Law Commons^™

The Doctrine Of Discovery Reconsidered: Reflecting On Discovering Indigenous Lands: The Doctrine Of Discovery In The English Colonies, By Robert J Miller, Jacinta Ruru, Larissa Behrendt, And Tracey Lindberg, And Reconciling Sovereignties: Aboriginal Nations And Canada, By Felix Hoehn, Kent Mcneil

Osgoode Hall Law Journal

This is a review essay discussing two books: Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn.

Book Review: The Corporate Criminal: Why Corporations Must Be Abolished By Steve Tombs And David Whyte, Joan Brockman

Osgoode Hall Law Journal

This is a book review of The Corporate Criminal: Why Corporations Must Be Abolished by Steve Tombs and David Whyte

Politics And Agencies In The Administrative State: The U.S. Case, Peter L. Strauss

Faculty Scholarship

The pending American presidential election, culminating a period of extreme political partisanship in our national government generally, gives point to an essay on politics and agencies in the American regulatory state. In our two-party system, it has often been the case in recent times, including the last six years, that the President comes from one of our two major political parties and one or both houses of Congress are controlled by the other. All American agencies (including, in the American case, the so-called independent regulatory bodies) are associated with the President in the executive branch, yet dependent on the Senate …

Compact Is Back: The Supreme Court Of Canada’S Revival Of The Compact Theory Of Confederation, Sébastien Grammond

Osgoode Hall Law Journal

The compact theory of Canadian Confederation is the idea that the Constitution is the product of a political agreement (or “compact”) among the country’s constitutive parts. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the Constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s …

Ps V Ontario: Rethinking The Role Of The Charter In Civil Commitment, Isabel Grant, Peter J. Carver

Osgoode Hall Law Journal

In PS v Ontario, the Ontario Court of Appeal held that section 7 of the Charter requires that persons who are civilly committed for six months or more must have access to meaningful review over the conditions of their detention. In this paper, the authors argue that the decision has broad implications for provincial civil commitment regimes across the country. In particular, the Court’s analogy to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty involved in civil commitments. An expanded role for civil review tribunals may be required, including …

Why I Don’T Teach Administrative Law (And Perhaps Why I Should?), Allan C. Hutchinson

Osgoode Hall Law Journal

This Commentary reflects upon the challenges of teaching Administrative Law today. Drawing upon the author’s own career trajectory and his commitment to a critical account of law and adjudication, the article seeks to question the foundations of both administrative law and critical theory. It offers no comprehensive or cogent plan as to what to do, but insists upon the relevance and importance of combining both legal theory and legal doctrine in a convincing pedagogical approach.

“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick

Osgoode Hall Law Journal

What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment—the explanation as to why the outcome is the legally and constitutionally appropriate one—are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT. Very few Supreme Court decisions take this form, and there was a time not that long ago when …

Short-Termism And Long-Termism, Michal Barzuza, Eric L. Talley

Faculty Scholarship

A significant debate in corporate law and finance concerns the role of activist investors (especially hedge funds) in corporate governance. Activists, it is often alleged, imprudently privilege short term earnings over superior (but less liquid) long term investments. Activists counter that they target managers who unjustifiably cling to questionable strategies. While this debate is hardly new, it has grown increasingly fractious of late. We analyze the activism debate within a theoretical securities-market setting. In our framework – which draws from an emerging literature in empirical and experimental finance – managers are differentially overconfident (causing them to favor long-term projects), while …

Structural Subjugation: Theorizing Racialized Sexual Harassment In Housing, Kate Sablosky Elengold

Faculty Publications

No abstract provided.

Regulating Public Offerings Of Truly New Securities: First Principles, Merritt B. Fox

Faculty Scholarship

The public offering of truly new securities involves purchases by investors in sufficient number and in small enough blocks that each purchaser’s shares can reasonably be expected to be freely tradable in a secondary market that did not exist before the offering. Increasing the ability of small and medium-sized enterprises (SMEs) to make such offerings has been the subject of much recent discussion.

At the time that a firm initially contemplates such an offering, unusually large information asymmetries exist between its insiders and potential investors. These can lead to severe adverse-selection problems that prevent a substantial portion of worthy offerings …

Preface, Rebecca Barrett-Fox

Journal of Hate Studies

By midway through 2016, the year was shaping up to be a rough one. Terrorist attacks had occurred nearly daily worldwide, with significant loss of life in around the world. In June, the Brexit vote. Continued war in Syria and political turmoil in nearby nations caused continued suffering for refugees. In the U.S., protests continued in across the country. In North Dakota, indigenous people have gathered in the largest meeting of Native American people in modern history in an effort to halt the erection of an oil pipeline dangerously close to native lands and waters. And the year ended with …

Discussing Auschwitz, Scholarly Integrity And Governmental Revisionism: A Case Study In Academic Intimidation, Kevin Mccarthy

Journal of Hate Studies

In September 2015, I became embroiled in a controversial and confrontational media discourse that rapidly assumed a global context as external actors engaged in a hateful campaign of intimidation and threatening behavior. It was initiated by a letter I had published in the Belfast Telegraph, which included a reference that localised anti-Semitism was a factor in the Nazi decision to locate the Auschwitz-Birkinau extermination camp in Poland. It was a response to a letter thread that had included multiple mentions of Poland, Auschwitz-Birkinau, and hateful intimidation. However, a forensic examination of the letter suggests the confrontation had, in fact nothing …

League Of The South's Internet Rhetoric: Neo-Confederate Community-Building Online, Brett A. Barnett

Journal of Hate Studies

A nationwide backlash against the Confederate flag and other Confederatesymbols occurred after the deadly June 17, 2015, church shootings inCharleston, South Carolina, when images of the alleged gunman displayinga Confederate flag surfaced. This backlash sparked a reactionary movementamong pro-Confederate supporters who viewed the attacks on Confederatesymbols as an affront to their Southern heritage. Some neo-Confederategroups exploited the backlash, and the pro-Confederate sympathy it generated,as an opportunity to build their communities. This essay examineshow the neo-Confederate group League of the South (LOS) used its websiteto attract members to its community in the week before the Confederateflag’s removal from South Carolina’s state …

How Could This Happen: Explaining The Holocaust By Dan Mcmillan (New York: Basic Books, 2014. 288 Pp. $27.99 Isbn 978-0-465-08024-3)., Sondra Perl

Journal of Hate Studies

Eighty-two years after Hitler became Reich Chancellor of Germany, seventy-seven years after Kristallnacht, seventy years after the liberation of Auschwitz: time makes no difference. The Holocaust remains an inexplicable phenomenon, the catastrophe of catastrophes, an omnipresent stain on the soul of humanity. In his thoughtful book, Dan McMillan attempts, with remarkable success, to demystify the Shoah, to explain how it happened and why. In doing so, McMillan is well aware of the pitfalls: to explain means to understand; to understand, to render the incomprehensible comprehensible, is to challenge the special status of the Holocaust as unique.

Religious Accommodations For Sabbatarian Observance Among Library Staff, Paul A. Hartog

The Christian Librarian

Over the last twenty-five years, litigation related to religious discrimination in the workplace has been on the rise. One of the tension points has been the religious practice of Sabbath keeping, leading to employment scheduling conflicts. Title VII and its subsequent amendments require that employers seek “reasonable accommodations” for Sabbatarian observance. Such adjustments should not cause “undue hardship” to the employer, who is required to make a “good faith effort” at accommodation. This article discusses creative alternatives that managers of public libraries and nonsectarian academic libraries may implement when accommodating Seventh-Day Adventist and similar Sabbatarian staff members.

Anglim's "Encyclopedia Of Religion And The Law In America, 2nd Ed." (Book Review), John D. Laing

The Christian Librarian

A review of Anglim, C.T. (2009). Encyclopedia of religion and the law in America, 2nd ed. Amenia, NY: Grey House Publishing. 847 pp. $165.00. ISBN 9781592372980

The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh

Faculty Scholarship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon …

#Sayhername Captured: Using Video To Challenge Law Enforcement Violence Against Women, Amber Baylor

Faculty Scholarship

Recorded encounters between women of color and police officers have been invaluable in bringing the reality of these interactions into the living rooms of otherwise unknowing Americans. The recordings are instrumental pieces of documentation and evidence, with the power to impact verdicts and galvanize the domestic struggle for human rights outside of the courtroom. They also are fraught with ethical issues that must be addressed by attorneys and activists hoping they effect change. Complexities such as implicit biases, editing and sourcing of videos, anonymity for those attacked and bystanders, and vicarious trauma on affected communities complicate use of violent police …

Autonomous Weapons Systems And Transparency: Towards An International Dialogue, Sarah Knuckey

Faculty Scholarship

The international debate around autonomous weapons systems (AWS) has addressed the potential ethical, legal and strategic implications of advancing autonomy, and analysis has offered myriad potential concerns and conceivable benefits. Many consider autonomy in selecting and engaging targets to be potentially revolutionary, yet AWS developments are nascent, and the debates are, in many respects and necessarily, heavily circumscribed by the uncertainty of future developments. In particular, legal assessments as to whether AWS might be used in compliance with the conduct of hostilities rules in international humanitarian law (IHL) are at present largely predicated upon a forecast of future facts, including …

The Dance Of Delegitimation: Democratic Government And The Wars On Terror, Philip C. Bobbitt

Faculty Scholarship

It is pretty standard fare to argue that in fighting a successful war on terror, we shall have to compromise some of our values. And while this is not altogether correct, it is certainly more insightful and candid than the claims that really nothing needs to change which the very events of 9/11 and its aftermath decisively refute. Nevertheless, this standard claim is wrong, but because it is wrong in a subtle, habitual way, it takes some analysis to get right.

Military Activities In The Unclos Compulsory Dispute Settlement System: Implications Of The South China Sea Arbitration For U.S. Ratification Of Unclos, Lori Fisler Damrosch

Faculty Scholarship

The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunal to interpret the provision of the 1982 United Nations Convention on the Law of the Sea (Convention or UNCLOS) that allows states parties to exclude disputes concerning military activities from the Convention’s compulsory dispute settlement regime. That optional exclusion, embodied in Article 298(1)(b) of the Convention, was a central component of the strenuously-negotiated compromise between states that favored compulsory jurisdiction in principle and those that would have preferred a strictly optional system for third-party legal dispute …

Cross-Sectional Challenges: Gender, Race, And Six-Person Juries, Jeannine Bell, Mona Lynch

Seton Hall Law Review

No abstract provided.

Counsel In School Exclusion Cases: Leveling The Playing Field, Julie K. Waterstone

Seton Hall Law Review

No abstract provided.

Truthful Testimony As The “Quintessential Example Of Speech As A Citizen”: Why Lane V. Franks Lays The Groundwork For Protecting Public Employee Truthful Testimony, Lemay Diaz

Seton Hall Law Review

No abstract provided.

Russia Running Rogue?: How The Legal Justifications For Russian Intervention In Georgia And Ukraine Relate To The U.N. Legal Order, Marissa A. Mastroianni

Seton Hall Law Review

No abstract provided.

The Public Trust Doctrine And Beach Access: Comparing New Jersey To Nearby States, Jack Potash

Seton Hall Law Review

No abstract provided.

Settlement Should Be The End Of Story: A Proposed Procedure To Settle Hatch-Waxman Paragraph Iv Litigations Modeled After Rule 23 Class Action Settlement Procedure, Chika Seidel

Seton Hall Law Review

No abstract provided.

Board Of Officers - Vol. 46, No. 2 2016

Seton Hall Law Review

No abstract provided.

Table Of Contents - Vol. 46, No. 2 2016

Seton Hall Law Review

No abstract provided.

Soft Misogyny: The Subtle Perversion Of Domestic Violence "Reform", Justine A. Dunlap

Seton Hall Law Review

No abstract provided.