, I offer a solution to these three problems. I argue we should reconceptualize the exception as a means by which courts can analyze the substance of foreign law to ensure that it complies with the rule of law, and thus can be applied ‘as a law’ in the forum. More specifically, public policy is how common law courts ensure that any foreign law they apply complies with the distinctive substantive requirements of the rule of law in the common law tradition – what is known as the common law constitution. Public policy thus defines the frontiers of legality in the common law tradition, and defends against threats from the rule of law that come from beyond the border. This approach justifies the inclusion of the exception in choice of law doctrine, given the field’s other normative commitments. It can also help distinguish between the fundamental and non-fundamental norms that should define the ambit of public policy. Finally, this approach may offer a coherent account of the doctrine, as numerous leading cases can be reinterpreted to track the fundamental principles of legality that inhere in the common law constitution.
{"title":"Frontiers Of Legality: Understanding The Public Policy Exception In Choice Of Law","authors":"Joanna Langille","doi":"10.3138/utlj-2021-0085","DOIUrl":"https://doi.org/10.3138/utlj-2021-0085","url":null,"abstract":"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 should be part of choice of law doctrine, given the normative structure of the field; how to differentiate between the fundamental and non-fundamental norms that inform its use; and how to understand the leading public policy cases in a coherent way. In this Article, I offer a solution to these three problems. I argue we should reconceptualize the exception as a means by which courts can analyze the substance of foreign law to ensure that it complies with the rule of law, and thus can be applied ‘as a law’ in the forum. More specifically, public policy is how common law courts ensure that any foreign law they apply complies with the distinctive substantive requirements of the rule of law in the common law tradition – what is known as the common law constitution. Public policy thus defines the frontiers of legality in the common law tradition, and defends against threats from the rule of law that come from beyond the border. This approach justifies the inclusion of the exception in choice of law doctrine, given the field’s other normative commitments. It can also help distinguish between the fundamental and non-fundamental norms that should define the ambit of public policy. Finally, this approach may offer a coherent account of the doctrine, as numerous leading cases can be reinterpreted to track the fundamental principles of legality that inhere in the common law constitution.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46407084","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}
Abstract: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 animals are fundamentally split between rights and welfarism has worked to ossify categories of analysis and prevent more accurate and productive accounts of what truly divides and unites theorists within this increasingly diverse field. In place of this traditional assumption that one must be simply ‘for’ or ‘against’ the abolition of property status, I propose an alternative pair of axes around which we might more productively organize existing and future approaches to animal law. First, what do these various approaches take to be the linchpin of animals’ exploitation – the thing that, though central to the system, is changeable, such that, if changed, the whole system might change with it? Second, what do these approaches take to constitute the unchangeable bedrock of existing systems of animal exploitation – things that reform efforts must take as inevitable, for better or for worse? Changing our lens to focus on bedrock and linchpins invites more nuanced debate respecting the unique constellations of hope, despair, and pragmatism that in fact animate so much animal law scholarship. In a field characterized by transformative ambitions, the proposed analysis of linchpins and bedrock focuses our attention on differing accounts of change – what must change and what cannot.
{"title":"Of linchpins and bedrock: Hope, despair, and pragmatism in animal law","authors":"Jessica Eisen","doi":"10.3138/utlj-2021-0127","DOIUrl":"https://doi.org/10.3138/utlj-2021-0127","url":null,"abstract":"Abstract: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 animals are fundamentally split between rights and welfarism has worked to ossify categories of analysis and prevent more accurate and productive accounts of what truly divides and unites theorists within this increasingly diverse field. In place of this traditional assumption that one must be simply ‘for’ or ‘against’ the abolition of property status, I propose an alternative pair of axes around which we might more productively organize existing and future approaches to animal law. First, what do these various approaches take to be the linchpin of animals’ exploitation – the thing that, though central to the system, is changeable, such that, if changed, the whole system might change with it? Second, what do these approaches take to constitute the unchangeable bedrock of existing systems of animal exploitation – things that reform efforts must take as inevitable, for better or for worse? Changing our lens to focus on bedrock and linchpins invites more nuanced debate respecting the unique constellations of hope, despair, and pragmatism that in fact animate so much animal law scholarship. In a field characterized by transformative ambitions, the proposed analysis of linchpins and bedrock focuses our attention on differing accounts of change – what must change and what cannot.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"468 - 490"},"PeriodicalIF":0.6,"publicationDate":"2022-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45394238","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}
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 questions to working-time questions. This might seem like a very specific issue, but, in fact, it has crucial implications for the entire model of platform work, and addressing this question requires us to rethink some of the fundamental pillars of labour law, notably whether more room should be opened for flexibility and individual choice within this system. We argue that one aspect of the platform model – ‘work on demand,’ which allows workers to log into the app whenever they wish to do so – poses a difficulty. Workers should be compensated for the time they are ‘on call’ and available to work. But platforms can be expected to respond by assigning workers to pre-set shifts to avoid paying for an unknown amount of working hours, thereby dismantling the ‘on-demand’ model. Such a change would be welcomed by many employees, who will gain more security, but others can be expected to object to losing the flexibility which they value. We consider possible solutions that could allow workers to choose the ‘on-demand’ model. While rejecting the possibility of allowing employees to waive on-call compensation rights, we consider several intermediate solutions that ensure partial payments for this time or exempt employees with another full-time job. The proposed solutions are based on the understanding that more choice is preferable in labour law as long as we can protect the interests of the affected employees and eliminate the externalities that some choices might generate for other workers.
{"title":"Flexibility, Choice, And Labour Law: The Challenge Of On-demand Platforms","authors":"Tammy Katsabian, G. Davidov","doi":"10.3138/utlj-2021-0113","DOIUrl":"https://doi.org/10.3138/utlj-2021-0113","url":null,"abstract":"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 questions to working-time questions. This might seem like a very specific issue, but, in fact, it has crucial implications for the entire model of platform work, and addressing this question requires us to rethink some of the fundamental pillars of labour law, notably whether more room should be opened for flexibility and individual choice within this system. We argue that one aspect of the platform model – ‘work on demand,’ which allows workers to log into the app whenever they wish to do so – poses a difficulty. Workers should be compensated for the time they are ‘on call’ and available to work. But platforms can be expected to respond by assigning workers to pre-set shifts to avoid paying for an unknown amount of working hours, thereby dismantling the ‘on-demand’ model. Such a change would be welcomed by many employees, who will gain more security, but others can be expected to object to losing the flexibility which they value. We consider possible solutions that could allow workers to choose the ‘on-demand’ model. While rejecting the possibility of allowing employees to waive on-call compensation rights, we consider several intermediate solutions that ensure partial payments for this time or exempt employees with another full-time job. The proposed solutions are based on the understanding that more choice is preferable in labour law as long as we can protect the interests of the affected employees and eliminate the externalities that some choices might generate for other workers.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48312581","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}
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 1970s – the novel tort claim of an ejected intoxicant against a vendor of alcohol not only was imagined, discussed, and commenced but also was won by the plaintiff at three levels of court. The authors argue that the Jordan House lawsuit exemplified a pivotal moment of socio-legal discontinuity in Canada, portending a quarter century of change in three major facets of its tort law system: in the perceptions of lay persons with respect to their private legal rights and obligations; in the personal convictions, social geography, and litigation strategies of Canadian lawyers; and in the formulation of tort doctrine by Canada’s trial and appellate judges. The article is a sub-study of a larger project on the reinvention of tort law and litigation in Canada in the half-century after World War II.
{"title":"The Reinvention of Canadian Tort Law, 1945–5: Jordan House as a Case Study","authors":"R. Kostal, E. Chamberlain","doi":"10.3138/utlj-2021-0096","DOIUrl":"https://doi.org/10.3138/utlj-2021-0096","url":null,"abstract":"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 1970s – the novel tort claim of an ejected intoxicant against a vendor of alcohol not only was imagined, discussed, and commenced but also was won by the plaintiff at three levels of court. The authors argue that the Jordan House lawsuit exemplified a pivotal moment of socio-legal discontinuity in Canada, portending a quarter century of change in three major facets of its tort law system: in the perceptions of lay persons with respect to their private legal rights and obligations; in the personal convictions, social geography, and litigation strategies of Canadian lawyers; and in the formulation of tort doctrine by Canada’s trial and appellate judges. The article is a sub-study of a larger project on the reinvention of tort law and litigation in Canada in the half-century after World War II.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43493972","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}
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 with extra-legal status, or use surveillance measures such as cameras or patrols for monitoring designated areas. Based on the analysis of one security regime that was imposed on the Palestinian minority in Israel between 1948 and 1966, I argue in this article that such spatial and temporal attributes affect each other and that different legal measures associated with security can be characterized by the specific time/space configuration – or chronotope – embedded in them. In Israel, a military regime was imposed on specific areas to foil the movement of its subjects and thereby further its territorial objectives. The procedures that the regime employed were therefore designed to monitor and control individuals’ whereabouts. Each of these seemingly spatial attributes, however, gained its particular function and meaning from a specific interaction with temporal attributes. The prism of the chronotope illuminates how security legal measures generate distinct modes of governance and produce different boundaries to the political community, in a way that a one-dimensional analysis fails to capture.
{"title":"Chronotopes of Security Legal Regimes","authors":"Irit Ballas","doi":"10.3138/utlj-2021-0038","DOIUrl":"https://doi.org/10.3138/utlj-2021-0038","url":null,"abstract":"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 with extra-legal status, or use surveillance measures such as cameras or patrols for monitoring designated areas. Based on the analysis of one security regime that was imposed on the Palestinian minority in Israel between 1948 and 1966, I argue in this article that such spatial and temporal attributes affect each other and that different legal measures associated with security can be characterized by the specific time/space configuration – or chronotope – embedded in them. In Israel, a military regime was imposed on specific areas to foil the movement of its subjects and thereby further its territorial objectives. The procedures that the regime employed were therefore designed to monitor and control individuals’ whereabouts. Each of these seemingly spatial attributes, however, gained its particular function and meaning from a specific interaction with temporal attributes. The prism of the chronotope illuminates how security legal measures generate distinct modes of governance and produce different boundaries to the political community, in a way that a one-dimensional analysis fails to capture.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43276622","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}
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 on the radar of lawyers, legal theorists, and philosophers. After sketching the book’s arguments, I explain why they are so refreshing. The remainder of the review essay proceeds in a more critical mode. First, I argue that the book’s explanatory aspirations fall short, and I sketch a framework for a more radically pluralistic theory of wrongful discrimination. This framework has the power to embrace Moreau’s compelling view that discrimination wrongs people by failing to treat them as equals while also recognizing a rich array of other discriminatory wrongs found in lived experience. Second, I argue that Faces of Inequality will disappoint readers looking for a truly inclusive account of wrongful discrimination. I end by emphasizing the book’s contribution to political philosophy and its ambition to provide a truly liberatory theory of what we owe to each other as moral and political equals.
{"title":"Discrimination and the value of lived experience in Sophia Moreau’s Faces of Inequality","authors":"Erin Beeghly","doi":"10.3138/utlj-2021-0086","DOIUrl":"https://doi.org/10.3138/utlj-2021-0086","url":null,"abstract":"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 on the radar of lawyers, legal theorists, and philosophers. After sketching the book’s arguments, I explain why they are so refreshing. The remainder of the review essay proceeds in a more critical mode. First, I argue that the book’s explanatory aspirations fall short, and I sketch a framework for a more radically pluralistic theory of wrongful discrimination. This framework has the power to embrace Moreau’s compelling view that discrimination wrongs people by failing to treat them as equals while also recognizing a rich array of other discriminatory wrongs found in lived experience. Second, I argue that Faces of Inequality will disappoint readers looking for a truly inclusive account of wrongful discrimination. I end by emphasizing the book’s contribution to political philosophy and its ambition to provide a truly liberatory theory of what we owe to each other as moral and political equals.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"5 3-4","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519867","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}
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.
{"title":"Farewell to the F-Word? Fragmentation of International law in times of the Covid-19 pandemic","authors":"S. Agon","doi":"10.2139/SSRN.3932220","DOIUrl":"https://doi.org/10.2139/SSRN.3932220","url":null,"abstract":"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":"29 1","pages":"1 - 49"},"PeriodicalIF":0.6,"publicationDate":"2022-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83743292","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}
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 that would otherwise contravene the laws of Canada or limit a right protected by the Canadian Charter of Rights and Freedoms so long as they are judicially authorized by the Federal Court. As new threats proliferate around the world, it is anticipated that CSIS will increasingly carry out this mandate overseas. Yet review bodies tasked with monitoring CSIS’s use of threat reduction measures (TRMs) report that CSIS has never sought judicial authorization to conduct a TRM. Why? One answer may be that CSIS has concluded that the Charter does not govern actions carried out abroad, and, as such, their extraterritorial conduct falls beyond the reach and oversight of the Federal Court. Whether the Charter applies to CSIS’s overseas conduct ostensibly lies in the Supreme Court of Canada’s leading case on the extraterritorial application of the Charter, R. v Hape. This article canvasses domestic and international law, as well as intelligence law theory, to explain why that presumption is wrong. Wrong, not least because the majority opinion in Hape is deeply flawed in its analysis and application of international law. But also, because intelligence operations are so distinguishable from the transnational criminal investigations at issue in Hape, the Court’s findings are inapplicable in the former context. In short, this article demonstrates that applying Hape to the actions of CSIS officers not only leaves their actions beyond the scrutiny of Canadian courts but also creates a significant human rights gap.
{"title":"‘Within Or Outside Canada’: The Charter’s Application To The Extraterritorial Activities Of The Canadian Security Intelligence Service","authors":"Leah West","doi":"10.3138/utlj-2021-0105","DOIUrl":"https://doi.org/10.3138/utlj-2021-0105","url":null,"abstract":"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 that would otherwise contravene the laws of Canada or limit a right protected by the Canadian Charter of Rights and Freedoms so long as they are judicially authorized by the Federal Court. As new threats proliferate around the world, it is anticipated that CSIS will increasingly carry out this mandate overseas. Yet review bodies tasked with monitoring CSIS’s use of threat reduction measures (TRMs) report that CSIS has never sought judicial authorization to conduct a TRM. Why? One answer may be that CSIS has concluded that the Charter does not govern actions carried out abroad, and, as such, their extraterritorial conduct falls beyond the reach and oversight of the Federal Court. Whether the Charter applies to CSIS’s overseas conduct ostensibly lies in the Supreme Court of Canada’s leading case on the extraterritorial application of the Charter, R. v Hape. This article canvasses domestic and international law, as well as intelligence law theory, to explain why that presumption is wrong. Wrong, not least because the majority opinion in Hape is deeply flawed in its analysis and application of international law. But also, because intelligence operations are so distinguishable from the transnational criminal investigations at issue in Hape, the Court’s findings are inapplicable in the former context. In short, this article demonstrates that applying Hape to the actions of CSIS officers not only leaves their actions beyond the scrutiny of Canadian courts but also creates a significant human rights gap.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2022-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44957764","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}
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.
{"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}
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