Law Commons^™

The United States Guestworker Program: The Need For Reform, Elizabeth Johnston

Vanderbilt Journal of Transnational Law

Although often marginalized, guestworkers are an integral part of the United States economy. In 2006 alone, the U.S. government certified visas for 18,736 temporary workers. The program expanded in subsequent years and continues to grow each year. Despite its broad scope, huge impact on the labor force, and the extensive existing legislation regarding it, the guestworker program has permitted most employers of guestworkers to eschew the regulations or find loopholes, resulting in a system that is largely exploitative. Abuse of workers begins in their home countries, intensifies during the period of employment, and often continues even after employment terminates. Workers …

The Admissibility Of Electronic Business Records, Ken Chasse

Canadian Journal of Law and Technology

The business record provisions of the Evidence Acts determine a record’s admissibility by evidence of its history, which must be the product of “the usual and ordinary course of business” (or comparable “business activity” wording). The electronic record provisions determine a record’s admissibility by the, “integrity of the electronic records system in which it is recorded or stored.” The difference is, records management (RM) based on “paper records concepts” versus “electronic records systems concepts.” The former is subjective — each business determines its own “usual and ordinary course of business”; the latter, objective — in accor- dance with authoritative standards …

Interpreting Copyright Law And Internet Facts, Cameron Hutchison

Canadian Journal of Law and Technology

This paper probes interpretation issues elicited by the impact of digital technologies and the Internet on copyright law. The purpose of the paper is to instill a coherent framework for analyzing copyright law when it encounters Internet or digital facts. In part one, I propose a methodology of statutory interpretation that helps suitably adapt statutory language to technological developments. In essence it is this: courts should examine the language of the operative provision in its statutory context and in light of its purpose. A contextual interpretation of a broadly conceived rule can reveal a legislative intention that certain kinds of …

Approval Of New Pharmacogenomic Tests: Is The Canadian Regulatory Process Adequate?, Yann Joly, Emma Ramos-Paque

Canadian Journal of Law and Technology

In the first part of our analysis, we will examine the impact which pharmacogenomics is expected to have on drug research and development, on the drug approval process and on post-marketing surveillance and clinical practice. This will allow us to show how pharmacogenomic testing could be beneficial to drug companies, regulatory bodies, and patients. The second part of our analysis will focus on the regulatory framework applicable to the approval of pharmacoge- nomic tests in Canada, although we are aware of the fact that most manufacturers decide to approve their tests outside of Canada. As mentioned, the applicable regu- lations …

The Regulation Of Personal Health Record Systems In Canada, James Williams, Jens H. Weber-Jahnke

Canadian Journal of Law and Technology

This paper analyzes the regulatory regime for PHR systems in Canada. The first part of the paper consists of an introduction to some of the major issues associ- ated with these applications, with a focus on privacy, security, data quality, and interoperability. Following this preliminary discussion, the bulk of the analysis deals with the legal instruments that apply to PHR products developed by private sector organizations. Due to space constraints, the paper concentrates on legislative and regulatory instruments, deferring a discussion of the possible impacts of tort, product liability, and contract law on PHR systems. Despite this omission, it is …

Canada's Digital Economy Strategy: Toward An Openness Framework, Michael Geist

Canadian Journal of Law and Technology

This essay is an expanded version of my submission to the digital economy consultation. It opens with general issues such as digital policy leadership, cost issues, and emphasizes the need for a principle-based strategy that embraces the benefits associated with “open,” whether open access, open spectrum or open data. It then provides specific recommendations on a wide range of issues including tele- communications policy, privacy, and copyright.

Personalization, Analytics, And Sponsored Services: The Challenges Of Applying Pipeda To Online Tracking And Profiling Activities, Eloïse Gratton

Canadian Journal of Law and Technology

In 2008, the online advertising industry was found to be worth 27 billion dollars, a figure that was projected to double over the subsequent four years.1 The reason for this extraordinary market growth can be explained by two factors. To begin with, current technology now makes it possible to gather a great variety of information associated with a particular device or individual, including browsing history, which can be used to create a profile specific to that device or individual. This practice facilitates more personalized advertising, tailored to the interests and tastes of the consumer. Secondly, many online services, in the …

Law And Mental Health: A Relationship In Crisis?, Sheila Wildeman

Dalhousie Law Journal

What is the significance of the rule of law to the area of professional knowledge and practice that is "mental health"-or to the interaction of those two aspirational, one might say euphemistically-named social systems: the mental health and justice systems? This question centres upon the rule of law-specifically, I suggest (as I relate further in closing), a thick conception of the rule of law grounded in an ideal of state-subject reciprocity-and not, or not directly, upon the individual and social good ofhealth. It is this overarching question that I wish to pursue in setting the stage for the two lectures …

Money Market Fund Reform Viewed Through A Systemic Risk Lens, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

I. INTRODUCTION

Money market funds ("MMFs") were first developed in the 1970s, and since that time, they have become increasingly popular as an alternative to deposit accounts. Since the financial crisis of September 2008, there has been much discussion about the systemic risks posed by alternatives to commercial banking products. One of the key themes of this discussion is whether the systemic importance of these alternative banking products justifies the imposition of heightened regulation and supervision. This article takes the view, after a comparison of deposit accounts and MMFs, that MMFs are systemically important. It then goes on to consider, …

From Conley To Twombly To Iqbal: A Double Play On The Federal Rules Of Civil Procedure, Arthur R. Miller

Duke Law Journal

This Article discusses the effects of the recent Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on the model of civil litigation established by the Federal Rules of Civil Procedure in 1938. Those Rules created a procedural system giving a litigant, using plain language and presenting the essential elements of a claim for relief an opportunity to pursue discovery and have his or her rights adjudicated on the merits. This Article discusses the basic values underlying that system and its importance in promoting broad citizen access to our federal courts and enabling the private enforcement …

Conflicts In International Tort Litigation Between U.S. And Latin American Courts, John Baker, Agustín Parise

University of Miami Inter-American Law Review

No abstract provided.

The Civil Judicial Subsidy, Brendan S. Maher

Faculty Scholarship

American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants?

I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these social …

Michelot Yogogombaye V. Republic Of Senegal, Charles C. Jalloh

Articles

No abstract provided.

Iftikhar Chaudhry’S Options: Can The Courts Remake Pakistani Democracy?, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

War Of The Words: How Courts Can Use Dictionaries In Accordance With Textualist Principles, Phillip A. Rubin

Duke Law Journal

No abstract provided.

Correcting Mandatory Injustice: Judicial Recommendation Of Executive Clemency, Joanna M. Huang

Duke Law Journal

In 1987, the United States political and social systems lost trust in the judiciary and severely limited its authority by enacting the mandatory Federal Sentencing Guidelines. During this period, many judges were forced to impose sentences they viewed as unjust. Trust in the judiciary was restored in 2005, when United States v. Booker made the Sentencing Guidelines advisory. Despite the increase in judicial discretion, however, judges are still unable to correct sentences imposed during the intervening eighteen years because Booker does not apply retroactively. Unfortunately, the executive and legislative branches are similarly unable to provide adequate remedies. Congressional action is …

The Arab-Israeli Conflict And Civil Litigation Against Terrorism, Adam N. Schupack

Duke Law Journal

The Arab-Israeli conflict has been a testing ground for the involvement of U.S. courts in foreign conflicts and for the concept of civil litigation against terrorists. Plaintiffs on both sides of the dispute have sought to recover damages in U.S. courts, embroiling the courts in one of the world's most contentious political disputes. Plaintiffs bringing claims against the Palestine Liberation Organization, the Palestinian Authority, material supporters of terrorism, and the Islamic Republic of Iran have been aided by congressional statutes passed precisely to enhance their ability to bring such lawsuits, whereas plaintiffs bringing suit against Israel or Israeli leaders have …

Journal Staff

Duke Law Journal

No abstract provided.

Constitutional Fiats: Presidential Legislation In India's Parliamentary Democracy, Shubhankar Dam

Research Collection Yong Pung How School Of Law

The article presents information on the presidential legislation of the parliamentary democracies, India and Pakistan. It discusses the role of the President acting as the Council of Ministers for the enactment of legislations as ordinances without the consent of the Parliament. Information on the legal interpretation of the ordinances and its interaction with the principles of the parliamentary system of the government is also presented.

Four Mediation Stories From Across The Globe, Nadja Alexander

Research Collection Yong Pung How School Of Law

In the past 30 years mediation has emerged as a significant dispute resolution narrative around the world. It contains many stories told by different story-tellers -- stories about diverse practices, communities and courts, in creasing institutionalisation, regulation, accreditation, standards, research and theoretical developments. Together these stories weave a tapestry of our social and cultural experience of mediation and define mediation as a narrative, a practice and a profession.

Contracting For State Intervention: The Origins Of Sovereign Debt Arbitration, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

Willpower Taxes, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …

Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry

Public Law and Legal Theory Working Papers

This paper targets the intersection of two generally distinct literatures: political control of administrative agencies and distributive politics. Based on a comprehensive database of federal spending that tracks allocations from each agency to each congressional district for every year from 1984 through 2007, we analyze the responsiveness of agency spending decisions to presidential and congressional influences. Our research design uses district-by-agency fixed effects to identify the effects of a district’s political characteristics on agency spending allocations. Because most agencies distribute federal funds, we are able to provide empirical evidence about the relationship between structural features of administrative agencies and the …

New Pleading, New Discovery, Scott Dodson

Faculty Publications

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …

Immature Citizens And The State, Vivian E. Hamilton

Faculty Publications

Citizens are born, but they are also made. How its citizens come to be—whether the educations they receive will expand or constrain their future options, whether the values they assimilate will encourage or dissuade their civic engagement, etc.—fundamentally concerns the state. Through the power it wields over a vast range of policymaking contexts, the state can significantly influence (or designate those who will influence) many of the formative experiences of young citizens. Young citizens’ accumulated experiences in turn can significantly influence the future mature citizens they will become. The state insufficiently considers the cumulative nature of its citizens’ development, however. …

Erisa Preemption Doctrine As Health Policy, Joshua P. Booth, Larry I. Palmer

Faculty Publications

No abstract provided.

After The Fall: Financial Crisis And The International Order, Robert B. Ahdieh

Faculty Scholarship

Recent years have challenged the international order to a degree not seen since World War II — and perhaps the Great Depression. As the U.S. housing crisis metastasized into a financial and economic crisis of grave proportions, and spread to nearly every corner of the globe, the strength of our international institutions — the International Monetary Fund, the World Trade Organization, the Group of Twenty, the Basel Committee on Banking Supervision, and others — was tested as never before. Likewise tested, were the limits of our national commitment to those institutions, to our international obligations, and to global engagement more …

The Humanization Of The Corporate Entity: Changing Views Of Corporate Criminal Liability In The Wake Of Citizens United, Elizabeth R. Sheyn

University of Miami Law Review

No abstract provided.

Marginal Refuge: The Ramifications Of Terrorism For An Unsustainable United States Asylum Policy, Michael D. Yanovsky Sukenik

University of Miami Law Review

No abstract provided.

Free Hospital Care And The Takings Clause: Franklin Memorial Hospital V. Harvey In A Changing Health-Care Landscape, Gayland Oliver Hethcoat Ii

University of Miami Law Review

No abstract provided.