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Full-Text Articles in Law

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Josh Eagle

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle Nov 2105

When Does Legal Flexibility Work In Environmental Law, Eric Biber, Josh Eagle

Eric Biber

Environmental law scholars, practitioners, and policymakers have wrestled for some time with the implications of climate change for environmental law. There is widespread, although not universal, agreement that climate change requires greater flexibility in environmental legal systems. Flexibility—reduced procedural requirements for administrative agency decision making and less rigid substantive standards—would allow the agencies that implement environmental law to adapt to a future world characterized by dynamic, uncertain changes in natural resource systems. According to its proponents, flexibility would make it easier for agencies to more frequently update their management or regulatory decisions to respond to changed conditions, and ...


All Things To All People, Part One, Peter J. Aschenbrenner Dec 2104

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to ...


Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


How Do We Know When Political Societies Change?, Peter Aschenbrenner Jan 2104

How Do We Know When Political Societies Change?, Peter Aschenbrenner

Peter J. Aschenbrenner

Predicates, features, attributes and properties of a system are liable to change. How does the change get marked down? For this purpose what facet of a system should command our attention? Any system worth the name, Our Constitutional Logic argues, is aware of its own standing in civil society. OCL considers the issues raised.


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Are Publication And Citation Counts Reliable Indicators Of Research Productivity Or Impact?, Sean Rehaag Jul 2018

Are Publication And Citation Counts Reliable Indicators Of Research Productivity Or Impact?, Sean Rehaag

Sean Rehaag

Universities are increasingly using metrics such as publication and citation counts to measure faculty research productivity and impact, and to compare productivity and impact across departments and institutions. Canadian law schools are facing pressure to adopt similar metrics. In this article the author argues that publication and citation counts are not reliable indicators of research productivity or impact.


'I Simply Do Not Believe...': A Case Study Of Credibility Determinations In Canadian Refugee Adjudication, Sean Rehaag Jul 2018

'I Simply Do Not Believe...': A Case Study Of Credibility Determinations In Canadian Refugee Adjudication, Sean Rehaag

Sean Rehaag

Refugee determinations often turn on a single question: Is the refugee claimant telling the truth? While there are other factors that refugee adjudicators must consider, determining whether the claimant's story is credible remains central to virtually all refugee hearings. In light of the key role credibility assessments play in refugee determinations, scholars are paying increasingly more attention to how refugee adjudicators assess credibility.

This article contributes to the growing body of research on this subject by examining the full caseload of one refugee adjudicator at Canada's Immigration and Refugee Board (IRB) over a three-year period. That adjudicator, David ...


The Abstract Subject Of The Climate Migrant: Displaced By The Rising Tides Of The Green Energy Economy, Dayna Scott, Adrian A. Smith Jul 2018

The Abstract Subject Of The Climate Migrant: Displaced By The Rising Tides Of The Green Energy Economy, Dayna Scott, Adrian A. Smith

Dayna N. Scott

A controversial proposal to build the mammoth ‘Site C’ dam on the Peace River in northwestern Canada offers an opportunity to explore the intersections of climate and migration issues under debate in international environmental governance circles. Site C threatens to flood traditional fishing spots and traplines of Indigenous peoples in the name of the ‘green energy’ economy. We consider how people displaced by renewable energy projects justified as climate mitigation policies might constitute a different kind of ‘climate refugee’ in that they are ‘displaced without moving’ – the connections between the land and the people are severed to the extent that ...


“Sacrifice Zones” In The Green Energy Economy: Toward An Environmental Justice Framework, Dayna Scott, Adrian A. Smith Jul 2018

“Sacrifice Zones” In The Green Energy Economy: Toward An Environmental Justice Framework, Dayna Scott, Adrian A. Smith

Dayna N. Scott

The environmental justice movement validates the grassroots struggles of residents of places which Steve Lerner refers to as “sacrifice zones”: low-income and racialized communities shouldering more than their fair share of environmental harms related to pollution, contamination, toxic waste, and heavy industry. On this account, disparities in wealth and power, often inscribed and re-inscribed through social processes of racialization, are understood to produce disparities in environmental burdens. Here, we attempt to understand how these dynamics are shifting in the green energy economy under settler colonial capitalism. We consider the possibility that the political economy of green energy contains its own ...


These Chemicals Are Bad For Babies And Whales: Why Haven't They Been Banned In Canada?, Dayna Scott, Lara Tessaro Jul 2018

These Chemicals Are Bad For Babies And Whales: Why Haven't They Been Banned In Canada?, Dayna Scott, Lara Tessaro

Dayna N. Scott

A federal agency in the United States took action last month to ban an entire class of toxic flame retardants from being added to a wide variety of consumer products, from baby toys to televisions. It’s a first for the U.S. — and it could be done in Canada too.

In its review of the science, the U.S. Consumer Product Safety Commission found there was “overwhelming” evidence that halogenated flame retardants, also known as organohalogens, present a “serious public health issue.” As a result, these flame retardants will be prohibited in all children’s products and toys (but ...


Banking In The Digital Age - Who Is Afraid Of Payment Disintermediation?, Benjamin Geva Jul 2018

Banking In The Digital Age - Who Is Afraid Of Payment Disintermediation?, Benjamin Geva

Benjamin Geva

Throughout the ages, banks have evolved as intermediaries taking deposits of funds, lending money, and providing payment services. In the process they became also suppliers of commercial bank money, now only in the form of bank deposits. Following a historical review as to how moneychangers and goldsmiths became bankers, the paper points out that money and payment digitization has brought some challenges to the traditional role of banks as intermediaries. First, the digital age is about to facilitate the availability of central bank money balances or their equivalent to the public. Second, cryptocurrencies and blockchains were born. Third, claim-check centralized ...


Limited Admissibility And Its Limitations, Lisa Dufraimont Jul 2018

Limited Admissibility And Its Limitations, Lisa Dufraimont

Lisa Dufraimont

Among the challenges facing juries and judges in adjudicating cases is the obligation to use evidence for limited purposes. Evidence inadmissible for one purpose is frequently admissible for other purposes, a situation known as "limited admissibility". Where limited admissibility arises in jury trials, courts generally deliver limiting instructions outlining the inferences that can legitimately be drawn from the evidence and identifying prohibited lines of reasoning to be avoided. Limiting instructions represent an expedient solution to limited-admissibility problems, but they create obvious problems of their own. A thoughtful observer might suspect-as psychological studies confirm-that limiting instructions are likely to fail in ...


Realizing The Potential Of The Principled Approach To Evidence, Lisa Dufraimont Jul 2018

Realizing The Potential Of The Principled Approach To Evidence, Lisa Dufraimont

Lisa Dufraimont

Ron Delisle's concern that lawyers and judges be constantly mindful of the purposes and policies underlying the rules of evidence led him to become one of the pioneers of the principled approach to evidence. This paper seeks to evaluate the extent to which the efforts of Canadian courts to incorporate principles into evidence law have alleviated the problem of the complexity of the traditional rules. Evidentiary rules are complex because they are dense or technical. Evidentiary principles are more capable of flexible and contextual application than evidentiary rules, but principles too are complex in the sense that they are ...


The Rise Of Market Urbanism, Michael Lewyn Jun 2018

The Rise Of Market Urbanism, Michael Lewyn

Michael E Lewyn

Compares market urbanism to new urbanism and to defenders of suburban sprawl. Like new urbanists, market urbanists find urban life to be socially valuable, and emphasize that sprawl is not always in line with consumer preferences. But market urbanists are more likely to emphasize the role of government regulation in creating suburbanization, and to oppose anti-sprawl land use regulations.


Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine Jun 2018

Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine

Alex Ritchie

The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).

The purposes ...


The History Of The University Of New Mexico School Of Law Librarians' Fight For Faculty Status And Equal Voting Rights, Ernesto A. Longa Jun 2018

The History Of The University Of New Mexico School Of Law Librarians' Fight For Faculty Status And Equal Voting Rights, Ernesto A. Longa

Ernesto A. Longa

Based on research of over sixty years of archival records, this article presents a case study of the University of New Mexico School of Law librarians’ fight for respect, professional recognition, faculty status, and voting rights in the face of persistent opposition from law school administrators, faculty, and head librarians.


The Universality Of The Human Condition: Theorizing Transportation Inequality Claims By Persons With Disabilities In Canada, 1976-2016, Laverne A. Jacobs Jun 2018

The Universality Of The Human Condition: Theorizing Transportation Inequality Claims By Persons With Disabilities In Canada, 1976-2016, Laverne A. Jacobs

Laverne Jacobs

Transportation is the lifeline that connects persons with disabilities with the community, and facilitates greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities, yet there is a dearth of sustained research on the legal and societal implications of transportation inequality for persons with disabilities. This article contributes to the research on both transportation inequality and equality theory by providing an empirical and theoretical analysis of the human rights tribunal decisions on transportation equality in Canada. In doing so, it examines the issues from the perspective of the voices ...


Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright Jun 2018

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

Nancy S. Marder

Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees.

This brief will address two of the questions presented for review by the parties:

1. Does the cap violate the Illinois Constitution’s prohibition on “special ...


Eeoc V. Abercrombie & Fitch: Mistakes, Same-Sex Marriage, And Unintended Consequences, Jeffrey M. Hirsch Jun 2018

Eeoc V. Abercrombie & Fitch: Mistakes, Same-Sex Marriage, And Unintended Consequences, Jeffrey M. Hirsch

Jeffrey Hirsch

No abstract provided.


The Rise And Fall Of Private Sector Unionism: What Next For The Nlra?, Jeffrey M. Hirsch, Barry T. Hirsch Jun 2018

The Rise And Fall Of Private Sector Unionism: What Next For The Nlra?, Jeffrey M. Hirsch, Barry T. Hirsch

Jeffrey Hirsch

No abstract provided.


The Law Of Termination: Doing More With Less, Jeffrey M. Hirsch Jun 2018

The Law Of Termination: Doing More With Less, Jeffrey M. Hirsch

Jeffrey Hirsch

No abstract provided.


Communication Breakdown: Reviving The Role Of Discourse In The Regulation Of Employee Collective Action, Jeffrey M. Hirsch Jun 2018

Communication Breakdown: Reviving The Role Of Discourse In The Regulation Of Employee Collective Action, Jeffrey M. Hirsch

Jeffrey Hirsch

No abstract provided.


Taking State Property Rights Out Of Federal Labor Law, Jeffrey M. Hirsch Jun 2018

Taking State Property Rights Out Of Federal Labor Law, Jeffrey M. Hirsch

Jeffrey Hirsch

No abstract provided.


Nlrb Elections: Ambush Or Anticlimax?, Jeffrey M. Hirsch Jun 2018

Nlrb Elections: Ambush Or Anticlimax?, Jeffrey M. Hirsch

Jeffrey Hirsch

No abstract provided.


Labor Law Obstacles To The Collective Negotiation And Implementation Of Employee Stock Ownership Plans: A Response To Henry Hansmann And Other "Survivalists", Jeffrey M. Hirsch Jun 2018

Labor Law Obstacles To The Collective Negotiation And Implementation Of Employee Stock Ownership Plans: A Response To Henry Hansmann And Other "Survivalists", Jeffrey M. Hirsch

Jeffrey Hirsch

No abstract provided.


Trump's Forced Patriotism Has No Place In A Free Society, Alan E. Garfield Jun 2018

Trump's Forced Patriotism Has No Place In A Free Society, Alan E. Garfield

Alan E Garfield

No abstract provided.


Eckart Otto, Das Deuteronomium: Politische Theologie Und Rechtsreform In Juda Und Assyrien, Steven W. Holloway Jun 2018

Eckart Otto, Das Deuteronomium: Politische Theologie Und Rechtsreform In Juda Und Assyrien, Steven W. Holloway

Steven W Holloway

No abstract provided.


The Community Development Coporation, Robert J. Schwartz, Raymond G. Sanchez Jun 2018

The Community Development Coporation, Robert J. Schwartz, Raymond G. Sanchez

Robert L. Schwartz

Review of Community Development Corporation (CDC) Model, its role as a community action agency, and the Community Self-Determination Act of 1968.


Funding The Costs Of Disease Outbreaks Caused By Non Vaccination, Robert L. Schwartz Jun 2018

Funding The Costs Of Disease Outbreaks Caused By Non Vaccination, Robert L. Schwartz

Robert L. Schwartz

While vaccination rates in the United States are high – generally over 90 percent – rates of exemptions have been going up, and preventable diseases coming back. 2014 is shaping to be one of the worst years for measles since 1994, with outbreaks generally starting from unvaccinated individuals and affecting primarily the unvaccinated. While pertussis is a more complex story, communities with high rates of exemptions are more vulnerable to outbreaks. Aside from their human cost and the financial cost of treatment imposed on those who become ill, outbreaks impose financial costs on an already burdened public health system, diverting resources from ...