Law

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Open Access
Law, Language, And Authority: The Algorithmic Turn
(2024-10-28) Turnbull, Amanda; Craig, Carys
Law is formed by language and law utilizes language. Law is also like language in that it consists of social rules that aid in the structuring of society. From the time that we first put language into writing, we have been invested in the technologizing of language. There is a clear trajectory of our interest in having machines do things with language that we would otherwise do ourselves. This dissertation investigates how law’s relationship with language changes with the use of algorithmically driven technologies, and correspondingly, the consequences for the changing nature of authority since the use of language in law is closely entwined with the use of language in exercising authority. Drawing on J. L. Austin’s speech-act theory as framework, which scrutinizes language as a form of action and effects rather than as a medium for transmitting information, this dissertation is divided into three pillars that grapple with how algorithms do things with words in the context of law. The first pillar offers an analysis of generative AI and the implications for authorship. The second pillar moves from algorithms and authored words to an examination of algorithms and drafted words, specifically through an analysis of the nature of the emerging “algorithmic contract,” in which an algorithm fills in for human expertise in the contracting process. The third pillar of this dissertation investigates the consequences of executing algorithmic contracts, paying particular attention to the accelerating issue of technology-facilitated gender-based violence in the ride-hailing industry. Taken together these three pillars have implications for understanding law’s authority as we adopt increasingly sophisticated technologies in society. This final chapter on authority taps into cyberfeminism to help elucidate the changing nature of authority as we delegate authority, often unintentionally, to algorithms. The findings drawn from this investigation offer solutions to some of the legal conundrums posed by algorithmically driven technologies that do things with language. These findings also have import for the relationship between law and language and for better understanding the nature of law in the Algorithmic Turn.
Open Access
The Heteronomy of Flesh: A Minor Jurisprudence of the Use of the Human Dead and Tissues
(2024-07-18) Shaw, Joshua David Michael; Mykitiuk, Roxanne
The dissertation addresses historical and contemporary legal literatures—generally literatures that have not succeeded in becoming convention (Peter Goodrich)—that assert or rely on the human body’s “jurisgenerativity” (Robert Cover) to evaluate and determine what should be lawfully done with the human dead or tissues. These literatures demonstrate the limits of doctrinal legal methods and conventional jurisprudence which ordinarily deploy concepts of property or personhood. Instead of property or personhood, these literatures require the jurisprudent to attune to the heteronomy of flesh, a law engendered in the materiality of the body decomposing, cut into parts, or as fragments falling away from the individual. It requires the jurisprudent to reach past divisions of nomos and physis, playing with the normativity of corporeal forms. Drawing on concepts of critical legal theory including heteronomy (Stewart Motha, Jean-Luc Nancy); lawscape (Nicole Graham, Andreas Philippopoulos-Mihalopoulos); jurisgenesis and biogenesis (Robert Cover, Margaret Davies); antirrhesis and the antinomian (Peter Goodrich, Marty Slaughter); and office and technics of jurisdiction (Olivia Barr, Shaunnagh Dorsett and Shaun McVeigh, Marc Trabsky), the author suggests how these literatures and their engagement with human corporeality can be re-read to foster alternate approaches to the laws of the dead and bodily matter. This leads the author to conclude the dissertation by gesturing to the possibility of a minor jurisprudence (Peter Goodrich, Shaun McVeigh, Panu Minkkinen) where the jurisprudent writes as flesh (Gilles Deleuze and Felix Guattari), inspired by re-readings of the failed literatures he covered, so to inhabit different modes of relating with corporeality.
Open Access
Indigenous Biocentric Law Against a Legacy of Violence: Chilean Water Regulation, Free Trade with the EU, and Violations of Mapuche and Aymara Rights to Water
(2024-07-18) Simard, Joseph Jonathan Edward; Bhatia, Amar
Assertions of Mapuche and Aymara law in defence of waters are hampered by a legacy of state violence, and continued appropriation of Indigenous worldviews under commodified conceptions of nature. I interrogate and analyze the connection between Chile’s water market regime, natural resource extraction, water scarcity, and free trade and foreign investment. Chile’s Water Code facilitates water-intensive agribusiness, mineral extraction, and salmon aquaculture as part of export-oriented economy. At the same time, free trade agreements signed with EU countries knowingly encourage overextraction of water and natural resources. I argue in favour of grassroots movements toward land restitution and jurisdiction as solution. I aim to show international human rights litigation and the concept of virtual water as legal means to hold Chile and major EU importing states responsible for environmental harm, and violation of Mapuche and Aymara peoples’ right to water including ancestral and cultural uses.
Open Access
A Soft Competition Among Arbitral Institutions: The institutional oligopoly of mixed arbitration.
(2024-03-16) Schaugg, Lukas; Van Harten, Gus
Arbitral institutions play a vital role beyond merely facilitating international arbitration between private parties and states; they actively shape international legal norms and influence global governance. Despite their strategic and policy-shaping role, scholarship on arbitral institutions remains limited mostly to doctrinal analyses of their procedural functions. Addressing this gap, this thesis presents a comparative case study, exploring the influence of four dominant arbitral institutions and their leading experts on the development and evolution of mixed arbitration. The study combines insider research and work in the archives of inter- and non-governmental organizations, states, and influential individuals. It also draws on numerous leaked diplomatic cables. The thesis finds that the institutional market for treaty-based mixed arbitration constitutes an oligopoly of four institutions. Rather than from free market competition, this oligopoly emerged from a combination of factors, including brokering by international bureaucrats and arbitration experts during critical junctures, followed by subsequent path-dependent developments. This dynamic is historically embedded in the emergence of administered forms of contract-based mixed arbitration, which set the scene for the arrival of ICSID and the proliferation of treaty-based cases. While ICSID’s arrival marks a significant milestone, other institutions thrived in lesser but still vital ways, leveraging factors such as the timing of state accessions to the ICSID Convention, geopolitical dynamics during the Cold War, the introduction of the UNCITRAL Arbitration Rules, new treaty provisions offering a forum choice, and lobbying by influential experts who possessed ‘the right visibility at the right time’. The study contributes to several strands of scholarship, including on the political economy of the investment treaty regime, the growing judicialization of international law, and the role of non-state actors in international relations. It also represents the first comparative case study of non-doctrinal aspects of arbitral institutions with a focus on mixed arbitration.
Open Access
Best Laid Birth Plans: a relational analysis of the legal rights of birthing people in Canada
(2024-03-16) Stevenson, Julianne Michelle; Mykitiuk, Roxanne
While it is trite law in Canada that patients have the right to make their own medical decisions, news reports, regulatory complaints, and civil claims indicate that this right is failing to translate to delivery rooms. This thesis examines the gaps between the legal rights of birthing people in Canada as they exist “on the books” and the way those rights are experienced, using the critical theory of Law in Action. Building on feminist critiques of the traditional liberal conception of autonomy, this thesis conceptualizes childbirth as an experience deeply embedded in relations to others and concludes that to close the gaps between legal rights and lived experiences, we must craft law and policy in a manner that accounts for the broader relational context in which childbirth occurs.
Open Access
Getting Out of Debt Poverty
(2024-03-16) Lord, Philippe; Ben-Ishai, Stephanie
This dissertation advances a novel government program that could remedy inadequate access to credit for unbanked and underbanked individuals – those it defines as the “very poor.” It sets out the socioeconomic circumstances that create singular barriers for the very poor. It analyses the credit needs of the very poor, the unique institutions they interact with to meet these needs, and the ways in which these institutions intertwine extreme poverty, credit, and marginalisation. The dissertation proceeds to examine the role of the state in the provision and regulation of credit, and in the entrenchment of extreme poverty. It provides a sustained historical analysis of the role of the postal service, a public institution, in the provision of banking and credit and discusses a number of analogous programs and proposals that normalise and contextualise its novel government program. The dissertation extends a framework drawn from antitrust law to argue that state intervention in the marketplace is best understood as falling along a spectrum, from the provision of a competing product or service to the monopolisation of an entire industry. This framework elucidates how we justify state intervention with respect to certain essential, “public” products and services. The dissertation closes with a detailed proposal for a government program that would provide credit to the very poor through loans repaid through additional, progressive taxation. Individuals whose income does not reach a certain level would not need to repay the loan, whereas those with a high income would effectively repay a multiple of the loan principal amount. Repayment would depend on income, but only for a limited period of time. The program may have unique potential to alleviate persistently lower social mobility for the very poor.
Open Access
Administrative Convenience or Deliberate Reform? The Impacts of the Colonial Judicial Legacy of the Pre-Colonial Justice System in South-Western Nigeria
(2023-12-08) Adeyeye, Adewale Adekunle; Akande, Rabiat
In pre-colonial times, the ethnic groups that independently existed in the territory now called Nigeria had organized systems of government. However, the sweeping force of nineteenth-century colonialism erased most of these pre-colonial governments’ institutions and replaced them with the British system. Notably, in South-Western Nigeria (Yorubaland), historical evidence revealed the existence of a constitutional monarchy with organized branches of government. Especially, the pre-colonial judicial branch/justice system of the Yoruba monarchy was radically altered by colonialism. Using the interdisciplinary methodology, this research answered questions related to the structures and procedures of the pre-colonial justice system in South-Western Nigeria and how it is indelibly impacted by colonialism. In its systematic, and expository narration, this research found an inseparable nexus between lawfare and force as instruments of colonial distortion of the pre-colonial justice system of South-Western Nigeria. Thus, this work augments an aspect of the almost neglected field of African/Nigerian legal history.
Open Access
Canada’s Cultural Property Export Controls: An Analysis of the Colonial and Heritage Discourses that Animate the Cultural Property Export and Import Act
(2023-12-08) Davis, Madeline Anne; Buchanan, Ruth M.
This thesis critiques Canada’s Cultural Property Export and Import Act (CPEIA) and its framing as a legal instrument intended to protect and preserve Canada’s cultural heritage. It focuses on the export provisions of the Act and the related experts and administrative bodies who oversee disputes under those provisions. I argue that colonial and capitalist heritage and property discourses are the foundation that underpins the CPEIA and as a result, the legislation both expressly and implicitly privileges colonial and capitalist ideas about heritage and property ownership. The legislation, on its face and through the limited examples of available application, leaves little room for alternative ideas about the meaning of “heritage” and its association with culture. Relying on Laurajane Smith and Fiona Macmillan’s work on the Authorized Heritage Discourse, I provide an updated historical account of the CPEIA and Canada’s perceptions of cultural property as a settler state in light of new opportunities to engage with the application of the legislation following recent decision from the Federal Court of Appeal and the Canadian Cultural Property Export Review Board.
Open Access
Critically Evaluating the Role of the Judiciary in the Good Governance Paradigm: A Study of Pakistan
(2014-06) Muhammad Azeem; Ruth M Buchanan
In this dissertation, I critically evaluate the central role assigned to the judiciary in “the good governance” paradigm (as promoted by international institutions such as the World Bank), through a study of Pakistan. I argue that the paradigm’s focus on institutional arrangements/rearrangements, in order to produce a strong judiciary, judicial reforms, and to implement ‘the rule of law’, is problematic. I find, in contrast, and based on a detailed historical study of the different judicial regimes in the post-colonial era, that the judiciary is a part of the state, and has served to reproduce the state, in its democratic and military forms, as well as political and structural inequality in Pakistan. I document in detail how the judiciary increasingly gained autonomy in state power leading to result in what I term as a ‘judicial dictatorship’ by the 2000s. Through the thesis, I advance an alternative structural analysis of the state and institutional arrangements, using a class analysis and historical-contextual approach. My study argues that a strong (‘activist’) judiciary cannot be a substitute for a weak and inadequately representative legislature. The fallback position of the judiciary - in promoting a ‘rights’ discourse, or protection of minorities - is also an inadequate remedy for the lack of a deeper democracy in the society. My research in Pakistan contributes to the view that the role of the judiciary ultimately is to uphold political ends crafted elsewhere, rather than be seen as an agent to ‘cause’ political betterment. This study is based on most of the relevant case law in the post-colonial era, primary sources such as interviews, speeches, and judge’s monographs, as well as the available secondary material such as journal articles, books, and newspaper reports.
Open Access
Unfortunate But Ordinary: A Study of Federal Court Approaches to Stays of Removal
(2023-08-04) Joundi, Talia; Rehaag, Sean
Interlocutory decisions issued on stay of removal motions by the Federal Court of Canada remain under-studied. A leading reason for the limited research is that stay orders were not published or publicly accessible five years ago. Since then, changes to the Court’s policies regarding publication have increased the number of accessible stay orders. The outcome of a denied stay motion may result in the immediate deportation of a foreign national from Canada. Given the high-stakes nature of these decisions, it is imperative to critically examine stay motion procedures, laws, and trends against established human rights norms. This study presents an overview of this final legal frontier followed by a multi-method inquiry to investigate Federal Court stays. The inquiry exposes an area of law that remains extremely limited and procedurally lacking, resulting in a legal process that stands in tension with human rights protections.
Open Access
The International Patent Practice Narrative: Patent Agents, Epistemic Capture and the Patent Bargain
(2023-08-04) Aoun, Wissam Joseph; Vaver, David
This work explores the question of how professionalization of patent agency along with its accompanying discourse has affected the direction of international patent institutions and networks. Professionalization of patent agency is defined as the government regulation of who may provide patent agent services to the public through the form of professional licensing requirements. To the extent that professionalization of patent agency has created a unique discourse of patent agency, to what degree and in what respects has this discourse transformed global patent institutions? In particular, has this discourse created a form of ‘epistemic’ or ‘cultural’ capture that has the effect of delegitimizing other valid forms of discourse? Through the application of several methodologies, namely, historical analyses, doctrinal analyses and qualitative empirical work, this study attempts to create what epistemic capture theorists refer to as a capture story, which is a story of how cultural influences of a regulated industry – here, professional patent agents – come to dominate the regulatory discourse to the exclusion of other viable, competing conceptions of what constitutes the public interest. This work concludes that professionalization of agency within the patent system is interconnected with enablement as an organizing principle of the patent system as a social institution. Prior to professionalization, when agency was democratized throughout the patent system, so too was democratized enablement a guiding principle of the patent system. The formation of a unique, legitimized professional patent agent epistemic community has resulted in diminishing the democratization of enablement across the patent system as a social institution. This work discusses several of the practical and normative implications of the diminishing value of democratized enablement. Finally, this work concludes with a discussion of the future prospects of agency within the patent system.
Open Access
The Practitioner King - A Study of Legal Education and Practice in Pakistan
(2023-08-04) Zaidi, Summaiya; Girard, Philip
This dissertation is a study of legal education and practice in Pakistan and investigates the rise of the legal practitioner through a socio-historical examination. It seeks to determine the extent to which legal education in Pakistan is bound by colonial norms of practice through a genealogy of the legal practitioner in South Asia where the practitioner emerges as a dominant actor in the legal field. This dissertation argues that the fields of legal education and practice cannot be studied separately because the two are intimately connected for three main reasons: firstly, the law degree serves as an entry requirement to legal practice, secondly, practitioners are preferred as faculty to teach law at universities and law colleges, and thirdly, the Pakistan Bar Council shares regulation of legal education with the Higher Education Commission. The curriculum for the LLB degree is decided by the Bar and Commission and has historically been pulled towards a practice-focus, which is reflected in the 2018 reforms. The methodology adopted draws from the three disciplines of law, history and sociology. Archival sources at the British Library in London, UK, the Library of Congress in Washington DC, US, and the Sindh Archives in Karachi, Pakistan, provide the historical frame upon which this work based (1800 – 1947). Legal method allows for a detailed study of the Supreme Court cases on legal education and statutory context (1998-2018). Focus groups and interviews with key members in the reform process help inform the current context in Pakistan and the Bourdieusian theoretical framing on fields and habitus serves as the glue that brings these seemingly separate components together. During and following Independence in 1947, the fields of practice and politics have also been interconnected through the gains made by the practitioner in the national political field. These gains have continued in Pakistan where the practitioner has emerged as a King in the twenty-first century in the fields of education, practice, and politics. This study aims to fill the gap in the existing literature in the area in Pakistan and can help guide the reforms in the area.
Open Access
Remedies in Canadian Parental Alienation Cases: Turning to Tort Law for Support
(2023-08-04) Martin, Zechariah Weicker; Drummond, Susan
This thesis provides an avenue to remedy some of the harms associated with parental alienation for rejected parents – an issue that is inadequately addressed by Canadian family law cases. One of the major functions of the legal system is to allow injured parties the opportunity to seek recourse. This thesis questions whether the prevailing approach to parental alienation is capable of providing justice to rejected parents. Family law centres on the best interests of children, a vulnerable group whose needs should be prioritized and protected. Parental alienation disputes destroy meaningful relationships between children and capable parents, but family law focuses on the best interests of children to the exclusion of all other interests, including a rejected parent’s interest in justice. This thesis questions whether, given the harm done to rejected parents, that exclusion can be justified in cases of parental alienation.
Open Access
The Use of Arguments about Myths and Stereotypes to Appeal Sexual Assault Convictions in Canada
(2023-03-28) Quinn, Ryan Andrew; Dufraimont, Lisa
Canadian defence counsel have recently begun appealing sexual assault convictions by arguing that a trial judge applied myths and stereotypes (M&S) against the accused. This phenomenon is surprising because this country’s focus on M&S in sexual assault law has almost exclusively concerned improper assumptions that operate against the complainant and the Crown and risk producing perverse acquittals. This thesis reviews this new defence strategy with reference to three decades of appellate case law and scholarship. It advances definitions of M&S as well as principles for understanding the evidentiary effects of their recognition as such, and it categorizes various defence attempts to invoke M&S in conviction appeals, concluding that some have more merit than others. Emerging from this analysis is a more consistent, coherent role for the M&S doctrine in sexual assault law – one which should assist the Canadian bench, bar and academy in distinguishing legitimate M&S arguments from strained ones.
Open Access
The Elusive Pursuit of Justice: Sexual Assault Survivors' Speak About Redress in the Aftermath of Violence
(2023-03-28) Burnett, Tamera Ashley Margaret; Lawrence, Sonia
The struggle of survivors to obtain justice after they have been sexually assaulted has been a much discussed topic in recent years. Significant attention and resources are being directed towards this issue, making academic research particularly valuable at this time. However, instead of asking how legal processes can theoretically be made better, as is the case in most of the literature on this topic, my focus has been on asking why survivors want to engage in a legal process at all. What do they get from reporting their assaults and does what the legal system offers them respond to what survivors are looking for from justice? This project starts this conversation by asking survivors what they think justice should be in the aftermath of a sexual assault. Using feminist standpoint epistemology and grounded theory, I interviewed sixteen survivors and seven lawyers to explore what justice means for survivors in the aftermath of an assault. From the data, I identified four major themes including: harms and healing, accountability, punishment, and restorative justice. I found that survivors were not satisfied with the justice they could obtain under criminal law. They stated that it was difficult, financially and emotionally, to engage in criminal proceedings that were unlikely to resolve in a way that made them feel as if justice was done. While other forms of legal justice are also available, survivors often found these to be inaccessible as well, or they were unaware of the existence of these alternative options. The survivors I spoke with imagined an expansive ideal of justice. To most of the women I interviewed with, justice involved the prevention of future violence, something they did not think the legal system was currently equipped to deal with. They were curious, though conflicted, about restorative models, but appreciated their focus on attempting to reform offender behaviour. They also stressed the importance of being supported in their attempts to recover from sexual assault, highlighting that financial compensation was crucial for any survivor to heal.
Open Access
Tokenized Finance and Monetary Law: The Evolving Role of the Central Bank in the Age of Digital Currency
(2023-03-28) Olowookere, Odunayo Emmanuel; Puri, Poonam
This thesis attempts to examine the motivations of the central bank and the state in the adoption of a sovereign-backed Central Bank Digital Currency (CBDC). We sought to answer the question- of what central bank roles will be most affected by the adoption of a sovereign-backed digital currency. Since any motivations for the adoption of this new form of currency are sure to reflect in its eventual design, we argue that without the intervention of the law at this crucial design stage, any such currency is very likely to be unfavorable to the money users. We justify this by investigating the role played by the law in guiding the evolutionary trajectory of the central bank and monetary affairs generally. Our investigation revealed that money and the law evolved alongside economic development and the inherent complexities in trade and exchange.
Open Access
Regulating the Corporation from Within and Without: Corporate Governance and Workers’ Interests
(2022-12-14) Sukdeo, Vanisha Hemwatie; Puri, Poonam
This dissertation critically explores how the increased legal regulation and governance of corporations can be used to help improve the interests of workers in global supply chains. Chapter one outlines the introduction and provides background information. Chapter two is the literature review. Chapter three examines the expansion of fiduciary duties and changes to corporate governance, including Benefit Corporations, and how expanded fiduciary duties can be used to increase the interests1 of workers. Chapter four contains a case study of the Rana Plaza disaster to demonstrate how governance models can be used to help increase working conditions in Bangladesh and other parts of the Global South. Chapter five is a case study of the Hudson’s Bay Company and three different versions of its code of conduct. Chapter six concludes.
Open Access
The old people are the song, and we are their echo: resurgence of w̱ sáneć law and legal theory
(2022-12-14) Clifford, Robert Justin; Boisselle, Andree
This dissertation attends to pressing questions of strategy and tactics in relation to Indigenous law revitalization in the context of the climate crisis. Grounded in my own W̱SÁNEĆ legal order, I provide an accounting of the context in which the resurgence of W̱SÁNEĆ law is occurring, and clarity regarding what we hope to accomplish with the revitalization of W̱SÁNEĆ (and more broadly, Indigenous) law, both locally and in response to global climate crisis. Doing so prompts questioning of the very foundations of Canadian constitutionalism, and indeed, our most basic ideologies and conceptualizations of our place and relationships within the world. From a position that our theory and methodology of Indigenous law revitalization, and our diagnosis and approaches to the climate crisis must be intricately entwined and mutually reflective, the dissertation sets out to argue that nothing short of a fundamental reimagining of our relationships within the world, and thus the social, legal, political, and economic structures those relational understandings condition, is required. Approaching such encompassing questions requires the creation of conversations across fields such as Indigenous law, critical Indigenous studies, and political ecology. Guided by W̱SÁNEĆ law and the responsibilities and obligations it entails, how might we navigate ongoing dynamics of settler colonialism and climate crisis? While some form of “decolonized” relationship with Canada seems necessary but insufficient within the context of a global climate crisis, what would actually be required to meaningfully respond and reimagine healthy relationships between all beings? Will forms of state-delegated authority, such as co-management agreements, or forms of “green capitalism”, such as market measures or carbon offsets for Indigenous-led conservation, ever suffice to address our longstanding, and yet continually unfolding, predicaments of settler colonialism and climate crisis? As I argue for a more foundational re-imagining of our relationships and place within the world, my analysis also reveals that we are not left groundless in this re-imagining as we can draw upon the wisdom and practices housed within our respective Indigenous traditions.
Open Access
Safety Valves: A Band-Aid Solution to the Ills of Mandatory Minimums?
(2022-12-14) Sayed, Venus; Berger, Benjamin L.
This work examines the Supreme Court of Canada’s statutory safety valve proposal in the case of R. v. Lloyd as a solution to the problems presented by mandatory minimum sentences. The thesis develops a safety valve matrix which allows various valves to be plotted along broad-narrow and high-low discretion matrices. Following a review of the development of exemptions in Canadian jurisprudence, the paper then takes a comparative approach of analysis to look at three similarly placed jurisdictions – Australia, the United States and the United Kingdom. By examining the statutory safety valves in use in these jurisdictions, this work concludes that a broad, high-discretion safety valve may be most effective in the Canadian context.
Open Access
Hartazgo: Understanding how #YoTeCreo emerged in Venezuela
(2022-12-14) Muskus Toro, Maria Corina; Matthews, Heidi
This thesis explores how digital feminist activism sparked, using as a case study #YoTeCreo movement in Venezuela. Using the FemMesh to connect feminists knowledges, nodes and entanglements together with a transnationalized intersectionality, I discuss how this digital activism occurred locally. As this topic is novel and this thesis is exploratory, I combine the theoretical framework mentioned before together with feminist qualitative methodology by interviewing the leaders of #YoTeCreo and answer my research question. I concluded that the spark of #YoTeCreo in Venezuela is a combination of different factors and it is not a transplantation of the #MeToo movement from North to South. Even though the #MeToo was a reference to #YoTeCreo, the cross-border movements of ideas, persons, and places; the role of media and entertainment; the role of migrant women; the feeling of hartazgo, a sense of empathy, and sorority were important and entangled factors linked to the spark of this movement.