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University of Toronto Law Journal
Volume 68, No. 2, Spring 2018
UTLJ Online: http://bit.ly/utlj682
The proper role of policy in private law adjudication
The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and must resolve disputes in terms of community welfare or socio-economic considerations, more recent formalist, corrective justice-based accounts of the private law simply have no room for any policy or instrumental considerations; the private law is concerned only with the balance of justice between the parties to the dispute. To a large extent, the opposing views rest on deeper philosophical premises about the proper role of law and of the courts in society and have arisen in opposition to each other.
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Canadian legislatures and the regulation of the private health-care industry
Marie-Claude Prémont, Cory Verbauwhede
This article discusses the three regulatory measures that Canadian provinces have used to implement the Canada Health Act criteria of universality, accessibility, and comprehensiveness. These three measures – the prohibition of duplicative private insurance, the prohibition of mixed private–public practice, and the capping of private physician fees to the levels of public fee schedules – are designed, above all, to regulate the health-care insurance and delivery industries. The article highlights the dangers of superficial analysis by the courts that is limited to canvassing potential violations of some patients’ individual rights, without taking into account the intricacies of health-care industry regulations and their effects on the public system as a whole.
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Group rights, participatory goods, and language policy
This article asks whether groups or individuals should hold rights to participatory goods. Participatory goods are a type of public goods that can only be enjoyed jointly, in participation with others. Denise Réaume, who coined the term, argues that individual interests in participatory goods cannot be of sufficient weight to ground rights to the core of participatory goods. James Morauta has interpreted Réaume’s argument as a constraint on the types of right-holders that can hold rights to participatory goods – a holding constraint. Morauta then criticizes the interpretation he made of Réaume. This article clarifies the disagreement between these two authors by analysing how participatory goods are produced and, more specifically, by introducing a distinction between threshold actions – that is, actions that are necessary to produce a participatory good – and surplus actions – that is, actions that are not, strictly speaking, necessary to produce a participatory good.
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Founded in 1935, UTLJ is the oldest university law journal in Canada. UTLJ publishes the work of internationally known scholars, not only in law but also in a broad range of disciplines relating to law, such as economics, political science, philosophy, sociology, and history. UTLJ is available in print and online.
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