Law Commons^™

Regulating Critical Mass: Performativity And City Streets, Alexandra Flynn

All Faculty Publications

On the last Friday of every month, tens of thousands of cyclists across 300 cities ride their bicycles for about an hour. In these events, cyclists disregard laws and regulations by bursting through red lights, traversing highway overpasses, and occupying multiple lanes of the road. These cyclists form part of Critical Mass. For the time in which Critical Mass takes place, participants are part of a nomos, or “normative universe”, which determines laws for their particular community. Critical Mass’ conception as a nomos, together with its interaction or performance among the legal orders set out in municipal, provincial, and federal …

Reconsidering Copyright's Constitutionality, Graham Reynolds

All Faculty Publications

In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (Michelin), Teitelbaum J. of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms (Charter) and that, even if they did, these provisions could be justified under s. 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these …

The Way We Pay Now: Understanding And Evaluating Performance-Based Executive Pay, David I. Walker

Faculty Scholarship

Over the last ten years, performance-based equity pay, and particularly performance shares, have displaced stock options as the primary instrument for compensating executives of large, public companies in the U.S. This article examines that transformation, analyzing the structure and incentive properties of these newly important instruments and evaluating the benefits and risks from an investor’s perspective. Notable observations include the following: Although technically “stock” instruments, performance shares mimic the incentive characteristics of options. But performance shares avoid the tax, accounting, and other constraints that have led to uniform grants of non-indexed, at the money options. Performance share plans can be …

The Sexual Assault Of Older Women: Criminal Justice Responses In Canada, Isabel Grant, Janine Benedet

All Faculty Publications

This article examines sexual violence against older women, a problem that has been largely hidden from view in the societal and legal discussion of sexual assault. The article identifies a significant disconnect between the social science description of sexual assault against older women, on the one hand, and the available case law, on the other. The social science literature suggests that older women are most likely to be sexually assaulted by somebody they know and that a disproportionate number of the sexual assaults against older women take place within care facilities. The case law, however, paints a very different picture …

Review Of Alaska Mental Health Statutes, Sara Gordon, Melissa Piasecki, Gil Khan, Dawn Nielsen

All Faculty Publications

Review of Alaska Mental Health Statutes produced in 2016.

Wsáneć Legal Theory And The Fuel Spill At Selektel (Goldstream River), Robert Clifford

All Faculty Publications

SELEK̵TEL̵ (Goldstream River), on Coast Salish territory on Southern Vancouver Island in British Columbia, is an important salmon spawning river and fishing location for the WSÁNEĆ (Saanich) people. On April 16, 2011, it was also the site of a diesel and gasoline spill.

In this article, I explore the processes of revitalizing WSÁNEĆ law and how we might think about the revitalization of WSÁNEĆ law in the context of this fuel spill. While I do not present a definitive statement of the application of WSÁNEĆ law, I explore what is needed in order to understand WSÁNEĆ law on its own …

The Modular Approach To Micro, Small, And Medium Enterprise Insolvency, Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, Riz Mokal, Barbara Romaine, Janis P. Sarra, Ignacio Tirado

All Faculty Publications

Historically, insolvency systems have been designed with larger enterprises in mind. They assume an extensive insolvency estate of significant worth, and the presence of creditors and other stakeholders with sufficient value at stake that they participate in and oversee the process. These assumptions undergird mechanisms by which creditors and other stakeholders may ensure that the insolvency process faithfully serves their interests, for an independent professional to run the business undergoing an insolvency process, and for extensive judicial oversight. These assumptions and features are incongruent with the reality of micro, small, and medium enterprises ('MSMEs'). Mirroring the general population of businesses …

Doctoral Studies In Law: From The Inside Out, Dia Dabby, Bethany Hastie, Jocelyn Stacey

All Faculty Publications

This article explores the purpose, structure and experience of doctoral studies in Canadian law schools. Relying on an auto-ethnographic methodology, where we draw on our personal experience as doctoral students, we identify three tensions in doctoral studies in law. We explore how these tensions — between practice/theory, structure/space, and supervisory/other relationships — emerge from the structure of doctoral studies in law and how they manifest themselves in the lived experience of doctoral students. We detail how these tensions are product of the ambiguous and underexplored nature of doctoral studies in law. By making these tensions explicit, we encourage doctoral students, …

Preventive Justice, The Precautionary Principle And The Rule Of Law, Jocelyn Stacey

All Faculty Publications

Despite its largely preventive orientation, environmental law has, with one exception, remained distinct from the burgeoning field of preventive justice. The exception is the precautionary principle, which has become a subject of interest and frequent skepticism amongst preventive justice scholars. The precautionary principle is a central principle in environmental law. Its centrality arises from the pervasiveness of scientific uncertainty in environmental regulation; that is, our inability to reliably predict the consequences of our policy choices on environmental and human health. The precautionary principle squarely addresses the question of how we ought to proceed in the face of unavoidable uncertainty. This …

Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris

All Faculty Publications

Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (2008-2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be evicted from and forced to sell their …

Lawyers' Empire And The Great Transformation, Douglas C. Harris

All Faculty Publications

Writing through the years of World War II and attempting to understand its horrors, the carnage of World War I, the great depression, and the rise of communist and fascist regimes, Karl Polanyi posited that Western Europe had undergone The Great Transformation through the nineteenth century. Built around policies of economic liberalism and the gospel of the self-regulating market, this transformation had produced a century of unparalleled peace and material wealth in Europe, but the unmooring of the market from other social forces, and the remaking of land and labour as commodities, would unleash, when the buttressing pillars faltered, the …

Bonded To The State: A Network Perspective On China's Corporate Debt Market, Li-Wen Lin, Curtis J. Milhaupt

All Faculty Publications

A corporate bond market is thought to play an important role as a supplement to bank-oriented financial systems in emerging markets – functioning in effect as a “spare tire.” Yet bond markets typically rely upon a formal institutional foundation that is often lacking in developing economies. China’s corporate bond market is huge, yet scholarly analysis of it is relatively scarce and some of its elements remain poorly understood. In this paper, we use a network perspective to explore the formation, operation and function of the Chinese corporate bond market. Our effort begins by unpacking the complexities of the market’s structure …

Alternatives To The Gift And Estate Tax, David G. Duff

All Faculty Publications

Following the near death experience of the federal gift and estate tax in 2010, the hundredth anniversary of the tax represents an ideal moment to reflect on the role of this tax and whether an alternative approach might be more desirable and sustainable. This Article examines four prominent alternatives to the current tax: an annual wealth tax, taxing unrealized gains at death, including gifts and inheritances in income, and a lifetime accessions tax that would apply to the cumulative value of gifts and inheritances received by individuals over their lifetimes. In order to assess these alternatives, the Article reconsiders the …

Tax Policy And The Virtuous Sovereign: Dworkinian Equality And Redistributive Taxation, David G. Duff

All Faculty Publications

Among the purposes of a tax system, it is generally accepted that one role is to implement a society’s conception of distributive justice. Indeed, if justice is, as John Rawls famously declared, “the first virtue of social institutions,” distributive justice may properly be regarded as the first or sovereign virtue of a society’s tax system – to which a virtuous sovereign should properly attend. This article reviews Ronald Dworkin’s theory of distributive justice as equality of resources and its implications for redistributive taxation. Part II examines the theory itself in contrast to other prominent theories of distributive justice, arguing that …

Bordering The Constitution, Constituting The Border, Efrat Arbel

All Faculty Publications

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border …

Deaths Due To Use Of Lethal Force By Law Enforcement: Findings From The National Violent Death Reporting System, 17 U.S. States, 2009–2012, Sarah Degue, Katherine A. Fowler, Cynthia Calkins

Publications and Research

Introduction: Several high-profile cases in the U.S. have drawn public attention to the use of lethal force by law enforcement (LE), yet research on such fatalities is limited. Using data from a public health surveillance system, this study examined the characteristics and circumstances of these violent deaths to inform prevention.

Methods: All fatalities (N¼812) resulting from use of lethal force by on-duty LE from 2009 to 2012 in 17 U.S. states were examined using National Violent Death Reporting System data. Case narratives were coded for additional incident circumstances.

Results: Victims were majority white (52%) but disproportionately black (32%) with a …

Forecasting The Senate Vote On The Supreme Court Vacancy, Scott J. Basinger, Maxwell Mak

Publications and Research

This paper forecasts current senators’ votes on Merrick Garland’s nomination to the U.S. Supreme Court, in the unlikely case that a vote actually takes place. The forecasts are necessarily conditional, awaiting measurement of the nominee’s characteristics. Nonetheless, a model that combines parameters estimated from existing data with values of some measurable characteristics of senators—particularly their party affiliations, party loyalty levels, and ideological positions—is sufficient to identify potential swing voters in the Senate. By accounting for a more nuanced and refined understanding of the confirmation process, our model reveals that if President Obama were to nominate almost any nominee (conservative or …

The Appearance And The Reality Of Quid Pro Quo Corruption: An Empirical Investigation, Christopher Robertson, D. Alex Winkelman, Kelly Bergstrand, Darren Modzelewski

Faculty Scholarship

The Supreme Court says that campaign finance regulations are unconstitutional unless they target "quid pro quo" corruption or its appearance. To test those appearances, we fielded two studies. First, in a highly realistic simulation, three grand juries deliberated on charges that a campaign spender bribed a Congressperson. Second, 1271 representative online respondents considered whether to convict, with five variables manipulated randomly. In both studies, jurors found quid pro quo corruption for behaviors they believed to be common. This research suggests that Supreme Court decisions were wrongly decided and that Congress and the states have greater authority to regulate campaign finance. …

Current Issues In Patent Law And Policy, Michael J. Meurer

Faculty Scholarship

Patent law and policy have received a surprising amount of attention from courts and policymakers in recent years. This attention is warranted because innovation policy is critical in determining the pace of innovation and the rate of economic growth. The reform proposals pending before Congress are motivated by widespread reports of abusive patent assertions and fears that patents sometimes stifle innovation. I favor most of the pending reforms and worry that our patent system, on balance, discourages innovation. But I part company from most reform proponents who focus on harms caused by the frivolous patent litigation mounted by many "non-practicing …

Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon

Faculty Scholarship

No abstract provided.

Soft Skills - The Importance Of Cultivating Emotional Intelligence, Ronald E. Wheeler

Faculty Scholarship

Organizations hire people for their hard skills, but they end up firing people for their lack of soft skills. In this brief essay, Professor Wheeler, an experienced law library director and personnel manager, discusses soft skills and their importance in the workplace. He posits that emotional intelligence is the basis of what we commonly call soft skills, and although for some these skills are innate, they can be developed and sharpened over time. Wheeler uses personal anecdotes to illustrate how emotional intelligence has enhanced his own professional life.

The Corporation As Courthouse, Rory Van Loo

Faculty Scholarship

Despite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal dispute processes is crucial to diagnosing consumers’ procedural needs. Moreover, businesses’ internal processes interact with a larger system of private actors. These actors include ratings websites that mete out reputational sanctions. The system also includes other corporations linked to the transaction, such as when American Express adjudicates a contested sale between a shopper and Home Depot. This vast private order offers promise to …

The Sad, Quiet Death Of Missouri V. Holland: How Bond Hobbled The Treaty Power, Michael J. Glennon, Robert D. Sloane

Faculty Scholarship

Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This …

Recent Cases: Eeoc V. Abercrombie & Fitch Stores, Inc.: Religious Accommodation In The Workplace, Elizabeth King

Faculty Scholarship

In EEOC v. Abercrombie & Fitch Stores, Inc., the plaintiff, Samantha Elauf, was rejected from a sales clerk position because her headscarf clashed with Abercrombie & Fitch’s employee dress code.¹ This code, Abercrombie’s “Look Policy,” required all employees to dress in a “classic East Coast collegiate style” and prohibited “caps.”² However, Elauf, a practicing Muslim, wore a headscarf (or “hijab”) as a representation and obligation of her religion.³ After Abercrombie rejected her employment application, the Equal Employment Opportunity Commission (“EEOC”) sued the company on Elauf’s behalf, alleging a Title VII violation for failure to accommodate a …

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert L. Tsai

Faculty Scholarship

his essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

Countering The Plaintiff’S Anchor: Jury Simulations To Evaluate Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson, David V. Yokum

Faculty Scholarship

Numerous studies have shown that anchoring strongly effects juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led some to believe that “the more you ask for, the more you get.” Others believe that the damage demand must pass the “straight-face” test. But little scholarly literature exist to determine whether an outrageously high request really does undermine the plaintiff’s credibility, and whether this “credibility” effect outweighs the anchoring effect.

Likewise, little scholarly attention considers whether a …

Fairer Uses, Jessica Silbey

Faculty Scholarship

A response to Professor Joseph Liu’s paper on Fair Use, Notice Failure, and the Limits of Copyright as Property, this essay challenges Professor Liu to go even farther in his analysis and protection of the everyday audience of copyright works. In describing and analyzing what I term “fairer uses” on the basis of qualitative data from interviews of artists and authors who make and rely on copyrighted works for their own creativity and professional well-being, I support Professor Liu’s advocacy for maintaining “fuzzy boundaries” of fair use. Based on evidence from grounded practice of professional creators, their expansive application …

Investigative Inadequacies Or Investigative Corruption? Exploring The Role Of Police Misconduct Within Canadian Wrongful Conviction Cases, Michelle L. Lovegrove

Theses and Dissertations (Comprehensive)

The phenomenon of wrongful convictions has begun to attract the attention of the public and scholars alike within the past few decades. However, despite this recent fixation the issue of wrongful convictions is not new, as research on the subject dates back to 1932 with the work of Edwin Borchard. Most of the research on the subject of wrongful convictions has focused largely on identifying the factors that contribute to these injustices. For the most part academics are in agreement when it comes to the causes of wrongful convictions, which include, eyewitness misidentification, false confessions, police & prosecutor misconduct, use …

Holding Canada Accountable: An Evaluation Of Canada's Compliance To The United Nations Declaration On The Rights Of Indigenous Peoples, Jackson A. Smith

Theses and Dissertations (Comprehensive)

Compliance of human rights norms requires the application of pressure from a multitude of directions and levels. It takes individual advocacy, micro-system/organizational/community-level pressure, and macro-level pressure from other nation-states and international organizations and governance bodies. This MA study focuses on the mechanisms employed by the United Nations to monitor the compliance of signatory nation-states to the standards established in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), with particular focus on Canada. A crucial goal of this study is to translate the UN Special Rapporteur on the Rights of Indigenous Peoples (UNSRRIP), James Anaya’s, findings on the …

Intellectual Property Law Hybridization, Clark D. Asay

Faculty Scholarship

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time.

In this Article, I argue that it is time to partially breach this traditional divide. …