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Law School News: Roger Williams University School Of Law Withdraws From Us News Rankings 1-17-2023, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Can A Tribunal’S Former Counsel Appear Before The Tribunal? A Comment On Certain Container Chassis, Andrew Martin

Articles, Book Chapters, & Popular Press

Lawyer mobility has been recognized as an important but not determinative consideration in legal ethics, particularly when it comes to conflicts of interest. Mobility poses particular issues for counsel to a tribunal. Those counsel may well at some point leave that position and pursue other opportunities. Prospective opportunities may sometimes involve appearing as counsel for a party before the same tribunal – especially where the tribunal operates in a highly specialized area of law. Can a lawyer appear before a tribunal if they were previously counsel to that tribunal? This discrete issue, though it rarely arises in the case law, …

Law School News: Logan Article Central To Scotus Dissent, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Help Me, Help You: What You Should Know Before You Ask For Help, Meredith A.G. Stange

College of Law Faculty Publications

I got an email the other day from a student who was having some difficulty writing his arguments. The student wrote that he kept rewriting his arguments in response to my comments but that he still had not been able to get them written satisfactorily. I could tell the student was frustrated and I could also tell that, for the moment, at least, I was the target of that frustration. Essentially, the student was telling me that he had changed things in accordance with my comments, but I still was not happy. Having been teaching for fifteen years, the frustration …

No More Chances For Lost Chances: A Weinribian Response To Weinrib, Nayha Acharya

Articles, Book Chapters, & Popular Press

Sometimes, patients who were negligently misdiagnosed by their doctors are unable to receive any compensation through tort litigation. This has led to a perception of unfairness, igniting arguments in favour of what is known as the “loss of chance” doctrine. Under this doctrine, patients would be able to claim damages for the lost chances of recovery that they suffered due to negligent misdiagnoses. British and Canadian courts have rejected this doctrine in the medical negligence context on the basis that it does not cohere with tort law principles of injury compensation. Professor Ernest Weinrib, in “Causal Uncertainty” (2016) 36:1 Oxford …

Clarifications And Gratitude, Chris Sagers

Law Faculty Articles and Essays

Certain things in this book plainly require clarification to avoid misunderstanding. In fact, I think this little discussion was among three people who mostly agree with each other, except that the reviewers may not have known it because I failed to explain myself well enough. Because I didn't, they mostly didn't discuss what I always intended to be the book's real contribution and its most interesting material.

I start out in Part I by trying to restate what I see as the problem that is the book's only immediate concern. That restatement is a first draft for how I will …

Decades Of Climate Policy Failure In Canada: Can We Break The Vicious Cycle?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper explores the causes of 20 years of climate policy failure in Canada.

Counter-Critical Theory: An Intervention In Contemporary Critical Thought And Practice, Bernard E. Harcourt

Faculty Scholarship

Walter Benjamin and Bertolt Brecht's short-lived project for a critical theory journal, Krise und Kritik, foundered in 1931 on the shoals of positivism. Since then, a series of anti-foundational challenges to traditional critical theory has fragmented the landscape of critical theory and, especially, critical praxis, leaving us disarmed today, in these unprecedented times. This essay offers a way forward by means of what it calls “counter-critical theory”: a critical method that indexes the original impulse of critical theory, but liberates it from its foundation in order to allow for a more open-ended and permanent re-examination of how power circulates …

What Is The Purpose Of The Orphan Drug Act?, Matthew Herder

Articles, Book Chapters, & Popular Press

The Orphan Drug Act (ODA) [1], first enacted in the United States in 1983, was set up to encourage the development of drugs for rare diseases. At that time, drug therapies for such diseases were rarely developed. Three decades later, a growing proportion of industry research and development (R&D) [2] and regulatory drug approvals [3] target diseases affecting fewer than 200,000 persons in the United States, the prevalence-based threshold of rare disease under the ODA.

In a new article published in PLOS Medicine, Aaron Kesselheim and colleagues document an embedded trend: within the …

Academic Critique Of Neoliberal Academia, Andrew M. Whelan

Faculty of Law, Humanities and the Arts - Papers (Archive)

Academic texts running critiques of neoliberal capitalism do work: positioning and producing their authors, hailing and invoking their readers (particularly as subjects invested in the moral logic the critique establishes), and thereby, articulating and moralising the collaborative accomplishment of the reader-writer relation. This relation and its constitution is a feature of contemporary leftist academic culture, and of the mechanics of critique as a social or 'solidarising' form of writing/reading. Attending closely to it highlights some vulnerabilities of the academic critique of neoliberal forms of life, and can illuminate the extent to which this critique constitutes its object in problematic ways: …

Tsilhqot'in Nation V. Bc: Reconfiguring Aboriginal Title In The Name Of Reconciliation, Constance Macintosh

Articles, Book Chapters, & Popular Press

In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but …

Person(S) Of Interest And Missing Women: Legal Abandonment In The Downtown Eastside, Elaine Craig

Articles, Book Chapters, & Popular Press

Women are disappearing. Sixty-nine of them disappeared from the Downtown Eastside of Vancouver between 1997 and 2002. Northern communities in British Columbia believe that more than 40 women have gone missing from the Highway of Tears in the past thirty years. The endangered do not come from every walk of life. Most of these women are Aboriginal. Many of them are poor. To be more precise then, poor women and Aboriginal women are disappearing. Aboriginal women in particular are the targets of an irrefutable epidemic of violence in Canada today.

Robert Pickton is thought to have murdered almost 50 of …

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

Confusion Worse Confounded: A Comment On 'Withdrawl Of Clinical Trials Policy By Canadian Research Institute Is A 'Lost Opportunity For Increased Transparency', Jocelyn Downie, Francoise Baylis

Articles, Book Chapters, & Popular Press

According to a recent BMJ article on CIHR's decision to "disappear" its policy on clinical trial registration, "Ian Graham, CIHR's vice president Knowledge Translation and Public Outreach, stated the CIHR policy was removed 'as the overlap [with Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (TCPS 2)] will cause confusion and inconsistent application of the requirements.'"

Ironically, this explanation is itself confusing and inconsistent with previous decisions made by CIHR. There are at least three areas in which CIHR policy/guidelines overlapped with TCPS 2 (registration and results disclosure of trials, research involving Aboriginal People, and research involving human pluripotent …

Disability Trouble, Brad Areheart

College of Law Faculty Scholarship

In the 1960s, the term “gender” emerged in the academic literature to indicate the socially constructed nature of being a man or woman. The gender/sex binary soon became standard academic fare, with sex representing biology and gender representing sex’s social construct. However, in the 1980s feminists became concerned the gender/sex binary – by effectively designating sex as non-social – left room for biological determinism. These feminists made “gender trouble” in part by arguing biological sex was a social concept. The resulting scholarship on sex and gender enriched feminist thought and catalyzed civil rights through an expansion of legal protections.An almost …

Tax Theory And "Mere Critique": A Reply To Professor Zelenak, Nancy Staudt

Faculty Working Papers

In this symposium essay, I briefly explore the usefulness of critical scholarship generally and then point to the manner in which this type of analysis can (and does) advance Professor Zelenak's aim of devising technical solutions to difficult policy problems. I then turn to Zelenak's critique of my article, "Taxing Housework." I argue that far from undermining my proposal to tax imputed income, Zelenak's work highlights several reasons for considering the proposal as an alternative to the existing tax structure. Importantly, I do not claim that taxing women's household labor is a perfect solution to the social and economic problems …

Book Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism By Alex M Cameron, Dianne Pothier

Dianne Pothier Collection

Alex Cameron’s book, Power Without Law, is a scathing critique of the Supreme Court of Canada’s 1999 decisions in R. v. Marshall upholding Donald Marshall Jr.’s Mi’kmaq treaty claim. Cameron’s book has attracted a lot of attention because of the author’s position as Crown counsel for the government of Nova Scotia. Cameron was not involved as a lawyer in the Marshall case itself. As a fisheries prosecution, Marshall was a matter of federal jurisdiction pursuant to s. 91(12) of the Constitution Act, 1867, 3 and Nova Scotia chose not to intervene. However, Cameron did become involved in a subsequent …

Canadian Parliament Must Act On Assisted Human Reproduction, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In the past three months, three members of the Board of Directors of Assisted Human Reproduction Canada (AHRC) have resigned. Their resignation letters include the following statements: '[that following requests for information about the Agency's spending and budget] there was much reluctance and procrastination in providing information, and that when the information was provided, there were inconsistencies in what I received and what was originally presented. This raises concerns in my mind about the prudence and diligence in managing public funds'; 'I have encountered difficulties as a board member in receiving satisfactory replies to concerns and questions I have raised …

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, …

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

Articles, Book Chapters, & Popular Press

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

The Manitoba College Of Physicians And Surgeons Position Statement On Withholding And Withdrawal Of Life-Sustaining Treatment (2008): Three Problems And A Solution, Jocelyn Downie, Karen Mcewen

Articles, Book Chapters, & Popular Press

The College of Physicians and Surgeons of Manitoba (CPSM) recently issued a Statement on Withholding and Withdrawl of Life-Sustaining Treatment (2008). The College should be given enormous credit for trying to provide guidance with respect to physicians' obligations in an area of great confusion and controversy. Unfortunately, however, there are some very serious flaws in the Statement. In this paper, we describe three major problems with it that we believe make the case for the claim that the Statement must be revised. We then provide a revised statement that, if adopted, could represent significant progress as it would provide: greater …

Envisioning The Future Of Aboriginal Health Under The Health Transfer Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Canadian government, and many Aboriginal communities, are committed to formally transferring varying aspects of governance responsibilities from federal hands to Aboriginal ones. These transfers take various forms, from creating Aboriginal political bodies with broad sets of governance powers, as was the case with the Nisga'a Treaty of 2000, to more partial transfers of specific powers or responsibilities, or types of responsibilities. One core transfer area is public health programming, for which there are specific and highly developed initiatives dating back to around 1989. Although it is expected that these initiatives will, overall, have very positive effects for improving the …

Complicity, Critique And Methodology, Fiona Probyn-Rapsey

Faculty of Law, Humanities and the Arts - Papers (Archive)

Contemporary cultural texts point towards the acknowledgment of complicity as a starting point for engagement with Others, with the world, readers, and histories that energize them.Here I discuss the critical role that complicity (both as an act and as a concept) plays in drawing out the complex interrelationships between historical pasts and present.

Review: Rethinking Commonsense Psychology: A Critique Of Folk Psychology, Theory Of Mind And Simulation, Daniel Hutto

Faculty of Law, Humanities and the Arts - Papers (Archive)

Ask nearly any analytic philosopher of mind how we understand intentional actions performed for reasons and you are bound to be told that we do so by deploying mental concepts, such as beliefs and desires, in systematic ways. This way of making sense of actions is known as commonsense or folk psychology (or CSP or FP for short). There have been many interesting debates about CSP over the years. These have focused on questions including: How fundamental and universal is this practice? Which species engage in it? What mechanisms underwrite the competence? How is the ability acquired? And, what exactly …

Janet Halley, Split Decisions: How And Why To Take A Break From Feminism, Princeton University Press. 2006 (Book Review), Mary Anne Franks

Articles

No abstract provided.

Community Forests: A Perspective, Robert Mccullough

Community-Owned Forests: Possibilities, Experiences, and Lessons Learned (June 16-19)

22 pages.

"Robert McCullough teaches in the University of Vermont Graduate Program in Historic Preservation. He wrote The Landscape of Community: Communal Forests in New England."

Investor Protection And Judicial Enforcement Of Disclosure Regime In Bangladesh: A Critique, Sheikh M. Solaiman

Faculty of Law - Papers (Archive)

The effectiveness of any law largely depends on the clarity of legal provisions and the activity of their enforcement institutions. Securities law, which is inherently complex, must be unambiguous to be properly applied. Judges and lawyers dealing with securities litigation need to be trained properly to provide justice for the public. Laws governing initial public offerings in Bangladesh are ambiguous in many respects, and the judiciary lacks judges and lawyers sufficiently experienced in this area of law. As a result, judicial enforcement of disclosure requirements in prospectuses appears to have been a difficult task. The administrative enforcement of those requirements …

Dr. King, Bull Connor, And Persuasive Narratives, Shaun B. Spencer

Faculty Publications

This article describes an in-class exercise that illustrates the use of persuasive narrative techniques in a U.S. Supreme Court decision. The article first describes the background to the Supreme Court’s decision in Walker v. City of Birmingham. Next, the article examines persuasive narrative techniques through the lens of an in-class exercise in which students identify the Justices’ narrative devices and consider how those devices preview the Justices’ legal arguments. Finally, the article describes why the Walker case and the exercise are valuable not only to teach persuasive narratives, but also to raise broader issues of lawyering and social justice.

Tort Liability For The Sale Of Non-Defective Products: An Analysis And Critique Of The Concept Of Negligent Marketing, Richard C. Ausness

Law Faculty Scholarly Articles

This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.

Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category …

Health Care Ethics Experts In Canadian Courts, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In this paper, I will first describe the traditional approach to the use of experts in Canadian courts. Then I will consider whether, on this approach, health care ethics experts should be permitted to testify in Canadian courts. I will argue that they should be permitted to testify but caution should be exercised by the courts, the parties, and the experts themselves. The objective of the paper is to highlight the strengths and raise some concerns about the weaknesses of a practice that appears to be growing, so that the potential harmful consequences might be anticipated, problems with the practice …