Law Commons^™

Laws Of Desire: The Political Morality Of Public Sex, Elaine Craig

Articles, Book Chapters, & Popular Press

In deciding cases that involve the intersection of criminal law and sexual mores, the courts are faced with the challenge of determining the appropriate moral framework from which to approach simultaneously private and social concerns. In indecency cases, Canadian courts historically employed a communitarian model of sexual morality based on the community’s standard of tolerance. However, the Supreme Court of Canada’s recent jurisprudence affirms a harm-based test, which relies upon and protects the fundamental values enshrined in the Canadian constitution. This article analyzes the Court’s decisions in R. v. Labaye and R. v. Kouri and demonstrates that these cases represent …

Religious Justification For The Practice Of Ecclesiastical Sanctuary, David H. Michels, David Blaikie

Articles, Book Chapters, & Popular Press

Stories about Canadian Christian churches engaging in civil disobedience by offering sanctuary to refugee claimants have been much in the news the past several years. Typical is the case of Ms. Sanja Pecelji who fled to St. Mark’s Anglican Church in Halifax to avoid a deportation order back to Serbia-Montenegro. The church minister, Rev. Susan Moxley, stated that Ms. Pecelji and her supporters in the church community were determined that she would reside in the church until the government reviewed her application for refugee status. “The tradition of providing sanctuary to those in need is a long-standing one for the …

Pitfalls In Patenting Publicly Funded Research - Comments On Draft South African Regulations, Matthew Herder, Cynthia M. Ho

Articles, Book Chapters, & Popular Press

South Africa recently enacted legislation similar to the US. Bayh-Dole Act, which permits publicly funded institutions to obtain patent rights in hopes that the patent incentive will foster commercialization, as well as generate revenues to the funded institutions and scientists. While enacting analogs to Bayh-Dole seems presently in vogue, there are definitely concerned about the original legislation that have been voiced. When South Africa recently published proposed guidelines implementing its version of Bayh-Dole, it broadly opened up the opportunity for public comments. The attached paper discusses some of concerns, including problems with delaying timely knowledge dissemination and the need to …

Extending Charter Benefits To Canada’S Poor, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair.

Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the …

Canada's Evolving Tax Treaty Policy Toward Low-Income Countries, Kim Brooks

Articles, Book Chapters, & Popular Press

Relative to at least some high-income countries, Canada has been willing to negotiate tax treaties that leave greater jurisdiction to tax (ie. more source jurisdiction) to low-income countries in its tax treaties. Nevertheless, Canada's tax treaty policy has not been overwhelmingly generous. This essay takes as its starting point Alex Easson's 1988 paper, The Evolution of Canada's Tax Treaty Policy Since the Royal Commission on Taxation. Focusing on the evolution of Canada's tax treaty policy since 1988, the essay examines three aspects of Canada's tax treaties that might increase the scope for source-based taxation by low-income countries. First, it examines …

The Lawyer's Role In A Contemporary Democracy, Promoting The Rule Of Law, Lawyers In Fragile Democracies And The Challenges Of Democratic Consolidation: The Nigerian Experience, Okechukwu Oko

Fordham Law Review

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Promoting The Rule Of Law, Government Lawyers, Democracy, And The Rule Of Law, W. Bradley Wendel

Fordham Law Review

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Promoting Access To Justice And Government Institutions, Equalizers And Translators: Lawyers' Ethics In A Constitutional Democracy, Martin Bohmer

Fordham Law Review

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Promoting Access To Justice And Government Institutions, The Challenge Of Democratic Lawyering, Ascanio Piomelli

Fordham Law Review

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Tensions Between Various Conceptions Of The Lawyer's Role, The Role Of The Lawyer In The American Democracy, Rakesh K. Anand

Fordham Law Review

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Tensions Between Various Conceptions Of The Lawyer's Role, Rethinking The Legal Reform Agenda: Will Raising The Standards For Bar Admission Promote Or Undermine Democracy, Human Rights, And Rule Of Law?, Samuel J. Levine, Russell G. Pearce

Fordham Law Review

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Tensions Between Various Conceptions Of The Lawyer's Role, Statesman Or Scribe? Legal Independence And The Problem Of Democratic Citizenship, Aziz Rana

Fordham Law Review

No abstract provided.

The Lawyer's Role In A Contemporary Democracy, Tensions Between Various Conceptions Of The Lawyer's Role, Lawyering At The Extremes: The Representation Of Tom Mooney, 1916-1939, Rebecca Roiphe

Fordham Law Review

No abstract provided.

When Worlds Collide: Intellectual Property At The Interface Between Systems Of Knowledge Creation, Introduction, Katherine J. Strandburg, Brett M. Frischmann, Jay P. Kesan

Fordham Law Review

No abstract provided.

Ethical Visions Of Copyright Law, James Grimmelmann

Fordham Law Review

No abstract provided.

Notes On A Geography Of Knowledge, Michael J. Madison

Fordham Law Review

No abstract provided.

Keynote Address, Harmless Use: Gleaning From Fields Of Copyrighted Works, Wendy J. Gordon, Sonia Katyal

Fordham Law Review

No abstract provided.

Unbundling Fair Uses, Pamela Samuelson

Fordham Law Review

The copyright fair use caselaw is more coherent and more predictable than many commentators seem to believe. Fair use cases tend to fall into common patterns, or what this Article calls policy-relevant clusters. The policies underlying modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth telling or truth seeking, competition, technological innovation, and the privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is …

The Pros And Cons Of Politically Reversible "Semisubstantive" Constitutional Rules, Dan T. Coenen

Fordham Law Review

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …

The Right Remedy For The Wrongly Convicted: Judicial Sanction For Destruction Of Dna Evidence, Cynthia E. Jones

Fordham Law Review

Many state innocence protection statutes give courts the power to impose appropriate sanctions when biological evidence needed for postconviction DNA testing is wrongly destroyed by the government. Constitutional claims based on wrongful evidence destruction are governed by the virtually insurmountable “bad faith” standard articulated in Arizona v. Youngblood. The wrongful destruction of DNA evidence in contravention of state innocence protection laws, however, should be governed by the standards used to adjudicate other “access to evidence” violations in criminal cases, including disclosures mandated by the rules of criminal procedure, the Jencks Act, and Brady v. Maryland. Under the “access to evidence” …

Adding Insult To Injury? The Untoward Impact Of Requiring More Than De Minimus Injury In An Eighth Amendment Excessive Force Case, Robyn D. Hoffman

Fordham Law Review

This Note explores the conflict over whether a prisoner must suffer more than de minimis injury to sustain an Eighth Amendment excessive force claim. It examines this conflict against the backdrop of the various standards the U.S. Supreme Court adopted in its Eighth Amendment prison conditions jurisprudence between 1976 and 1992, principally focusing on the 1992 Hudson v. McMillian decision. Moreover, this Note considers the intersection of “the evolving standards of decency,” the “hands-off doctrine,” and the Eighth Amendment injury requirement. Ultimately, this Note advocates that excessive force—when meted out as punishment—violates the Eighth Amendment’s prohibition on cruel and unusual …

What The Right Hand Gives: Prohibitive Interpretations Of The State Constitutional Right To Bail, Ariana Lindermayer

Fordham Law Review

Most state constitutions include a right-to-bail provision, commonly phrased, “All persons shall be bailable by sufficient sureties except for [certain offenses] when the proof of guilt is evident or the presumption great.” This Note examines conflicting interpretations of the effect this provision has on the cases excluded from its guarantee—specifically, certain offenses when the proof is evident or presumption great. Some courts read this provision to be silent regarding the excepted cases, allowing the legislature and judiciary to decide whether to permit bail. Others reason that the plain language of this right to bail is prohibitive with respect to the …

The Representational And Counseling Needs Of The Immigrant Poor, Jennifer L. Colyer, Sarah French Russell, Robert E. Juceam, Lewis J. Liman

Fordham Law Review

No abstract provided.

Disclosure, Deception, And Deep-Packet Inspection: The Role Of The Federal Trade Commission Act's Deceptive Conduct Prohibitions In The Net Neutrality Debate, Catherine J. K. Sandoval

Fordham Law Review

This article examines a largely unexplored fronteir in the "Net Neutrality" debate: the Federal Trade Commisiion (FTC) Act's proscriptions against deceptive conduct as a legal limit on Internet Service Provider (ISP) discrimination against Internet traffic. ISP discrimination against certain types of Internet traffic has blossomed since 2005 when the Federal Communications COmmission (FCC), with the Supreme Court's blessings in NCTA v. Brand X and FCC, relieved ISP's from common carrier regulations that prohibited discrimination and reclassified ISPs as "information service providers." This Artcile argues taht the Internet's architecture and codes presumed common carriage, indicating that the Internet's design and industry …

Where Were The Accountants? Deepening Insolvency As A Means Of Ensuring Accountants' Presence When Corporate Turmoil Materializes, Lauren Colasacco

Fordham Law Review

Managerial fraud and corporate mismanagement are pervasive in today's economic climate. Previously healthy coporation find themselves in economic turmoil and even in the throes of bankruptcy. Oftentimes these corporate failures can be prevented through responsible management and proper gatekeeping. Accountants, as vital intermediaries between corporations and the parties they do business with, ensure the credibility of corporate financial statements. This gatekeeping function cannot be underestimated. Accountants have the power to prevent corporation from taking on unnecessary debt via misstatements of corporate financial health. This Note proposes that the tort of deepening insolvency is a method of ensuring that accountants, by …

Revisiting Against Settlement: Some Reflections On Dispute Resolution And Public Values, Amy J. Cohen

Fordham Law Review

Critics of Owen Fiss’s famous 1984 Against Settlement widely assumed that he indicted alternative dispute resolution (ADR) as intrinsically incapable of promoting public values. This essay, however, suggests that Fiss offered a socially and historically contingent prediction about ADR’s potential to undermine popular commitments to redistributive justice during a period of intense economic liberalization in the United States. To support this rereading, the essay considers how Fiss envisioned the promotion of public values in a different space and time—specifically in international contexts at the turn of this century. Here, he endorsed decentralized, deliberative, and extrajudicial processes, even if he did …

The Pto And The Market For Influence In Patent Law, Clarisa Long

Faculty Scholarship

As statutory schemes go, the patent statute has been relatively stable from 1952 to the present. In contrast to copyright law, where Congress has taken a close – indeed at times intense – interest in the details of the statutory scheme, legislative intervention into the patent statute, when it has occurred, has been more limited and narrower in scope. For many reasons, however, patent law has been disequilibrating over time, and calls for patent reform have been increasing in intensity. One of the many factors contributing to this disequilibration in recent years has been the ongoing emergence of the U.S. …

Individual Accountability For Human Rights Abuses: Historical And Legal Underpinnings, Steven R. Ratner, Jason S. Abrams, James L. Bischoff

Book Chapters

The international legal community is beset today with talk of accountability. Governments, international organizations, non-governmental organizations, and scholars speak of the need to hold individuals responsible for official acts that violate the most cherished of international human rights. Some study the nature of various infractions with an eye toward codification; others seek to create or engage mechanisms for trying or otherwise punishing individuals. Their common mission is based on a shared understanding that international law has a role to play not only in setting standards for governments, non-state actors, and their agents, but in prescribing the consequences of a failure …

Federal Powers And The Principle Of Subsidiarity., Daniel Halberstam

Book Chapters

Federal systems across the world are generally designed according to the principle of subsidiarity, which in one form or another holds that the central government should play only a supporting role in governance, acting if and only if the constituent units of government are incapable of acting on their own. The word itself is related to the idea of assistance, as in “subsidy,” and is derived from the Latin “subsidium,” which referred to auxiliary troops in the Roman military. See Oxford Latin Dictionary s.v. (1983).

Double Tax Treaties: An Introduction, Reuven S. Avi-Yonah

Book Chapters

The existing network of more than 2,500 bilateral double tax treaties (DTTs) represents an important part of international law. The current DTTs are all based on two models, the Organisation for Economic Co-operation and Development (OECD) and United Nations (UN) model DTTs, which in turn are based on models developed by the League of Nations between 1927 and 1946. Despite some differences that will be discussed below, all DTTs are remarkably similar in the topics covered (even the order of articles are always the same) and in their language. About 75% of the actual words of any given DTT are …