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Is The § 943(B)(7) Feasibility Requirement Feasible? Why Congress Should Clarify Its Chapter 9 Bankruptcy Plan Requirements, Anderson M. Shackelford

Campbell Law Review

No abstract provided.

Stepping Beyond, In, And With Jaepl: Twenty Years Of Hope, Kristie S. Fleckenstein

The Journal of the Assembly for Expanded Perspectives on Learning

Treating readers to a detailed tour through JAEPL’s pages, the journal’s coeditor of 10 years touches on high points, also remembering the conference that initiated her relationship with its authors and readers.

Coming To Nonviolence, Paul Heilker

The Journal of the Assembly for Expanded Perspectives on Learning

A contributor to the second book that marked AEPL’s influence on scholarship traces the growth of his personal commitment to one of the organization’s foundational principles.

Rodney A. Briggs Library Unit Annual Report 2014-2015, Briggs Library

Miscellaneous Campus Publications

No abstract provided.

The Honors Beacon, Issue 09, Winter 2015, Honors Program At Minnesota State University, Mankato

Honors Beacon

Winter 2015 newsletter of the Honors Program at Minnesota State University, Mankato

Expect Employment 2015: Report To The Governor, Tennessee. Employment First Task Force

Expect Employment Report to Governor

This document provides an overview of the progress made towards expanding employment opportunites for Tennesseans with disabilities.

The Roberts Court And Penumbral Federalism, Edward Cantu

Faculty Works

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts — which derive from a “penumbral” reading of the Tenth Amendment — represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” …

Bowman V. Monsanto Co.: Bellweather For The Emerging Issue Of Patentable Self-Replicating Technologies And Inadvertent Infringement., Christopher M. Holman

Faculty Works

The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies. Typical examples include denying patent rights to "second generation" self-replicating products, and even broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, Congress and the courts have at their disposal …

A Platform For Discipline: Social Media Speech And The Workplace, David Mangan

Osgoode Legal Studies Research Paper Series

The common law engages with social media in a manner that overlaps with defamation: seeking to balance the competing interests of free speech and protection of reputation. Employment law prompts a question as to how the law on this topic is developing. Adjudication of the concept of business reputation is the comparative focal point. Canadian employment law is developing a balance between protecting business reputation and workers’ free speech (though there are issues arising therein). In the UK, however, the term has been more of a blunt tool. As a result, a juxtaposition has arisen: speech in traditional media is …

Looking For ‘Justice’ In All The Wrong Places: An International Mechanism Or Multidimensional Domestic Strategy For Mass Human Rights Violations In Sri Lanka?, Sujith Xavier

Osgoode Legal Studies Research Paper Series

I use the United Nations Panel of Experts on Accountability in Sri Lanka’s recommendation to create an international mechanism and recent demands for justice as a springboard to argue that the creation of a new ad hoc international or hybrid criminal tribunal for Sri Lanka may not produce the expected results of prosecuting those responsible for mass human rights violations. I argue that such an initiative will not heal the ruptures and cleavages among the different ethnic communities in Sri Lanka. By teasing out the political nature of international criminal law and the embedded nature of the history of international …

Intimate Partner Criminal Harassment Through A Lens Of Responsibilization, Isabel Grant

Osgoode Legal Studies Research Paper Series

Feminist scholars have demonstrated the gendered nature of intimate violence, and the tendency to put the responsibility on women to avoid both sexual and physical violence. The degree to which this responsibility is based on stereotypes about the “good victim” has been well documented in the context of sexual assault. This paper applies these insights to the context of intimate partner criminal harassment. All available statistics suggest that intimate partner criminal harassment is committed overwhelmingly by men against former female intimate partners. This crime affects thousands of women annually and can have devastating implications for their physical and mental health. …

Innocence At Stake: Possibility Of Dna Collection From Arrestees In Canada, Washim Ahmed

Osgoode Legal Studies Research Paper Series

Followed by a decision of the Supreme Court of the United States, which approved the collection of a defendant’s DNA upon arrests under the Fourth Amendment, the Minister of Justice, Peter MacKay indicated in an interview with the Globe and Mail that he and his Ministry are considering a similar model for Canada. This paper examines the possibility of a similar legislative framework in Canada and argues that although collection of DNA upon arrests was found justified under the Fourth Amendment, it does not necessarily mean that it will be found justified under the Canadian Charter of Rights and Freedoms. …

Legal Realism And Natural Law, Dan Priel, Charles L. Barzun

Osgoode Legal Studies Research Paper Series

The possibility of any meaningful relationship between the legal realists and natural law looks at first rather far-fetched. When it first appeared on the jurisprudential scene, legal realism was savagely attacked by proponents of natural law theory. To this day legal realism is depicted as a modernist, critical, at times almost nihilist approach to law, the polar opposite of the ancient natural law theory that traces its roots to Greek and Roman philosophy, and insists on unchanging objective values. And yet, two of the most famous legal realists, Karl Llewellyn and Jerome Frank, expressed in some of their writings more …

The Philosophies Of The Common Law And Their Implications: Common Law Divergences, Public Authority Liability, And The Future Of A Common Law World, Dan Priel

Osgoode Legal Studies Research Paper Series

The common law seems to suffer from a countermajoritarian difficulty: in most of the world, it is law made by unelected judges. What could justify it? In this essay I consider the answer to this question through the lens of the question of convergence among common law countries. Common law convergence is the view that different common law jurisdictions should aim to have a (fairly) similar laws of contract, torts, and so on. I identify three different attitudes towards common law convergence. One view seeks universal convergence (one that extends to all legal systems, regardless of their origin), the second …

No Refuge: Hungarian Romani Refugee Claimants In Canada, Julianna Beaudoin, Jennifer Danch, Sean Rehaag

Osgoode Legal Studies Research Paper Series

From 2008 to 2012, large numbers of Hungarian Romani refugee claimants came to Canada. Their arrival was controversial. Some political actors suggested that their claims were unfounded and amounted to abuse of Canada’s refugee processes -- abuse which could only be prevented through wide-scale reforms to the refugee determination system. Many advocates for refugees, by contrast, argued that persecution against Roma was rampant in Hungary and noted that hundreds of Hungarians had been recognized as refugees in Canada. Some went further and contended that Romani refugee claimants fled persecution in Hungary only to be confronted with similar mistreatment in Canada. …

Is There Anybody Out There?: Analyzing The Regulation Of Children's Privacy Online In The United States Of America And The European Union According To Eberlein Et Al. Tbgi Analytical Framework, Nachshon Goltz

Osgoode Legal Studies Research Paper Series

This article analyzes the regulation of children’s privacy online, especially in the context of personal information collection as a commodity, in the United States of America and the European Union according to Eberlein et. al. Transnational Business Governance Framework. The article reviews the regulatory structure of this field in these two jurisdictions including global organizations, according to Elberlein et al components and questions. In the analysis, a map of the regulatory interactions within this global realm will be presented and discussed. Finally, conclusions are drawn and suggestions are made.

The Perpetual Pursuit Of Sharing And Caring: Thomas Kleven's Equitable Sharing As A Guide For Legal Actors Chasing Meaningful Democracy, Sas Ansari

Osgoode Legal Studies Research Paper Series

Equitable Sharing presents a strong argument for the pursuit, development, and dynamic maintenance of cooperative and complementary regulatory and governance systems (including taxation) that all have the same aim: promoting equitable sharing and countering the concentration, entrenchment, and propagation of power and privilege. We are asked to look at the reasons why societies form, the ideologies justifying and supporting social formation and cooperation by all of society’s members, the manner in which they function, and the very necessary relations that form the core of social existence and operation. We are then asked to develop systems that order society and distribute …

The Bunk House Rules: Housing Migrant Labour In Ontario, Adrian A. Smith

Osgoode Legal Studies Research Paper Series

The paper tackles the recent controversy surrounding an application to convert an abandoned school into housing for migrant agricultural workers in Ontario, Canada. It examines how the written reactions of community residents to a proposed municipal zoning by-law amendment convey and invoke understandings of the legal regulation of temporary labour migration. When viewed through a legal consciousness analytic lens, reconstituted to attend to the material practices and context underpinning residents’ discursive and ideological responses, what I term a ‘materialist legal consciousness studies’, it is evident that the residents’ submissions intervene in the organization and regulation of agricultural production. While framed …

The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey

Osgoode Legal Studies Research Paper Series

This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: they reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …

Notes On The German Economy And Energy Ministry's Proposal For Reformed Investor-State Dispute Settlement (Isds), Gus Van Harten

Osgoode Legal Studies Research Paper Series

These notes provide a general reaction to a proposal by the German economy and energy ministry for ISDS in a treaty between Europe and the U.S. Overall, the proposal takes only a minority of the steps needed to make ISDS independent, fair, open, subsidiary, and balanced. I suggest that the appropriate approach remains to reject ISDS in new treaties (especially among Western developed countries). The proposal would be a good starting point for replacing ISDS in existing treaties with developing or transition countries – but that is clearly not its purpose.

Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin

Osgoode Legal Studies Research Paper Series

This article discusses the reliability of non-expert voice identification evidence. While much attention has been paid to the frailties of eyewitness evidence, little attention has been given to the frailties of ‘earwitness’ evidence, even though it has been tendered in several wrongful conviction cases. The author reviews the results of the empirical literature that has examined the reliability of earwitness evidence. The author also analyzes the principal factors used by Canadian criminal courts to assess earwitness reliability in light of the empirical study of those factors. The general conclusions are that earwitness evidence can often be quite unreliable and that …

A Parade Of Reforms: The European Commission's Latest Proposal For Isds, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The European Commission's most recent proposal for ISDS reflects a move away from essentially fake reforms to something potentially more meaningful. However, it is insufficient to satisfy the criteria of independence, fairness, openness, subsidiarity, and balance and does not appear reliable until backed by clear language and a negotiating red line for the proposed Canada-Europe CETA and any other agreement providing for ISDS.

Jurisprudence And (Its) History, Dan Priel, Charles L. Barzun

Osgoode Legal Studies Research Paper Series

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of such familiar legal concepts as “right,” “duty,” or “law” by offering analyses of them that purport to be general, abstract, and timeless. Meanwhile, historians tend to be suspicious of speculative claims ungrounded in fact and so often prefer to focus on the concrete, particular features of actual legal regimes.
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/="/">But surface appearances can deceive. Unlike some other areas of philosophy, the subject matter of …

Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill

Osgoode Legal Studies Research Paper Series

In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to …

The European Commission's Push To Consolidate And Expand Isds: An Assessment Of The Proposed Canada-Europe Ceta And Europe-Singapore Fta, Gus Van Harten

Osgoode Legal Studies Research Paper Series

The purpose of this paper is to evaluate the European Commission’s approach to investor-state dispute settlement (ISDS) in the proposed CETA with Canada and FTA with Singapore. The text on ISDS in both agreements is evaluated according to general criteria of independence, fairness, openness, and balance. The main conclusion reached is that there is no significant difference between the CETA and FTA when it comes to ISDS. With the qualified exception of the criterion of openness, both agreements fall well short of satisfying the criteria. As such, neither agreement offers a significant improvement on the U.S. model of ISDS and, …

The Icsid Under Siege: Unasur And The Rise Of A Hybrid Regime For International Investment Arbitration, Kendall Grant

Osgoode Legal Studies Research Paper Series

The legitimacy and effectiveness of the International Centre for Settlement of Investment Disputes (ICSID) — a dispute resolution body established in 1966 under the auspices of the World Bank — is a matter of spirited debate. It has been argued by some that ICSID’s ideological and procedural bias impedes fairness and by others that its complexity and cost restrict access to justice; many contend that the absence of an appeal process has exacerbated uncertainty and unpredictability. In 2009, in the wake of rampant dissatisfaction and ideological challenge, especially on the part of Latin American states, Ecuador proposed the creation of …

Transnational Governance Interactions: A Critical Review Of The Legal Literature, Stepan Wood

Osgoode Legal Studies Research Paper Series

Overlaps and interactions among diverse legal rules, actors and orders have long preoccupied legal scholars. This preoccupation has intensified in recent years as transnational efforts to regulate business have proliferated. This proliferation has led to increasingly frequent and intense interactions among transnational regulatory actors and programs. These transnational business governance interactions (TBGI) are the subject of an emerging interdisciplinary research agenda. This paper situates the TBGI research agenda in the broader field of transnational legal theory by presenting a critical review of the ways in which legal scholars have addressed the phenomenon of governance interactions. Legal scholars frequently recognize the …

The Misguided Search For The Nature Of Law, Dan Priel

Osgoode Legal Studies Research Paper Series

Within analytic jurisprudence the question “what is law?” is often taken to be of primary significance for two distinct reasons. First, it is thought to assume logical priority to normative questions: before one can say something about law, one needs to know what law is. Second, this inquiry is also thought to be uniquely philosophical, a non-empirical, pre-sociological investigation that can then tell empirical investigators what they need to look for if they want to find instances of law in the world. This article offers a general critique of this view. I start with examining several arguments claiming that jurisprudence …

The Interactive Dynamics Of Transnational Business Governance: A Challenge For Transnational Legal Theory, Stepan Wood, Kenneth W. Abbott, Julia Black, Burkard Eberlein, Errol Meidinger

Osgoode Legal Studies Research Paper Series

Conflict, convergence, cooperation, competition and other interactions among governance actors and institutions have long fascinated scholars of transnational law, yet transnational legal theorists’ accounts of such interactions are for the most part tentative, incomplete and unsystematic. Having elsewhere proposed an overarching conceptual framework for the study of transnational business governance interactions (TBGI), in this article we propose criteria for middle-range theory-building. We argue that a portfolio of theoretical perspectives on transnational governance interactions should account for the multiplicity of interacting entities and scales of interaction; the co-evolution of social agency and structure; the multiple components of regulatory governance; the role …

Probate Actions And 'Suspicious Circumstances': A Third Standard Of Proof For Allegations Involving Moral Guilt, Louise M. Mimnagh

Osgoode Legal Studies Research Paper Series

When a will is challenged as being executed under suspicious circumstances, Canadian courts have historically sought clear, compelling, and cogent evidence to demonstrate the will’s validity. The associated standard of proof has been described as one residing beyond a balance of probabilities, and is conceptualized as the ‘third standard of proof’ in addition to the civil and criminal standards. This third standard of proof is also particularly appealing when allocating the risk of error in an estates context in which testators are deceased and no longer available to clarify their intentions or perspectives. However, after the 2008 Supreme Court of …