Law Commons^™

Unpacking The Compensatory Principle: Causation, Mitigation, Certainty Of Loss And Remoteness: The Mtm Hong Kong, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

The High Court decision of Louis Dreyfus Commodities Suisse SA v MT Maritime Management BV (The MTM Hong Kong) affirms that the compensatory principle mandates the assessment of actual loss resulting from the breach of a charterparty. Owing to the unexpected delay in obtaining a substitute charter after the original charterers had repudiated the charterparty. The MTM Hong Kong raised a previously unconsidered issue: is the court allowed to take into account the vessel owners’ losses occurring after the date that the charter voyage would have been completed? Under the Smith v McGuire measure of compensation, an owner is conventionally …

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

All Faculty Publications

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 a meaningful review process that has jurisdiction over the conditions of their detention. In this paper, the authors argue that this decision has broad implications for provincial civil commitment regimes across the country. In particular, the fact that the court analogized to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty that is involved in all civil commitments. …

A Study On Immigrant Activism, Secure Communities, And Rawlsian Civil Disobedience, Karen Pita Loor

Faculty Scholarship

This Article explores the immigrant acts of protest during the Obama presidency in opposition to the Secure Communities (SCOMM) immigration enforcement program through the lens of philosopher John Rawls’ theory of civil disobedience and posits that this immigrant resistance contributed to that administration’s dismantling the federal program by progressively moving localities, and eventually whole states, to cease cooperation with SCOMM. The controversial SCOMM program is one of the most powerful tools of immigration enforcement in the new millennium because it transforms any contact with state and local law enforcement into a potential immigration investigation. SCOMM has now been revived through …

The Environmental, Democratic, And Rule-Of-Law Implications Of Harper's Environmental Assessment Legacy, Jocelyn Stacey

All Faculty Publications

The article argues that Harper’s dramatic changes to federal environmental assessment give rise to a two-dimensional legacy in environmental law: first, a legacy of impoverished environmental decision-making that reflects a narrow, resource-oriented vision of the environment, and second, a legacy of undermining democratic and rule-of-law values in environmental law. The crux of this latter legacy is the argument that environmental assessment law provides an essential framework for publicly-justified decision-making in the Canadian environmental context. Indeed, as I suggest in this article, environmental assessment presently performs a quasi-constitutional role in Canadian environmental decision-making in the sense that it provides the means …

The Strangely Familiar History Of The Unitary Theory Of Perpetration, James G. Stewart

All Faculty Publications

A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. In this Article, I pay homage to Professor Damaška’s influence on my work and career by reiterating my earlier arguments for a unitary theory of perpetration in international criminal law. Whereas my earlier work defended the unitary theory in abstract terms then for international criminal law in particular, this Article looks to the history of the unitary theory in five national systems that have abandoned differentiated systems like that currently in force internationally in favor of a unitary variant. …

Cinderella Story? The Social Production Of A Forensic “Science”, Gary Edmond, Emma Cunliffe

All Faculty Publications

The last decade has witnessed unprecedented criticism of the forensic sciences from academic commentators and authoritative scientific and technical organizations. Simultaneously, podiatrists have begun to promote themselves as forensic scientists, capable of assisting investigators and courts in their endeavors to identify offenders. This article traces the emergence of forensic podiatry, particularly forensic gait analysis. Forensic gait analysis is a practice that involves comparing persons of interest in crime-related images (such as CCTV and surveillance recordings) with reference images of suspects, where the primary focus is on movement and posture. It tends to be applied when other techniques, such as the …

The Role Of Courts In Assisting Individuals In Realizing Their S. 2(B) Right To Information About Court Proceedings, Graham Reynolds

All Faculty Publications

In this paper, I argue that Canadian courts ought to take all reasonable steps to assist individuals in fully realizing their s. 2(b) right to information about court proceedings, both by providing individuals with online access to information about court proceedings (directly and by partnering with third parties), and by implementing policies on the use of electronic devices in courts that minimize restrictions on the ability of individuals and news media to disseminate information about court proceedings to the public. This paper will proceed as follows. I will begin by establishing that individuals are entitled, under s. 2(b) of the …

The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds

All Faculty Publications

In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues …

Pluralizing The 'Sharing' Economy, Erez Aloni

All Faculty Publications

The so-called sharing economy presents one of the most important and controversial regulatory dilemmas of our time — yet, surprisingly, it remains undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access-to-excess” transactions). The regulatory regime that this Article proposes would distinguish between true access-to-excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible …

Precedent Revisited: Carter V Canada (Ag) And The Contemporary Practice Of Precedent, Debra Parkes

All Faculty Publications

In addition to the important substantive changes to Canadian law brought about by Carter v Canada (AG), the decision is significant for its consideration of the doctrine of stare decisis. This article examines the circumstances under which Canadian courts, including courts lower in the relevant hierarchy, might be entitled to revisit otherwise binding, higher court precedents and to depart from them. At least in constitutional cases, the Carter trial decision affirms that trial judges may reconsider rulings of higher courts where a new legal issue is raised or where there is a change in circumstances or evidence that “fundamentally shifts …

The Regulatory Contract In The Marketplace, Emily Hammond, David B. Spence

Vanderbilt Law Review

For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract--a nineteenth-century concept that stands more for ordered regulation than competitive markets. This Article examines how piecemeal pursuit of two energy visions has produced mismatches between rapidly evolving markets and governance institutions that cannot change as quickly. To better evaluate these mismatches, the Article develops a framework that accounts not just for market operation and environmental externalities, but …

The Price Of Silence: How The Griffin Roadblock And Protection Against Adverse Inference Condemn The Criminal Defendant, Kelsey Craig

Vanderbilt Law Review

In 1965, the Supreme Court held in Griffin v. California that the Fifth Amendment privilege against compelled self-incrimination prohibits judges and prosecutors from pointing to a defendant's failure to testify as substantive evidence of guilt. This doctrine assumes that such a prosecutorial or judicial "adverse comment" compels a negative inference-that the defendant is hiding something. The Griffin Court held that this assumption amounts to an unfair penalty on a defendant's invocation of a constitutionally protected right. This doctrine, however, makes a dangerous misstep in additionally assuming that the prohibition of adverse comment and the administration of limiting instructions curtail a …

Table Of Contents - Issue 1

Journal of Dispute Resolution

Table of Contents - Issue 1

Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective Symposium: Introduction, Carli N. Conklin

Journal of Dispute Resolution

The purpose of this symposium edition of the Journal of Dispute Resolution is to widen the focus of our present-day discourse on arbitration by exploring the broader histories of arbitration in America, considering not only what arbitration procedure, practice, and policy looked like in early America (and in the earlier legal, cultural, or religious systems from which American arbitration was adopted), but also how those broader histories might contribute to important discussions and developments in arbitration procedure, practice, and policy today. To that end, we brought together scholars in law and history whose combined works restore breadth and depth to …

Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers Symposium, F. Peter Phillips

Journal of Dispute Resolution

From the late 17th century, the Religious Society of Friends ("Quakers") observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …

Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki

Journal of Dispute Resolution

In the wake of a recent three-part series by the New York Times, arbitration is now back in the eye of the storm. The leading critique of arbitration, especially in the consumer and employment space, is that it is unjust both in the sense that it does not comport with basic notions of procedural fairness and/or because it cannot be expected to produce outcomes we would consider substantively just. For example, procedure in arbitration is dictated largely by contract rather than by mandatory rules that have been vetted by public bodies entrusted with safeguarding procedural values. Arbitrators are not bound …

The Danger Zone: How The Dangerousness Standard In Civil Commitment Proceedings Harms People With Serious Mental Illness, Sara Gordon

All Faculty Publications

Almost every American state allows civil commitment upon a finding that a person, as a result of mental illness, is gravely disabled and unable to meet their basic needs for food and shelter. Yet in spite of these statutes, most psychiatrists and courts will not commit an individual until they are found to pose a danger to themselves or others. All people have certain rights to be free from unwanted medical treatment, but for people with serious mental illness, those civil liberties are an abstraction, safeguarded for them by a system that is not otherwise ensuring access to shelter and …

Brief For Legal Ethics And Labor Law Professors As Amici Curiae Supporting Appellants, Nat'l Fed'n Of Indep. Bus. V. Perez, Ruben J. Garcia

Court Briefs

No abstract provided.

External Forces, Internal Dynamics: Foreign Legal Actors And Their Impact On Domestic Affairs (Book Review), Jayanth K. Krishnan, Vitor M. Dias, Martin Hevia

Articles by Maurer Faculty

This Review examines the influence of foreign legal actors on jurisdictions that are not their own. Rachel Stern, a scholar of China, reflects on this point in her groundbreaking book published in 2013. In her penultimate chapter, Stern discusses how such foreign legal actors wield influence in China because of their presence on the ground. Building off of Stern's research, this Review proceeds to ask whether foreign legal actors can influence a domestic environment when that environment prohibits them from permanently working there. The analysis below will suggest so, arguing that the forces of globalization can enable foreign legal …

A World Elsewhere: Secession, Subsidiarity, And Self-Determination As European Values, Timothy W. Waters

Articles by Maurer Faculty

No abstract provided.

The Global Data Protection Implications Of "Brexit", Fred H. Cate, Christopher Kuner, Dan Jerker B. Svantesson, Orla Lynskey, Christopher Millard

Articles by Maurer Faculty

No abstract provided.

The Future Of Law Reviews: Online-Only Journals, Katharine T. Schaffzin

Touro Law Review

No abstract provided.

Police Terror And Officer Indemnification, Allyssa Villanueva

UC Law Journal of Race and Economic Justice

Police accountability has quickly pressed to the forefront of national conversations and subsequently, the national political agenda. Increasing prevalence of excessive and lethal use of force by police officers induced this attention. President Obama convened a Task Force on 21st Century Policing, after the Department of Justice conducted several pattern and practice investigation of misconduct following the high‐profile deaths of unarmed Michael Brown and Eric Garner. Their deaths both resulted in no criminal charges against responsible officers. Civil suit was the only option left for officer accountability. This Note addresses the use of 42 U.S.C. §1983 as the common civil …

The Obergefell Marriage Equality Decision, With Its Emphasis On Human Dignity, And A Fundamental Right To Food Security, Maxine D. Goodman

UC Law Journal of Race and Economic Justice

Today, the welfare rights movement has faltered. However, the Supreme Court’s recent marriage equality decision, with its emphasis on human dignity, lends hope to the notion that the Court should also acknowledge a right to food security. This Article identifies the role human dignity has served in the Court’s constitutional analysis to acknowledge and protect, for example, rights to privacy, to travel, to be heard, to self‐representation, to marry, to speak freely, and to preserve bodily integrity. According to the Court, these rights are all a part of liberty. Arguably, and as FDR said, “[i]f, as our Constitution tells us, …

Integrate And Reactivate The 1968 Fair Housing Mandate, Courtney L. Anderson

UC Law Journal of Race and Economic Justice

The Fair Housing Act of 1968 (“FHA”) was created to eliminate discrimination in the sale, rental and financing of housing, and to mandate affirmative actions be taken to develop fair housing throughout the United States. Numerous scholars and practitioners have lamented both the failure of the FHA to enforce its sections calling for government entities to affirmatively further fair housing, and the narrow interpretation of the FHA. This narrow interpretation has effectively rendered the FHA useless when a plaintiff claims that environmental ills have reduced the value and livability of homes, because these “non‐housing” claims are too far removed from …

La Gran Lucha: Latina And Latino Lawyers, Breaking The Law On Principle, And Confronting The Risks Of Representation, Marc‐Tizoc González

UC Law Journal of Race and Economic Justice

In a time when people in the United States have been taking to the streets en masse to protest unjust socio‐legal conditions like police brutality and the draconian enforcement of immigration laws, the time is ripe to reconceptualize what it means to break the law on principle. Twenty five years ago, Harvard Law Dean Martha L. Minow conceptualized “the risks of representation” for lawyers whose clients “entertain breaking the law as one of their strategies for achieving social change.” Responding substantively to Minow’s ideas, Houston Law Professor Michael A. Olivas presented three case studies to illuminate the risks of nonrepresentation, …

A Socio-Economic Approach To Antitrust: Unpacking Competition, Consumer Surplus, And Allocative Efficiency, Jeffrey L. Harrison

UF Law Faculty Publications

This Article demonstrates the relationship between socio-economics and antitrust law. It uses socio-economics to both deconstruct the current economic foundation of antitrust policy and to suggest ways to improve that policy. There are four steps in this presentation. Part II examines the core elements of the economic approach to antitrust and its shortcomings, if any. For those even moderately versed in economics, it will note that the analysis begins at the most basic level. Obviously, antitrust is designed to make markets more competitive. But that goal is merely a means to the end of greater consumer surplus and allocative efficiency. …

Rethinking The State Sovereignty Interest In Personal Jurisdiction, Jeffrey M. Schmitt

School of Law Faculty Publications

The Supreme Court has never articulated a coherent theoretical justification for the law of personal jurisdiction. While some opinions state that the law is based on state sovereignty, others hold that it is instead derived exclusively from the Due Process Clause’s concern for fairness. None of the opinions, however, clearly ties either of these theories to the blackletter law of personal jurisdiction. This confusion over the purpose of the doctrine has helped to create divisions both within the Court and among the Circuits on a number of important jurisdictional issues.

This Article argues that the law of personal jurisdiction must …

The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.

Marquette Law Review

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights …

What's Fear Got To Do With It?: The "Armed And Dangerous" Requirement Of Terry, Gerald S. Reamey

Marquette Law Review

Rarely has a court’s opinion, even one from the Supreme Court of the United States, so altered existing notions of constitutional criminal procedure law as did the opinion in Terry v. Ohio. On several levels, the opinion dramatically shifted the way in which the Fourth Amendment was understood. Law students who had learned about the probable cause “requirement” and the warrant “requirement” were surprised to learn, especially in the case of the former, that these “requirements” were not required at all. To continue to conceptualize the Fourth Amendment’s single sentence guarantees as consisting of a “warrant clause” and a “reasonableness” …