Law Commons^™

“We Have The Right Not To Be Rescued...”: When Anti-Trafficking Programmes Undermine The Health And Well-Being Of Sex Workers, Aziza Ahmed, Meena Seshu

Faculty Scholarship

This paper highlights the impact of raid, rescue, and rehabilitation schemes on HIV programmes. It uses a case study of Veshya Anyay Mukti Parishad (VAMP), a sex workers collective in Sangli, India, to explore the impact of anti-trafficking efforts on HIV prevention programmes. The paper begins with an overview of the anti-trafficking movement emerging out of the United States. This U.S. based antitrafficking movement works in partnership with domestic Indian antitrafficking organisations to raid brothels to “rescue and rehabilitate” sex workers. Contrary to the purported goal of assisting women, the anti-trafficking projects that employ a raid, rescue, and rehabilitate model …

Resource Restraints: Rethinking Disclosure Of Individual Genomic Findings, Michael Ulrich

Faculty Scholarship

While there has been a seemingly endless debate over whether individual results should be disclosed in genomic research, the role that resources should play in determining a researcher's duty has been left unanswered. This commentary fills this void by fully examining how resource limitations constrain a researcher's duty to disclose. This paper is the first to anchor an obligation in the duty to rescue alone, and as a result, the first to find not only an ethical floor of what must be returned, but also a ceiling of the amount of resources that may be utilized to fulfill this duty. …

Brief Of Amici Curiae Health Law & Policy Scholars And Prescriptions Policy Choices In Support Of Respondents On The Constitutional Validity Of The Medicaid Expansion In State Of Florida V. Department Of Health And Human Services, Kevin Outterson, Nicole Huberfeld

Faculty Scholarship

The Medicaid expansion in Section 2001(a)(1)(C) of the Patient Protection and Affordable Care Act is one part of Congress’s comprehensive effort to expand access to health care coverage. This expansion is not revolutionary, but builds on many prior statutory amendments to Medicaid. Nor does it alter the voluntary nature of the Medicaid program – as before, States remain free to decline federal funding. The Petitioners and their amici have mischaracterized the expansion to obscure these facts, hoping this Court will unravel this hard-fought legislative enactment.

The question presented is whether Congress may offer States generous additional funding for Medicaid, with …

Defusing Implicit Bias, Jonathan Feingold, Karen Lorang

Faculty Scholarship

The February 2012 killing of Trayvon Martin has slowly reignited the national conversation about race and violence. Despite the sheer volume of debate arising from this tragedy, insufficient attention has been paid to the potentially deadly mix of guns and implicit bias. Evidence of implicit bias, and its power to alter real-world behavior, is stronger now than ever. A growing body of research on “shooter bias” reveals that, as a result of implicit bias, White and Black Americans are more likely to shoot unarmed Black men than unarmed White men. The problem has been diagnosed. What remains to be determined …

Implications Of Globalization For The Professional Status Of Lawyers In The United States And Elsewhere, Nancy J. Moore

Faculty Scholarship

In 1916, Julius Henry Cohen—the subject of this conference—took up the now-perennial debate concerning whether law is a business or a profession, coming down on the side that, although legal practice had become too commercialized of late, law was and should be a profession. In 2010, Tom Morgan—one of the participants in this conference—addressed the same question in his book The Vanishing American Lawyer and provocatively concluded, contrary to Cohen, that “Law in America is not a profession—and that’s a good thing.”

Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey

Faculty Scholarship

Jonathan Remy Nash's article, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, bravely tackles and creatively merges-the dual debates over rules versus standards and the ideal contours of federal jurisdiction.' He proposes a revised regime in which rules define jurisdictional boundaries at the front end, while standards "migrate" into a discretionary abstention phase at the back end.² This realignment, Nash argues, optimizes efficiency and predictability by placing a bright-line rule at the jurisdictional threshold, while promoting federalism by establishing a safety net that applies standards to claims that cross the threshold. ³ In this …

Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey

Faculty Scholarship

Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.' Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule^.2 The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted …

The 'Justice Deficit' Debate In Eu Private Law: New Directions, Daniela Caruso

Faculty Scholarship

This essay outlines the ongoing debate on the justice deficit of EU private law – the ‘social justice’ debate – and then points at an underexplored avenue of inquiry that is essential for this debate to stay meaningful and constructive. Future research should aim to calibrate EU private law to the socio-economic asymmetries of the EU market, and to counterbalance the uneven weight of uniform rules, where they appear desirable, with proper compensatory mechanisms.

A Tale Of Two Cases: Urging Caution In The Prosecution Of Hiv Non-Disclosure, Isabel Grant, Jonathan Glenn Betteridge

All Faculty Publications

Two provincial Courts of Appeal have recently released unanimous decisions that clarify the law regarding the obligation imposed upon people living with HIV to disclose their HIV status prior to sexual relations. The decision of the Manitoba Court of Appeal in R v. Mabior and of the Quebec Court of Appeal in R c. D.C. must be seen against a background of increasing criminal prosecutions in Canada of people with HIV who allegedly do not disclose their HIV status to sexual partners. Since the first HIV nondisclosure prosecution in 1989, there have been over 120 prosecutions. A high proportion of …

Taking Threats Seriously: Section 264.1 And Threats As A Form Of Domestic Violence, Joanna Birenbaum, Isabel Grant

All Faculty Publications

An alarming number of women are in abusive relationships where violence and threats of violence pervade their lives. This article examines the offence of uttering threats in the Canadian Criminal Code, using the Manitoba Court of Appeal decision in R v O’Brien as a backdrop. We make two arguments. First, we argue that, in intimate relationships, threats of death and bodily harm are a form of domestic violence, often used by men in concert with physical violence and other forms of intimidation to control and dominate women. The Canadian criminal justice response to charges of uttering threats in intimate partner …

The Normal Ones Take Time': Civil Commitment And Sexual Assault In R. V. Alsadi, Isabel Grant

All Faculty Publications

This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be …

Book Review Of American Property: A History Of How, Why, And What We Own, By Stuart Banner, Douglas C. Harris

All Faculty Publications

Property Law is about things, but only secondarily. It is primarily about relationships between people as they pertain to things. As a result, although we commonly identify material and immaterial things as private, common, or state property, property law deals with the subset of human relationships that determines rights and responsibilities with respect to things. The institution of property law — the rules that define this subset of human relationships — arises in the context of scarcity. When things are scarce and accordingly hold exchange value, humans construct ideas of ownership. We have been doing so for millennia, or at …

Ipeelee And The Pursuit Of Proportionality In A World Of Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

The law of sentencing in Canada is being pulled in opposing directions: Parliament regularly legislates new mandatory sentences that limit judicial discretion while the Supreme Court strongly affirms the “highly individualized” nature of sentencing. Mandatory sentences have proliferated in recent years, contrary to overwhelming social science evidence that they do not deliver on their promises of deterrence and crime control, and largely unimpeded by the Charter. However, the recent decision in R v Ipeelee arguably puts the principles relevant to the sentencing of Aboriginal people on a collision course with the substantial limits on judicial discretion that are central to …

The 'Great Writ' Reinvigorated? Habeas Corpus In Contemporary Canada, Debra Parkes

All Faculty Publications

This short prelude to Professor James Oldham’s 2nd Annual DeLloyd J Guth Visiting Lecture in Legal History, “Habeas Corpus, Legal History and Guantanamo Bay,” discusses some of ways that the writ of habeas corpus plays an important role in promoting access to justice and protecting basic liberty interests in contemporary Canadian law. The focus will be on developments in the law since the Canadian Charter of Rights and Freedoms was enacted, touching on two important features of a modern doctrine of habeas corpus, namely flexibility and gap-filling, both of which Professor Oldham also develops in his essay.

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form …

Gender Equality Rights And Trade Regimes: Coordinating Compliance, Pitman B. Potter

All Faculty Publications

Taken together, the symposium papers and presentations illustrate the rich diversity of perspectives and issues emerging from the discourse of Coordinated Compliance with regard to specific issues on gender equality and trade, revealing a fundamental concern over human well-being along with an abiding commitment to scholarly rigor.

"Extraordinary Circumstances": The Legacy Of The Gang Of 14 And A Proposal For Judicial Nominations Reform, Michael J. Gerhardt, Richard Painter

Faculty Publications

No abstract provided.

Punctilios And Nonprofit Corporate Governance--A Comprehensive Look At Nonprofit Directors' Fiduciary Duties, Thomas Lee Hazen, Lisa Love Hazen

Faculty Publications

No abstract provided.

Kickbacks, Honest Services, And Health Care Fraud After Skilling, Joan H. Krause

Faculty Publications

No abstract provided.

Would A Constitutional Amendment Protect And Promote Marriage In North Carolina? An Analysis Of Data From 2000 To 2009, Holning S. Lau

Faculty Publications

No abstract provided.

Responding To Mccleskey And Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges In Death Cases, Robert P. Mosteller

Faculty Publications

No abstract provided.

Of Nazis, Americans, And Educating Against Catastrophe, Eric L. Muller

Faculty Publications

No abstract provided.

Challenges To Terry For The Twenty-First Century, Richard E. Myers Ii

Faculty Publications

No abstract provided.

Who Watches The Watchers In Public Corruption Cases?, Richard E. Myers Ii

Faculty Publications

No abstract provided.

Citizens United And The Roberts Court's War On Democracy, Gene Nichol

Faculty Publications

No abstract provided.

State Budget Challenges And The Scourge Of Poverty, Gene Nichol

Faculty Publications

No abstract provided.

Transparency Norms, The World Trade System And Free Trade Agreements: The Case Of Ceta, Ljiljana Biuković

All Faculty Publications

Canada and the European Union (EU) are negotiating an ambitious Comprehensive Economic and Trade Agreement (CETA). While the content of the agreement has not yet been officially disclosed by its negotiators, the general public and the business community are already concerned about the scope and effect of CETA on the two economies and their societies. This article deals with CETA’s transparency provisions. It claims that, whereas CETA has not yet utilized external transparency to ensure support for the negotiations, it does have the potential for greater regulatory transparency in technical barriers to trade (TBT)- and sanitary and phytosanitary (SPS)-related matters …

The End Of 'Modes Of Liability' For International Crimes, James G. Stewart

All Faculty Publications

Modes of liability, such as ordering, instigation, superior responsibility and joint criminal liability, are arguably the most discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider socio-political objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms …

You Can’T Post That . . . Or Can You? Legal Issues Related To College And University Students’ Online Speech, Neal H. Hutchens

Educational Policy Studies and Evaluation Faculty Publications

Online activities increasingly represent a common part of the student experience. Along with seeking to engage students in positive ways in relation to their online activities, colleges and universities must also deal with instances of when students’ online expression potentially violates campus conduct standards. This article provides a review of legal standards relevant to students’ online speech, including an examination of cases arising in an online context.

Initial Impressions: Trademark Protection For Abbreviations Of Generic Or Descriptive Terms, Mary Lafrance

Scholarly Works

No abstract provided.