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Intro&chp_1+_2.docx

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Department
Law and Business
Course
LAW 534
Professor
Gil Lan
Semester
Winter

Description
LAW 534 Introduction Tragedies have acted as a lightning rod for a reassessment of the effectiveness of our regulatory system; leads to regulatory reform; how well are risk being managed; There is presently a crisis of confidence in the ability of the postmodern regulatory framework to control rapid technological and industrial change- a reaction, more laws. The Walkerton Case (May 2000- Water Contamination) Government privatizes (Privatize- to outsource to a private body) water testing facility and the water company didn’t disclose the vital information to the Public. Their contract stated they only had to disclose this harmful information to the govt (duty to govt not public) not the public. Understand the Political Climate- Govt’s hate regulations therefore the prvt water research. Yes what occurred was unethical, but it wasn’t illegal .The loss of lives could have been prevented if someone only warned them about the contaminated water Unethical Illegal Unethical Legal Ethical Illegal Ethical Legal Two Types of Risk Management Society- How does society deal with certain risk? Substance control (FDA), Setting a speed limit, to Manage Risk and Protect them Individual- Did they do enough Due Diligence- Noncompliance- Compliance officer has the knowledge of the law, but extensive knowledge of all the law , i.e. meat compliance officer because a lawyer is too expensive Two kinds of Rights (Sword and Shield) Contract Right- sue you- call upon the govt for help with the case Freedom of Expression- Protects me from the Govt powers Freedom and Democracy- Often used interchangeably, however in a democratic society, you elect a leader to create laws therefore; certain laws constrict your freedoms! There are laws restricting others as well Precautionary Principal- The anticipation approach- better safe than sorry- Perfect Rebuttal to those against Regulations 100% scientific proof isn’t required to make a decision if you know it will somehow what’s going to happen will have negative long/short terms effect on the environment, public health or economy. Have a mulit level approach- ie have safe guards in place- check points Bill c-45 Corporate Criminal Liability- could be charged with manslaughter if employees were killed, if corporations didn’t follow certain regulations (ie health and safety). Liability tied to all senior officers – those who play an impt role in policy making (INT-2) Chapter 1Regulating and De-Regulating Risk What should be regulated and to what degree = Risk Assessment and Risk Management Regulatory offences were originally and still are designed to protect those who are unable to protect themselves- Regulations cover every aspect of modern society from health and safety to equality and social policy New Deal Legislation – attempted to control the economy –worked to save capitalism from it self- The failure of market and the problem of monopoly= U.S exchange and securities (1-4) Regulations should focus on arears where there is a real scientific basis for their validity and that different industry’s reflect different value balances De-Regulation – due to Globalization- easier to trade! Glass Steagall Act 1933- make sure banks couldn’t make risky gambles on customers deposits - act scraped in 99 by Clinton Tort Law – Its reactive; after the fact – its not a preventive measure, runs into causation problems; low dosage- over a period of time what was the cause of harm injury or death How to Courts Interpret Risk – enforces the rules, make consequences clear, how to interpret the risk in the industry through non-compliance Chapter 2 Risk and Response (law and regulation) Law that address a problem beforehand Ex Ante After the Fact EX post Ex -Ante – ie how they rate/ screen movies for offence language Advantages- using a rational approach promote stability, proactively address harm, less risk, where fundamental values are at stake Disadvantages- inefficient, costly, low predictability EX -post –ie. Proper safety measure, seat beat law Advantage- cheaper Disadvantages- only addresses problem after the fact, expensive compensation for damages , victims brings up lawsuit but they may not be economy resources or knowledge to enforce their rights in a expost world LAW 534 Are they mutually exclusive? No, they can work together, Ie people who drive dangerously, Ex- Ante Get a license at 16, Ex-Post Speeding, failure to stop , they are interrelated, therefore you gain demerit points and with enough point you license can be revoked Deferred risk- short-termism Rule- specific Principal more general (2-14) Pros and Cons of Rules and Principals in a Ex- Ante Regime Rules- chose simplicity. Ie telecommunications , pre supposes assumes all the problems , changes very quickly I would use Principal is more general and would work better Pros and Cons of Rules and Principals in a Ex- Post Regime This could differ from sector to sector Cartaway Recourses Corp Case (2.2-11) Manipulated stock price, failed to confirm findings, took money from customers and stocks crashed. They brought a listed company (garbage collection) to a Mining Company; the risk changed dramatically; Fraudulent misinterpretation; had to be attacked as a Principal rather a Rule Principals and Rules can be nested together Proactive Prescription –harm avoidance; negligence vs intentional conduct; stream line trials Three types of Offences (level of proof) (2-11) Means Rea (guilty mind) (full criminal liability)- prosecution (crown) must convince beyond a reasonable doubt that an offence occurred + that there was an Intend (needed for imprisonment) Actus Reas (prohibited act) (Strict Liability)– if the act occurs (spill toxic waste ) bad act occurred unless you prove due dillengce that you took all the
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