Digital Commons Network^™

Reconciliation And The Therapeutic Impulse: What Does It Mean To “Heal”?*, Elizabeth S. Dahl

Human Rights & Human Welfare

A review of:

Amnesty after Atrocity? Healing Nations after Genocide and War Crimes. By Helena Cobban. Boulder, CO: Paradigm Publishers, 2007.

and

Reconciliation in Divided Societies: Finding Common Ground. By Erin Daly and Jeremy Sarkin. Philadelphia: University of Pennsylvania Press, 2007.

Healing is widely seen as an essential component of socio-political reconciliation, helping to promote a more peaceable future after violent conflict. At the same time, however, little is known about what exactly “healing” means to traumatized people and whether particular reconciliation efforts do indeed constitute healing. Instead, social healing is described usually in metaphorical terms, compared to the way …

Silhouettes Of The Disappeared: Memory, Justice And Human Rights In Post- Authoritarian Argentina, Vincent Druliolle

Human Rights & Human Welfare

A review of:

El Siluetazo. Compiled and edited by Ana Longoni and Gustavo Bruzzone. Buenos Aires: Adriana Hidalgo Editora, 2008. 514 pp.

Human Trafficking In The Middle East And North Africa Region, Schuyler Dudley

Human Rights & Human Welfare

The Middle East and North Africa region is not the first area to come to mind when discussing human trafficking in the world. Yet this region certainly has human trafficking problems. To clarify, the geographic region referred to in this essay, the Middle East, extends as far west as Mauritania, as far south as Sudan, as far east as Oman, and as far north as Syria. This region is also known as MENA (Middle East and North Africa), but will be referred to as the Middle East in this essay. Discrepancies in defining the Middle East, as well as inaccurate …

The Continuation Of Slavery In The Modern World: The People’S Republic Of China And Forced Labor Practices, Jasmine Koehn

Human Rights & Human Welfare

The age-old scourge of slavery has returned to plague the modern world. Though updated to match societal advances, the basic premise remains: human beings degraded to the point of becoming a mere commodity. Today’s world calls modern day slavery human trafficking, and it can take many forms, including forced labor. In the People’s Republic of China (PRC), two distinct forms of forced labor exist. One form is the more traditional master-slave system, wherein people are bought and sold, or kidnapped, and subsequently forced to work, often in intense and dangerous manual labor. The second form exists legally under the Chinese …

Institutionalizing Torture: The Case Of Hospitals And Prisons In China, Leighann Mcchesney

Human Rights & Human Welfare

The People’s Republic of China (PRC) has a notorious reputation, especially within the international human rights community, concerning its state-implemented practices of torture. Although the government of China has been charged by many international organizations with having a gruesome human rights record, on anything from freedom of speech to freedom of religion, the accusations of state-sanctioned torture undoubtedly have caused some of the strongest reactions around the world. This article seeks to address the various manifestations of torture that take place inside two of the most prominent public institutions in China: the prisons and the mental hospitals. By utilizing these …

A Legal System That Compromises Due Process And Promotes Organ Harvesting And Human Rights Abuse Of Prisoners: A Case Study Of China, Shivani Ramdeo

Human Rights & Human Welfare

On June 21, 1989, three men were executed in Shanghai two weeks after their arrests. The Xinhua News Agency reported that Bian Hanwu, Xu Guoming and Yan Xuerong were arrested, charged and convicted for sabotaging transportation. Upon rejection of their appeals by the Shanghai People’s High Court, they were executed. Again, Xinhua reported on January 26, 2003, the execution of Lobsang Dondrub, (who was found guilty of inciting a split in the country and illegally possessing firearms and ammunition), hours after his death sentence was approved by the Sichuan Province Higher People’s Court, despite an assurance to a US delegation …

The Past, Present, And Future Of Freedom Of Speech And Expression In The People’S Republic Of China, Liza Negriff

Human Rights & Human Welfare

The international community has been criticizing China for its human rights violations for years. However, one human rights violation has received less attention than some other rights issues both inside and outside of China: censorship and restrictions on freedom of speech and expression. This scantiness of attention is largely attributed to the fact that acquiring reliable information about censorship and freedom of expression in China is challenging.

Universal Human Rights Vs. Traditional Rights, Brittany Kühn

Human Rights & Human Welfare

The Universal Declaration of Human Rights (UDHR) is one of the most translated documents in the world. Its promotion of freedom, justice and peace provides a set of standards that were adopted by the United Nations General Assembly and with the support of forty-eight countries. Despite this doctrine of international values, indigenous societies often resist attempts to implement such law when it threatens to constrain traditional norms that are deeply embedded into the realm of cultural identity.

Youth Migration And Poverty In Sub-Saharan Africa: Empowering The Rural Youth, Charlotte Min-Harris

Human Rights & Human Welfare

Sangaré, a poor young farmer from a village in southern Mali, leaves his wife and three children to find stable employment in the capital city of Bamako. What he finds is an unrewarding reality that leads him from small job to small job, only earning about US 22 cents per day. These jobs range from selling sunglasses, to shining shoes, to driving a rickshaw. Unfortunately, his income has not proved enough to provide for his family, as his aunt has since adopted his daughter, and his children cannot attend school. The inability to find stable employment in Bamako has forced …

The Continuing Struggle For Agrarian Reform In Brazil, Sarah Mogab

Human Rights & Human Welfare

Brazil is infamous for its enormously skewed distribution of income, wealth, and land. In a country where 4 percent of landowners own 79 percent of the land, an ongoing movement for land reform continues to be a source of conflict and violence in the countryside (Kay 2001: 755). Extreme poverty is highly concentrated in rural areas. Although rural workers comprise only 18 percent of the total population (Filho 2007), it is estimated that as many as 6 million families are in need of land (Thomas: 9). This struggle for land, in Brazil and elsewhere, is framed by its supporters as …

The Brazilian Paradox: The Lesbian, Gay, Bisexual, And Transgender Battle For Human Rights, Adrienne Rosenberg

Human Rights & Human Welfare

With a rich religious history of Catholicism juxtaposed with a sexually liberal public, Brazil interacts with its lesbian, gay, bisexual, transgender (LGBT) community in a very distinct and often conflicting manner. Although homosexuality has been legal in the state since 1823, save the armed forces, and civil unions are currently permitted in some areas, Brazil has functioned within this paradox as both worst transgressor, with a high record of hate crimes and discrimination, and as world leader, with a progressive domestic and global push for LGBT rights. In order to accurately assess these two opposing statuses, one must analyze the …

The Colonial Legacy And Human Rights In Mexico: Indigenous Rights And The Zapatista Movement, Alexander Karklins

Human Rights & Human Welfare

The current status of human rights in Latin America has been profoundly affected by the legacy of colonial institutions. Since the time of conquest, through colonialism, and after independence, the growth of the Latin American state has been challenged by the alternative discourse of indigenous rights. In Mexico, the dominance of mestizaje (or the quest for a single Mexican ethnic identity) in the formation of its modern state apparatus has left indigenous cultures out of the realm of political participation and exposed to human rights violations. With the Zapatista uprising of 1994-1996, the contradictions inherent in Mexico’s constitution were brought …

Police Violence In Brazil, Kyra Moon

Human Rights & Human Welfare

“This was just the beginning. They want war, and they‟ll get war. The problem of trafficking will only be resolved with blood. It is the only language they understand.” This was the response of Mario Azevedo, chief delegate of the 21st police precinct in the Bonsucsso neighborhood in Rio de Janeiro, after drug traffickers killed three police officers. Three days after that assault, one hundred and twenty heavily armed police officers stormed into the Nova Brasilia favela (the Brazilian term for slum or shantytown) and killed thirteen residents, four of which were minors. Press reports initially described this incident in …

Whether “Hedging” Anticipated Contingency Fees Should Be Deemed Impermissible Fee-Sharing Under Section 504 When The Policy Considerations Underlying The Statute Are Not Offended, David Bloom

Bankruptcy Research Library

(Excerpt)

Although the Bankruptcy Code establishes a clear prohibition against the sharing of fees by persons receiving compensation or reimbursement under section 504, it is unclear whether bankruptcy attorneys may be permitted to enter into “hedging” arrangements in order to obtain downside protection against risks associated with appeal. Ultimately, what is needed to decide this issue is a determination of what constitutes “sharing” of compensation within the meaning of the Code. Recently, in In re Winstar Communications, Inc., 378 B.R. 756 (Bankr. D. Del. 2007), the bankruptcy court found no ambiguity in the statute, and gave the term “sharing” …

Chapter 13 Plan Cannot Avoid Lien Absent Adversary Proceeding, Michael Buccino

Bankruptcy Research Library

(Excerpt)

In SLW Capital, LLC v. Mansaray-Ruffin (In re Mansaray-Ruffin), 530 F.3d 230, 233 (3d Cir. 2008), the Third Circuit considered whether a Chapter 13 confirmation plan has res judicata effect with respect to a creditor’s lien when no adversary proceeding regarding the lien was brought under the Federal Rules of Bankruptcy Procedure (“the Rules”). The court held that the plan had no res judicata effect on such a lien. Accordingly, the lien passed through bankruptcy unaffected and could only be invalidated through an adversary proceeding. In doing so, the court made it clear that the requirements of …

Effect Of Debtor’S Pre-Petition Election To Apply Tax Refund Toward Liability For Petition Year In Determination Of Property Of The Estate, Timothy Fox

Bankruptcy Research Library

(Excerpt)

Establishing what property of the debtor will pass into the bankruptcy estate is critical to effectuating the dual purposes of the Bankruptcy Code: to grant the debtor a fresh start and to divide assets of the estate equitably among creditors. In a chapter 7 proceeding, this threshold determination divides the debtor’s assets into those that the debtor will retain and those that will be liquidated to satisfy creditors’ claims.

In determining what is property of the estate, an issue arises when before filing for bankruptcy, the debtor files a return for a pre-petition tax year and elects to apply …

Negligent Vehicular Homicide Caps A Debtor’S Homestead Exemption, Christine Knoesel

Bankruptcy Research Library

(Excerpt)

In an expansive reading of the homestead exemption cap added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), the First Circuit Court of Appeals, in Larson v. Howell, held that criminal negligence is sufficient to trigger the section 522(q)(1)(B)(iv) homestead exemption cap. 513 F.3d 325, 328 (1st Cir. 2008). In Larson v. Howell, Larson was found guilty of negligent vehicular homicide. In Larson’s bankruptcy case, the homestead exemption cap was applied because the debt arose from a criminal act. Id. at 327. The Court of Appeals reasoned that the cap should apply …

Whether Negative Equity Is Part Of Purchase Money Security Interest?, Vitaly Libman

Bankruptcy Research Library

(Excerpt)

The 2005 BAPCPA amendments have turned routine car purchases into a source of litigation in the federal courts. The litigation stems from the financing agreements made during the transaction. Today, these financing agreements often require the purchaser to repay loans over a term of five years or longer. See, e.g. In re Peaslee, 358 B.R. 545, 554 (Bankr. W.D.N.Y. 2006). During these long terms, cars rapidly depreciate in value. Consequently, many consumers are left with vehicles that have a market value less then the amount of debt still owed on them. This deficiency is called “negative equity.” Often, consumers …

Non-Consensual Third Party Releases In Chapter 11 Bankruptcy, Craig Lutterbein

Bankruptcy Research Library

The Seventh Circuit, in Airadigm Communications, Inc. v. Federal Communications Comm’n. (In re Airadigm Commc’n, Inc.), 519 F.3d 640 (7th Cir. 2008), has joined the circuits permitting the non-consensual releases of non-debtor third parties from their obligations to creditors in chapter 11 reorganizations. In Airadigm, the court considered the validly of releasing a guarantor and major reorganization financer, Telephone and Data Services (hereinafter TDS), from liability resulting from the reorganization of debtor Airadigm Communications. The Court came to three conclusions on the subject: 1. Bankruptcy code section 524(e) does not prevent bankruptcy courts from granting third-party releases; 2. …

Expanding The Settlement Payments Exception In Lbo’S, Matthew Mcnamara

Bankruptcy Research Library

(Excerpt)

This memorandum will first give a statutory background of relevant bankruptcy code provisions and their effects on the bankruptcy proceeding. Next, the memorandum will present description of pertinent cases related to the 546(e) ‘settlement payment’ exemption. In particular, the memorandum will document the progression of cases interpreting the meaning of ‘settlement payment’ within 546(e) from a restrictive interpretation to an increasingly broad one. Finally, the memorandum will discuss the case Brandt v. B.A. Capital (In re Plassein International) and its implication on the 546(e) exemption in relation to transfers of stock made in an LBO for publicly-held …

Pension Benefit Guaranty Corporation’S Termination Premiums Constitute Dischargeable Pre-Petition Contingent Claims, Thomas Rooney

Bankruptcy Research Library

(Excerpt)

In Oneida Ltd. v. Pension Benefit Guaranty Corp., the U.S. Bankruptcy Court for the Southern District of New York addressed the issue of whether a debtor’s liability for pension termination premiums (“DRA Premiums”) constituted a pre-petition contingent “claim” and was, therefore, dischargeable pursuant to the debtor’s reorganization plan confirmation. 383 B.R. 29, 32 (Bankr. S.D.N.Y. 2008). The Bankruptcy Court held that the debtor’s liability for DRA premiums was a dischargeable pre-petition “claim” even though the pension termination occurs during the debtor’s chapter 11 case. Id. at 32, 43.

The Bankruptcy Court based its holding on three determinations: (1) …

Early Retirement Benefits Not Entitled To Severance Priority, Joe Scolavino

Bankruptcy Research Library

(Excerpt)

In Supplee v. Bethlehem Steel Corp (In re Bethlehem Steel Corp.), 479 F.3d 167 (2d Cir. 2007), the Second Circuit Court of Appeals addressed the issue of whether early retirement benefits triggered by severance are entitled to administrative expense treatment. The court held that that early retirement benefits are not entitled to severance priority. While the Second Circuit generally treats severance payments as priority administrative expenses when employment is terminated during the employer’s bankruptcy, Bethlehem determined that lump-sum retirement benefits for which the employee became eligible at termination did not constitute a new benefit earned at termination, …

American Home Mortgage, Holdings, Inc. V. Lehman Brothers Inc., Valerie Sokha

Bankruptcy Research Library

(Excerpt)

The derivatives provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) amendments greatly enlarged the scope of the financial contracts that are shielded from traditional bankruptcy limitations such as the automatic stay and the prohibition on ipso facto clauses. Those exceptions were reaffirmed in a strong anti-debtor opinion in Am. Home Mortg. Inv. Corp. v. Lehman Bros. (In re Am. Home Mortg. Holdings, Inc.), 388 B.R. 69 (Bankr. D. Del 2008). Although Lehman may now regret its victory since it is a debtor in its own bankruptcy case, it succeeded in defeating a number …

Discharge Under The Code For Erisa "Fiduciaries", Devin Sullivan

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code (“Code”) provides debtors with relief from many of their outstanding debts. However, even under the broad protection of the Code, some debts cannot be erased. Pursuant to section 523(a)(4) of the Code, an individual debtor may not discharge any debt for fraud or defalcation (unauthorized appropriation of money) while acting in a fiduciary capacity. 11 U.S.C. § 523(a)(4). The federal courts are currently split on the issue of whether a debtor who qualifies as a “fiduciary” under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 et seq, (“ERISA”) will also qualify as …

Can Software Be A Bankruptcy Petition Preparer?, Thomas Szaniawski

Bankruptcy Research Library

(Excerpt)

Recently, in Reynoso v. United States (In re Reynoso) — a case of first impression for the Ninth Circuit that addressed the intersection of cyberspace and bankruptcy — the court held that a provider of web-based bankruptcy software was a bankruptcy petition preparer (“BPP”) under 11 U.S.C. section 110 and that under California law, the features and functionality of the software went beyond mere typesetting and constituted the unauthorized practice of law. Reynoso v. United States (In re Reynoso), 477 F.3d 1117 (9th Cir. 2007). In re Reynoso is significant because prior to this …

Demythologizing Phosita: Applying The Non-Obviousness Requirement Under Canadian Patent Law To Keep Knowledge In The Public Domain & Foster Innovation, Matthew Herder

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada recently revised the doctrine of non-obviousness in a pharmaceutical “selection patent” case, Apotex Inc. v. Sanofi-Synthelabo Canada Inc. Although cognizant of changes to the same doctrine in the United States and the United Kingdom, a critical flaw in how the doctrine is being applied in Canada escaped the Court’s attention. Using content analysis methodology, this article shows that Canadian courts frequently fail to characterize the “person having ordinary skill in the art” (PHOSITA) for the purpose of the obviousness inquiry. The article argues that this surprisingly common analytical mistake betrays a deep misunderstanding of innovation, …

Extending Charter Benefits To Canada’S Poor, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair.

Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the …

Marine Protected Areas: Legal Framework For The Gully Off The Coast Of Nova Scotia (Canada), Paul Mcnab, David Vanderzwaag

Articles, Book Chapters, & Popular Press

The Gully, a submarine canyon hosting a rich diversity of marine life off Nova Scotia, was designated in 2004 under Canada’s Oceans Act 1996 as a marine protected area (MPA). This case study reviews the Gully MPA legal and management framework through a five-part discussion. First described is the overall Canadian law and policy context for establishing MPAs. Next, specific legislative and regulatory provisions governing the Gully MPA are summarized including the three types of management zones adopted, ranging from strict preservation to multi-use. Management approaches to control human activities in and around the MPA are then described, with a …

R. V. Ha: Upholding General Warrants Without Asking The Right Questions, Steve Coughlan

Articles, Book Chapters, & Popular Press

To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that: The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert …

The Changing Shape Of Legal Information, David H. Michels, Mark Lewis

Articles, Book Chapters, & Popular Press

As IT, Reference and Instruction librarians, we have experienced significant changes to the shape of legal information over the past five years. The changes are to both the very nature of legal information and how we perceive it. This can be illustrated by our use of the phrase "legal information". Depending on your age and life situation, the words "legal information" will have created specific images in your mind. These changes in perception challenge how we develop our programs of legal research instruction.