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Articles 11821 - 11850 of 12810
Full-Text Articles in Law
The Pro-Life Spring And The Future Of Roe V. Wade, Lynn D. Wardle
The Pro-Life Spring And The Future Of Roe V. Wade, Lynn D. Wardle
North Dakota Law Review
No abstract provided.
"Introduction: Futures Of Fair Use", Robert Spoo
"Introduction: Futures Of Fair Use", Robert Spoo
Articles, Chapters in Books and Other Contributions to Scholarly Works
No abstract provided.
Criminal Liability, Of Internet Service Providers “A Comparative Study", Humaid Juma Al Rahma Al Darmaki
Criminal Liability, Of Internet Service Providers “A Comparative Study", Humaid Juma Al Rahma Al Darmaki
Theses
No abstract provided.
The Charter At Thirty, Michael Ignatieff
The Charter At Thirty, Michael Ignatieff
Osgoode Hall Law Journal
No abstract provided.
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Osgoode Hall Law Journal
This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates …
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Osgoode Hall Law Journal
A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on …
Rights In The Age Of Identity Politics, Avigail Eisenberg
Rights In The Age Of Identity Politics, Avigail Eisenberg
Osgoode Hall Law Journal
In 1982, the Charter of Rights and Freedoms was entrenched in the Constitution at the height of what has come to be known as an era of identity politics. The influence of identity politics on Canadian jurisprudence is evident both in some of the specific rights entrenched in the Charter and in the manner these rights have been interpreted. This paper examines two approaches to Charter interpretation that use the resources of identity politics. On the identity approach, claims individuals and groups make about their identities in the course of advancing rights claims are treated as immutable, non-negotiable facts, rather …
Social Justice And The Charter: Comparison And Choice, Margot Young
Social Justice And The Charter: Comparison And Choice, Margot Young
Osgoode Hall Law Journal
At a time of radical inequality, the changes sought by social justice advocacy are urgently needed. Yet repeatedly, courts fail to respond adequately to this challenge. A core issue plagues social justice jurisprudence under sections 7 and 15: the difficulty inevitable in the contemplation and expression of the social and political forms in which oppression and social injustice occur. This problem manifests doctrinally in ways specific to the rights at issue. In section 15 cases, the casting of comparator groups has been deeply problematic, and in both section 15 and section 7 cases, the courts fail to deliver a nuanced …
Speak Now Or Hold Your Peace: Prearbitration Express Waivers Of Evident-Partiality Challenges, Edward C. Dawson
Speak Now Or Hold Your Peace: Prearbitration Express Waivers Of Evident-Partiality Challenges, Edward C. Dawson
American University Law Review
No abstract provided.
Response: Commandeering Information (And Informing The Commandeered), Anthony Johnstone
Response: Commandeering Information (And Informing The Commandeered), Anthony Johnstone
Faculty Law Review Articles
This article is a response to Can the States Keep Secrets from the Federal Government? by Robert Mikos. The author amplifies and extends Professor Mikos's first point, which identifies the commandeering problem and suggests some limits to his second point, which proposes a judicially managed solution.
Joe Mazurek: July 27, 1948--August 29, 2012: In Memoriam, Greg Munro, Mike Mcgrath
Joe Mazurek: July 27, 1948--August 29, 2012: In Memoriam, Greg Munro, Mike Mcgrath
Faculty Law Review Articles
Tribute to Joe Mazurek, long-time Montana attorney and former Montana Attorney General.
A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan
A Next, Big Step For The West: Using Model Legislation To Create A Water-Climate Element In Local Comprehensive Plans, Michelle Bryan
Faculty Law Review Articles
The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing water-related initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is …
The System Of Campaign Finance Disclosure, Anthony Johnstone
The System Of Campaign Finance Disclosure, Anthony Johnstone
Faculty Law Review Articles
This Essay considers Professor Gilbert’s model as the core element in a dynamic system of campaign finance disclosure. First, it recognizes several useful contributions of the model’s framework of informational costs and benefits. In the simplest analysis, disclosure increases the information available to voters by adding source revelation to campaign speech. However, the reality is more complicated. Disclosure can have a chilling effect that decreases the amount of campaign speech by imposing administrative and exposure burdens on speakers. As Professor Gilbert shows, this cannot end the analysis. What matters is not just the magnitude of the chilling effect on speech, …
Recalibrating Campaign Finance Law, Anthony Johnstone
Recalibrating Campaign Finance Law, Anthony Johnstone
Faculty Law Review Articles
This Essay seeks to provide a theoretical framework for conceptualizing this relationship and considering reforms. Part I traces the variation of campaign finance regimes across several political eras and several jurisdictional scales. Strikingly, although similar six-figure campaign finance scandals prompted the reforms of each era, federal lawmakers in each era have drawn progressively lower one-size-fits-all contribution limits and disclosure thresholds. Meanwhile, state campaign finance laws have been more carefully calibrated to reflect the electoral and financial circumstances of particular electoral contests. Part II considers the currently permissible means and ends of campaign finance law and how they constrain the calibration …
If Skilling Can't Get A Change Of Venue, Who Can? Salvaging Common Law Implied Bias Principles From The Wreckage Of The Constitutional Pretrial Publicity Standard, Jordan Gross
Faculty Law Review Articles
Fifty years ago, the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s right to an impartial jury that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with …
[Chapter 1 From] Hollow Justice: A History Of Indigenous Claims In The United States, David E. Wilkins
[Chapter 1 From] Hollow Justice: A History Of Indigenous Claims In The United States, David E. Wilkins
Bookshelf
This book, the first of its kind, comprehensively explores Native American claims against the United States government over the past two centuries. Despite the federal government's multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, native peoples never attained a genuine sense of justice. David E. Wilkins addresses the important question of what one nation owes another when the balance of rights, resources, and responsibilities have been negotiated through treaties. How does the United States assure that guarantees made to tribal nations, whether through a century old treaty or a modern day …
Seeing Is Believing: The Csi Effect Among Jurors In Malicious Wounding Cases, Corey Call, Amy K. Cook, John D. Reitzel, Robyn D. Mcdougle
Seeing Is Believing: The Csi Effect Among Jurors In Malicious Wounding Cases, Corey Call, Amy K. Cook, John D. Reitzel, Robyn D. Mcdougle
Journal of Social, Behavioral, and Health Sciences
With the popularization of television crime shows that focus heavily on forensic science, such as CSI and its spin-offs, concerns about a new threat to jury trials have emerged in recent years. Dubbed the “CSI effect,” this phenomenon has reportedly come to influence the way jurors perceive forensic evidence at trials based on the way forensic evidence is presented on television. While the CSI effect has been the topic of much discussion throughout the popular press, the CSI effect has seldom been empirically tested. In this study, we present a selection of media accounts as well as criminological and …
Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman
Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman
Faculty Scholarship
America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …
The Pigou-Dalton Principle And The Structure Of Distributive Justice, Matthew D. Adler
The Pigou-Dalton Principle And The Structure Of Distributive Justice, Matthew D. Adler
Faculty Scholarship
The Pigou-Dalton (PD) principle recommends a non-leaky, non-rank-switching transfer of goods from someone with more goods to someone with less. This Article defends the PD principle as an aspect of distributive justice --- enabling the comparison of two distributions, neither completely equal, as more or less just. It shows how the PD principle flows from a particular view, adumbrated by Thomas Nagel, about the grounding of distributive justice in individuals' "claims." And it criticizes two competing frameworks for thinking about justice that less clearly support the principle: the veil-of-ignorance framework, and Larry Temkin's proposal that fairer distributions are those concerning …
Regulating Ex Post: How Law Can Address The Inevitability Of Financial Failure, Iman Anabtawi, Steven L. Schwarcz
Regulating Ex Post: How Law Can Address The Inevitability Of Financial Failure, Iman Anabtawi, Steven L. Schwarcz
Faculty Scholarship
Unlike many other areas of regulation, financial regulation operates in the context of a complex interdependent system. The interconnections among firms, markets, and legal rules have implications for financial regulatory policy, especially the choice between ex ante regulation aimed at preventing financial failure and ex post regulation aimed at responding to that failure. Regulatory theory has paid relatively little attention to this distinction. Were regulation to consist solely of duty-imposing norms, such neglect might be defensible. In the context of a system, however, regulation can also take the form of interventions aimed at mitigating the potentially systemic consequences of a …
Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer
Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …
The Danger Of Difference: Tensions In Directors’ View Of Corporate Board Diversity, Kimberly D. Krawiec, John M. Conley, Lissa L. Broome
The Danger Of Difference: Tensions In Directors’ View Of Corporate Board Diversity, Kimberly D. Krawiec, John M. Conley, Lissa L. Broome
Faculty Scholarship
This Article describes the results from fifty-seven interviews with corporate directors and a limited number of other persons (including institutional investors, search firm personnel, and the like) regarding their views on corporate board diversity. It highlights numerous tensions in these views. Most directors, for instance, proclaim that diverse boards are good, but very few directors can articulate their reasons for this belief. Some directors have suggested that diverse boards work better than non-diverse boards, but gave relatively few concrete examples of specific instances where a female or minority board member made a special contribution related to that director’s race or …
Algorithms And Speech, Stuart M. Benjamin
Algorithms And Speech, Stuart M. Benjamin
Faculty Scholarship
One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt …
Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles
Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles
Faculty Scholarship
No abstract provided.
They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthomy J. Scricia
They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthomy J. Scricia
Faculty Scholarship
No abstract provided.
In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi
In The Absence Of Scrutiny: Narratives Of Probable Cause, Mitu Gulati, Jack Knight, David F. Levi
Faculty Scholarship
This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the "good faith" exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not …
Text, History, And Tradition: What The Seventh Amendment Can Teach Us About The Second, Darrell A. H. Miller
Text, History, And Tradition: What The Seventh Amendment Can Teach Us About The Second, Darrell A. H. Miller
Faculty Scholarship
In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable.
This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a …
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.
Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.
Faculty Scholarship
No abstract provided.
Biometric Id Cybersurveillance, Margaret Hu
Biometric Id Cybersurveillance, Margaret Hu
Faculty Scholarship
The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …