Law Commons^™

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

Regulating Sexual Harm: Strangers, Intimates, And Social Institutional Reform, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms—from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child—the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the …

Analysis Of Incoterms As Usage Under Article 9 Of The Cisg, William P. Johnson

All Faculty Scholarship

This Article defines usage, as that term is used in the UN Convention on Contracts for the International Sale of Goods (CISG), in order to consider whether the ICC’s definitions for common delivery terms set forth in the ICC publication Incoterms should be characterized as usage for purposes of the CISG. This Article then describes the misguided approach that to date has been taken by U.S. courts when analyzing the role of Incoterms as usage for contracts governed by the CISG. Finally, this Article proposes a method for proper analysis of Incoterms under the CISG, including the role that Article …

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew …

Failure To Report: The Manifestly Unconstitutional Nature Of The Human Smugglers Act, Jennifer Bond

Osgoode Hall Law Journal

This paper uses the Human Smugglers Act as a case study of what can happen when a Canadian government tables legislation that is highly controversial not only for reasons of ideology or policy, but also because it almost certainly violates the Charter. The conclusion is twofold: first, that a requirement originally meant to increase government accountability in the face of Canada’s human rights instruments is failing; and second, that this same requirement is now providing the government political cover to deflect legitimate constitutional critique while simultaneously avoiding substantive engagement. The result is an impoverished constitutional dialogue and a misled Canadian …

The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig

Osgoode Hall Law Journal

The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position. This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case …

Equally Recognized? The Indigenous Peoples Of Newfoundland And Labrador, Sébastien Grammond

Osgoode Hall Law Journal

In Canada, certain Indigenous groups are struggling to obtain official recognition of their status and rights. This is particularly so in Newfoundland and Labrador, where the authorities took the stance, when the province joined Canada in 1949, that no one would be legally considered Indigenous. This paper analyzes the claims of the Indigenous groups of that province, which have resulted, over the last thirty years, in various forms of official recognition. In particular, this article highlights how the concept of equality was used by these Indigenous groups to buttress their claims. Equality, in this context, was mainly conceived of as …

Canadian Bijuralism At A Crossroad? The Impact Of Section 8.1 Of The Interpretation Act On Judicial Interpretation Of Federal Legislation, Aline Grenon

Osgoode Hall Law Journal

Section 8.1 of the Interpretation Act affirms the equal authority of the common law and civil law in the field of property and civil rights. The section states, subject to two exceptions, that federal enactments based on rules and concepts that are part of the law of property and civil rights are to be interpreted in accordance with these rules and concepts. Prior to the enactment of section 8.1 in 2001, courts had a tendency to opt for a uniform application of federal legislation based on common law concepts, with often negative results for Quebec civil law. Since then, the …

Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick

Osgoode Hall Law Journal

This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges. He finds that the male/female gap is more robust than ever, although he also …

When Do Human Rights Treaties Help Asylum Seekers? A Study Of Theory And Practice In Canadian Jurisprudence Since 1990, Stephen Meili

Osgoode Hall Law Journal

This article supports a new theoretical approach to the utilization of human rights treaties in refugee status adjudications in domestic courts. The existing literature on treaty effectiveness is divided between several optimistic and pessimistic perspectives, none of which adequately predict the circumstances under which domestic courts in Canada reference treaties in ways that help refugees obtain relief. This new theoretical approach adds to the literature on treaty effectiveness in the litigation context by suggesting that the extent to which Canadian domestic courts reference treaties in ways that help refugees depends on several factors, including the manner in which those treaties …

Opt-Out Education: School Choice As Racial Subordination, Osamudia James

Faculty Publications

No abstract provided.

Ongoing Issues In Russian Corporate Governance, Merritt B. Fox

Faculty Scholarship

This Article concerns Russian corporate governance today. It starts by arguing that there are fundamental differences between the policy questions raised by SOEs and those raised by non-SOEs and that the analysis needs to separate out these two kinds of corporations. The Article then goes on to consider several ongoing issues relating to non-SOEs. To start, it suggests the need for a set of rules, backed by reliably applied stiff sanctions, requiring disclosure of all situations where a person, by himself or as a member of a coordinated group, is the beneficial owner of sufficient shares to be able to …

Equality In Asia, Kate O'Regan, Madhav Khosla

Faculty Scholarship

If the right to equality promises more than it can ever deliver, it is also a right whose text and application reflects the history of the society in which it applies. The right to equality is thus particularly challenging for comparative law. Although it is found in nearly every modern democratic constitution, the formulation, interpretation and application of the right varies markedly and it accordingly presents acutely difficult questions for a study such as this. The difficulties not only arise from the differences in historical, socio-economic and political context, but also from differing conceptions of equality itself. In this brief …

Toward A Public Health Legal Structure For Child Welfare, Joshua Gupta-Kagan

Faculty Scholarship

The present American child welfare system infringes upon the fundamental liberty interests of millions of children and parents, is adversarial and punitive, and fails to prevent child maltreatment or protect children adequately from its most severe forms. Many in the field now recognize that a public health model would more effectively support the parent–child relationship and protect children from maltreatment than the current paradigm. Despite much attention to such an approach, the field has yet to develop a clear vision for how the law could or should support a public health approach or shape the actions of individuals and institutions …

Addressing Racial And Hate-Based Discrimination As Experienced By African Immigrants And Refugees In Waterloo Region, Canada, Alicja K. Muszynski, Sadia Gassim

Journal of Hate Studies

Since the early 1990s, the demographics of Waterloo Region (Ontario, Canada) have changed dramatically. Early settlement patterns reflected “chain migrations” of Mennonite farm families moving to the region from Pennsylvania. Subsequent establishment of three urban clusters with German and British roots resulted in a predominantly White regional and Canadian population. A relaxation of Canadian immigration legislation, together with political unrest in many African countries, led to African immigrants and refugees choosing to settle in the Tri-Cities of Waterloo, Kitchener, and Cambridge. Canada has an international reputation as a welcoming country that celebrates diversity. However, the public view that multiculturalism is …

Discrimination Based On “Sameness,” Not “Difference”: Re-Defining The Limits Of Equality Through An Israeli Case For Discrimination, Yifat Bitton

Journal of Hate Studies

T

his article points to a general weakness in liberal rights discourse, and specifically in the antidiscrimination stratagem. It argues that this stratagem is of limited effectiveness due to its perception of “difference” as constituting the heart of the notion of discrimination. Reliance on “difference” in formatting discrimination fails to acknowledge discrimination held against a group within settings characterized by “sameness,” thereby rendering the antidiscrimination principle too narrow to protect some discriminated-against groups. This point is exemplified by analyzing the case of the de facto discrimination against Mizrahi Jews in Israel, or Jews of Arab/Muslim descent, who are conceptualized under …

Book Review: Niza Yanay’S The Ideology Of Hatred: The Psychic Power Of Discourse, Damon T. Berry

Journal of Hate Studies

This work is important to those concerned with nationalist discourses of hatred and exclusion, as well as for those interested in thinking about how to heuristically define “hate” in a given project. But Yanay does not merely diagnose the nationalist symptom. She also attempts to theorize, especially in the final chapter, what she sees as “the possibility of transforming hatred to friendship”, the “raison d’être of this book”. [New York, NY: Fordham University Press, 2013. 168 pp. $22.00]

Law, Ethics, And The Responsibility To Protect, Michael W. Doyle

Faculty Scholarship

The events in Libya in 2011 and Syria in 2012 have severely tested the balance between emerging global norms and the pushback they have generated, a contest between global and local, with outcomes as yet unclear.

Some established great powers, particularly Russia and China, suffered “buyer’s remorse” for the global principle of “responsibility to protect” peoples from massacres, when that responsibility was seen as authorizing regime change in countries such as Libya. This remorse occurred just a few short years after they and the entire rest of the United Nations member states unanimously endorsed the principle at the World Summit …

Lessons From Sec V. Citigroup: The Optimal Scope For Judicial Review Of Agency Consent Decrees, Dorothy S. Lund

Faculty Scholarship

On November 28, 2011, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York in Manhattan declined to approve a consent judgment between the Securities and Exchange Commission (SEC) and Citigroup. Because Citigroup had not admitted or denied the allegations in the consent decree, Judge Rakoff concluded that he was unable to make an informed judgment about the merits of the settlement. Judge Rakoffs decision has garnered serious criticism from legal observers and rekindled discussion about the scope of judicial review of agency consent decrees, which have become a valuable agency enforcement tool. …

President Obama Tackles Climate Change Without Congress, Michael B. Gerrard

Faculty Scholarship

With a majority of the House of Representatives hostile to regulatory action on climate change, President Obama announced in his January 2013 State of the Union address, and again shortly thereafter in his second inaugural address, that he would use his existing statutory authority to move on what he called a threat to future generations. The president followed through on June 25 with a detailed action plan.

This article describes the principal elements of The President's Climate Action Plan and the progress so far in implementing it.

Incorporating By Reference: Knowing Law In The Electronic Age, Peter L. Strauss

Faculty Scholarship

Last October, the Office of the Federal Register published a Notice of Proposed Rulemaking (78 Fed. Reg. 60,784 (Oct. 2, 2013)) to revise its regulations governing the practice of "incorporation by Reference," which permits federal agencies to create binding regulatory obligations just by referring to standards that have been developed by private nongovernmental organizations, standards development organizations (SDOs) such as the American National Standards Institute (ANSI) or the American Society of Mechanical Engineers (ASME). This rulemaking should be of substantial interest to the occupational safety community. While its comment period has closed, comments remain open until May 12, 2014, on …

Board Of Officers - Vol. 44, No. 1 2014

Seton Hall Law Review

No abstract provided.

Table Of Contents - Vol. 44, No. 1 2014

Seton Hall Law Review

No abstract provided.

Rethinking Notice, Jack M. Beermann

Shorter Faculty Works

APA § 553 (b)(3) requires agencies engaged in informal rulemaking to provide notice of "either the terms or substance of the proposed rule or a description of the subjects and issues involved." In most cases, agencies publish the complete text of their proposed rules, together with a preamble describing the need for the rule and the major considerations of policy and law that are raised by the proposal. Comments often convince agencies to make changes to their proposed rules. This, of course, is the whole point of the process. Difficulties arise, however, when, in reaction to comments, agencies promulgate rules …

On Legal Scholarship, Danielle K. Citron, Robin West

Shorter Faculty Works

Academic critics contend that legal scholarship is overly argumentative or too “normative,” simply stating what the law should be, as well as what the law is. It isn’t about pure scholarship’s pursuit of knowledge within the discipline of a recognized academic field. Critics from the bar and the judiciary proffer the opposite complaint: legal scholarship is too academic and not professional enough, enamored with fads, unmoored from any discipline and of little use to the practicing lawyer or sitting judge. Law schools’ legions of cost-conscious critics complain that paying high salaries to professors with low course loads drives up tuitions. …

Gideon V. Wainwright A Half Century Later, Yale Kamisar

Reviews

When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.

The Model Of Plans And The Prospects For Positivism, Scott Hershovitz

Reviews

In Legality, Scott Shapiro builds his case for legal positivism on a simple premise: laws are plans. Recognition of that fact leads to legal positivism, Shapiro says, because the content of a plan is fixed by social facts. In this essay, I argue that Shapiro’s case for legal positivism fails. Moreover, I argue that we can learn important lessons about the prospects for positivism by attending to the ways in the argument fails. As I show, the flaws in Shapiro’s argument reveal structural problems with a family of prominent positivist views, including the one defended by Joseph Raz.

Board Of Officers - Vol. 44, No. 2 2014

Seton Hall Law Review

No abstract provided.

Table Of Contents - Vol. 44, No. 2 2014

Seton Hall Law Review

No abstract provided.

The Shape Of Property, Chad J. Pomeroy

Seton Hall Law Review

No abstract provided.