Law Commons^™

African Nova Scotian Restorative Justice: A Change Has Gotta Come, Michelle Y. Williams

Dalhousie Law Journal

Anti-Black racism in the criminal justice system is a concern for people ofAfrican descent throughout the diaspora, including Nova Scotia-a province shaped by slavery and segregation. A relational theory of restorative justice suggests that a restorative approach to criminal harms could yield transformational results within and beyond the criminal justice system. Using a critical race analysis, this paper demonstrates that despite the theoretical promise, restorative justice practice in Nova Scotia has not met the needs of African Nova Scotians nor fundamentally transformed structural racism within the system. The author concludes that a culturally specific, community-led African Nova Scotian justice strategy …

Imagining Success For A Restorative Approach To Justice: Implications For Measurement And Evaluation, Jennifer J. Llewellyn, Bruce P. Archibald, Don Clairmont, Diane Crocker

Dalhousie Law Journal

Whether restorative justiceis "successful," or not, is a complex question. Attempts to answer this question by practitioners, professionals, and scholars have often been bounded by common notions of success in standard criminal justice terms. The authors of this paper suggest that ifrestorative justice is properly understood in terms of its focus on relationship, success should be measured on new and different dimensions. This paper seeks to bring a relational imagination to the scholarly effort of capturing the essence ofrestorative justice and figuring out how to assess its successes and failures. The authors offer a foundation and agenda for future research …

Everyone’S A Little Bit Racist? Reconciling Implicit Bias And Title Vii, Christopher Cerullo

Fordham Law Review

    Since its enactment as part of the Civil Rights Act of 1964, Title VII’s main purpose has been to end all forms of employment discrimination. Through a flexible judicial interpretation of Title VII that reached newly discovered forms of discrimination, and through occasional intervention by Congress to update the statute, Title VII has been largely successful in reducing and remedying instances of overt discrimination in the workplace. However, more recently, social scientists have analyzed and applied the results of Harvard’s Implicit Association Test to recognize a new form of discrimination characterized by a subconscious decisionmaking process based on intuition and …

“Undetected, Unsuspected, And Unknown”: Should We Anticipate Problems For Scientific Innovation Following Schering Corp. V. Geneva Pharmaceuticals?, Jeffrey Coleman

Fordham Law Review

    Once termed the “metaphysics” of patent law, the doctrine of inherent anticipation has befuddled courts and practitioners alike for decades. Inherent anticipation refers to the notion that a previously published reference can disclose each and every limitation of a later–patented invention without expressly delineating those limitations. These (un)disclosed limitations are necessarily present, or inherent, within the previously published reference. When a previously published reference discloses a later–claimed invention expressly or inherently, the patent covering the later–claimed invention is invalid because the invention lacks novelty. Thus, the doctrine of inherent anticipation allows invalidation of a patent in whole or in part …

Sunbeam: A Ray Of Hope For Trademark Licensees, Ryan Gabay

Fordham Law Review

    In the 1985 decision Lubrizol Enterprises v. Richmond Metal Finishers, the Fourth Circuit established that a licensor’s rejection of an intellectual property license under § 365 of the U.S. Bankruptcy Code terminates the licensee’s right to continue using the license. Concerned about the detrimental effects that Lubrizol would have on technological development in the United States, Congress responded swiftly by enacting the Intellectual Property Licenses in Bankruptcy Act (IPLBA), which exempted certain forms of intellectual property, such as copyrights, patents, and trade secrets, from rejection under § 365 of the Code. Trademarks, however, are notably absent from Congress’s definition …

A New Split On Old Age: Preclusion Of § 1983 Claims And The Adea, Emer M. Stack

Fordham Law Review

    In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) to combat employer bias against older workers and to reject the idea that the job performance of all employees declines with age. The ADEA provides a statutory scheme for addressing age discrimination against employees aged forty years and older. Some older workers, however, have turned instead to the Equal Protection Clause of the Fourteenth Amendment, using § 1983 claims as a means of relief.

    A six–to–one circuit split has emerged as to whether the ADEA is the exclusive remedy for age discrimination or whether an aggrieved older worker can …

Masthead, Volume 35 (2013-2014)

Cardozo Law Review

No abstract provided.

Meaningful Membership: Making War A Bit More Criminal, Rachel E. Vanlandingham

Cardozo Law Review

Should membership in a particular group, by itself be enough for the government to kill you? This Article starts with the classic lawyer's answer of "it depends," but goes beyond it to answer yes, explain why, and recommend limits. The heart of the matter is found in how the law of armed conflict treats transnational, non-state armed groups such as Al-Qaeda. When such groups are viewed analogously to state militaries, their members are lawfully subject to lethal attack based on their membership status, as distinct from their actual hostile conduct. By comparing this focus on status to federal criminal law's …

We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, And Due Process, Jessica Miles

Cardozo Law Review

No abstract provided.

The Law And Financial Transparency In Churches: Reconsidering The Form 990 Exemption, John Montague

Cardozo Law Review

Most tax-exempt organizations are required to file the IRS Form 990, an information return that is open to the public. The Form 990 is used by watchdogs and donors to learn detailed financial information about charities. However, churches are exempt from filing the Form 990 and need not disclose any financial information to the IRS, the public, or their donors. In December 2012, the Evangelical Council for Financial Accountability recommended to Senator Charles Grassley that Congress should preserve the exemption, despite recent financial scandals at churches.

Examining the legislative history, this Article argues that the primary function of the information …

Taking Rules Seriously: The Rise Of Lawyer Rules As Substantive Law And The Public Policy Exception In Contract Law, Benjamin P. Cooper

Cardozo Law Review

Are the Rules of Professional Conduct "law?" In disciplinary proceedings, there is no question that they are, but their impact beyond the disciplinary realm remains a matter of controversy. As the Restatement of the Law Governing Lawyers aptly states: "The legal effect of officially adopted lawyer codes is fundamental and diverse." Scholars have examined the non-disciplinary impact of the professional rules in a variety of areas, but this Article examines a largely unexplored question: the enforceability of certain agreements (e.g. lawyers splitting fees with nonlawyers) that are prohibited by the professional rules. If lawyers enter into these prohibited agreements, they …

Regulating Health And Wealth, Alena Allen

Cardozo Law Review

The SEC and FDA are two of the nation's most prominent agencies, and both are charged with protecting the public. The agencies are children of tragedy and share similar creation stories. These kindred agencies are both burdened with daunting missions and myriad challenges in executing them. Both balance protecting an unsophisticated vulgus from uncertain risk against over-regulation of sophisticated intermediaries. Yet, they have charted very different paths in trying to accomplish their missions. From the beginning, the SEC eschewed merit-regulation in favor of disclosure. In contrast, the FDA, in its quest to protect us from unsafe and ineffective drugs, grew …

The Disclaimer Dichotomy: A First Amendment Analysis Of Compelled Speech In Disclosure Ordinances Governing Crisis Pregnancy Centers And Laws Mandating Biased Physician Counseling, Molly Duane

Cardozo Law Review

No abstract provided.

Front Matter, University Of Dayton

University of Dayton Law Review

No abstract provided.

Blurring The Boundaries: How The Additional Grounds For Post-Grant Review In The America Invents Act Raise Issues With Separation Of Powers And The Administrative Procedure Act, Benjamin J. Christoff

University of Dayton Law Review

No abstract provided.

Fifth Amendment Rights: Questioning Students, Charles J. Russo

Educational Leadership Faculty Publications

Because juveniles are increasingly subject to questioning about their potential involvement in what may constitute adult criminal activities, the role of law enforcement personnel, including police officers and school resource officers (SROs), in interrogating students is worth visiting.

This column examines early litigation on student Fifth Amendment rights and a more recent case, N.C. v. Commonwealth (2013), in which an assistant principal (AP) interviewed a student about giving prescription drugs to a peer. The questioning took place in the presence of a deputy sheriff who served as an SRO but because the AP did not read the student his Miranda …

The Singapore Personal Data Protection Act And An Assessment Of Future Trends In Data Privacy, Warren B. Chik

Research Collection Yong Pung How School Of Law

In the first part of this paper, I will present and explain the Singapore Personal Data Protection Act (“PDPA”) in the context of legislative developments in the Asian region and against the well-established international baseline privacy standards. In the course of the above evaluation, reference will be made to the national laws and policy on data privacy prior to the enactment of the PDPA as well as current social and market practices in relation to personal data. In the second part of this paper, I will decipher and assess the future trends in data privacy reform and the future development …

Your Right To Look Like An Ugly Criminal: Resolving The Circuit Split Over Mug Shots And The Freedom Of Information Act, Cameron T. Norris

Vanderbilt Law Review

Mug shots occupy a seemingly indelible place in American popular culture. Embarrassing booking photos of celebrities like Lindsay Lohan,' Mel Gibson, and Robert Downey, Jr. are plastered on televisions and tabloids across the country. Local newspapers feature the most recent mug shots from the nearby jail, and mug shot websites are increasingly common. Perhaps our fascination with these images stems from the same impulse driving the popularity of reality television: seeing real people in bad situations makes us feel better about our own lives.

Be A Liar Or You're Fired! First Amendment Protection For Public Employees Who Object To Their Employer's Criminal Demands, Keane A. Barger

Vanderbilt Law Review

Public perception of the Roberts Court has been defined, to a significant degree, by its First Amendment jurisprudence. Defending free speech has been hailed as one of the Court's "signature projects." However, as some commentators have noted, once one looks beyond the high-profile cases, the Roberts Court has been decidedly less pro- speech. Recent Supreme Court rulings have not looked kindly upon free speech claims raised by students, humanitarian organizations, and, most pertinent for this Note, public employees. The apparent disparity between the treatment of corporate and financial interests, on the one hand, and the interests of labor, students, and …

Copyright Freeconomics, John M. Newman

Vanderbilt Law Review

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster's rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate among scholars and stakeholders regarding the proper scope and role of copyright law-but this ongoing debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering legitimate content at a price of $0.00. This sea change has ushered in an era …

The Chilling Effect And The Problem Of Private Action, Monica Youn

Vanderbilt Law Review

A First Amendment chilling effect occurs when a governmental action creates a consequence that deters an individual from exercising expressive rights. But in some cases, the chilling effect does not stem directly from the governmental action, but instead from intervening private actions. For example, the mandatory disclosure of campaign contributions may "chill" contributors, due to the potential threat of retaliatory acts by private actors, such as criticism, protests, boycotts, threats, or violence. Is there a point at which the chilling effect is attributable to that private reaction, rather than to the challenged governmental action? And should we distinguish between chilling …

The Fourth Amendment's National Security Exception: Its History And Limits, L. Rush Atkinson

Vanderbilt Law Review

Since 2001, federal prosecutors have indicted and convicted hundreds of defendants for terrorism, espionage, and other national security crimes.' And for every prosecution, there are dozens of investigations into foreign threats that never result in a trial. Between 2001 and 2010, for example, the federal government obtained 16,306 foreign intelligence warrants in the course of its security operations. Between 2004 and 2011, the Federal Bureau of Investigations ("FBI") issued 119,192 National Security Letters for records deemed to be pertinent to national security investigations.

Despite these numbers, security investigations and prosecutions proceed on uncertain constitutional footing. The rights of terrorism suspects …

Seeing Through The Murky Vial: Does The Fda Have The Authority To Stop Compounding Pharmacies From Pirate Manufacturing?, Michael Snow

Vanderbilt Law Review

In late 2012 and early 2013, tainted steroid shots from the New England Compounding Center ("NECC") caused fifty-five deaths and 745 cases of fungal meningitis in twenty states.' On October 1, 2012, the Food and Drug Administration ("FDA") inspected NECC and found vials of steroids filled with enough floating contamination to be visible to the human eye. These NECC steroid shots were distributed primarily to treat back pain, but the patients who received them were injected with foreign matter containing the deadly fungi Exserohilum rostratum or Aspergillus fumigatus. The earliest reported death from fungal meningitis caused by NECC was seventy-eight-year-old …

Duty In The Litigation-Investment Agreement: The Choice Between Tort And Contract Norms When The Deal Breaks Down, Anthony J. Sebok, W. Bradley Wendel

Vanderbilt Law Review

This Article begins by describing the market for investment in commercial litigationA Litigation-investment transactions share features of existing economic relationships, such as commercial lending, liability insurance, contingent fee-financed representation, and venture capital, but none of these existing practices furnishes a suitable analogy for regulating litigation investment. Like third-party insurance, litigation investment is a way to manage the risk associated with litigation while bringing to bear the particular subject matter expertise of a risk-neutral institutional actor. Insurance companies and litigation investors may be systematically in a better position to reduce the risk of litigation, either through risk pooling or information-cost advantages. …

The Fate Of Native American Diversity In America's Law Schools, Raymond Cross

Faculty Law Review Articles

I contend that America’s law schools, through their adoption of an appropriately modified version of this community development model, will be better positioned to promote their public service and social justice missions. My goal is to demonstrate two points: first, this available diversity initiative, known popularly as Native American diversity, has succeeded in facilitating the community building efforts of eligible minority communities throughout Indian Country; and second, this diversity initiative has also reinvigorated the social justice and public service missions of those law schools that have chosen to embrace it.

My article is divided into three parts. Part I describes …

An Ounce Of Pretrial Prevention Is Worth More Than A Pound Of Post-Conviction Cure: Untethering Federal Pretrial Criminal Procedure From Due Process Standards Of Review, Jordan Gross

Faculty Law Review Articles

Some Federal Rules of Criminal Procedure cover purely technical matters. Some Rules, however, cover procedures with constitutional dimensions. When a federal court is interpreting a Rule that has a companion constitutional doctrine, an issue arises as to whether the Rule’s requirements are co-extensive with the constitutional protections defined by federal case law, or whether the Rule provides federal defendants a higher level of pretrial procedural protection than a post-conviction due process standard. Federal courts have been inconsistent in identifying and resolving this question of constitutional equivalency. In interpreting some pretrial Criminal Rules, federal courts make a clear distinction between the …

The Structure Of Dialogue: Exploring Habermas' Discourse Theory To Explain The "Magic" And Potential Of Restorative Justice Processes, Audrey L. Barrett

Dalhousie Law Journal

The theory of restorative justice has always lagged behind practice. As such, gaps in theory have developed, existed over time and continue to exist today particularly in terms of explaining the so-called "magic" that occurs within the encounter process. Byexploring the theories of Jorgen Habermas, it is suggested that new frameworks can be developed that can help theorists think about and explain the experiences central to restorative processes. This paper focuses on Habermas' theory of universal pragmatics and communicative action as a means to better understand the workings within the encounter process that give rise to common understanding, agreement, learning, …

The Effects Of Regulated Discretion On Police Referrals To Restorative Justice, Diane Crocker

Dalhousie Law Journal

The Nova Scotia Restorative Justice Program relies heavily on referrals from police who are authorized to refer a range of property and both violent and non-violent offences. Federal legislation and provincialprotocols guide referral decisions. Both are designed to ensure that police consider extra-judicial measures, including restorative justice. This article reports the findings ofa surveyof police officers on their views of restorative justice and the types of cases they consider appropriate for a referral. The findings confirm what other researchers have found about the types of cases police officers prefer to divert from mainstream criminal justice responses. Placed in the context …

Getting Past The Gatekeepers: The Reception Of Restorative Justice Inthe Nova Scotian Criminal Justice System, Don Clairmont, Ethan Kim

Dalhousie Law Journal

This paper draws upon twelve years of multi-dimensional research and focuses on the reception of restorative justice in the criminal justice system in Nova Scotia. The paper traces the evolution of the restorative justice social movement, examining the launching and take-off phases, the impact on the police gatekeeping role, the receptivity and use of restorative justice by other criminal justice system professionals, its current level of institutionalization in the criminal justice system, and its future prospects.

The Discovery And Assimilation Of British Constitutional Law Principles In Quebec, 1764-1774, Michel Morin

Dalhousie Law Journal

This paper examines information available to Francophone persons regarding their rights as British subjects prior to the adoption of the Quebec Act of 1774, as well as the use they made of these concepts. The bilingual Quebec Gazette reported on legal developments in France, England, and the American colonies, including challenges to the traditional vision of governmental authority. It discussed the right to be taxed by elected representatives and the conflicts between the metropolis and the colonies. Debates about these issues are thought to have appeared in Quebec only after the beginning of the American Revolution, but they circulated earlier …