Abstract:This essay reviews Ran Hirschl’s City, State: Constitutionalism and the Megacity, 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 essay argues that Hirschl is unable to deliver on his major claim. Launching his thesis on a skewed account of the development of the political role of the city, a one-sided presentation of the constitutional order of the modern state, and a failure to appreciate the impact of urbanization on the city’s standing as a unit of government, Hirschl ignores the work of public lawyers on the challenges of metropolitan government and argues, unconvincingly, that these challenges can be resolved once we turn to the abstractions of constitutional theory.
{"title":"The city in the constitutional imagination","authors":"M. Loughlin","doi":"10.3138/utlj-2021-0099","DOIUrl":"https://doi.org/10.3138/utlj-2021-0099","url":null,"abstract":"Abstract:This essay reviews Ran Hirschl’s City, State: Constitutionalism and the Megacity, 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 essay argues that Hirschl is unable to deliver on his major claim. Launching his thesis on a skewed account of the development of the political role of the city, a one-sided presentation of the constitutional order of the modern state, and a failure to appreciate the impact of urbanization on the city’s standing as a unit of government, Hirschl ignores the work of public lawyers on the challenges of metropolitan government and argues, unconvincingly, that these challenges can be resolved once we turn to the abstractions of constitutional theory.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"356 - 371"},"PeriodicalIF":0.6,"publicationDate":"2021-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43894303","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}
Pub Date : 2021-11-03DOI: 10.3138/utlj-2021-0042.br
E. Rosser
{"title":"Hanoch Dagan, A Liberal Theory of Property","authors":"E. Rosser","doi":"10.3138/utlj-2021-0042.br","DOIUrl":"https://doi.org/10.3138/utlj-2021-0042.br","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46940207","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","DOIUrl":"https://doi.org/10.3138/utlj-2021-0066","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42332666","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 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 debate as to how a nation can escape from a ‘high-corruption’ equilibrium, especially one strengthened by its interaction with supplier collusion. In particular, whether endemic corruption can be combatted through an invigorated law enforcement push, combined with incremental reform, or whether some ‘big bang’ approach, with complete institutional overhaul, is required to establish a new equilibrium. The article notes that the Brazilian experience provides support for the hypothesis that, where corruption is endemic, better laws and law enforcement may be insufficient on their own to break a cycle and to remove the incentives and opportunities for corruption and collusion that exist. However, it also recognizes that, for many jurisdictions, wholesale big bang reform is unlikely to be feasible. It thus proposes a multi-pronged, and self-reinforcing, set of reforms to trigger change, concentrated on weaknesses diagnosed in the system. In particular, it suggests that where corruption affects public procurement, beyond specific adjustments to procurement, competition and anti-corruption laws, procurers, anti-corruption and competition enforcement agencies need to work closely together to coordinate policies, achieve synergies and to combat incentives and opportunities for corruption and collusion within procurement processes. Such reforms must be combined with measures to tackle broader factors contributing to systemic corruption. Although inspired by the Brazilian case study, the diagnosis and proposed reform strategy provides a workable model for use in other jurisdictions.
{"title":"Combatting corruption and collusion in public procurement: Lessons from Operation Car Wash","authors":"Alison Jones,Caio Mário da Silva Pereira Neto","doi":"10.3138/utlj-2021-0023","DOIUrl":"https://doi.org/10.3138/utlj-2021-0023","url":null,"abstract":"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 debate as to how a nation can escape from a ‘high-corruption’ equilibrium, especially one strengthened by its interaction with supplier collusion. In particular, whether endemic corruption can be combatted through an invigorated law enforcement push, combined with incremental reform, or whether some ‘big bang’ approach, with complete institutional overhaul, is required to establish a new equilibrium. The article notes that the Brazilian experience provides support for the hypothesis that, where corruption is endemic, better laws and law enforcement may be insufficient on their own to break a cycle and to remove the incentives and opportunities for corruption and collusion that exist. However, it also recognizes that, for many jurisdictions, wholesale big bang reform is unlikely to be feasible. It thus proposes a multi-pronged, and self-reinforcing, set of reforms to trigger change, concentrated on weaknesses diagnosed in the system. In particular, it suggests that where corruption affects public procurement, beyond specific adjustments to procurement, competition and anti-corruption laws, procurers, anti-corruption and competition enforcement agencies need to work closely together to coordinate policies, achieve synergies and to combat incentives and opportunities for corruption and collusion within procurement processes. Such reforms must be combined with measures to tackle broader factors contributing to systemic corruption. Although inspired by the Brazilian case study, the diagnosis and proposed reform strategy provides a workable model for use in other jurisdictions.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"21 2","pages":"103-150"},"PeriodicalIF":0.6,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519879","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}
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 norms and traditional interpretations of the law, became unexceptional. In this article, Operation Car Wash, the impeachment of President Dilma Rousseff, and the process to save the mandate of her successor, President Michel Temer, are analysed as successive examples of ‘constitutional hardball’ that dominated Brazilian political and institutional life, leading the country to a period of ‘constitutional malaise’ or ‘constitutional regression.’ The main objective of the article is to understand the impact of this cycle of institutional retaliations, rooted in the clash between the political and legal establishments (represented by Operation Car Wash), on the stability of Brazilian constitutional democracy.
{"title":"Clash of powers: Did Operation Car Wash trigger a constitutional crisis in Brazil?","authors":"Oscar Vilhena Vieira","doi":"10.3138/utlj-2021-0063","DOIUrl":"https://doi.org/10.3138/utlj-2021-0063","url":null,"abstract":"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 norms and traditional interpretations of the law, became unexceptional. In this article, Operation Car Wash, the impeachment of President Dilma Rousseff, and the process to save the mandate of her successor, President Michel Temer, are analysed as successive examples of ‘constitutional hardball’ that dominated Brazilian political and institutional life, leading the country to a period of ‘constitutional malaise’ or ‘constitutional regression.’ The main objective of the article is to understand the impact of this cycle of institutional retaliations, rooted in the clash between the political and legal establishments (represented by Operation Car Wash), on the stability of Brazilian constitutional democracy.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"35 1","pages":"174-209"},"PeriodicalIF":0.6,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519883","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:Suppose that an authoritarian regime wants to make changes to legal norms or institutions to consolidate its hold on political power. Suppose further that the regime in question cannot simply ignore the domestic or international costs of doing so, and that it has an interest in responding to critiques of these changes based on liberal democratic norms and the rule of law. How can it do so?One possible approach is to sow confusion and undermine the normative standards themselves – in effect, to ‘gaslight’ the domestic or international audience (or both). To that end, a regime might assert that the change it proposes resembles a ‘best practice’ from one or more other jurisdictions. Such emulation need not be thorough, or even sincere; it may suffice simply to assert that a proposed change resembles that in a jurisdiction with ironclad rule-of-law credentials. The changes being adopted may bear no real resemblance to the ‘comparators’ on closer examination. Alternatively, the measures being adopted may be similar on their face, but operate in such a different context that they end up serving a very different function to the function they perform in the comparator jurisdiction. Such gaslighting need not succeed in deceiving outsiders or subjects; undermining the standards by which legal reforms are measured, sowing confusion, or providing a superficial pretext for inaction may be sufficient.
{"title":"Legal Gaslighting","authors":"Alvin Y. H. Cheung","doi":"10.3138/utlj-2020-0125","DOIUrl":"https://doi.org/10.3138/utlj-2020-0125","url":null,"abstract":"Abstract:Suppose that an authoritarian regime wants to make changes to legal norms or institutions to consolidate its hold on political power. Suppose further that the regime in question cannot simply ignore the domestic or international costs of doing so, and that it has an interest in responding to critiques of these changes based on liberal democratic norms and the rule of law. How can it do so?One possible approach is to sow confusion and undermine the normative standards themselves – in effect, to ‘gaslight’ the domestic or international audience (or both). To that end, a regime might assert that the change it proposes resembles a ‘best practice’ from one or more other jurisdictions. Such emulation need not be thorough, or even sincere; it may suffice simply to assert that a proposed change resembles that in a jurisdiction with ironclad rule-of-law credentials. The changes being adopted may bear no real resemblance to the ‘comparators’ on closer examination. Alternatively, the measures being adopted may be similar on their face, but operate in such a different context that they end up serving a very different function to the function they perform in the comparator jurisdiction. Such gaslighting need not succeed in deceiving outsiders or subjects; undermining the standards by which legal reforms are measured, sowing confusion, or providing a superficial pretext for inaction may be sufficient.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"50 - 80"},"PeriodicalIF":0.6,"publicationDate":"2021-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46394864","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: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 is likely to be a less appealing method of decision making than the alternative – namely, relying on judgment. Those conditions are: it is difficult to collect data on either interventions or outcomes; accurate causal inferences are difficult to draw; there is little warrant for believing that the same causal relationships will apply in a new context; or the decision makers in question lack the capacity to undertake one of these tasks. These conditions are likely to be present in complex, transnational, decentralized, and dynamic forms of business regulation such as the global anti-bribery regime.
{"title":"The limits of evidence-based anti-bribery law","authors":"K. Davis","doi":"10.3138/utlj-2021-0055","DOIUrl":"https://doi.org/10.3138/utlj-2021-0055","url":null,"abstract":"Abstract: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 is likely to be a less appealing method of decision making than the alternative – namely, relying on judgment. Those conditions are: it is difficult to collect data on either interventions or outcomes; accurate causal inferences are difficult to draw; there is little warrant for believing that the same causal relationships will apply in a new context; or the decision makers in question lack the capacity to undertake one of these tasks. These conditions are likely to be present in complex, transnational, decentralized, and dynamic forms of business regulation such as the global anti-bribery regime.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"35 - 73"},"PeriodicalIF":0.6,"publicationDate":"2021-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45346874","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: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 down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public's constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public's ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly.
{"title":"The notwithstanding clause: Legislatures, courts, and the electorate","authors":"R. Leckey, E. Mendelsohn","doi":"10.3138/utlj-2020-0135","DOIUrl":"https://doi.org/10.3138/utlj-2020-0135","url":null,"abstract":"Abstract: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 down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public's constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public's ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"189 - 215"},"PeriodicalIF":0.6,"publicationDate":"2021-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42553106","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: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 are not generally based on wrongdoing. I also consider whether the absence of a right to specific performance is consistent with the existence of a duty of performance, and I discuss the need for alternative remedies to be mutually consistent. I also discuss the implications of remedial consistency for the concept of unjust enrichment, and I argue on the basis of remedial consistency for the general availability of proprietary claims for invalid transfers.
{"title":"Remedial consistency in private law","authors":"Peter Jaffey","doi":"10.3138/utlj-2020-0137","DOIUrl":"https://doi.org/10.3138/utlj-2020-0137","url":null,"abstract":"Abstract: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 are not generally based on wrongdoing. I also consider whether the absence of a right to specific performance is consistent with the existence of a duty of performance, and I discuss the need for alternative remedies to be mutually consistent. I also discuss the implications of remedial consistency for the concept of unjust enrichment, and I argue on the basis of remedial consistency for the general availability of proprietary claims for invalid transfers.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"216 - 244"},"PeriodicalIF":0.6,"publicationDate":"2021-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48574912","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}
Pub Date : 2021-10-08DOI: 10.3138/utlj-2021-0071.br
Tina Søreide
{"title":"Kevin E. Davis, Between Impunity and Imperialism: The Regulation of Transnational Bribery (New York: Oxford University Press, 2019)","authors":"Tina Søreide","doi":"10.3138/utlj-2021-0071.br","DOIUrl":"https://doi.org/10.3138/utlj-2021-0071.br","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":" ","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2021-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48764344","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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