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: 10.3138/utlj.60.3.731


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

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: 10.3138/utlj.60.3.799


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: 10.3138/utlj.60.3.855


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: 10.3138/utlj.60.3.893


Book Review

Anver M. Emon

DOI: 10.3138/utlj.60.3.905



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Posted by T Hawkins, UTP Journals