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Now available at University of Toronto Law Journal Online... University of Toronto Law Journal - Volume 63, Number 2, Spring 2013 <http://utpjournals.metapress.com/content/l70p85026127/> http://utpjournals.metapress.com/content/l70p85026127/ Opinion Writing and Authorship on The Supreme Court Of Canada Kelly Bodwin, Jeffrey S Rosenthal, Albert H Yoon In contrast to other branches of government, the Supreme Court of Canada operates with relatively lean staffing. For most of the Court's history, its justices alone determined which cases to review, heard oral argument, and wrote opinions. Only since 1967 have justices have been aided in these responsibilities by law clerks. While interest abounds in the relationship between justices and their clerks - particularly the writing of opinions - very little is known. This article analyses the text of the Court's opinions to better understand judicial authorship. We find that justices have distinct writing styles, allowing us to distinguish them from one another. Their writing styles also provide insight into how clerks influence the writing of opinions. Most justices in the modern era possess a more variable writing style than their predecessors did, both within and across years, providing strong evidence that clerks are increasingly involved in the writing of judicial opinions. DOI: 10.3138/utlj.63.2.091212 <http://utpjournals.metapress.com/content/e818466603uwr1q0/?p=d6ebe0cb8b1041 e993d399b9de16a088&pi=0> http://utpjournals.metapress.com/content/e818466603uwr1q0/?p=d6ebe0cb8b1041e 993d399b9de16a088&pi=0 Focus Feature: Criminal Jurisdiction: Comparison, History, Theory This focus feature hopes to start a fresh conversation about criminal jurisdiction, in domestic and international law, informed by comparative, historical and theoretical perspectives. Jurisdiction is a fantastically rich subject that receives either too little or too much attention: too little attention as a way to get at basic questions about the nature of power, sovereignty, punishment, community and too much attention as a doctrinal or administrative matter of curial coordination. Introduction Markus D Dubber <http://utpjournals.metapress.com/content/nl26p23148114u24/?p=d6ebe0cb8b1041 e993d399b9de16a088&pi=1> http://utpjournals.metapress.com/content/nl26p23148114u24/?p=d6ebe0cb8b1041e 993d399b9de16a088&pi=1 DOI: 10.3138/utlj.63.2.131212 Extraterritorial Jurisdiction to Enforce In Cyberspace? Bodin, Schmitt, Grotius in Cyberspace Mireille Hildebrandt What is at stake if justice authorities decide to hack a computer system that is physically located on a server outside the territory of the state they represent - for instance, because a malicious attack was operated from foreign territory, causing serious harm to a variety of computing systems? The article explores potential answers to this question, starting with a discussion of the makings of territorial jurisdiction. My starting point is an inquiry into the territorial spatiality of modern jurisdiction that traces the history of the idea of mutually exclusive jurisdiction that informs international law. I will argue that such territorial spatiality has been generated by the technologies of cartography and discuss how this connects with the notion of terror, with Bodin's absolute sovereignty, and with Schmitt's understanding of occupatio as central to territorial sovereign jurisdiction. Next, I investigate the powers of extraterritorial jurisdiction in the light of Grotius's Mare Liberum. His natural law theory entails that the high seas be seen 'as a passage' and 'a global commons' that enable free trade and the common good of mutual collaboration between independent states. The eschatological overtones of Grotius's belief in the moral and economic benefits of free trade have been coined 'economic theology' by Agamben, paraphrasing Schmitt's 'political theology.' We can detect a similar 'economic theology' in early descriptions of the benefits of cyberspace. This, finally, raises the question of the feasibility and the desirability of a 'cyberspace liberum,' taking into account various attempts to gain control over parts of cyberspace for instance, by means of a so-called indirect extraterritorial effect. I conclude with the question of whether we can sustain cyberspace as a passage and as a global commons, considering its non-modern spatiality and keeping in mind how it engages with the landscape of territorial jurisdiction while often evading that jurisdiction's core of mutually exclusive boundaries. DOI: 10.3138/utlj.1119 <http://utpjournals.metapress.com/content/b183418974044w11/?p=d6ebe0cb8b1041 e993d399b9de16a088&pi=2> http://utpjournals.metapress.com/content/b183418974044w11/?p=d6ebe0cb8b1041e 993d399b9de16a088&pi=2 Territorial Jurisdiction and Criminalization Lindsay Farmer The nature of jurisdiction and its relation to the criminal law is either poorly understood or neglected altogether. Jurisdiction is often viewed either as a purely technical matter - a procedural hurdle to be crossed before a court can hear a particular case - or as something linked pragmatically to the limits of enforcement of the law. This is particularly true in relation to territorial jurisdiction, where the idea of territory is treated as though it were natural and self-evident, without acknowledgement of the way that it is shaped by particular legal and political institutions. The present article has two aims. First it identifies and analyses the principal features of the paradigm of territorial jurisdiction as this has developed in English law, looking in particular at the way the idea of 'territory' has shaped and been shaped by the development of the criminal law. It then goes on to explore the relationship between jurisdiction and criminalization by showing how the development of the paradigm of territorial jurisdiction was linked, not only to the emergence and form of certain laws, but more generally to the idea of a criminal law as a body of norms which applied consistently and seamlessly within a given legal space. DOI: 10.3138/utlj.1117-3 <http://utpjournals.metapress.com/content/85p4j5h308v0hu37/?p=a88a6247f21846 42818fd170efabf5f8&pi=0> http://utpjournals.metapress.com/content/85p4j5h308v0hu37/?p=a88a6247f218464 2818fd170efabf5f8&pi=0 Criminal Jurisdiction And Conceptions Of Penality In Comparative Perspective Markus D Dubber This article undertakes a critical analysis of the concept of criminal jurisdiction from a comparative and historical perspective, focusing on common criminal law and German criminal law in particular. Despite a recent upsurge of interest in criminal jurisdiction in the international sphere, domestic criminal jurisdiction remains understudied in both legal systems. Turned inward, conceptions of 'international' criminal jurisdiction in a given domestic legal system turn out to reflect the tension between competing fundamental conceptions of state penality. DOI: 10.3138/utlj.11117-2 <http://utpjournals.metapress.com/content/n6r043702j10m035/?p=a88a6247f21846 42818fd170efabf5f8&pi=1> http://utpjournals.metapress.com/content/n6r043702j10m035/?p=a88a6247f218464 2818fd170efabf5f8&pi=1 Authority to Proscribe and Punish International Crimes Guyora Binder Although criminal jurisdiction is usually exercised by governments, offences can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow that criminal prohibitions may not be justifiable if they cannot be enforced systematically. Because the international legal system generally lacks the executive capacity required for a rule of law, the article suggests that international criminal punishment is justifiable as supportive of a rule of law only in rare circumstances. Finally, the article considers whether an alternative expressive rationale can, nevertheless, justify occasional prosecutions as useful in legitimizing international humanitarian norms. It questions whether the expressive benefits of such prosecutions can outweigh the expressive risks of promising protection the international legal system cannot deliver. DOI: 10.3138/utlj.1117-1 <http://utpjournals.metapress.com/content/f17l61753l631j06/?p=d6ebe0cb8b1041 e993d399b9de16a088&pi=5> http://utpjournals.metapress.com/content/f17l61753l631j06/?p=d6ebe0cb8b1041e 993d399b9de16a088&pi=5 REVIEW ARTICLES The End of the Road to Serfdom? Markus D Dubber This a review article of Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010). The promise of the book is that the retrieval of public law understood as a prudential discourse of public right will show us how liberal democratic societies have learned to negotiate between the horns of the fundamental dilemma Loughlin supposes we face. This is the dilemma articulated by Rousseau: on the one hand, a society has to take deliberate steps to produce through law free citizens in order to ensure that it is one in which freedom endures, while, on the other hand, such steps create the danger of 'bureaucratic oppression' of the sort that produces a society composed of chiefs and slaves. However, at the end of the book, Loughlin suggests that the dilemma has been resolved and that we are in danger of finding ourselves living, or perhaps even are already living, in the society of chiefs and slaves. And if the idea of public right is retrieved only to show that it is either moribund or dead, we have reached the end of what FA Hayek called in 1944 'the road to serfdom.' I argue that Loughlin comes to this surprising conclusion because of a fundamental flaw in his argument about the rule of law, in which he both reduces the rule of law to an instrument of power and suggests that it has to fail on its own terms. DOI: 10.3138/utlj.63.2.300412RA <http://utpjournals.metapress.com/content/2ut1222286209v4h/?p=d6ebe0cb8b1041 e993d399b9de16a088&pi=6> http://utpjournals.metapress.com/content/2ut1222286209v4h/?p=d6ebe0cb8b1041e 993d399b9de16a088&pi=6 Relational Autonomy and Individuality Marilyn Friedman This review explores some of the important issues raised in Jennifer Nedelsky's book, Law's Relations: A Relational Theory of Self, Autonomy, and Law. First, it introduces Nedelsky's relational approach and her rejection of liberal individualism. Second, it delves more deeply into Nedelsky's relational account of autonomy. Then, it details Nedelsky's relational approach to rights and law and argues, among other things, that Nedelsky's approach has a consequentialist cast to it. Finally, it provides a critical assessment of Nedelsky's rejection of independence and individualism. DOI: 10.3138/utlj.63.2.070812RA <http://utpjournals.metapress.com/content/27m0277w7n078875/?p=d6ebe0cb8b1041 e993d399b9de16a088&pi=7> http://utpjournals.metapress.com/content/27m0277w7n078875/?p=d6ebe0cb8b1041e 993d399b9de16a088&pi=7 BOOK REVIEWS Is Eating People Wrong: Great Legal Cases and How They Shaped the World Jim Phillips <http://utpjournals.metapress.com/content/048416k650t34162/?p=d6ebe0cb8b1041 e993d399b9de16a088&pi=8> http://utpjournals.metapress.com/content/048416k650t34162/?p=d6ebe0cb8b1041e 993d399b9de16a088&pi=8 _____ University of Toronto Law Journal The University of Toronto Law Journal, founded in 1935, is the oldest university law journal in Canada. It continues to represent the broad and visionary approach to legal scholarship which was initially announced by W.P.M. Kennedy, the first editor of the Journal, when he ventured the hope that its publication would foster a knowledge of comparative laws 'not merely as substantive or adjectival systems, but as expressions of organized human life, of ordered progress, and of social justice.' The journal publishes the work of the most internationally well known scholars, not only in the law, but also in the broad range of disciplines relating to the law, such as economics, political science, philosophy, sociology, and history. <http://www.utpjournals.com/utlj> www.utpjournals.com/utlj Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw. For more information about the University of Toronto Law Journal or for submissions information, contact: University of Toronto Law Journal University of Toronto Press, Journals Division 5201 Dufferin Street, Toronto, ON M3H 5T8, Canada Tel: (416) 667-7810 Fax: (416) 667-7881 Fax Toll Free in North America 1-800-221-9985 Email: <mailto:[log in to unmask]> [log in to unmask] <http://www.utpjournals.com/utlj/utlj.html> www.utpjournals.com/utlj <http://www.facebook.com/utpjournals> www.facebook.com/utpjournals <http://www.twitter.com/utpjournals> www.twitter.com/utpjournals Posted by T Hawkins, UTP Journals