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Government Duty To Protect: Post-Deshaney Developments, Erwin Chemerinsky 2015 Touro College Jacob D. Fuchsberg Law Center

Government Duty To Protect: Post-Deshaney Developments, Erwin Chemerinsky

Touro Law Review

No abstract provided.


Procedural And Structural Obstacles In Challenging Aspects Of The Criminal Justice System, John Boston 2015 Touro College Jacob D. Fuchsberg Law Center

Procedural And Structural Obstacles In Challenging Aspects Of The Criminal Justice System, John Boston

Touro Law Review

No abstract provided.


Deconstructing Infanticide, Eric Vallillee 2015 University of Ottawa

Deconstructing Infanticide, Eric Vallillee

Western Journal of Legal Studies

The offence of infanticide is allegedly based in debunked and sexist ideas about women and pregnancy. This article demonstrates that this offence is both necessary and beneficial regardless of its alleged basis. This article outlines the elements of infanticide and examines the legislative history from Medieval England to its adoption in Canada before discussing contemporary discourses on infanticide with a particular focus on the application of modern medical science. This work argues there are two issues with the current offence: (1) the requirement of a “disturbed mind” in the accused resulting from childbirth or lactation; and (2) the lack of ...


Canadian Mortgage Law And Prepayment Penalties, Peter Spiro 2015 University of Toronto

Canadian Mortgage Law And Prepayment Penalties, Peter Spiro

Western Journal of Legal Studies

This article illustrates the imbalance of power between the mortgagor and mortgagee, which is particularly apparent for individual mortgagors. Prepayment and due on sale provisions are standard mortgage terms that contribute to this imbalance. Although these clauses purport to operate separately, in reality, both are frequently triggered by the sale of a property; the law of contract suggests that these provisions should not be enforceable. Relevant legislation is lacking in this area and should be reformed to provide more effective consumer protection while acknowledging that banks operate with the goal of maximizing business. A reasonable compromise would involve basing the ...


Negotiation Ethics: Proposals For Reform To The Law Society Of Upper Canada's Rules Of Professional Conduct, George Tsakalis 2015 Brown and Partners LLP and Osgoode Hall Law School

Negotiation Ethics: Proposals For Reform To The Law Society Of Upper Canada's Rules Of Professional Conduct, George Tsakalis

Western Journal of Legal Studies

Creating a comprehensive code of negotiation ethics for lawyers is a contentious issue. The Law Society of Upper Canada’s Rules of Professional Conduct currently offers little guidance regarding appropriate behaviour of lawyers during negotiations. Detractors argue that the negotiation process is too complex and fluid to be codified. This criticism is not fatal to the case for a code of negotiation ethics. Lawyers have moral and ethical standards within the profession and responsibilities to the public as conduits to legal remedies. This paper argues a code of legal ethics is necessary to uphold these standards. Such a framework should ...


R V Fearon Case Commentary, Western Journal of Legal Studies Editorial Board 2015 Western University

R V Fearon Case Commentary, Western Journal Of Legal Studies Editorial Board

Western Journal of Legal Studies

The widespread use of smart phones and similar devices for data management has created significant constitutional and criminal law issues. This is evident in the context of protection by the Charter with respect to unreasonable search and seizure. When an individual’s section 8 rights are breached, an assessment of the admissibility of evidence under section 24(2) of the Charter is required. In R v Fearon, the Supreme Court of Canada established new limits on the police power to search cell phones and similar devices incident to arrest. Cromwell J stated that these measures do not “represent the only ...


Civil And Common Law: A Historical Analysis Of Colonial And Postcolonial Canada, Patrick S. Stroud 2015 Wabash College

Civil And Common Law: A Historical Analysis Of Colonial And Postcolonial Canada, Patrick S. Stroud

Butler Journal of Undergraduate Research

Legal historians divide European law into two principal families: common law (British law) and civil law (continental European law). Common law judges favor cases; courts “discover” law on a case-by-case basis and those cases make precedents for future ruling. Civil law courts favor codes; courts compare cases to existing laws and those laws control judges’ rulings. The two rarely interact, save one prominent example: Canada. British common law supposedly superseded French legal traditions in colonial Canada. But is history so binary? Did British common law truly “conquer” French civil law? Through analysis of Canadian legal history, this article demonstrates how ...


Installation Failure: How The Predominant Purpose Test Has Perpetuated Software’S Uncertain Legal Status Under The Uniform Commercial Code, Spencer Gottlieb 2015 University of Michigan Law School

Installation Failure: How The Predominant Purpose Test Has Perpetuated Software’S Uncertain Legal Status Under The Uniform Commercial Code, Spencer Gottlieb

Michigan Law Review

Courts have struggled to uniformly classify software as a good or a service and have consequently failed to apply a consistent body of law in that domain. Instead, courts have relied on the predominant purpose test to determine whether the Uniform Commercial Code (“UCC”) or common law should apply to a given software contract. This test, designed for traditional goods and services that do not share software’s complexity or rapid advancement, has perpetuated the uncertainty surrounding software’s legal status. This Note proposes that courts adopt the substantial software test as an alternative to the predominant purpose test. Under ...


Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, Michelle Greenberg-Kobrin 2015 Pepperdine University

Religious Tribunals And Secular Courts: Navigating Power And Powerlessness, Michelle Greenberg-Kobrin

Pepperdine Law Review

In this article, the author discusses the ways such as common law, and contracts employed by religious systems for navigating their relationship with legal systems of secular states. Topics discussed include the role of religious contracts in helping religious systems negotiate with secularism, the role of religious contracts in protecting autonomy of religious systems, and the structure of marriage and divorce in Jewish law.


Peer-To-Peer File Sharing As User Rights Activism, Michael A. Gunn 2015 University of Western Ontario

Peer-To-Peer File Sharing As User Rights Activism, Michael A. Gunn

Western Journal of Legal Studies

The pre-digital marketplace is no longer sustainable. With the imposition of digital rights management restrictions on the distribution of media, the Internet cannot promote intellectual freedom. Peer-to-peer file sharing technology helps expose the work of artists and authors to a much wider audience than previously possible. This provides an opportunity for more sales and a greater number of successful artists and authors. Yet corporate copyright owners continue to propagate the “piracy” label to discredit the idea of open access channels. This paper argues that as information professionals, librarians are in a position to promote policy change that revolutionizes the political ...


Permissibility Of Colour And Racial Profiling, James Singh Gill 2015 Thompson Rivers University

Permissibility Of Colour And Racial Profiling, James Singh Gill

Western Journal of Legal Studies

Racial profiling in law enforcement is a contentious matter, particularly in light of U.S. police-citizen race tensions. The racial profiling debate has not been settled. Racial profiling proponents view it as a tool to effectively uncover criminal activity among certain racial groups. Critics find that racial profiling perpetuates racial stigmas and is largely inefficient as a policing tool. This article explores the ongoing debate and offers an overview of the Canadian judicial experience with racial profiling. The author proposes a middle-ground solution where racial profiling may be used under certain constraints imposed on law enforcement. The author suggests that ...


A Case For Canadian Pay Equity Reform, Sydney Kruth 2015 Western University

A Case For Canadian Pay Equity Reform, Sydney Kruth

Western Journal of Legal Studies

Pay equity must be separated from collective bargaining. An examination of the history of fair pay in unionized workplaces—and the current legal remedies available for pay discrimination—prove that the current strategies to remedy the significant gender pay gap are unsuccessful. Two significant issues hinder pay equity. Pay equity is still subject to collective bargaining in unionized workplaces. The Public Sector Equitable Compensation Act (PSECA) has undermined pay equity. The PSECA embodies the dangers of subjecting pay equity issues to collective bargaining. Canada is taking a regressive approach that disregards the importance of pay equity, despite the known benefits ...


Employing Disability: Deconstructing Insufficient Protections For "Non-Mainstream" Disabilities, Maia Abbas 2015 Western University

Employing Disability: Deconstructing Insufficient Protections For "Non-Mainstream" Disabilities, Maia Abbas

Western Journal of Legal Studies

This paper surveys leading and recent case law on disability with a specific focus on “non-mainstream” disabilities. Such disabilities are categorized according to the difficulty with which they can be medically diagnosed, their transient nature, and their fluctuations in severity. Jurisprudence on the duty to accommodate has been developed through what law professor Judith Mosoff classifies as “mainstream” disabilities. That is, disabilities that are better understood by employers and medical professionals, and to which the duty to accommodate more easily applies. In contrast, “non-mainstream” disabilities challenge the conventional understanding of the duty to accommodate. Standard accommodation practices do not necessarily ...


Copyright And Good Faith Purchasers, Shyamkrishna Balganesh 2015 University of Pennsylvania Law School

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship

Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of ...


Hague Evidence Convention: A Practical Guide To The Convention, United States Case Law, Convention - Sponsored Review Commissions (1978 And 1985), And Responses Of Other Signatory Nations: With Digest Of Cases And Bibliography, Denise L. Dunham 2015 University of Georgia School of Law

Hague Evidence Convention: A Practical Guide To The Convention, United States Case Law, Convention - Sponsored Review Commissions (1978 And 1985), And Responses Of Other Signatory Nations: With Digest Of Cases And Bibliography, Denise L. Dunham

Georgia Journal of International & Comparative Law

No abstract provided.


Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. McCall 2015 University of Oklahoma

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Many politicians and commentators agree that credit default swaps (CDS) played a significant role in the financial crisis of 2008. Yet, few who observe this role are aware that CDS were set loose on the economy by the federal pre-emption of thousands of years of public policy. Since the time of Aristotle law, philosophy and public policy have been hostile to gambling. Viewed as a socially unproductive zero sum wealth transfer, the law has generally refused to permit parties to use the courts to enforce wagers. Courts and legislatures worked in harmony to control and in some cases punish financial ...


The Alien Tort Statute From The Perspective Of Federal Court Procedure, John N. Drobak 2015 Washington University in St. Louis

The Alien Tort Statute From The Perspective Of Federal Court Procedure, John N. Drobak

Washington University Global Studies Law Review

"This Article will examine a number of procedural issues relevant to the Alien Tort Statute, focusing on what the Supreme Court has resolved and what remains open for future litigation. It will analyze the constitutional basis for the Statute and explain how the law of nations, as part of federal common law, established the decision rules for ATS litigation. Then it will examine the meaning of the territoriality limitation imposed by Kiobel in the context of the Court’s established practice of interpreting jurisdictional statutes narrowly. After looking at the relevance of recent changes in personal jurisdiction law for ATS ...


Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz 2014 Touro Law Center

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.


Summary Of Nevada Ass’N. Servs. V. Eighth Jud. Dist., 130 Nev. Adv. Op. 94, Michael Valiente 2014 Nevada Law Journal

Summary Of Nevada Ass’N. Servs. V. Eighth Jud. Dist., 130 Nev. Adv. Op. 94, Michael Valiente

Nevada Supreme Court Summaries

The voluntary payment doctrine provides an affirmative defense to a claim for the recovery of money that a plaintiff voluntarily paid. The duress/coercion exception to the voluntary payment doctrine requires the plaintiff show no reasonable alternative to payment existed. Additionally, the defense of property exception requires the plaintiff show an imminent risk of losing the property.


La Patrimonialidad De La Prestación En Los Contratos: Una Revisión Histórica-Comparada, joshimar de la cruz aroni 2014 SelectedWorks

La Patrimonialidad De La Prestación En Los Contratos: Una Revisión Histórica-Comparada, Joshimar De La Cruz Aroni

Joshimar De la cruz Aroni

Comparative Law


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