Law Commons^™

Uncovering The Presumption Of Factual Innocence In Canadian Law, Mark Herrema

Dalhousie Law Journal

The presumption of innocence has long been regarded as a hallmark of our justice system. Rhetoric abounds and finding a more celebrated legal doctrine is difficult. For most in the legalprofession, the presumption of innocence represents the procedural requirement that the Crown prove all elements of an offence. Yet, aside from its procedural and evidentiary protections, does the presumption of innocence offer any protection at the pre-charge phase of the criminal justice process? Specifically, for the majority of Canadians who have never been, or never will be charged with an offence, does the presumption of innocence offer any protection? Regrettably, …

Spaceship Sheriffs And Cosmonaut Cops, Lee Seshagiri

Dalhousie Law Journal

This paper examines some of the current legal regimes applicable to criminal law in outer space and offers insights into options for future legal developments in the cosmos. It begins by setting out the context for law enforcement in outer space, emphasizing the commercial nature of future space exploration and the need for laws and law enforcement in that environment. Next, various methods for assigning legal jurisdiction in space are examined, and the underlying justifications for the exercise of such jurisdiction are considered. The paper goes on to explore preventative approaches to space crime, highlighting the usefulness of such approaches …

The Property Status Of Fishing Licences, David G. Henley

Dalhousie Law Journal

The property status of a fishing licence has for a long time been undecided. The judicial decisions have varied significantly on whether a fishing licence is property at common law or pursuant to various statutory definitions. The significance ofthe issue lies primarily in the financial arena. It is most often the case that the preponderance of the value in a fishing enterprise lies with the fishing licence rather than in the vessel. It is not uncommon for a lobster licence to approach one million dollars in value.' When quota is allocated to groundfish licences, the value of the package can …

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck

Scholarly Articles in Law Reviews & Journals

The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …

The Transformation Of World Trade, Joost Pauwelyn

Michigan Law Review

This Article contests the traditional view of the evolution of the world trade system. Rather than a unidirectional process of legalization focused exclusively on the system's normative structure, Part I of the Article, "The Explosion of the GATT Club," recounts the transformation from GATT to WTO as a bidirectional interaction between law and politics; in particular, between the system's legal-normative structure and its political, decision making branch Part II of this Article, "The Threat of a WTO Fortress," challenges the view that a choice must be made between politics and law or, put differently, between, on the one hand, democratic …

Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth

Michigan Law Review

Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a …

The Changing Meaning Of Patent Claim Terms, Mark A. Lemley

Michigan Law Review

The claims of a patent are central to virtually every aspect of patent law. The claims define the scope of the invention, and their meaning therefore determines both whether a defendant's product infringes a patent and whether the patent is valid. One of the most significant aspects of patent litigation is "claim construction," the process of defining the words of the claim in other, theoretically clearer words. Courts construe the claims of the patent by starting with the plain meaning of their terms as they would be understood by a person having ordinary skill in the art, or PHOSITA. Claim …

Testing Minimalism: A Reply, Cass R. Sunstein

Michigan Law Review

Some judges are less ambitious than others; they have minimalist tendencies. Minimalists are unambitious along two dimensions. First, they seek to rule narrowly rather than broadly. In a single case, they do not wish to resolve other, related problems that might have relevant differences. They are willing to live with the costs and burdens of uncertainty, which they tend to prefer to the risks of premature resolution of difficult issues. Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics. …

A Prudential Exercise: Abstention And The Probate Exception To Federal Diversity Jurisdiction, Christian J. Grostic

Michigan Law Review

Ann-Marie Brege's parents established an irrevocable trust in 1985, with Ann-Marie as sole beneficiary. When Merrill Lynch Trust Co. took over as trustee years later, however, the trust's principal dropped sharply, losing over half its value in just a few years. Ann-Marie sued in Michigan probate court, alleging that Merrill Lynch had violated its legal duties in administering the trust. Since Ann-Marie was from New York and Merrill Lynch had its headquarters in New Jersey, Merrill Lynch had an apparently easy argument for diversity jurisdiction. In an unremarkable turn of events, Merrill Lynch filed a notice of removal to federal …

"Electronic Fingerprints": Doing Away With The Conception Of Computer-Generated Records As Hearsay, Adam Wolfson

Michigan Law Review

One night, in the hours just before daybreak, the computer servers at Acme Corporation's headquarters quietly hum in the silence of the office's darkened hallways. Suddenly, they waken to life and begin haphazardly sifting through their files. Several states away, a hacker sits in his room, searching through the mainframe via an internet connection. His attack is quick-lasting only a short five minutes-but the evidence of invasion is apparent to Acme's IT employees when they come in to work the next morning. Nearly a year later, federal prosecutors bring suit in the federal district court against the person they believe …

Privatizing Due Process, Paul R. Verkuil

Articles

The article explores the concept of "private due process," arguing that while traditional due process protections under the Constitution require state action, privatization of government functions creates gaps in procedural safeguards. It examines how state laws, federal regulations, and alternative dispute resolution (ADR) mechanisms can fill these gaps and proposes a "Private Administrative Procedure Act" (PAPA) to ensure procedural fairness when government functions are delegated to private entities.

Reforming The Federal Sentencing Guidelines Misguided Approach To Real-Offense Sentencing, David Yellen

Articles

No abstract provided.

The Limitation On Undocumented Workers’ Lost Earnings After Balbuena And Sanango: Crafting A Fair And Principled Balance Of Immigration Policy And New York State Labor Law § 240 Safety Goals, Meredith R. Miller

Scholarly Works

In December 2004, in a pair of cases, the Appellate

Division, First Department, held that under state labor

and tort laws, injured workers who are not legally permitted

to be present or employed in the United States

are only entitled to receive lost earnings reflecting what

they could have earned in their country of origin. This

article explores these First Department decisions by first

discussing the federal statutory and decisional backdrop

against which the cases arose. This article then

provides a discussion of the First Department cases and

the competing economic incentives they implicate.

Finally, this article posits that a …

Masthead, Volume 27 (2005-2006)

Cardozo Law Review

No abstract provided.

Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman

Cardozo Law Review

No abstract provided.

Common Ground: Law Schools In American Life During The New Age Of Faith, David Rudenstine

Articles

The article argues that law schools and the legal profession play a crucial, though underappreciated, role in maintaining the rule of law, democratic processes, and individual freedoms in American society. It explores the intersection of religion and legal education, particularly how religious faith that mandates specific public laws may conflict with the evidentiary and deliberative underpinnings of legal education. The article concludes that legal education fosters a common ground for deliberation, aligning with the principles of the First Amendment, and highlights the importance of this role in a pluralistic society.

Trade Mark Dilution In Singapore: The Aftermath Of Mcdonald’S V Mactea, David Llewelyn

Research Collection Yong Pung How School Of Law

In a unanimous decision delivered in September 2004, the Court of Appeal of Singapore has ruled against McDonald's Corporation in its attempts to stop a small Singapore company, Future Enterprises Pty Ltd, from registering its marks "MacNoodles", "MacTea" and "MacChocolate". This case has international significance as the Singapore court ruled, confirming the position taken by courts in a number of other jurisdictions, that McDonald's did not have an exclusive right over the prefix "Mc" in relation to food and beverages in the absence of deception or confusion. However, Singapore's trade mark laws have since undergone a major revamp. Under the …

U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin

Scholarly Works

No abstract provided.

Malpractice Reform As A Health Policy Problem, William M. Sage

Faculty Scholarship

Calling malpractice reform a "health policy problem" means that we should analyze it in terms of the quality of health care, access to health care, and the cost of health care-the basic health policy triad with which we all are familiar. We immediately recognize patient safety as a health policy problem because it is obviously about quality. We may believe there is so much slack in the health care system that we can make major improvements in patient safety without excessive cost. But ultimately, there are going to be cost-safety tradeoffs, which are also health policy concerns. We tend not …

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Faculty Scholarship

Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in the country alone. Published as part of the U.S.-China Trade: Opportunities and Challenges Symposium, this Essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the Dispute Settlement Body of the World Trade Organization over inadequate enforcement of intellectual property rights.

The Essay begins by articulating four reasons why the administration should not do so. It then compares the approach recently proposed …

The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell

ExpressO

The accuracy and manipulability of calculations for lost profits damages are critical determinants of the ability of harmed parties to receive just compensation in a wide range of legal cases including antitrust, fraud, false advertising, intellectual property infringement, and breach of contract. They are also important determinants of the deterrent effects of the law. Using a sample of over 5,000 U.S. firms, we show that simple damages methods are capable of being substantially inaccurate. We also show that damages methods in general are highly susceptible to manipulation. In the absence of reasonable justifications for why particular data sets and methods …

Single Subject Rules And Public Choice Theory, Michael Gilbert

ExpressO

Despite generating thousands of cases on important public issues, the single subject rule remains a source of confusion and inconsistency. The root of the problem lies in the inability to define the term “subject” using legal doctrine. This paper reexamines the single subject rule through the lens of public choice theory and finds that its purposes are wrongheaded. Logrolling is not necessarily harmful, and improving political transparency requires legislative compromises to be packaged together rather than spread across multiple acts. Riding is not a form of logrolling but an analytically distinct and more threatening practice. This analysis yields a precise, …

A Moving Target: Property Owners' Duty To Prevent Criminal Acts On The Premises, Deborah J. La Fetra

ExpressO

When do a landowners owe a duty to protect an individual on their property from the criminal acts of a third party? The answer to this question usually turns on whether the type of criminal act that occurred was foreseeable. Courts determine whether an act was foreseeable either by examining the totality of the circumstances or by demanding evidence of prior similar acts or some method of analysis that borrows from both approaches. This article addresses a variety of duty-foreseeability cases from around the country, paying particular attention to the three major decisions issued by the California Supreme Court in …

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

ExpressO

No abstract provided.

Summary Of Nev. Serv. Employees Union V. Orr, 121 Nev. Adv. Op. 68, Patty L. Roberts

Nevada Supreme Court Summaries

This case is an appeal and cross-appeal from a judgment of the Eighth Judicial District Court, Clark County, granting in part and denying in part petitions for judicial review of an administrative decision by the Employee-Management Relations Board.

Up Against A Wall: Europe’S Options For Regulating Biotechnology Through Regulatory Anarchy, Aaron A. Ostrovsky

ExpressO

Based on the current state of EU law and the political sentiment surrounding Genetically Modified Organisms, this paper argues that the best approach to regulating the import and export of GMOs into the Community and between Member States is by what I will call for the purposes of this Paper “regulatory anarchy.” This system sits in opposition to a hierarchical regulatory approach which may be associated with traditional neo-functionalist theories of Community integration. Applied in the context of GMOs, regulatory anarchy envisions integration not coming solely from Community rules conceived by the Commission, but by Member State negotiated rules accomplished …

Blame Canada (And The Rest Of The World): The Twenty-Year War On Imported Prescription Drugs, Daniel L. Pollock

ExpressO

Rising budget deficits and sticker shock over the new Medicare drug benefit have put the issue of prescription drug costs back into the spotlight. The growth in the cost of prescription drugs continues to represent a staggering burden for taxpayer-funded health care programs, even while costs of non-drug health care services have slowed or even decreased. Among the many proposals for cutting prescription drug costs, drug importation is unique. Although bipartisan support for drug importation has existed in Congress for over five years, the federal government continues to maintain that a system of safe and effective drug importation is impossible. …

Towards A Basal Tenth Amendment: A Riposte To National Bank Preemption Of State Consumer Protection Laws, Keith R. Fisher

ExpressO

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state’s sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence …

Modern Day Slavery In Our Own Backyard, Ellen L. Buckwalter, Meredith S. Salvaggio, Susan L. Pollet, Maria Perinetti

ExpressO

Trafficking in persons is one of the fastest growing areas of international criminal activity. Each year an estimated 600,000 – 800,000 human beings are bought, sold or forced across the world’s borders. Approximately 2.5 million men, women and children are victims of trafficking at any point in time throughout the world. Approximately 14,500 – 17,500 individuals are trafficked annually into the United States, making the United States the third largest destination country in the world for victims of human trafficking.

In order to fight trafficking in the United States effectively, legislation at the state level, in addition to the federal …

Migdal Insurance Company V. Abu-Hana, Eliezer Rivlin, Asher Grunis, Salim Joubran

Translated Opinions

Facts: The respondent was injured in a road accident when she was five months old. The district court, in assessing her damages for loss of earning capacity, took into account the respondent’s ethnic origin and her socio-economic background. The proper method of calculating this head of damage is the focus of the dispute between the parties.

Held: Damages for an injured minor's loss of earning capacity should be computed according to the presumption that the minor would have earned the equivalent of the national average wage, regardless of sex, religion, ethnicity, etc.. This presumption can be rebutted only …