Abstract:This article seeks to reclaim for property law and theory the centrality of two hitherto neglected questions: when does property matter and, to the extent that it does, precisely how. I argue that, in some cases, the property owner’s entitlement to exclude others has virtually nothing to do with the right to property; property, then, is epiphenomenal. At other times, an entitlement to exclude cannot exist independently of having a right to property. But even then – and this is where the second question concerning how property matters kicks in – there are important differences between excluding others for housekeeping purposes (say, ‘not now’) and denying access categorically (say, ‘not for you’). I therefore argue that the conventional identification of property with exclusion, or with exclusion and inclusion, obscures the difference that the right to property could, and should, make. Addressing the questions of when, and how, does property matter change the way we understand in theory and determine in practice what rights to exclude, and duties to include, do we have.
{"title":"When, And How, Does Property Matter?","authors":"Avihay Dorfman","doi":"10.2139/ssrn.3737952","DOIUrl":"https://doi.org/10.2139/ssrn.3737952","url":null,"abstract":"Abstract:This article seeks to reclaim for property law and theory the centrality of two hitherto neglected questions: when does property matter and, to the extent that it does, precisely how. I argue that, in some cases, the property owner’s entitlement to exclude others has virtually nothing to do with the right to property; property, then, is epiphenomenal. At other times, an entitlement to exclude cannot exist independently of having a right to property. But even then – and this is where the second question concerning how property matters kicks in – there are important differences between excluding others for housekeeping purposes (say, ‘not now’) and denying access categorically (say, ‘not for you’). I therefore argue that the conventional identification of property with exclusion, or with exclusion and inclusion, obscures the difference that the right to property could, and should, make. Addressing the questions of when, and how, does property matter change the way we understand in theory and determine in practice what rights to exclude, and duties to include, do we have.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"72 1","pages":"124 - 81"},"PeriodicalIF":0.6,"publicationDate":"2020-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44145326","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 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 only that any rights limitations that their decisions impose are proportionate 'in the strict sense.' This article argues that Charter values should be understood as part of a normative hierarchy of 'justificatory resources' to which administrative decision makers can refer in justifying rights-limiting decisions as proportionate in the strict sense. It argues further that the robust, reasons-first conception of reasonableness that the Court described in Vavilov affirms Doré's logical architecture, marking a shift in Canadian jurisprudence toward a 'culture of justification.' In adopting the same approach to constitutional decisions affecting Charter rights and administrative decisions that do not engage the Charter, Doré and Vavilov construct a unified model of public law in which all public decisions must be shown to be justified by their congruence with a hierarchy of norms which has Charter values at its apex. In this unified model of public law, in which a robust conception of reasonableness is central, it is not clear what room, or need, is left for correctness review.
{"title":"A Unified Model of Public Law: Charter Values and Reasonableness Review in Canada","authors":"Richard Stacey","doi":"10.3138/utlj.2020-0056","DOIUrl":"https://doi.org/10.3138/utlj.2020-0056","url":null,"abstract":"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 only that any rights limitations that their decisions impose are proportionate 'in the strict sense.' This article argues that Charter values should be understood as part of a normative hierarchy of 'justificatory resources' to which administrative decision makers can refer in justifying rights-limiting decisions as proportionate in the strict sense. It argues further that the robust, reasons-first conception of reasonableness that the Court described in Vavilov affirms Doré's logical architecture, marking a shift in Canadian jurisprudence toward a 'culture of justification.' In adopting the same approach to constitutional decisions affecting Charter rights and administrative decisions that do not engage the Charter, Doré and Vavilov construct a unified model of public law in which all public decisions must be shown to be justified by their congruence with a hierarchy of norms which has Charter values at its apex. In this unified model of public law, in which a robust conception of reasonableness is central, it is not clear what room, or need, is left for correctness review.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"338 - 375"},"PeriodicalIF":0.6,"publicationDate":"2020-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41897349","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 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 Wagner model which has governed since the 1940s. Instead, change will come first in the form of smaller foreshocks. Clues as to what those foreshocks may be are found in two important debates that took place during the 1980s. The first debate, led by Paul Weiler, explored comparative labour law and the intersection between the US and Canadian versions of the Wagner model. Weiler's vision of a hybrid Wagner model that drew upon features of both versions to advance worker access to a collective voice at work is instructive of the direction we may be headed in Canada. The second debate related to the potential impact of the Canadian Charter of Rights and Freedoms on the future of Canadian labour law. David Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner model and its replacement with a new model that emphasized equality of individual liberty and that extended the reach of collective bargaining. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence since 2001 may be catching up to that vision even if the Supreme Court has not often formally adopted his arguments. It is therefore important to revisit his ideas to find clues as to where we may be headed in labour law. The article concludes with some predictions about the changes that will come to Canadian labour law drawn from these debates of some forty years ago.
{"title":"Reflecting back on the future of labour law","authors":"David J. Doorey","doi":"10.2139/SSRN.3536540","DOIUrl":"https://doi.org/10.2139/SSRN.3536540","url":null,"abstract":"Abstract: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 Wagner model which has governed since the 1940s. Instead, change will come first in the form of smaller foreshocks. Clues as to what those foreshocks may be are found in two important debates that took place during the 1980s. The first debate, led by Paul Weiler, explored comparative labour law and the intersection between the US and Canadian versions of the Wagner model. Weiler's vision of a hybrid Wagner model that drew upon features of both versions to advance worker access to a collective voice at work is instructive of the direction we may be headed in Canada. The second debate related to the potential impact of the Canadian Charter of Rights and Freedoms on the future of Canadian labour law. David Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner model and its replacement with a new model that emphasized equality of individual liberty and that extended the reach of collective bargaining. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence since 2001 may be catching up to that vision even if the Supreme Court has not often formally adopted his arguments. It is therefore important to revisit his ideas to find clues as to where we may be headed in labour law. The article concludes with some predictions about the changes that will come to Canadian labour law drawn from these debates of some forty years ago.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"14 1","pages":"165 - 206"},"PeriodicalIF":0.6,"publicationDate":"2020-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604830","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 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 remedy is the one outlined in the Constitution’s supremacy clause: legislation is of ‘no force or effect’ to ‘the extent of the inconsistency’ with such rights and freedoms. By reviewing how the expression ‘no force or effect’ is equivalent to the expression ‘inoperable,’ it is argued that the notwithstanding clause empowers a legislature to affirm that legislation ‘shall have such operation as it would have but for’ targeted rights and freedoms. Such affirmation does not suspend rights and it does not block judicial review. Rather, it secures the operation of legislation even if such legislation is held by a court to be inconsistent with constitutional rights and freedoms. It follows that legislation invoking the notwithstanding clause may be challenged in judicial review and that a court may declare such legislation to be inconsistent with targeted rights and freedoms.
{"title":"Notwithstanding Rights, Review, or Remedy? On the Notwithstanding Clause and the Operation of Legislation","authors":"Grégoire C. N. Webber","doi":"10.3138/utlj-2020-0066","DOIUrl":"https://doi.org/10.3138/utlj-2020-0066","url":null,"abstract":"The 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 remedy is the one outlined in the Constitution’s supremacy clause: legislation is of ‘no force or effect’ to ‘the extent of the inconsistency’ with such rights and freedoms. By reviewing how the expression ‘no force or effect’ is equivalent to the expression ‘inoperable,’ it is argued that the notwithstanding clause empowers a legislature to affirm that legislation ‘shall have such operation as it would have but for’ targeted rights and freedoms. Such affirmation does not suspend rights and it does not block judicial review. Rather, it secures the operation of legislation even if such legislation is held by a court to be inconsistent with constitutional rights and freedoms. It follows that legislation invoking the notwithstanding clause may be challenged in judicial review and that a court may declare such legislation to be inconsistent with targeted rights and freedoms.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"0 1","pages":"-"},"PeriodicalIF":0.6,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47292047","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}
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 control over a footpath exerts a kind of horizontal dominion over the space of and around the footpath. This Article offers a conceptual framework for unpacking the spatial geometry of our property regimes and underscores its significance for policy and institutional design. It shows, importantly, that the compatibility between the space over which a regime holds control and the space that is occupied by a particular resource, has profound implications. A misalignment between the two – for example, when a vertical regime is applied to a horizontal resource – implicates how well the regime functions. After laying out the conceptual framework, the Article illustrates its application to a contemporary problem of extracting wind energy.
{"title":"The geometry of property","authors":"Yael R Lifshitz","doi":"10.3138/utlj-2020-0059","DOIUrl":"https://doi.org/10.3138/utlj-2020-0059","url":null,"abstract":"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 control over a footpath exerts a kind of horizontal dominion over the space of and around the footpath. This Article offers a conceptual framework for unpacking the spatial geometry of our property regimes and underscores its significance for policy and institutional design. It shows, importantly, that the compatibility between the space over which a regime holds control and the space that is occupied by a particular resource, has profound implications. A misalignment between the two – for example, when a vertical regime is applied to a horizontal resource – implicates how well the regime functions. After laying out the conceptual framework, the Article illustrates its application to a contemporary problem of extracting wind energy.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"333 ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515138","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 law of contracts has developed a variety of techniques for avoiding the enforcement of highly unfair, unreasonable, or burdensome terms. As yet, however, the common law has not directly adopted a straightforward rule to this effect. As a result, existing doctrines have been strained to achieve this objective. Further, there remain large gaps in the law in which such terms remain enforceable. The resulting state of the law contains many anomalies, uncertainties, and injustices. The author offers a sustained and convincing case for the explicit adoption of a rule permitting courts to refuse to enforce such terms. The argument draws support from an extensive review of historical and theoretical sources.
{"title":"The question of fairness in contract law","authors":"John D. Mccamus","doi":"10.3138/utlj-2020-0100","DOIUrl":"https://doi.org/10.3138/utlj-2020-0100","url":null,"abstract":"Abstract:The law of contracts has developed a variety of techniques for avoiding the enforcement of highly unfair, unreasonable, or burdensome terms. As yet, however, the common law has not directly adopted a straightforward rule to this effect. As a result, existing doctrines have been strained to achieve this objective. Further, there remain large gaps in the law in which such terms remain enforceable. The resulting state of the law contains many anomalies, uncertainties, and injustices. The author offers a sustained and convincing case for the explicit adoption of a rule permitting courts to refuse to enforce such terms. The argument draws support from an extensive review of historical and theoretical sources.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"285 - 300"},"PeriodicalIF":0.6,"publicationDate":"2020-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44097844","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: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 to Recessions, Yair Listokin challenges this doubtful convention. He advocates 'expansionary legal policies' to stimulate the economy when monetary policy reaches the zero lower bound and becomes ineffective. This proposal is presented as a straightforward application of mainstream economic views, not a heterodox deviation. My review considers how the book's main arguments depart from established views in economic analysis of law and discusses how its applications fare in light of the Keynesian perspective that the book purports to uphold.
{"title":"Law and macroeconomics as mainstream","authors":"B. Salama","doi":"10.3138/utlj-2020-0084","DOIUrl":"https://doi.org/10.3138/utlj-2020-0084","url":null,"abstract":"Abstract: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 to Recessions, Yair Listokin challenges this doubtful convention. He advocates 'expansionary legal policies' to stimulate the economy when monetary policy reaches the zero lower bound and becomes ineffective. This proposal is presented as a straightforward application of mainstream economic views, not a heterodox deviation. My review considers how the book's main arguments depart from established views in economic analysis of law and discusses how its applications fare in light of the Keynesian perspective that the book purports to uphold.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"274 - 284"},"PeriodicalIF":0.6,"publicationDate":"2020-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47467599","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":"Conscientious refusal to provide medically assisted dying","authors":"LW Sumner","doi":"10.3138/utlj-2020-0053","DOIUrl":"https://doi.org/10.3138/utlj-2020-0053","url":null,"abstract":"","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"347 ","pages":"1-31"},"PeriodicalIF":0.6,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515142","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:Personal autonomy is a constitutive element of all rights. It confers upon a right-holder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a right-holder of a choice that was rightfully hers – the choice as to how to go about her life. Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a right-holder without securing her permission or, worse, causes her bodily injury. At other times, however, the two harms overlap, as in the case when a right-holder is unlawfully barred from exercising her free speech right or is denied the right to vote. Furthermore, the autonomy harm may sometimes exceed the physical harm sustained by the victim, as is the case in many sexual harassment incidents. At other times, however, the victim’s physical harm or economic loss will outweigh the autonomy harm, as is often the case in automobile accidents. Even though autonomy violations are omnipresent, and the harm resulting from them can be severe, the law rarely recognizes a cause of action for violations of autonomy, nor does it provide redress for autonomy harms. The current legal approach to autonomy protection can best be characterized as anomalous and unprincipled. Therefore, from a normative perspective, it is untenable. In this article, we set out to make three novel theoretical and doctrinal contributions. First, we advance a comprehensive jurisprudential account of the relationship between rights and autonomy. Second, we show why existing law should be replaced with a legal regime that respects and protects individual autonomy in all cases. Finally, we develop a remedial framework designed to address autonomy violations. Mindful of administrability constraints, we incorporate three limitations to ensure that our proposal does not overwhelm the court system: (a) suits for autonomy violations would only be allowed when the plaintiff has a cause of action originating from the defendant’s infringement of her recognized legal right; (b) any such suit would undergo a strict de minimis scrutiny; and (c) no double recovery would be allowed in cases in which the plaintiff’s autonomy harm is subsumed in her physical or economic loss.
{"title":"Autonomy","authors":"Gideon Parchomovsky, A. Stein","doi":"10.2139/ssrn.3382579","DOIUrl":"https://doi.org/10.2139/ssrn.3382579","url":null,"abstract":"Abstract:Personal autonomy is a constitutive element of all rights. It confers upon a right-holder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a right-holder of a choice that was rightfully hers – the choice as to how to go about her life. Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a right-holder without securing her permission or, worse, causes her bodily injury. At other times, however, the two harms overlap, as in the case when a right-holder is unlawfully barred from exercising her free speech right or is denied the right to vote. Furthermore, the autonomy harm may sometimes exceed the physical harm sustained by the victim, as is the case in many sexual harassment incidents. At other times, however, the victim’s physical harm or economic loss will outweigh the autonomy harm, as is often the case in automobile accidents. Even though autonomy violations are omnipresent, and the harm resulting from them can be severe, the law rarely recognizes a cause of action for violations of autonomy, nor does it provide redress for autonomy harms. The current legal approach to autonomy protection can best be characterized as anomalous and unprincipled. Therefore, from a normative perspective, it is untenable. In this article, we set out to make three novel theoretical and doctrinal contributions. First, we advance a comprehensive jurisprudential account of the relationship between rights and autonomy. Second, we show why existing law should be replaced with a legal regime that respects and protects individual autonomy in all cases. Finally, we develop a remedial framework designed to address autonomy violations. Mindful of administrability constraints, we incorporate three limitations to ensure that our proposal does not overwhelm the court system: (a) suits for autonomy violations would only be allowed when the plaintiff has a cause of action originating from the defendant’s infringement of her recognized legal right; (b) any such suit would undergo a strict de minimis scrutiny; and (c) no double recovery would be allowed in cases in which the plaintiff’s autonomy harm is subsumed in her physical or economic loss.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"71 1","pages":"61 - 90"},"PeriodicalIF":0.6,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44454387","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:Offices have a vital, but limited, role to play in private law. This article analyses the nature of private law offices, concluding, first, that the identity of an office is coextensive with the constellation of rights, duties, powers, and so on which are attributed to the office-holder and which reflect the nature of the representative task she is appointed to perform, and, second, that, so long as the need for representation remains, the office needs to be filled. This is why offices are always accompanied by appointment procedures which allow the office to be filled when an incumbent dies or is unfit to continue. It is argued that a private law office should be employed only when a valid need, or valuable potential, for representation of one person by another arises. Applying this analysis, it is denied that parenthood and ownership are private law offices.
{"title":"Private law offices","authors":"J. Penner","doi":"10.3138/utlj-2020-0068","DOIUrl":"https://doi.org/10.3138/utlj-2020-0068","url":null,"abstract":"Abstract:Offices have a vital, but limited, role to play in private law. This article analyses the nature of private law offices, concluding, first, that the identity of an office is coextensive with the constellation of rights, duties, powers, and so on which are attributed to the office-holder and which reflect the nature of the representative task she is appointed to perform, and, second, that, so long as the need for representation remains, the office needs to be filled. This is why offices are always accompanied by appointment procedures which allow the office to be filled when an incumbent dies or is unfit to continue. It is argued that a private law office should be employed only when a valid need, or valuable potential, for representation of one person by another arises. Applying this analysis, it is denied that parenthood and ownership are private law offices.","PeriodicalId":46289,"journal":{"name":"University of Toronto Law Journal","volume":"70 1","pages":"299 - 313"},"PeriodicalIF":0.6,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47386893","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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