Law Commons^™

Compensating And Taxing Land Regulations, Seng Wei, Edward Ti

Research Collection Yong Pung How School Of Law

In this article, I synthesise the literature regarding the law and economics approach dealing with compulsory acquisition. Contrary to the status quo, I reason that regulations not amounting to an acquisition, but which adversely affect economic value, should also be compensable from an efficiency lens. This can be accommodated within the existing jurisprudence by recognising that acquisition ‘gains’ can also include environmental amenities, rather than only limiting these to land or property in specie by the acquiring authority. Similarly, where landowners enjoy an uplift in value from regulations, some part of this windfall profit should be taxable. The article takes …

Conditions Of Confinement In Nova Scotia Jails Designated For Men: East Coast Prison Justice Society Visiting Committee Annual Report 2021-2022, Sheila Wildeman, Harry Critchley, Hanna Garson, Laura Beach, Margaret-Anne Mchugh

Reports & Public Policy Documents

This is the second Annual Report of the East Coast Prison Justice Society (“ECPJS”) Visiting Committee (“VC”).

The purpose of the ECPJS VC is to bring increased accountability and transparency to the Nova Scotia correctional system in light of human rights standards, domestic and international. While the Elizabeth Fry Society of Mainland Nova Scotia provides human rights monitoring of conditions of incarceration experienced by women and non-binary people in federal prisons and provincial jails in the Atlantic region, and the federal Office of Correctional Investigator provides further oversight of conditions in federal prisons, there is no comparable independent oversight of …

Connecting The Dots To Reveal A New Picture: A Report On Indian Act By-Law Enforcement Issues Faced By First Nations In Nova Scotia And Beyond, Naiomi Metallic, Roy Stewart, Ashley Hamp-Gonsalves

Reports & Public Policy Documents

This report originated as a request by the Mi’kmaq-Nova Scotia-Canada Tripartite Forum to research the challenges facing First Nations in Nova Scotia in assuming jurisdictional control through Indian Act by-laws. In undertaking this research, we identified significant uncertainty, misconceptions and confusion around Indian Act by-laws from all parties with a stake in this issue, including federal and provincial government representatives (Indigenous Services, Department of Justice, Public Safety), the police, the public and First Nations representatives. Consequently, we felt it necessary to comprehensively unpack the various issues relating to Indian Act by-laws, from their nature and legal effect, to their development, …

Introducing The Gender Dimension Of Plastic Pollution In The Arctic, Sara L. Seck, Tahnee Prior

Articles, Book Chapters, & Popular Press

This short communication seeks to introduce a new perspective – a gender dimension – into ongoing conversations on the governance of plastic pollution in the Arctic. Specifically, it seeks to understand (1) the degree to which gender and plastic pollution intersect in Arctic research and policy-making to date; and (2) the degree to which negotiations of the UN Treaty on Plastic Pollution integrate diverse gender perspectives from the North. We first consider the extent of the plastics problem in the Arctic and the degree to which existing research addresses its gender-dimension. Then, we introduce existing regional and global responses to …

The Continuing Application Of Gladue Principles In The Professional Discipline Of Indigenous Lawyers: A Comment On Law Society Of Ontario V Mccullough, Andrew Martin

Articles, Book Chapters, & Popular Press

While Gladue principles have previously been applied in the professional discipline of Indigenous lawyers, the recent decision of the Law Society Tribunal in Law Society of Ontario v McCullough affirms and applies those precedents in new and powerful ways. In this case comment, I explain the ways in which McCullough is important in its application of Gladue principles and consider what questions remain to be settled in future decisions.

Critical Pathways To Disability Decarceration: Reading Liat Ben-Moshe And Linda Steele, Sheila Wildeman

Articles, Book Chapters, & Popular Press

I consider how Liat Ben-Moshe’s Decarcerating Disability and Linda Steele’s Disability, Criminal Justice and Law: Reconsidering Court Diversion contribute to emerging conversations between critical disability studies and anti-carceral studies, and between disability deinstitutionalization and prison abolitionism. I ask: what if any role might law, or specifically rights-based litigation, play in resisting carceral state strategies and redirecting material and conceptual resources toward supports for diverse forms of flourishing? I centre my remarks on the special relevance of Ben-Moshe’s and Steele’s books to social movement activism in Atlantic Canada and critical reappraisal of Canada’s solitary confinement litigation.

Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Articles, Book Chapters, & Popular Press

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, these devices are also containers of vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels. This can have a significant impact on research. While copyright law traditionally conceives research as the use of expressive works within institutional settings, this paper proposes a broader conceptualization that includes device research, including informal inquiries and DIY activities. Whether for the purposes of …

Philosophical Counselling And Mediation Theory And Practice: Exploring A Pathway To Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

This paper will demonstrate how philosophical counselling would invaluably contribute to the arena of conflict resolution via mediation and civil justice generally. Mediation is a conflict resolution process that involves a third party who facilitates disputants in arriving at a self-determined resolution. This process is being incorporated into civil justice systems globally, but how mediation should be conducted to achieve truly just outcomes needs immediate and thoughtful attention. At its best, mediation empowers parties to co-create a just and fair resolution to their conflict through a dialogical exploration of their interests, needs, and relevant norms and values. This is dramatically …

Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such …

Sustainable Seabed Mining And The Phase 1 Environmental Standards And Guidelines, Keith Macmaster

Articles, Book Chapters, & Popular Press

The oceans are home to a rich diversity of plant and animal life and a source of food and marine resources that drive economies. Climate change and pollution are changing ocean dynamics and the ability to support life. Seabed mining in areas beyond national jurisdiction will add to the ocean's stressors and could cause severe environmental damage. The International Seabed Authority (“ISA”) is mandated to manage access to and benefits from the seabed, its subsoil and mineral resources in areas beyond national jurisdiction (the “Area”). Although the United Nations Convention on the Law of the Sea sets out the legal …

‘A Most Equitable Drug’: How The Clinical Studies Of Convalescent Plasma As A Treatment For Sars-Cov-2 Might Usefully Inform Post-Pandemic Public Sector Approaches To Drug Development, Quinn Grundy, Chantal Campbell, Ridwaanah Ali, Matthew Herder, Kelly Holloway

Articles, Book Chapters, & Popular Press

Interventional clinical studies of convalescent plasma to treat COVID-19 were predominantly funded and led by public sector actors, including blood services operators. We aimed to analyze the processes of clinical studies of convalescent plasma to understand alternatives to pharmaceutical industry biopharmaceutical research and development, particularly where public sector actors play a dominant role. We conducted a qualitative, critical case study of purposively sampled prominent and impactful clinical studies of convalescent plasma during 2020-2021. We found that studies were mobilized and scaled at record pace due to well-connected investigators who engaged in widespread sharing of clinical trials resources, regulatory facilitators, and …

Can A Tribunal’S Former Counsel Appear Before The Tribunal? A Comment On Certain Container Chassis, Andrew Martin

Articles, Book Chapters, & Popular Press

Lawyer mobility has been recognized as an important but not determinative consideration in legal ethics, particularly when it comes to conflicts of interest. Mobility poses particular issues for counsel to a tribunal. Those counsel may well at some point leave that position and pursue other opportunities. Prospective opportunities may sometimes involve appearing as counsel for a party before the same tribunal – especially where the tribunal operates in a highly specialized area of law. Can a lawyer appear before a tribunal if they were previously counsel to that tribunal? This discrete issue, though it rarely arises in the case law, …

“Vancouver’S Favourite Country Music Pub,” Single Room Occupancy Hotels, And The Context Of International Frameworks: Mapping Vancouver’S Urban Law And Cultural Policy, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The public and private spaces of cities, their design, and the urban law and policy that shapes the lived spaces within cities provides a potent example of overlapping and often contested heritage(s) and heritage spaces that may have built heritage merit, may carry a high intangible value as gathering spaces for art, culture, and performance, or may be both characterized by their tangible and intangible heritage merit. The layers of diverging, contested, or interwoven heritage within the same urban spaces can diverge in what they mean to a group, community, or individual. They may represent significant moments of architectural grandeur, …

'More Of The Same, But Worse Than Before': A Qualitative Study Of The Challenges Encountered By People Who Use Drugs In Nova Scotia, Canada During Covid-19, Emilie Comeau, Matthew Bonn, Sheila Wildeman, Matthew Herder

Articles, Book Chapters, & Popular Press

Background

To learn about the experiences of people who use drugs, specifically opioids, in the Halifax Regional Municipality (HRM), in Nova Scotia, Canada during the COVID-19 pandemic through qualitative interviews with people who use drugs and healthcare providers (HCP). This study took place within the HRM, a municipality of 448,500 people. During the pandemic many critical services were interrupted while overdose events increased. We wanted to understand the experiences of people who use drugs as well as their HCPs during the first year of the pandemic.

Methodology

We conducted a qualitative study using semi-structured interviews with 13 people who use …

Promoting Technological Competency Through Microlearning And Incentivization, Eliza Boles

Scholarly Works

No abstract provided.

Characterisation And Choice Of Law For Knowing Receipt, Adeline Chong

Research Collection Yong Pung How School Of Law

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This paper argues that under the common law, knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort …

Digital Nudges: Contours And Challenges, Avishalom Tor

Book Chapters

Digital nudges—that is, significantly behavioral interventions that use software and its user-interface design elements—are an increasingly pervasive feature of online environments that shapes behavior both online (e.g., changing online privacy settings) and offline (e.g., taking a flu vaccine due to a text message reminder). Although digital nudges share many characteristics of their offline counterparts, they merit particular attention and analysis for two important reasons: First, the growing ubiquity of digital nudges makes encountering them nearly unavoidable in daily life, thereby bringing into sharper relief the promise and perils of nudges more generally. Second, the potentially greater potency of digital—compared to …

Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold

Faculty Scholarship

“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.

Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled …

A Qualitative Method For Investigating Design, Jessica Silbey, Mark P. Mckenna

Faculty Scholarship

This chapter describes our qualitative study of designers and design practice. It situates the study in the broader field of empirical studies of intellectual property, and it describes in detail the methodology and benefits of a qualitative interview study of designers and design practice to shed light on some of the persistent puzzles in design law. The chapter focuses on four lines of inquiry: defining “design” and “design practice” from within the profession; exploring the various inputs to design practice and the process of “problem solving” designers pursue; understanding what “integrated” form and function mean to designers; and explaining the …

Unmasking Aall’S Idea Special Committee: A Closer Look At The Committee’S Process For Creating Aall’S New Diversity, Equity & Inclusion Policy, Ronald E. Wheeler

Faculty Scholarship

The goal of this column is to describe the process used by the American Association of Law Libraries (AALL) Inclusion, Diversity, and Equity Awareness (IDEA) Special Committee, which provided the foundation and resources for AALL to create the new Diversity, Equity & Inclusion Policy. The committee, initially appointed and charged by the 2020 AALL President Emily R. Florio, began meeting in 2020, and started its work with discussions aimed at defining and narrowing the scope of its charge and finding consensus on what we were setting out to accomplish. During this initial stage, our discussions helped us find commonality to …

Un-Erasing Race In A Medical-Legal Partnership: Antiracist Health Justice Advocacy By Design, Danielle Pelfrey Duryea, Peggy Maisel, Kelley Saia

Faculty Scholarship

This Article covers a potential response to a Massachusetts state law which has been interpreted to require health care providers and birthing hospitals to report to state authorities any infant born to a person taking medication of opioid use disorder. While the statute mandates reports where a professional has "reasonable cause to believe that a child is suffering physical or emotional injury" as a result of substance dependence at birth, the Article highlights that many institutions report all infants born to persons with substance abuse disorders, regardless of risk of harm, for fear of penalty for failure to report. As …

Household Intimacy And Being Unmarried: Family Pluralism In The Novels Of Anthony Trollope, Linda C. Mcclain, Allison Anna Tait

Faculty Scholarship

Many critics rightfully claim that the marriage market and an inquiry into its innermost workings are at the heart of Anthony Trollope’s novels, but this Article argues that his novels also depict—on the periphery or sometimes just hiding in plain sight—a set of curiously nonmarital households. These households vary in form, but include widows and widowers living on their own, mothers and daughters living collectively, and male cousins sharing space and the work of daily living. Critics have debated whether Trollope was simply a realistic social historian—chronicling families as he found them— or whether he constructively used literary license to …

Family Needs, Family Leave In 2023, Katharine B. Silbaugh

Faculty Scholarship

Instituting support for women and children is a difficult task to imagine in a world that is removing reproductive freedom and healthcare. In this hypothetical, do we treat the removal of abortion care as a force majeure, natural disaster, or an earthquake? If so, after the earthquake, the community bands together and works tirelessly to compensate for what has happened. But the removal of abortion care was not a natural disaster-it was planned, and it is embedded in background conditions that are pushing further away from support for women and children.

The primary task of this Article is to respond …

Biden V. Nebraska: The New State Standing And The (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.

MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state …

Surrey's Silence: Subpart F And The Swiss Subsidiary Tax That Never Was, Steven Dean

Faculty Scholarship

Was Stanley Surrey racist? Was he a coward for not speaking as plainly about the Swiss tax haven problem in public as the Surrey Papers reveal his team did in private? In the broad sweep of history Surrey’s silence may have mattered a great deal or it may have mattered very little. The quiet aspect of the Liberia problem that it highlights undoubtedly does. Exploiting the public’s misunderstanding of the term tax haven as Surrey quickly learned to do has become second nature to scholars and policymakers alike. No less powerful than the loud aspect of the Liberia problem, the …

Prosecution And Polarization, Steven Arrigg Koh

Faculty Scholarship

Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.

This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time …

Judicial Resistance To New York's 2020 Criminal Legal Reforms, Angelo Petrigh

Faculty Scholarship

Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.²² There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.²³ These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Constitutional Liberalism Through Thick And Thin: Reflections On Frank Michelman's Constitutional Essentials, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

In his new book, Constitutional Essentials, Frank Michelman provides a splendid elaboration and defense of “the constitutional theory of political liberalism” implicit in John Rawls’s classic work, Political Liberalism. In this essay, we make some observations about what a difference 30 years makes, comparing the political and constitutional climate in which Rawls wrote and published Political Liberalism in 1993 with the climate in which Frank wrote and published this exegesis of it. We focus on (1) changes in our circumstances of pluralism, including the accentuation of polarization and unreasonable views, and (2) the simultaneous breakdown of trust in the Supreme …

Trial Selection And Estimating Damages Equations, Keith N. Hylton

Faculty Scholarship

Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions.