Law Commons^™

Equal Opportunity, Not Equal Results: Benign Racial Favoritism To Remedy Mere Statistical Disparate Impact Is Never Constitutionally Permissible, Alamea Deedee Bitran

FIU Law Review

No abstract provided.

“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 …

Formal Versus Functional Method In Comparative Constitutional Law, Francesca Bignami

Osgoode Hall Law Journal

In the field of comparative constitutional law, the dominant approach to concept formation and research design is formal. That is, comparative projects generally identify what counts as the supreme law that can be enforced against all other sources of law based on the “constitutional” label of the positive law (written constitutions and the jurisprudence of constitutional courts) and the law books. This formal method, however, has significant limitations when compared with the functional method used in the field of comparative law more generally speaking. After a brief exposition of the functional method, this article explores the advantages of the functional …

A Theory Of Quasi-Constitutional Legislation, Vanessa Macdonnell

Osgoode Hall Law Journal

Since the 1970s, the Supreme Court of Canada has treated a small number of statutes as quasi-constitutional. Despite the longstanding presence of quasi-constitutional statutes in Canadian law, however, the Court has yet to articulate comprehensive criteria for recognizing a statute or regulation as quasi-consitutional. In this article, I argue that quasi-constitutional legislation or more accurately, some provisions in quasi-constitutional legislation should be understood as implementing constitutional imperatives. I use the term constitutional imperatives to refer to constitutional obligations of varying degrees of specificity that emanate from the rights-conferring aspects of the Constitution, as well as from those aspects of the …

Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik

Osgoode Hall Law Journal

As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …

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 Strategic Constitution: Understanding Canadian Power In The World By Irvin Studin, Stephen Paul Haigh

Osgoode Hall Law Journal

This is a book review of The Strategic Constitution: Understanding Canadian Power in the World by Irvin Studin

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

Sweat Makes The Green Grass Grow: The Precarious Future Of Quatar's Migrant Workers In The Run Up To The 2022 Fifa World Cup Under The Kafala System And Recommendations For Effective Reform, Paula Renkiewicz

American University Law Review

No abstract provided.

International Intellectual Property Shelters, Sam Halabi

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Lessons From The Wolf Wars: Recovery V. Delisting Under The Endangered Species Act, Martha C. Williams

Faculty Law Review Articles

This article uses the fundamentals of the ESA to remind us why Congress passed the ESA. It applies those fundamentals and their focus on recovery of species in peril, to the wolf wars, the decades long legal battles over the reintroduction, recovery, and delisting of wolves culminating in two cases, Defenders of Wildlife v. Jewell (Wyoming case) and Humane Society of the U.S. v. Jewell (Western Great Lakes case). Applying the ESA’s focus on species recovery to the wolf wars demonstrates where the disconnect between recovery and delisting occurs.

Part 1 of this article sets out the fundamentals of the …

Fiduciary Capacity And The Bankruptcy Discharge, Jonathon S. Byington

Faculty Law Review Articles

Bankruptcy law has fiercely competing policies. A primary one is the debtor's fresh start. Another is that discharge of debt is a selectively conferred privilege rather than an unlimited right. This latter policy is manifested in part by the Bankruptcy Code's exceptions to discharge. One exception involves a debt "for . . . defalcation while acting in a fiduciary capacity."1 In 2013, the Supreme Court addressed the meaning of the term "defalcation" and established a new, heightened mental standard based on the Model Penal Code's definition of recklessly.2 The meaning of the term "fiduciary capacity" is not clear. This Article …

Vawa 2013'S Right To Appointed Counsel On Tribal Court Proceedings- A Rising Tide That Lifts All Boats Or A Procedural Windfall For Non-Indian Defendants, Jordan Gross

Faculty Law Review Articles

This Article addresses a question that seems like it would be easy to answer, but is actually quite complex-when is an indigent defendant entitled to counsel at the public's expense in the United States? The answer is complex because it depends on what the indigent is charged with, what sentence he receives, and who prosecutes him. The Sixth Amendment guarantees an accused the assistance of counsel in "all criminal prosecutions."' The Supreme Court has said that the Sixth Amendment right to counsel includes the right to effective assistance of counsel, and the right to appointed counsel at public expense for …

A Next, Big Step For The West (Part Ii): Model Water-Climate Enabling Legislation With Commentary, Michelle Bryan, Zach Coccoli, Graham Coppes, Dylan Desrosier

Faculty Law Review Articles

This model legislation is the culmination of an earlier work, A Next, Big Step for the West: Using Model Legislation to Create a Water- Climate Element in Local Comprehensive Plans.' That articleargues that local governments, as the primary regulators of land use and population planning, are integral to our climate and drought response in the West. That article then calls for a new, freestanding "waterclimate element" in local government comprehensive plans that integrates the often disparate realms of land use, water use, and climate planning and better prepares communities for "managing water in wise, resilient, and collaborative ways."2 This approach …

On The Use And Misuse Of Stock Price, Ira M. Millstein Center For Global Markets And Corporate Ownership

Ira M. Millstein Center for Global Markets and Corporate Ownership

In 2013, in an effort to better understand the purpose, use, and potential misuse of stock prices in public equity markets, the Millstein Center and the Investor Responsibility Research Center Institute (IRRCi) issued a call for papers on the role prices play as a corporate governance mechanism. In lieu of completed projects, proposals were sought for new research that explored how equity prices affect the decision-making processes of corporate management, boards of directors, and investors. On September 19, 2014, the Millstein Center and the IRRCi hosted a gathering entitled the Conference on the Use and Misuse of Stock Price, …

Discussion On Transparent And Effective Disclosure, Ira M. Millstein Center For Global Markets And Corporate Ownership

Ira M. Millstein Center for Global Markets and Corporate Ownership

On January 22, 2015, the Ira M. Millstein Center for Global Markets and Corporate Ownership and the Center for Audit Quality hosted a Discussion on Transparent and Effective Disclosure. The following is a summary of the panel discussions.

Middle School Teachers' Perceptions Of Bullying And Their Practices In Reporting Bullying Incidents, Katherine Eileen Blust

Walden Dissertations and Doctoral Studies

Student self-report surveys showed bullying behaviors were problematic among students in one Midwest middle school. Despite implementing a version of the Olweus Bullying Prevention Program, students continued to self-report bullying behaviors that occurred on school property during school hours. It is crucial that educators are proactive in intervening and preventing bullying to establish a safe environment for academic success. The purpose of this study was to describe teachers' perceptions of bullying behaviors and their practices in reporting bullying incidents. Bandura's social learning and Locke's social contract theories served as the study's framework. Teachers were asked to describe behaviors they perceived …

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

False Confessions From The Viewpoint Of Federal Polygraph Examiners, Bradford Beyer

Walden Dissertations and Doctoral Studies

While confessions are a powerful form of evidence, innocent people sometimes confess to crimes they did not commit. Many researchers have studied false confessions through laboratory experiments with university students or by focusing on proven cases of false confession. These approaches have led many researchers to form a conceptual framework that law enforcement interrogative methods are a key cause of false confessions. A gap exists in the literature as few researchers have queried law enforcement about false confessions or consulted with officers who specialize in interrogation. For this study, a qualitative case study approach was used to explore the experiences …

A Policy Analysis Of California Veterans Treatment Court Legislation, Larisa Elisabeth Owen

Walden Dissertations and Doctoral Studies

Veterans treatment courts (VTCs) and agencies that work with veterans experiencing posttraumatic stress and substance use disorders have been unable to provide evidence-based treatment that includes veterans' families in recovery and treatment. This limitation has resulted in treatment gaps that appear to have had an adverse impact on veterans and their families. The purpose of this qualitative content analysis was to examine the formulation of AB 2371, a 2012 legislative amendment to California code PC 1170.9, and evaluate whether lawmakers considered family-oriented treatment in passing the amendment. Schneider and Ingram's theory of social construction of target populations constituted the theoretical …

The State Courts Centre For Dispute Resolution: Serving The Society With Quality Dispute Resolution Services, Dorcas Quek Anderson

Research Collection Yong Pung How School Of Law

Court Alternative Dispute Resolution (“ADR”) has its origins in a 1994 pilot project in the Subordinate Courts (as it was known then) to have selected District Judges assist in resolving civil disputes using ADR processes. Within two decades, Court ADR has been extended to the entire gamut of cases filed in court, including civil claims, minor criminal offences and family disputes. Court ADR services, which have been known as “Court Dispute Resolution”, have become integral to the delivery of justice in the State Courts. As the Honourable The Chief Justice Sundaresh Menon has observed, ADR has been promoted as the …

A Turning Point For The Mediation Profession – Or A Slippery Slope?, Nadja Alexander

Research Collection Yong Pung How School Of Law

In this post on the Kluwer Mediation Blog, issues affecting practitioners in the mediation profession are explored.

China’S New Law On Exploration And Exploitation Of Resources In The International Seabed Area Of 2016, Nengye Liu, Rakhyun Kim

Research Collection Yong Pung How School Of Law

Despite its rich metallic mineral resources on land,1 the People’s Republic of China (China) has been actively exploring for deep seabed minerals in the international seabed area (the Area).2 The legal framework is provided by the United Nations Convention on the Law of the Sea (LOSC).3 China and the Russian Federation are the only States currently sponsoring exploration of all three types of deep seabed mineral deposit in the Area (polymetallic nodules in the Clarion-Clipperton Fracture Zone, seafloor massive sulphides in the South West Indian Ridge, the Central Indian Ridge, and the Mid-Atlantic Ridge, and cobalt-rich ferromanganese crusts in the …

Introduction, Ingrid B. Wuerth

Osgoode Hall Law Journal

Comparative constitutional law is today an exciting and increasingly diverse field of academic inquiry in US and Canadian law schools, as the excellent papers for this Symposium illustrate. Looking back, the 1990s were also a dynamic period for comparative constitutional law, with a predictable emphasis on constitution drafting in Eastern Europe and South Africa. As law and economics and empirical work became popular tools of legal analysis, comparative constitutional law initially drifted instead toward a focus on constitutional courts and on positive and negative liberties. Moreover, once the focus shifted away from active constitution drafting projects, questions re-surfaced about why …

The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey

Osgoode Hall Law Journal

This short reply clarifies and defends the argument presented in “The Environmental Emergency and the Legality of Discretion in Environmental Law.” It responds to the arguments that were made, and that could have been made, in Pardy’s critique “An Unbearable Licence.” The reply further develops the public-justification conception of the rule of law, arguing that it is at home within Canadian public law. It also argues that this conception of the rule of law highlights possibilities for future research directions in Canadian environmental law.

Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley

Osgoode Hall Law Journal

Recent American debates about the relationship between the historic political compromises underlying constitutional provisions and their contemporary judicial application have been largely ignored in Canada. The Supreme Court of Canada has only twice referred to originalism—and never positively. But in two 2014 decisions about how central institutions of government—the Senate and the Supreme Court of Canada itself—might be changed, the Court relied on the underlying historic political compromises to interpret the Constitution, rejecting arguments from the text or democratic principle. In this article, I consider how Canadian courts have looked to history in the past and in the 2014 decisions, …

The Objectives And Principles Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade

Osgoode Hall Law Journal

Article 7 (Principles) and Article 8 (Objectives) are prominent within the text of the WTO TRIPS Agreement, yet have figured sparingly in the reasoning of the Dispute Settlement Body (DSB). This discrepancy is accentuated when considered in light of three key factors. First, the pioneering step taken by TRIPS negotiators to include broad declarations of intent within the operative text. Second, the 2001 reinforcement given to these provisions in the Doha Declaration on TRIPS and Public Health. Finally, the verbatim replication of these provisions within other international IP instruments, notably, the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and the WIPO …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth

Faculty Scholarship

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law.