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University of Toronto Law Journal 

Volume 68, No. 2, Spring 2018

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The proper role of policy in private law adjudication

 <> Ross Grantham,
<> Darryn Jensen

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

 <> Piet Goemans

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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