Ed Morgan

The sword in the zone: Fantasies of land-use planning law

The theme of this article is that the contradictory impulses found in modern land-use planning law are impossible to overcome. The analysis takes place at two levels; that is, on the level of law and on the level of land-use planning. In the first place, the case law on the decision-making authority of municipal bodies and their provincial review boards will be examined in an effort to clarify, if possible, the question of whether land development raises issues that are, at heart, law or policy and, consequently, whether they are entitled to intervention or deference by reviewing courts. That case law, which forms a shell for land-use planning approaches, is then filled in with an examination of divergent approaches toward fashioning the liveable city. The regulatory flux between density and sprawl and the tension between more recent new-urbanist designs and the traditional suburban development plan are explored, demonstrating that neo-urban hub developments are premised on a false vision of collective social experiences, while suburban garden developments are premised on the hollow dream of an idyllic society. Each of these competing approaches simultaneously answers the weaknesses of the other and contains weaknesses of its own that are answerable by the other. Given this incoherence, this article, therefore, endorses a substantial deregulation of the field. Paradoxically, this advocacy of privatization does not proceed, first and foremost, out of respect for the value of the market as efficient regulator; rather, it proceeds out respect for the values inherent in public regulation and administrative law - values which government land-use planning has found impossible to achieve.

Aesthetics of International Law

AcknowledgmentsIntroduction: The Aesthetics of International Law Edgar Allan Poe: Law and Terrorism Henrik Ibsen and Bertolt Brecht: War Crimes Trials Joseph Conrad, Virginia Woolf, T.S. Eliot: Public International Law James Joyce: Conflict of Laws Franz Kafka: Extraterritorial Criminal Law Mordecai Richler: Universal Jurisdiction Vladimir Nabokov: Extradition to the Death Penalty Jorge Luis Borges: The Break-up of Yugoslavia Thomas Pynchon: Environmental Liability Kurt Vonnegut: The Law of WarConclusion: For a New ScholarshipEpilogue: Pound of FleshNotesIndex

On Art and the Death Penalty: Invitation to a Beheading

Abstract The question of extraditing fugitives to the United States to face a potential death penalty has vexed an assortment of international tribunals, most prominently including the European Court of Human rights, the U.N. Human Rights Committee, and the Supreme Court of Canada. The issue is whether societies that have eschewed capital punishment for themselves can or should sit in judgment of those that continue to engage in this practice. Interestingly, despite sharing the same legal values as the United States, none of the international adjudicative bodies have been willing to engage in a normative or legal theory assessment of the death penalty. Rather, they have embarked on a mode of analysis pioneered in Vladimir Nabokov’s novel Invitation to a Beheading. Capital punishment, as practiced in the United States, is to be condemned not because it is wrong, but because it is unaesthetic.

Self-Government and the Constitution: A Comparative Look at Native Canadians and American Indians

The self-government rights of American Indians are far more developed and receive a far greater level of protection than those of Native Canadians. In Canada, protections afforded aboriginal people have focused on equal protection of individuals. With the enactment of the 1982 constitutional reforms, Native Canadians face the challenge not of integrating themselves from the constitutional order, but rather, like self-governing American Indian tribes, exiting from it.

New Evidence: The Aesthetics of International Law

A war crimes trial embodies a combination of representational and presentational drama. The contemporary war crimes trial owes equal inspiration to the ‘realism’ of Henrik Ibsen and the ‘theatrics’ of Bertold Brecht. The question for scholars is whether the trial is but a stylized presentation of the ‘real’ events, or a realistic medium through which to eavesdrop on history. This essay explores this question of war crimes and dramatization in the context of Director of Public Prosecutions v. Polyukhovich, the one war crimes case ever taken to trial under Australia’s War Crimes Amendment Act of 1988.

The Crying of Rule 49

This article crosses back and forth across the border between law and literature. Its goal is to mirror the dizzying array of procedural doctrines under discussion with an equally dizzying set of comparisons. Contemporary international litigation is compared to a 1960s work of fiction – Thomas Pynchon’s The Crying of Lot 49 – Canadian civil procedure is compared to American social movements, civil liability for polluting the environment on one side of the border is juxtaposed with the pollution of the civil liability environment on the other side, and so on. The hope is to demonstrate both the exhaustion of meaning and the replenishment of forms taken by international law and the legal procedures used to create it.

International Law's Literature of Terror

It is the theory of this paper that while the natural analytic tendency is to seek the legal character of terror in the impugned act, it can actually be found only by examining the narrative of the law. As a legal concept, terrorism strikes not only at the political power of states or at the safety of individual citizens, but at the laws own stability as law.