Law Commons^™

Legal Hurdles And Pathways: The Evolution (Progress?) Of Climate Change Adjudication In Canada, Camille Cameron, Riley Weyman, Claire Nicholson

Dalhousie Law Journal

Citizens, civil society, and environmental justice organizations are increasingly turning to courts to find solutions to climate change challenges. As of November 2022, the number of climate change litigation cases throughout the world was at least 2.5 times higher than in 2017. A dominant wave of this litigation is one in which claimants assert that governments’ failures to take appropriate mitigation and adaptation measures violate claimants’ rights. We analyze this jurisprudence in this article, with a focus on the recent Ontario Superior Court of Justice decision in Mathur v Ontario. While the claims in this case were dismissed, it is …

The General-Law Right To Bear Arms, William Baude, Robert Leider

Notre Dame Law Review

In this Article, we argue that Bruen's intended methodological shift has been widely misunderstood by the bench and bar. This has led to confusion and misapplication in the lower courts, as well as much scholarly criticism of the test that is, we think, misdirected. As we will explain, Bruen calls for a form of legal originalism, applying a classical view of fundamental rights as a form of unwritten customary law. This is consistent with the text and history of the Constitution and leads to results that are less mechanical and more sensible than many lower courts have thought. Understanding …

Masthead, Table Of Contents & Introduction, Genevieve Renard Painter, Liam Mchugh-Russell

Dalhousie Law Journal

The short reflections in this Dalhousie Law Journal symposium, “Thinking With and Against Pierre Schlag,” run in many directions. Somewhere in these pages, readers will find knowledge, provocation, distraction, and humour. Above all, though, the collection brings together five legal scholars to celebrate Pierre’s oeuvre, reflect on the ways it has inspired their own work, and examine how Pierre’s scholarship embodies the limits that it was pushing against. Pierre has graciously provided a response to round out the issue and set us all straight.

Law, Critique And The Believer's Experience, Jean D'Aspremont

Dalhousie Law Journal

I have come to think that, most of the time, radical critics of a given discursive practice were once believers in that practice’s necessities and realities. In particular, I am of the opinion that one comes to appreciate the power of a discourse only when one has genuinely and personally experienced the necessitarian pull as well as the realities such discourse creates. To put it in phenomenological terms, I think that radical scepticism is often the expression of some self-revulsion at one’s earlier beliefs. The phenomenological causality described here is thus not simply about the devastating rage that one can …

Locke’S “Wild Indian” In United States Supreme Court Jurisprudence, Anthony W. Hobert Phd

American Indian Law Journal

This article explores the impact of John Locke’s Two Treatises on United States Indigenous property rights jurisprudence. After discussing Locke’s arguments, the article turns to the rationales of the first and last cases of the Marshall Trilogy—Johnson v. McIntosh (1823) and Worcester v. Georgia (1832)—arguing that, contrary to prevailing political theory, Marshall’s opinion for the Court in Johnson puts forth a fundamentally Lockean justification for the dispossession of Indigenous property. This article also provides a brief analysis of Marshall’s explicit Vattelian rationale in Worcester, commentary on recent developments regarding the precedents, and recommendations for reconciling them within contemporary …

Equity's System Of Open-Ended Wrongs And Limited Remedies, Mark P. Gergen

Texas A&M Law Review

It is well-known that equity gives courts considerable discretion to override the normal operation of legal rules to prevent an injustice in a particular case. This Article shows equity combined this discretion with limited remedies (rescission, restitution, reformation, and estoppel), and that these limited remedies strike a balance between the value of doing justice in a particular case and the cost of destabilizing the law in a way that places a heavy thumb on the scale favoring stability over justice. Henry Smith has described equity as a “second-order safety valve.” Equity’s limited remedies make it a weak “second-order safety valve.” …

Scholarship As Fun, Thomas Schultz

Dalhousie Law Journal

One theme that traverses much of Pierre Schlag’s work is a sense of profound humanity—the idea that thinking and writing about the law can and should be a deeply, genuinely human activity—an activity for which we can, and should, break up many of the barriers that stand between us, between who we really are, and what we think and write. It is an activity for which we should put aside our pretences and insecurities and the attached formalisms and exaggerations behind which we so often hide, and which in the end constrain our humanity so much, as they take on …

Un Ésprit Sérieux, Pierre Schlag

Dalhousie Law Journal

It was a sunny day when we all met in a classroom at McGill University The gathering went on all day and at the end someone proposed writing up the discussion as essays. Hence, this collection.

I’d like to take a moment of gratitude to express heartfelt thanks to all the participants. And especially to Vincent Forray and Jean d’Aspremont for organizing the event, and to Genevieve Renard Painter and Liam McHugh-Russell for bringing this collection over the finish line. I don’t know whether the intellectual generosity of the participants was because of Canada, or Montreal, or McGill, or the …

Amending The Foreign Sovereign Immunity Act To Promote Accountability For Violations Of Peremptory Norms Of International Law, Joshua Newman

Brooklyn Journal of International Law

The current state of the United States legal system, and international law at large, fails to afford victims of violations of international law with proper redress, when those violations were facilitated by a domestic taking. The Foreign Sovereign Immunity Act provides foreign sovereigns immunity from the jurisdiction of United States courts when those foreign sovereigns effectuate of a violation of international law through domestic takings. Courts have attempted to circumvent the restrictions of the Foreign Sovereign Immunity Act with exceptions such as the genocide exception. Unfortunately, the Supreme Court’s recent decision in Federal Republic of Germany v Philipp renounced the …

Section 898: Targeting The Companies Behind Gun Violence In New York With Public Nuisance Doctrine, Mara Kravitz

William & Mary Law Review

On July 6, 2021, the New York State Legislature enacted sections 898-a to -e of the New York General Business Law (section 898), creating a clear path for public entities and private gun violence victims to sue gun industry members for their role in the gun violence public nuisance in New York. This Note explores why the legislature took a public nuisance approach to curbing gun violence, framing section 898 within public nuisance doctrine’s broader common law history and legal elements.

To unpack how and why New York took this approach, the first Part of this Note traces the history …

How Close Is Close Enough: A Step-By-Step Analysis To Resolve The Circuit Split Created By Misunderstanding The Spokeo Ruling, Cason Shipp

St. Mary's Law Journal

No abstract provided.

Conflicting Decisions: Why The Privy Council Drifted From Precedent In Deciding Cunningham V Homma, Keita Szemok-Uto

Dalhousie Law Journal

*This contribution has not been peer-reviewed.

This paper highlights the structural barriers to voting rights that Japanese-Canadians in BC faced in the early 20th century. It documents Tomekichi Homma’s challenge of provincial legislation which prevented the Japanese from voting in local elections. His fight went to the Judicial Committee of the Privy Council, then the highest court of appeal in Canada. While Homma challenged the law because it denied voting rights based on racial grounds, the courts made little to no reference to race or ethnicity in hearing the issue; their focus was on questions of constitutionality and the division …

Show And Tell, Liam Mchugh-Russell

Dalhousie Law Journal

...to break the rules wisely, you have to know the rules well.

–Le Guin, Steering the Craft

I finished my doctorate in June of 2019. Most of my waking hours that late summer and early fall were spent writing and rewriting cover letters, teaching statements, and research agendas (and equity statements, long CVs, short CVs, etc.)—all the variegated materials demanded from applicants to tenure-track positions in North American law faculties. Writing those materials, and integrating the feedback on early drafts that I received from a host of generous peers and colleagues, became an accidental study in the principal subtext of …

Why The Multilateral Investment Court Is A Bad Idea For Africa, Akinwumi Ogunranti

Dalhousie Law Journal

The UNCITRAL Working Group III (WG III) is discussing procedural reforms in the investor state dispute settlement system (ISDS). The ISDS framework is criticized on various grounds, including arbitrator bias, lack of transparency, and inconsistent arbitral decisions. One of the recent reform proposals before the WG III is the possibility of a multilateral investment court (MIC). This proposal is championed by European Union states and supported by Canada. The proposal recommends replacing ISDS’ Ad hoc investment tribunals with an established and permanent court where states appoint judges. This paper examines the MIC reform option and argues that replacing the ISDS …

Humour, A Meditation, John Henry Schlegel

Dalhousie Law Journal

Back in 1987 when Critical Legal Studies was still “hot,” I was shopping a piece that was a long review essay on Laura Kalman’s history, Legal Realism at Yale. An acquaintance who was on that faculty invited me to present the piece—which I am still quite proud of—at the workshop he was running. Owen Fiss was the first person to ask a question. He wanted to know whether the piece was “serious” work or whether it was just an elaborate joke. Surprised and bewildered by the question, I answered, “Both.” In response he asserted that unless it were one or …

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patent Enforcement, Addison S. Fowler

Villanova Environmental Law Journal

No abstract provided.

The Problem Of Extravagant Inferences, Cass Sunstein

Georgia Law Review

Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a President of the United States necessarily includes the power to remove, at will, a …

Franchising Law In The United States Between Theory And Practice: Heads Up For Foreign Investors, Radwa Elsaman

Touro Law Review

As a dynamic vehicle for fostering investment opportunities, both domestically and internationally, franchising spans a diverse array of industrial sectors, encompassing both goods and services. The United States plays a highly influential role in global franchise industry promotion, with a vast majority of International Franchise Association members representing American companies. Present data underscores that franchising has extended its reach to virtually every sector of the American economy. Notably, the United States stands among just four common law nations that have established dedicated franchise legislation, operating at both state and federal levels. This framework includes provisions for pre-sale disclosure, registration of …

Delayed Emergency Care: How Professional Liability Insurance Affects Doctors’ Decisions After Dobbs And What Needs To Change, Erin Stuart

Marquette Law Review

In 2022, the U.S. Supreme Court overruled Roe v. Wade, ushering in a new era for abortion regulation. In some states, like Wisconsin, abortion was instantly re-criminalized. In rare but serious instances, health care providers faced the dilemma of deciding whether to delay care for emergency abortion services to save the life of a mother, for fear of criminal prosecution. As a result, some providers wondered if their professional liability insurance plan would provide a legal defense in the event of a criminal charge of illegally performing an abortion, though the facts may show it was to save the life …

Wild Horse Concepts, Llc V. Hasbro, Inc., 286 A.3d 848 (R.I. 2023)., Aidan L. Boisvert

Roger Williams University Law Review

No abstract provided.

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

The Communication Conundrum: Weighing The Need To Prove Intent In Erisa Misrepresentation Claims, Kristen Hobbs

Emory Law Journal

In 1974, Congress enacted the Employee Retirement Income Security Act (ERISA) to provide oversight to voluntary employee benefit plans in the private sector. The statute, which draws from a deep well of common law history, places robust requirements on fiduciaries who safeguard such plans. Shortly after ERISA’s enactment, courts were forced to interpret the broad fiduciary duties set forth in 29 U.S. § 1104, which simply mandates that fiduciaries must discharge duties solely in the interest of the participants and beneficiaries. Considering this broad language, courts set out to define specific standards to which fiduciaries should be held, particularly surrounding …