Law Commons^™

Reconceptualizing Law And Politics In The Transnational: Constitutional And Legal Pluralist Approaches, Ruth Buchanan

Articles & Book Chapters

Despite the apparent fluidity that characterizes this historical moment as well as this moment in legal scholarship, this paper argues that there is also an enduring rigidity that is found in the persistence of a modernist conception of law. It is revealed in debates surrounding transnational constitutionalism, which even as they purport to transcend the nation-state, cannot escape some forms of reinscription of the relation between law and a centralized sovereign authority.

Payment Transactions Under The Eu Payment Services Directive: A U.S. Comparative Perspective, Benjamin Geva

Articles & Book Chapters

This article endeavours to analyse the provisions of Title IV governing rights and obligations in relation to the provision and use of payment services. Analysis is particularly from a US comparative perspective. Attention will be given to Uniform Commercial Code ("UCC") Article 4A, which governs U.S. wire and other credit transfers as well as federal laws governing consumer retail payment systems. A broader but related objective of the article is the assessment of the contribution of Title IV to the harmonization of funds transfer and payment law, not only by comparison to the U.S., but also by reference to a …

Irrigating The Famished Fields: The Impact Of Labour-Led Struggles On Policy And Action In Nigeria (1999-2007), Obiora Chinedu Okafor

Articles & Book Chapters

Between 1999 and 2007, a broad-based labour-led movement which focused most of its energies on its struggle against unpopular fuel price hikes in Nigeria was able to exert considerable, though limited, influence on an Obasanjo-led executive arm of government that was at best quasidemocratic in its orientation. This article argues that, despite the very important roles played by other factors (notably the presence of more democratic space in Nigeria post-1999), the movement's adoption of a mass social movement approach facilitated its ability to exert such influence.

Gender-Benders': Sex And Law In The Constitution Of Polluted Bodies, Dayna Nadine Scott

Articles & Book Chapters

This paper explores how law might conceive of the injury or harm of endocrine disruption as it applies to an aboriginal community experiencing chronic chemical pollution. The effect of the pollution in this case is not only gendered, but gendering: it seems to be causing the ‘production’ of two girl babies for every boy born on the reserve. This presents an opening to interrogate how law is implicated in the constitution of not just gender but sex. The analysis takes an embodied turn, attempting to validate the real and material consequences of synthetic chemicals acting on bodies — but uncovers …

Keeping Ethical Investment Ethical: Regulatory Issues For Investing For Sustainability, Benjamin J. Richardson

Articles & Book Chapters

Regulation must target the financial sector, which often funds and profits from environmentally unsustainable development. In an era of global financial markets, the financial sector has a crucial impact on the state of the environment. The long-standing movement for ethically and socially responsible investment (SRI) has recently begun to advocate environmental standards for financiers. While this movement is gaining more adherents, it has increasingly justified responsible financing as a path to be prosperous, rather than virtuous. This trend partly owes to how financial institutions view their legal responsibilities. The business case motivations that now predominantly drive SRI are not sufficient …

Reforming Intellectual Property Law: An Obvious And Not-So-Obvious Agenda, David Vaver

Articles & Book Chapters

No abstract provided.

"Everybody Knows What A Picket Line Means": Picketing Before The British Columbia Court Of Appeal, Judy Fudge, Eric Tucker

Articles & Book Chapters

The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a …

Debt, Bankruptcy, And The Life Course, Allison Mann, Ronald J. Mann, Sophie Staples

Faculty Scholarship

This Essay considers the significance of credit markets and bankruptcy for life course mobility. Comparing parallel data from the 2007 Survey of Consumer Finances (SCF) and the 2007 Consumer Bankruptcy Project (CBP), it analyzes use of the bankruptcy process as a function of the distribution of unplanned events, the ability of households to use credit markets to limit the adverse effects of such events, and barriers in access to the bankruptcy system. Our findings suggest two things. One, although the financial characteristics of filers vary markedly by age and race, bankrupt households generally come from the bottom quartiles of the …

The Crown's Fiduciary Obligations In The Era Of Aboriginal Self-Government, Kent Mcneil

Articles & Book Chapters

This article confronts the contention that the Crown’s fiduciary obligations are incompatible with Aboriginal self-government. Relying on Supreme Court decisions, it argues instead that the Crown has a fiduciary duty to support Aboriginal autonomy. Consequently, past infringements of the inherent right of self-government by imposition of the band council system violated the Crown’s fiduciary obligations. The appropriate remedy for this breach is restitution, involving federal assistance to enable First Nations to restore and maintain their capacity to govern themselves in accordance with their own traditions and present-day aspirations.

Overview Article, Stephanie Ben-Ishai, Tony Duggan

Articles & Book Chapters

No abstract provided.

Internationalized Pro-Bono And A New Global Role For Lawyers In The 21st Century: Lessons From Nation-Building In Southern Sudan, Maya Steinitz

Faculty Scholarship

From 2004 to 2006, the author led the pro bono representation of the Sudan People’s Liberation Movement (“SPLM”), assisting the SPLM in drafting and negotiating the National Interim Constitution of Sudan, the Interim Constitution of Southern Sudan and the Constitutions of two “transitional” states. The representation was part of an emerging trend in pro bono representations. In small but increasing numbers, private law firms have begun to take on pro bono projects with global significance - assisting governments and civil society in post-conflict countries to deal on an even footing with foreign investors, for instance, or working with international criminal …

Toward An Architecture Of Health Law, Wendy K. Mariner

Faculty Scholarship

This article examines 3 questions: What is an academic field of law? Is health law such a field? If it is, how can or should it be described? The first question may have no answer; scholars and practicing lawyers have fashioned their owns spheres of expertise. Describing health law faces particular challenges, including the breadth of applicable doctrines and the decline of unique medically-oriented adaptations of general principles. The article offers a blueprint based on the health and human rights framework as a functional description of the eclectic and translegal field of health law. This approach can identify the principles …

Justice Ginsburg's Footnotes, Jay D. Wexler

Faculty Scholarship

In this short article written for the New England School of Law's March Symposium on Justice Ruth Bader Ginsburg, I report on what happened when I embarked on a project of trying to read every single footnote Justice Ginsburg has ever written as a justice on the Supreme Court. As the article relates, this project was impossible to complete because Justice Ginsburg, it turns out, has written a lot, lot, lot of footnotes. Instead, I ended up reading all of Justice Ginsburg's footnotes from three of her terms. In the article, I develop a nine-part taxonomy of Supreme Court footnotes …

How Medicare Could Get Better Prices On Prescription Drugs, Kevin Outterson

Faculty Scholarship

Congress may reform drug pricing policies under Medicare Part D as part of a larger health reform effort. Currently, the "noninterference" provision prevents the government from negotiating drug prices on behalf of Medicare Part D prescription drug plans. Commonly considered reform proposals borrow ideas from Medicaid, either through returning dual eligibles to Medicaid drug pricing or by imposing mandatory rebates across the Part D population. We examine a menu of other options, including value-based pricing; expansion of generic and therapeutically equivalent substitution; increased formulary diversity; importation; and limited antitrust waivers. These latter options may reduce federal spending without direct government …

Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue

Faculty Scholarship

Many evidentiary issues arise with respect to the admission of videotape evidence and computer generated simulations at trial, and the authors of this Article address these issues as they arise in police misconduct cases. Professor Schwartz provides insight into and analysis of the evidentiary principles that govern the use of video and computer simulation evidence at trial in cases where police misconduct is at issue. His discussion first addresses the issues that concern the admissibility of videotape evidence, then discusses the role of a videotape on summary judgment, and lastly, analyzes evidentiary issues with respect to computer generated simulations.

"Trap"Ing Roe In Indiana And A Common-Ground Alternative, Dawn E. Johnsen

Articles by Maurer Faculty

Public discourse over abortion overwhelmingly focuses on whether the Supreme Court will overrule Roe v. Wade and states will again ban abortion. But at least since 1992, when the Court in Planned Parenthood v. Casey reaffirmed Roe's "central holding," certain moderate- sounding abortion restrictions - sometimes framed as reasonable compromise regulations - have posed a greater threat to women's reproductive health and liberty. This Essay examines one increasingly popular form of restriction: laws that regulate providers of abortion services in the name of advancing women's health, without actual health justification. Little-noted efforts to enact such restrictions in Indiana, during the …

"Render Unto Caesar...": Religion/Ethics, Expertise, And The Historical Underpinnings Of The Modern American Tax System, Ajay K. Mehrotra

Articles by Maurer Faculty

A variety of scholars and commentators have been recently exploring the connections between religion and current U.S. tax policy. The relationship between religion and American taxation, however, runs much deeper than our present period. Indeed, it is no coincidence that roughly a century ago the foundations of our current tax system were taking shape at the height of the religious and ethical fervor known as the Social Gospel movement. At that time, religious and ethical sentiments played a central, though ambivalent, role in fiscal reform. This Article investigates the influence of religious and ethical values on the tax reform struggles …

Territory, Territoriality, And The Resolution Of Jurisdictional Conflict, Hannah L. Buxbaum

Articles by Maurer Faculty

No abstract provided.

After The Revolution: Global Health Politics In A Time Of Economic Crisis And Threatening Future Trends, David P. Fidler

Articles by Maurer Faculty

In 2008, global health’s political revolution, which unfolded over the preceding 10-15 years, ended when four global crises damaged global health and altered the political, diplomatic, and governance contexts in which global health activities operate. The climate change, energy, food, and economic crises revealed limitations in global health’s ability to shape large-scale political, economic, and environmental problems that adversely affect health or harm underlying determinants of health. In addition, projected trends in world affairs potentially threaten health and the ability of countries to craft effective collective action responses to global problems damaging health directly and indirectly. In the post-revolution period, …

Improving Inter-Nation Equity Through Territorial Taxation And Tax Sparing, Jinyan Li

All Papers

The current international tax system allocates the taxation of cross-border income by reference to the residence of the taxpayer and/or the source of income. The governing rules are contained in domestic tax laws and bilateral tax treaties. As noted by Professor Easson, the current regime of allocation is not based on any real agreement between nations and cannot be rationalized by any “obvious principle of fairness”. In fact, it is biased in favour of the capital exporting nations that devised the rules of the game. In order to improve fairness, Professor Easson considered it desirable to have some “redistribution” in …

Bisexuals Need Not Apply: A Comparative Appraisal Of Refugee Law And Policy In Canada, The United States, And Australia, Sean Rehaag

Articles & Book Chapters

This paper offers an analysis of refugee claims on grounds of bisexuality. After discussing the grounds on which sexual minorities may qualify for refugee status under international refugee law, the paper empirically assesses the success rates of bisexual refugee claimants in three major host states: Canada, the United States, and Australia. It concludes that bisexuals are significantly less successful than other sexual minority groups in obtaining refugee status in those countries. Through an examination of selected published decisions involving bisexual refugee claimants, the author identifies two main areas for concern that may partly account for the difficulties that bisexual refugee …

The Constitutional Legitimacy Of Freestanding Federalism, Gillian E. Metzger

Faculty Scholarship

Responding to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv.. L. Rev. 2003 (2009).

A Comparative Look At Domestic Enforcement Of International Tribunal Judgments, Lori Fisler Damrosch

Faculty Scholarship

Problems of compliance with international arbitral and judicial decisions have been with us for as long as such tribunals have existed. In general, the consensual foundations for the jurisdiction of international tribunals have ensured that the parties were in principle willing to have their disputes resolved by the tribunal and thus were usually prepared to carry out the resulting award or judgment. Commentators on international arbitration generally characterize the compliance record as favorable.

Occasions when states refuse to carry out arbitral awards are rare, but when they do occur, states have sometimes asserted the nullity of the award on the …

The Ties That Bind: Multiculturalism And Secularism Reconsidered, Brenna Bhandar

All Faculty Publications

Explores contemporary contestations over the rights of Muslim girls and women to wear the veil in both France and the U.K.

Chrysler, Gm And The Future Of Chapter 11, Edward R. Morrison

Faculty Scholarship

Although they caused great controversy, the Chrysler and GM bankruptcies broke no new ground. They invoked procedures that are commonly observed in modern Chapter 11 reorganization cases. Government involvement did not distort the bankruptcy process; it instead exposed the reality that Chapter 11 offers secured creditors – especially those that supply financing during the bankruptcy case – control over the fate of distressed firms. Because the federal government supplied financing in the Chrysler and GM cases, it possessed the creditor control normally exercised by private lenders. The Treasury Department found itself with virtually the same, unchecked power that the FDIC …

The Validity Of Deal Protection Devices Under Anglo-American Law, Wai Yee Wan

Research Collection Yong Pung How School Of Law

This paper analyzes deal protection devices, specifically termination fees and lockup agreements, that are entered into by publicly listed target companies in favor of the bidders, under Anglo-American law. U.S. (specifically Delaware) and U.K. law and regulation differ markedly in the regulation of these devices. Delaware law generally gives more leeway for the target board to enter into deal protection devices. The U.K. regime is much more shareholder-centric and severely restricts most types of deal protections. This paper examines the differences and argues that the U.K. regime is the result of the strong influence of institutional share ownership. In contrast, …

Pugh's Lawn And Landscape Company, Inc. V. Jaycon Development Corporation: The Tennessee Court Of Appeals Limits Judicial Review Of Arbitration Awards, Becky Jacobs

College of Law Faculty Scholarship

In its April 2009 opinion in Pugh’s Lawn Landscape Company, Inc. v. Jaycon Development Corporation, the Court of Appeals of Tennessee announced its judgment that Tennessee’s arbitration statutes do not permit parties to modify by agreement the scope of judicial review of an arbitral award. The Pugh’s Lawn decision answered a state law question left open by the United States Supreme Court in Hall Street Associates, L.L.C. v. Mattel, Inc., a 2009 case in which the Court held that the Federal Arbitration Act (“FAA”) did not permit parties contractually to expand the grounds for vacating or modifying an arbitral award. …

Pedagogic Techniques: Multi-Disciplinary Courses, Annotated Document Review, Collaborative Work & Large Groups, George Kuney

Scholarly Works

No abstract provided.

Protecting A Business Entity Client From Itself Through Loyal Disclosure, Paula Schaefer

Scholarly Works

No abstract provided.

Saving Law Reviews From Political Scientists: A Defense Of Lawyers, Law Professors, And Law Reviews, Benjamin H. Barton

Scholarly Works

This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong …