Law Commons^™

The China-United Kingdom Income Tax Treaty (2011), Wei Cui

All Faculty Publications

The author, in this article, considers some of the key features of the China-United Kingdom Income Tax Treaty (2011), with particular reference to the provisions on technical fees, permanent establishments, passive and other income, and anti-avoidance rules.

Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin

All Faculty Publications

Migrant smuggling is a dangerous, sometimes deadly, criminal activity. Failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel, endangers the lives and safety of smuggled migrants, undermines border security, and undermines the integrity and fairness of immigration systems. Introduced in the Canadian House of Commons in June 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes proposed amendments to the Immigration and Refugee Protection Act that would enhance …

The Other Section 7, Margot Young

All Faculty Publications

The somewhat rudimentary notions of liberty, life and security of the person that are corralled by traditional section 7 jurisprudence are not the sole indicator of what the section potentially ought to, and indeed may ultimately, protect and ensure. It is now fairly well established that the rights section 7 of the Canadian Charter of Rights and Freedoms protects apply well outside the sphere of criminal law. Two strands of expansion exist, one less controversial than the other. First, it is relatively clear that section 7 encompasses executive administration of the law. The second path of expansion allows section 7 …

State Ownership And Corporate Governance In China: An Executive Career Approach, Li-Wen Lin

All Faculty Publications

China’s state-owned enterprises (SOEs) now comprise over 60 percent of the largest 500 companies in China and more than 10 percent of Fortune Global 500 companies in the world. Despite their importance to China’s domestic economy and foreign investment strategy, many governance characteristics of the SOEs remain a black box, one of which is the SOEs’ executive composition and recruitment development. This Article shifts away from the typical focus on how the things function (e.g. ownership structure and board of directors) to who the people in charge are, which is an important approach to understanding corporate governance and economic development …

Embodied Conflict Resolution: Resurrecting Roleplay-Based Curricula Through Dance, Nadja Alexander, Michelle Lebaron

All Faculty Publications

Moving on from the authors’ seminal 2009 critique of the overuse of role-plays in negotiation teaching, "Death of the Role-Play" (chapter 13 in Rethinking Negotiation Teaching), Alexander and LeBaron have taken the rapidly increasing enthusiasm for experiential learning in a new direction: multiple intelligences. Their particular interest is in a use of experiential learning that focuses on kinesthetic intelligence, employing actual physical movement, particularly dance, to unlock creativity in other mental domains, as well as to encourage authentic participation by people whose skills are not primarily verbal or mathematical. Those who may be inclined to be skeptical should note that …

Evolving Capacities: The B.C. Representative For Children And Youth As A Hybrid Model Of Oversight, Mary Liston

All Faculty Publications

This paper explores hybrid models of oversight through an examination of a new institutional creation: British Columbia’s Representative for Children and Youth (BC RCY). The paper argues that societal changes in the conception of children’s worth have significantly affected approaches to child welfare and have also stimulated institutional innovation. The paper begins with a historical overview of the legal and moral status of children, focusing on the child as the subject of government protection, and then considers the evolution of children’s rights in the twentieth century. This conceptual shift from children as passive objects of paternal state care to (near) …

The Inefficiencies Of Legislative Centralization: Evidence From Provincial Tax Rate-Setting, Wei Cui, Zhiyuan Wang

All Faculty Publications

Legislative power in China is centralized to an unusual degree. This arrangement is both positively and normatively significant, but has received little attention in prior scholarship. We devise a novel method for analyzing the consequence of centralization by examining provincial rate setting for the vehicle and vessel tax (VVT). Because all provinces have assigned VVT revenue and VVT administration to sub-provincial governments, provincial rate-setting represents centralized, not decentralized, decision-making. Using spatio-econometric analyses, we find that provincial tax rate choices fail to reflect local economic and demographic conditions and display traces of tax mimicking. Both support the hypothesis that provincial officials …

Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts

All Faculty Publications

There is an epistemic crisis in many areas of forensic science. This crisis emerged largely in response both to the mobilization of a range of academic commentators and critics and the rise and influence of DNA typing. It gained popular and authoritative support through the influence of the National Academy of Science (NAS) and a surprisingly critical report produced under its auspices by a committee of the National Research Council (NRC). Interestingly, as this article endeavors to explain, the courts themselves seem to have played a rather indirect, inconsistent and ultimately ineffective role in the supervision and evaluation of forensic …

Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research, Emma Cunliffe

All Faculty Publications

Austin Sarat has described legal understandings of the transcript as “the verbatim record of a present soon to become past, a mirror/a record/a voice machine in which the “author” exercises no authorial presence.” In this paper I argue that when seeing a transcript as an authorless mirror of court proceedings, lawyers and socio-legal scholars risk overlooking the ways in which the technology of transcripts influences the record that is produced. Paying attention to the laws and practices governing transcript production allows those who engage in transcript research to appreciate how the transcript is defined in relation to the spoken proceedings …

‘Don't Read The Comments!’: Reflections On Writing And Publishing Feminist Socio-Legal Research As A Young Scholar, Emma Cunliffe

All Faculty Publications

This article responds to reviews written by Eve Darian-Smith and Mehera San Roque and published in Feminists@Law. Darian-Smith and San Roque's reviews focus on the contributions made by my 2011 book, Murder, Medicine and Motherhood. In this response, I have taken the opportunity to reflect a little on the experience of writing Murder, Medicine and Motherhood, and on its reception. In the first section, I trace the choices and unanticipated challenges that structured my research for Murder, Medicine and Motherhood. Both Darian-Smith and San Roque have commented on this methodology, and I have noticed that after publication, the scope and …

How The Charter Has Failed Non-Citizens In Canada – Reviewing Thirty Years Of Supreme Court Of Canada Jurisprudence, Catherine Dauvergne

All Faculty Publications

This paper presents a study of all of the Supreme Court of Canada’s Charter-era jurisprudence addressing the rights of non-citizens. It traces the jurisprudential evolution from early decisions strongly supportive of non-citizens’ rights claims, to more recent rulings where non-citizens’ rights claims are rejected, sidelined or even ignored. Patterns in decision making are discernible and the decline in protections for non-citizens follows logically enough from a series of interpretive stances made relatively early on. There is evidence here of what I have termed ‘Charter hubris.’ This is a leading factor in explaining the current state of affairs, which works alongside …

Tax Treatment Of Charitable Contributions In A Personal Income Tax: Lessons From Theory And Canadian Experience, David G. Duff

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A hundred years after tax concessions for charitable contributions were introduced as part of the personal income taxes that many countries enacted during the First World War, these countries continue to debate the appropriate level and structure of tax concessions for charitable gifts. This chapter considers the tax treatment of charitable contributions in a personal income tax, reviewing and evaluating alternative rationales for tax recognition of charitable gifts as well as the implications of these rationales for the form that tax recognition should take, and examining recent Canadian experience in light of these rationales.

Dogs And Tails: Remedies In Administrative Law, Cristie Ford

All Faculty Publications

Administrative law in Canada, as in many other Commonwealth countries, centers around judicial review doctrine. Sometimes, one may even get the sense that administrative law and administrative law remedies begin at the point at which a party to an administrative action seeks judicial review of that action through the courts. Yet an overly tight focus on court action misses the hugely important first step in real-life administrative action: the varied and sometimes creative, purpose-built remedies that a tribunal itself may impose. This chapter seeks to provide a broader overview of administrative law remedies as a whole, including not only judicial …

Innovation-Framing Regulation, Cristie Ford

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This paper aims to provide insights into the effective regulation of private sector innovation. It coins a term – “innovation-framing regulation” – to describe a particular quality of the regulation that characterized much of financial regulation in the recent era. After briefly sketching a particular financial innovation (securitization and the marketing of securitized assets on the derivatives markets) it describes three regulatory interactions with that innovation: the Basel II Capital Accords, the Asset-Backed Commercial Paper Crisis in Canada, and the ongoing notice-and-comment rulemaking process surrounding the Volcker Rule in the United States. While each case study is different, in each …

Bordering On Failure: Canada-U.S. Border Policy And The Politics Of Refugee Exclusion, Efrat Arbel, Alletta Brenner

All Faculty Publications

In June 2012, the Canadian government ushered in sweeping reforms to Canada’s refugee system. These reforms brought debates about Canadian refugee protection to the forefront of legal and political discourse. In advancing these reforms, the Canadian government has asserted that Canada’s refugee system is among the most generous and compassionate in the world. Canada’s doors, the Canadian government has stated, remain open to legitimate refugees. This report evaluates these claims by examining the U.S.-Canada Safe Third Country Agreement and border measures implemented under the rubric of the Multiple Borders Strategy, and analyzing their effects on asylum seekers. A detailed examination …

Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel

All Faculty Publications

This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …

Greensboro And Beyond: Remediating The Structural Sexism In Truth And Reconciliation Processes And Determining The Potential Impact And Benefits Of Truth Processes In The United States, Peggy Maisel

Faculty Scholarship

Over the last 35 years approximately forty truth commissions have investigated human rights violations and abuses in a wide range of countries and communities. Each of these forty commissions provides different lessons on how investigating and testifying about past abuse can lead to healing and change. I have participated in two of the more remarkable Truth and Reconciliation processes, the first as an observer, the other as an advisor. The former is perhaps the most widely known and discussed TRC process, the one which took place in South Africa from 1996 to 1998 that examined the entire apartheid era in …

A Tax Response To The Executive Pay Problem, David I. Walker

Faculty Scholarship

Many observers believe that that the public company executive labor market is deficient and results in systematically excessive compensation. This Article accepts that premise and considers potential regulatory responses. Specifically, this Article proposes and analyzes a two-pronged tax response to the problem of excessive executive pay – the imposition of a surtax on executive pay in excess of a threshold combined with investor tax relief. These two prongs respond to the chief concerns raised by excessive executive pay. The imposition of a surtax would reduce the after-tax income of executives, which would directly address the unfairness of excessive pay and …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Faculty Scholarship

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Government Disapproval Of Religion, Jay D. Wexler

Faculty Scholarship

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a …

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brining, Linda C. Mcclain

Faculty Scholarship

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs.

A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be let …

Small Business Disaster Assistance, Peggy Maisel, Natalie Roman

Faculty Scholarship

When a disaster hits, it affects the entire community. A small business is especially vulnerable because it does not necessarily have the resources to respond to a disaster or to catastrophic damage. In fact, it is reported that approximately 25 percent of small businesses that close due to a disaster never reopen, and 40 percent of small businesses hit directly by a serious natural disaster do not recover. This is true regardless of what kind of disaster is involved, from a hurricane, a tornado, an earthquake, flooding, winter storms, or even civil unrest or terrorism.
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The Concept Of "Harm" In Copyright, Wendy J. Gordon

Faculty Scholarship

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

"Simple" Takes On The Supreme Court, Robert L. Tsai

Faculty Scholarship

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

Qualified Conservation Restrictions: Recollections Of And Reflections On The Origins Of Section 170(H), Theodore S. Sims

Faculty Scholarship

It has been over thirty years since Congress added to the Internal Revenue Code section 170(h), which allows a deduction for contributions to charity of “qualified conservation restrictions,” commonly known as “conservation easements”. That provision was adopted over the objections of the Treasury, who had expressed reservations of both a conceptual and practical nature about the legislation, which the Treasury viewed as more than ordinarily vulnerable to abuse. I was invited to participate in this symposium, not because I have any expertise in working with these restrictions—I don’t—but to provide some perspective on what might have motivated the Treasury thirty-plus …

Distributions Of Industry Payments To Massachusetts Physicians, Aaron S. Kesselheim, Christopher Robertson, Kent Siri, Puneet Batra, Jessica M. Franklin

Faculty Scholarship

Some states have mandated systematic public disclosure of payments made by drug- and device-makers to health care practitioners. We used Massachusetts data to characterize the distribution of payment types and the variation among medical specialties.

The 30 months’ of data included 32,227 reported payments to 11,734 Massachusetts physicians, for a total of $76.7 million. The most common form of payment was food. Compensation for bona fide services was the payment type with the highest value.

We found that 25% of currently licensed Massachusetts physicians received at least one payment during the study period. Prevalence ranged by specialties from pediatricians (12%) …

Who Will Regulate Class Action Lawyers?, Nancy J. Moore

Faculty Scholarship

In 2003, I published an article entitled “Who Should Regulate Class Action Lawyers?”1 In that article, I defended the decision of the American Bar Association’s (“ABA”) Commission on Evaluation of the Model Rules of Professional Conduct (the “Ethics 2000 Commission”), for which I was Chief Reporter, not to propose any substantial amendments to the ABA Model Rules of Professional Conduct (“Model Rules”) concerning the ethical conduct of class action lawyers.

There are many ethical issues that confront class action lawyers. In my 2003 article, I focused on conflicts of interest—an issue that courts and commentators have had difficulty resolving and …

Don’T Let Go Of The Rope: Reducing Readmissions By Recognizing Hospitals’ Fiduciary Duties To Their Discharged Patients, Thomas L. Hafemeister, Joshua Hinckley Porter

American University Law Review

No abstract provided.

Gone With The Wind: Why Even Utility Patents Cannot Fence In Self-Replicating Technologies, Jessica Lynd

American University Law Review

No abstract provided.