Join us for a discussion of emerging issues in common law theory and practise presented by scholars from the Université de Montréal and other Canadian law faculties. Presentations are held on Wednesdays (11.30h-12.45h), in the Salon François-Chevrette in the PavillonMaximillen-Caron. There is no admission charge, although we ask that attendees register in advance.
Professor McKee will examine the legal and policy debates surrounding online peer-to-peer platforms for rentals and services, focusing on Airbnb and Uber. Although such platforms have contravened the law in many jurisdictions, they remain extremely popular and have called into question a great deal of government regulation. This presentation will attempt to explain the platforms’ appeal. It argues that the platforms have succeeded, to the extent that they have, by invoking liberal ideas about markets and private economic ordering: notably, that such ordering is natural, neutral, consensual, and efficient. The platforms have bolstered these arguments through their identification with the family and with technology. Moreover, all of these arguments operate on two levels. The platforms are described not only as private economic actors participating in markets, but also as providers of technological-normative infrastructure for new markets. Although the platforms have achieved rhetorical and commercial success by exploiting these ambiguities, a careful analysis of the various lines of argument reveals that the claims made on behalf of the platforms are vulnerable to critique. »
Cette présentation sera en français et anglais.
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The first 35 years of Charter jurisprudence has largely been devoted to defining the limits of Charter freedoms in relation to government action. That is to say, most cases have concerned claims that the government has infringed a Charter right. Thus, the Supreme Court has devoted much of its jurisprudence to defining the scope and content of rights largely (although not exclusively) in isolation from other values. In recent years, however, the Court has been confronted with cases in which two private parties make claims that bring different provisions of the Charter into conflict. Although the Court frequently attempts to « reconcile » competing rights, it seems clear that future cases will likely involve direct collisions. Using the Trinity Western cases as a starting point, this paper will explore the ways in which the Supreme Court might approach collisions of rights in future cases.
Toxic torts are torts involving environmental contamination or a toxic product. This area of law implicates some of our most fundamental values, including the preservation of human life and health and the sanctity of private property. Although tort law has always included an environmental stream (notably through the law of nuisance), contemporary toxic tort cases often involve complex and contested science arising from the explosion in the use and dissemination of synthetic chemicals in recent decades. This seminar will address the unique challenges of toxic tort litigation for litigants, counsel and judges, including leading precedents, the appropriate treatment of scientific evidence, and policy considerations that will shape the evolution of the Canadian toxic tort law in the future.
Principles cut across modern legal traditions; they are one of the most fundamental notions in law; they base our legal reasoning; they pervade our legal discourse. However, with a few notable exceptions, most dating back several decades, there have been surprisingly few legal studies in English devoted to this notion. Generally, the case reports and the literature contain only scattered passing discussions of principles, often with more or less attention paid to past contributions. Knowing what principles are, what they do and how they do it will provide a deeper understanding of the general workings of our constitutional systems as well as of the practical operation of Constitutions. Of the several uses of constitutional principles, perhaps their most immediate and controversial application is in the exercise of judicial review. This paper seeks to develop a general account of constitutional principles in common law-based systems before offering an explanation of the exercise of judicial review of legislation based on principles.
This essay discusses the concept of loyalty in fiduciary law. It contrasts fiduciary loyalty with moral conceptions of loyalty, and argues that the distinctiveness of fiduciary loyalty is best appreciated in light of characteristic features of fiduciary relationships. The essay establishes the distinctiveness of fiduciary loyalty by examining: (a) the objects of loyalty in fiduciary relationships; (b) the standards of loyalty that constrain the behavior of fiduciaries in fiduciary relationships; and (c) the functions served by the fiduciary duty of loyalty.