University of Toronto Law Journal Volume 60, Number 3, Summer 2010 is now
available at  <>


This issue contains: 


 <> Misfeasance As
An Organizing Normative Idea In Private Law

Peter Benson


Abstract: The familiar principle that there is no liability for nonfeasance
but only for misfeasance is often presented as reflecting a merely factual
difference between acts and omissions and is discussed as a discrete issue
in tort law, alongside and after the treatment of general principles. In
striking contrast, Francis Bohlen took this distinction to be normative, not
factual, and wrote that none is more deeply rooted in and more fundamental
to the common law. This article investigates whether his contention is sound
and, if so, how it might be accounted for. Its main thesis is that, properly
understood, the misfeasance requirement is a central organizing normative
idea in private law, providing a unifying moral framework for specifying the
varieties of private-law relations. Part ii fixes the meaning and the role
of misfeasance through a discussion of a variety of situations in which the
law denies liability for even foreseeable loss. We see that the misfeasance
requirement makes a certain kind of protected interest, namely, an exclusive
ownership interest, the necessary condition of liability in private law. But
the character of this ownership and of the sort of relation that holds
between individuals as bearers of this interest requires explanation.
Moreover, the fact that misfeasance makes this the only relevant conception
of protected interest needs to be justified from a moral point of view. Part
iii provides an account of the conceptual-normative genesis of the basic
private-law relation of rights and correlative duties involving interests of
this kind, with illustrations drawn from different areas of private law.
Parts iv and v take up the further question of the moral acceptability of
the misfeasance requirement from the standpoint of liberal justice.

DOI:  <>


 <> New Modes And
Orders: The Difficulties Of A Jus Post Bellum Of Constitutional

Nehal Bhuta


Abstract: This article examines the difficulties and dilemmas of the idea of
a jus post bellum of constitutional transformation in territories under
foreign or international administration. It begins with an argument that, at
present, international law contains no such rules and that the law of
self-determination provides no guidance. But should international law
develop such rules? The balance of the article argues that international law
should not prescribe rules or standards for constitution making in such
circumstances. En route to this conclusion, it is argued that contractarian
understandings of the problem of state making and constitution making are
fallacious and that to properly understand the problem of founding new
political orders we must conceive of that founding as an aleatory,
contingency-riven process of concentrating forms of social and political
power within particular territory. Thus, no special premium can be placed on
democratic modes of legitimation, and international rules or standards
prescribing specific modes of legitimation are likely to be either
irrelevant or counter-productive. It is argued, finally, that one of the
virtues of international law in these situations is its (relative)
agnosticism with respect to different modes of legitimation. It is contended
that international law is usefully understood as 'inter-public law.' In
light of this theory, the structural situation of international law is
analogous to the structural position of public law in newly founded domestic
political orders. That is, international law is preoccupied with crafting
relationships of order across diverse kinds of social and political
legitimacy, and its normativity and efficacy are finely balanced between
accommodating power and restraining it.

DOI:  <>


 <> Early
Twentieth-Century Canadian Medical Patent Law In Practice: James Bertram
Collip And The Discovery Of Emmenin

Virginie Marier, Tina Piper


Abstract: In the 1930s, James Bertram Collip (1892-1965) purified,
standardized, and then commercialized the hormone Emmenin at McGill
University. This focused history of Collip's development of Emmenin
considers how Collip used (and avoided) the legal tools of intellectual
property to his advantage, given his complicated place as a
scientist/business person/academic/physician inventor in the inter-war era.
Collip's story is significant as a case study as it lends nuance to the
picture of the Canadian inventor, shows the daring foresight of early
Canadian commercialization business models, and explores the influences that
eventually led to the development of university technology transfer offices
in Canada. It also highlights germinal moments in the negotiation of
standardized agreements and university-industry partnerships. Ultimately,
this paper contributes to the task of filling out the history of the
development of legal norms regarding intellectual property in Canada by
exploring sources outside of case law and legislation to tell a rich story
of invention, ownership, and profit.

DOI:  <>


 <> Investment
Rules And The Denial Of Change

Gus Van Harten


Abstract:In his book Constitutionalizing Economic Globalization, David
Schneiderman examines the relationships between international investment
rules and constitutional principles of liberal democracy. He begins by
examining the legal and ideological underpinnings of international
investment rules, showing how key concepts under the treaties originate in
some (but not all) domestic constitutions. He shows also how the regime has
served as a vehicle for arbitrators to ratchet up the imposition of
international discipline on states. Schneiderman reviews case studies
showing the impact of the rules on governments. He also identifies how
arbitrators have interpreted investment treaties in ways that take
constitutionalist notions of limited government beyond their domestic
trajectories and that promote versions of the 'rule of law' with a
distinctly neo-liberal bent. Ironically, the portrayal of investment
arbitration as an institutional hammer of neo-liberalism that is just now
hitting its nails coincides with a resurgent Keynesianism and renewed
regulation at the domestic level. My main criticism of the book is that its
claim of 'constitutionalization' is open to doubt given that (1) the
treaties can be abrogated, (2) the treaties lack the normative power of
domestic constitutions, and (3) investment arbitration lacks integral
components of a liberal constitutional structure, including institutional
safeguards of judicial independence. Is the system constitutional or merely
neo-liberal? Nevertheless, Schneiderman offers powerful insights on the
capacity for alternative visions and resistance. It is also refreshing to
see Schneiderman focus on national governments and their power to undo that
which has been done.

DOI:  <>


 <> Book Review

Anver M. Emon

DOI:  <>




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