This article explores how the legal arguments in favour of same-sex marriage recognition in the United States and Canada have been taken up in two recent documentaries on the subject: Tying the Knot: The Union That's Dividing America (USA, 2004) and The End of Second Class (Canada, 2006). My interest in these films lies in how they represent the legal challenges to their audiences. Like the litigation itself, each of these documentaries is built upon representational strategies that are intended to have the maximum impact on their audiences. Tying the Knot and The End of Second Class replicate the legal arguments and litigation strategies used by advocates of same-sex marriage. In particular, I analyse how each film represents the case for same-sex marriage through an appeal to three markers of equality rights discourses: rights evolve over time; rights are comparative; rights are indicators of national belonging. I contend that in their reliance on these markers, Tying the Knot and The End of Second Class unwittingly re-inscribe dominant notions of what it means to have full and equal national belonging and, thus, delimit what it means to be a “good” sexual citizen.

Contrary to what may be suggested by traditional historiography, the modern labour contract did not appear through spontaneous generation with the Industrial Revolution. To the contrary, premodern legal forms going back to the feudal era lasted throughout the nineteen century and even later, entirely subjecting groups of workers to the employers' absolutism. The path leading to a rationalization of the legal technique embodied in the modern labour contract was indeed highly complex. Philip Lotmar's colossal study on Der Arbeitsvertrag [The Labour Contract] (published in two parts, 1902 and 1908) illustrates that complexity in an exemplary fashion, especially as regards the social facts of law. From a Law and Society viewpoint, this work remains without doubts worth reading today, in particular when one also takes into consideration the comprehensive review of this treatise made by Max Weber in 1902 and later comments by Hugo Sinzheimer, the founder of the European science of labour law and himself a distinguished legal sociologist. In the following study, the author insists upon the relevance of Weber's and Sinzheimer's critiques of Lotmar as regards the relationship of law to economics, the importance of legal pluralism for a proper understanding of labour law, as well as the interaction between jurisprudence and the sociology of law.

This article examines Canada's federal Live-in Caregiver Program (LCP) from the perspective of international human-rights and labour norms pertaining to the protection of migrant workers. Showing that the current legal framework of the LCP restricts migrant caregivers from effectively exercising a range of human and labour rights, the author argues for the removal of the labour (im)migration program's unnecessary structural obstacles and proposes a reformulation of the LCP under the principles and guidelines of the International Labour Organization's Multilateral Framework on Labour Migration, in order to transform this controversial labour policy into a decent work opportunity.

This article focuses on the relationship between administrative discretion and the rule of law, showing that administrative discretion properly conceived is not only compatible with a particular understanding of the principle of the rule of law but could also become a vehicle allowing the executive to express its commitment to that principle. In the author's view, this is possible if, first, discretion is conceived through the metaphor of a dialogue between rulers and ruled; and, second, we endorse a substantive understanding of the rule of law that views all three constituents of the state – legislative, judicial, and executive branches – as involved in the project of preventing arbitrary action by public powers. The article explores these dynamics in the concrete setting of the author's experience as associate dean of a law school, in order both to see how the theoretical model of dialogue translates into practice and to identify the particular aspects of the theory that might require further inquiry and empirical research.

In the great majority of cases, the proper exercise of investigative or prosecutorial discretion presents little challenge and evokes little controversy. In a very small number of “high-profile” cases, however, such discretionary decisions become highly controversial and the subject of intense political, public, and media debate. It is such relatively rare cases that are the focus of this article. In such cases, two critical questions are typically at the forefront of debate: What does “the public interest” in such cases require? And who should have the final say as to what the public interest in such cases requires? The first of these questions typically reveals disagreements as to how the various commonly accepted “public interest” considerations should be applied to the case at hand; the second goes to the heart of the concept of “independence,” alleged to be a fundamental and constitutionally essential attribute of police and prosecutors in making such decisions. This article is concerned less with the details of discretionary decisions themselves than with the “political economy” of prosecutorial discretion, with particular reference to controversial high-profile cases that raise significant “public interest” considerations. Specifically, the article considers who currently does, and should, have the ultimate authority to exercise prosecutorial discretion in such cases, and why, and what such arrangements imply for the prevailing concept of prosecutorial “independence.” The author draws on four recent high-profile cases in the United Kingdom and in South Africa to illustrate the different ways in which these issues have arisen and the controversies that have developed out of attempts to resolve them.

The Nuremberg Trials provide the foundation for contemporary international criminal law. Yet these trials are rarely explored in their broader ideational and social context. This article examines the context and role of the concept of “civilization” as used in U.S. v Altstoetter, the 1947 trial of Nazi judges and judicial administrators at Nuremberg. I place the reference to civilization in Altstoetter within a tradition of international law that understood law and civilization as co-constitutive. The Altstoetter Court conceptualized Germany as an essentially civilized country that lapsed into barbaric and therefore lawless violence. This account helped the Court to establish the blameworthiness of the defendants' conduct, blame the Nazi violence on lawlessness, and establish its own authority.

This article examines shifts in the regulation and governance of business crime in competition and deceptive trade practices law. It traces policies and enforcement in Canada's Combines Investigation Act/Competition Act from 1975–2005, a period of seismic shift in regulatory law during which formerly dominant Keynesian welfare-state discourses, practices, and policies were replaced by those characterizing the neo-liberal regulatory state. The Competition Bureau was a key player in this transition, by which competition policy became the primary regulatory mechanism of the modern state. The article's purpose is to analyse enforcement records, annual reports, and other documents from the Competition Bureau to show how priorities and practices have changed and to link these changes to shifts in governance associated with the transition from Keynesian economic philosophies to those of the neo-liberal state.

The Kingston Immigration Holding Centre (KIHC) is a purpose-built prison for individuals subject to security certificates, located on the grounds of Millhaven Institution in Bath, Ontario. KIHC was created in 2006 in response to controversy over the use of provincial detention facilities for long-term security-certificate detention. While the security-certificate mechanism and its related processes have been the subject of a growing body of critical socio-legal scholarship, the juridico-political space of KIHC has yet to be described or problematized in depth. The present study addresses this gap by providing a detailed account of the history of the facility and an exploration of the interactions within the Canadian insecurity field that shaped its emergence, governing arrangement, and everyday operations. Given the paucity of publicly available official information about KIHC, our study draws extensively on material obtained through requests filed under the federal Access to Information Act. Building on the existing literature, we frame security-certificate detention as a form of normalized exceptionality made possible by counter-law and argue that it conforms to the juridico-political concept of the camp. We then proceed to describe how this particular camp came into being, with an emphasis on the role played by interactions between professionals and institutions within the Canadian security field. The interagency contractual arrangement between the Correctional Service of Canada (CSC) and the Canada Border Services Agency (CBSA) that governs KIHC is outlined. We describe this arrangement as the product of the authority to detain indefinitely meeting the capacity to confine pragmatically, under the banner of national security, and consider its implications for CSC's correctional mandate. The KIHC facility emerges as an “ancillary exception,” the institutional reflection of attempts to reform and normalize the security-certificate mechanism. We conclude by making a case for the abolition of KIHC.

This article compares the two most significant paradigm shifts in the administration of Aboriginal affairs in Australia's Northern Territory. The Welfare Ordinance 1953 (NT) constituted a then-unique attempt to reclassify the diminished legal status of most indigenous Territorians as justified not by their racial heritage but by their level of social need, while the 2007 legislation behind the “Northern Territory intervention” has jettisoned formal racial neutrality through a campaign to curb the breakdown of “community standards and parenting behaviours” in many remote indigenous communities. The authors argue that while both initiatives had similar fundamental aims—encouraging remote Aboriginal people to adopt social habits generally evident in non-indigenous society—the decision to jettison racial neutrality has ushered in a new era of race relations in Australia, in which race has openly and formally been reestablished as a marker of legal inferiority.

Discretion on the part of front-line border officers is fundamental to exploring how nation-states sort out mobile populations at and near international borders. This discretion involves not only decisions about when, on whom, and on what legal grounds to act but also decisions about when and on whom not to act. Examination of non-actions completes the range of information needed to delineate unequal social sorting by the state. Unequal sorting is specified in the analysis of field materials through a novel prism, paying attention to why and how certain borderlanders are trusted in enforcement settings while others are considered potential risks. The allocation of trust and risk proves interestingly complex, revealing several major processes operating simultaneously, both class and race inequality and the enactment of the territorial nation-state.

Women who are released from prison continue to face challenges stemming from their imprisonment. This article discusses the ways in which the prison and, by extension, the state follow women out of prison into their communities. While the state attempts to ensure “successful reintegration” for ex-prisoners, its policies, which reflect a neoliberal agenda of individual responsibilization, may in fact hinder women's chances of integrating into their communities. The article explores women's experiences of (re)integration through the voices of female ex-prisoners who served long prison terms, their families, and their advocates. The control experienced in prison echoes in women's lives on the outside: they experience dislocation, marginalization, and a need to (re)negotiate their lives. While women may physically leave the prison, the experience remains imprinted on their minds and bodies as the state continues to govern them from a distance, both through the after-effects of imprisonment and through continued surveillance.

A “just punishment” is increasingly structured by actuarial probability frameworks. Actuarial risk technologies are often characterized as having supplanted much of practitioners' discretionary decision making with structured, quantitatively derived decision-making templates. Some scholars maintain that the transition to risk-based penality has led to “deskilling,” “scientification,” and “erosion of professional discretion,” or even to the elimination of criminal justice practitioners' use of professional discretion. This paper uses data from 71 semi-structured, open-ended interviews with criminal justice professionals to analyse how the introduction of risk tools shapes but does not eliminate discretion. We argue that risk tools are not simply imposed on criminal justice practitioners; instead, practitioners actively resist and embrace risk technologies and temper the impact risk tools have on their discretionary decision making. We maintain that the adoption of risk technologies reflects a negotiated process whereby practitioners welcome the professional advantages that these technologies afford while affirming the centrality of experience and clinical knowledge in decision making. We show how practitioners differentiate between the standardization intended by risk assessments and their own experiences and clinical knowledges, and how they exercise their discretion in an effort to mitigate the perceived discriminatory effects of the risk assessment. Thus, although risk tools are appealing to practitioners because their supposed “objectivity” makes them more defensible to the public, the adoption and use of these tools in the context of professional decision making is more complex and contradictory than much of the theoretical literature has assumed.

This article draws on Cohn and Kremnitzer's multidimensional analysis of judicial activism and applies the analysis in the Canadian context. The analysis is conducted in the wake of recent Supreme Court decisions giving the police the power to conduct sniffer-dog searches. That case context serves as a substrate to reveal the utility and limitations of a multidimensional approach. While recent scholarship on judicial activism has focused on quantifying activism over time, court composition, and constitutional issues, this article contends that there is potential to introduce even more texture into activism scholarship by paying attention to the interstitial details of judicial reasoning rather than focusing on the disposition alone. This textured approach accepts that what the Court says in these interstices is important because it is part of a discussion about core constitutional principles. Activism scholarship is informed by an investigation into deviations from one's particular allegiance to constitutional norms. The nomenclature of these norms is relatively certain, yet their exact definition remains open to vigorous debate. This race for content lies at the heart of much activist-based critique. Multidimensional analysis can help form the language of this conversation, aid in giving content and order to debates, and help us to discover our normative constitutional content. This content is the starting point for critical evaluation of our constitutional norms.

This article examines what happens when non-normative genders and sexualities collide with the complicated world of criminal procedure. Grounded in a close reading of Forrester v. Peel (Regional Municipality) Police Services Board, a recent decision in which a trans detainee alleged discrimination in services on the basis of “sex,” the article connects strip searches to a larger system of corporeal power. Trans bodies are targeted not merely because they are perceived as different but also because of what that difference symbolizes: a failure of the regimes that regulate bodies into a sharp, essentialist gender binary. As such, trans bodies become a key site for simultaneous observation, normalization, and examination not only by the police but also by society at large.

The legal pluralism debate attempts to locate law beyond the traditional precincts of the nation-state. This essay is about locating law; its aim is to examine the extent to which legal pluralism can serve as a valid theory for grounding self-governance for indigenous/alternative medical systems. The author contends that the pursuit of legitimacy for indigenous health systems must begin from within the state system, understood as a malleable and contestable system of laws, and goes on to argue that the hegemony and centrality of the state can be deployed in fostering an integrated pluralistic health-care system in which orthodox and indigenous health systems have equal recognition.

In Western states, restrictive migration policies over the last 30 years have entailed a shift in the practices of control, leading to the institution of systems of detention at international borders. Border confinement raises substantial issues about fundamental rights; it involves questions of legality and legitimacy, and the definition of new technologies of government. In France, the origins of border detention show how pre-existing administrative practices of detention were legalized through the adoption of “waiting zones,” a new regime of detention that enhanced both conditions of detention and disciplinary control over detainees. This development confronts human-rights activists who have opposed border detention since the mid-1970s with “paradoxical gains” and a tough dilemma: the rights that have been granted by the state to travellers held at the borders are not enough, whereas legalization has opened the way for new control mechanisms. Understanding border confinement involves analysing these paradoxes produced by constant negotiations between the administration, willing to tighten control over its borders, and concerns of certain groups within civil society, willing to defend basic rights and give a legal framework to control practices. In France, the diffusion of penitentiary models of management and the ambiguities of law that this article explores further draw together the conditions for administrative processes of legal exclusion. What do such processes teach us about evolving regimes of government within rights-based liberal systems?