Law Commons^™

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

Privacy And Court Records: Online Access And The Loss Of Practical Obscurity, David S. Ardia

Faculty Publications

Court records present a conundrum for privacy advocates. Public access to the courts has long been a fundamental tenant of American democracy, helping to ensure that our system of justice functions fairly and that citizens can observe the actions of their government. Yet court records contain an astonishing amount of private and sensitive information, ranging from social security numbers to the names of sexual assault victims. Until recently, the privacy harms that attended the public disclosure of court records were generally regarded as insignificant because court files were difficult to search and access. But this “practical obscurity” is rapidly disappearing …

Maintaining Power By Manipulating Memory In Rwanda, Thomas A. Kelley Iii

Faculty Publications

No abstract provided.

Marriage Equality And Family Diversity: Comparative Perspectives From The United States And South Africa, Holning S. Lau

Faculty Publications

No abstract provided.

The Free Speech Rights Of University Students, Mary-Rose Papandrea

Faculty Publications

No abstract provided.

Court Fines And Fees: Criminalizing Poverty In North Carolina, Heather Hunt, Gene R. Nichol Jr.

Faculty Publications

No abstract provided.

Reverse Passing, Khaled A. Beydoun, Erika K. Wilson

Faculty Publications

No abstract provided.

Civilizing Criminal Settlements, Russell M. Gold, Carissa Byrne Hessick, F. Andrew Hessick

Faculty Publications

No abstract provided.

Sedimentary Innovation: How Regulation Should Respond To Incremental Change, Cristie Ford

All Faculty Publications

As captivating as paradigm-changing "radical" innovations may be, “sedimentary”, or incremental, innovation – incremental improvements based on imitation, tweaking, bricolage and diffusion – are in fact the main way in which innovation actually develops. In finance, sedimentary innovation is shaped by forces including structural and social networks, a strong first mover advantage, and collective action problems. This piece, which is Chapter 8 in a forthcoming book that considers financial innovation as a regulatory challenge, examines sedimentary innovation in particular. Like innovation generally, sedimentary innovation can profoundly undermine regulation across time. It can bury structures designed to contain it and can …

Tripping The Light Fantastic: A Comparative Analysis Of The European Commission's Proposals For New And Interim Financing Of Insolvent Businesses, Jennifer Payne, Janis P. Sarra

All Faculty Publications

The European Commission published a draft Directive in November 2016, with the aim of ensuring that all Member States have in place an effective mechanism for dealing with viable, but financially distressed, businesses. The draft Directive includes provisions designed to encourage financing for the debtor company, both interim financing to “keep the lights on” for a brief period while the debtor negotiates with its creditors for a resolution to its financial distress, and where possible, to finance implementation of a restructuring plan, called “new financing” in the draft Directive. Creating such a financing regime is a complex and difficult issue, …

Property And Sovereignty: An Indian Reserve And A Canadian City, Douglas C. Harris

All Faculty Publications

Property rights, wrote Morris Cohen in 1927, are delegations of sovereign power. They are created by the state and operate to establish limits on its power. As such, the allocation of property rights is an exercise of sovereignty and a limited delegation of it. Sixty years later, Joseph Singer used Cohen’s conceptual framing in a critical review of developments in American Indian law. Where the US Supreme Court had the opportunity to label an American Indian interest as either a sovereign interest or a property interest, he argued, it invariably chose to the disadvantage of the Indians. Within Canada, Indigenous …

Property In The City: Special Edition Introduction, Douglas C. Harris, Graham Reynolds

All Faculty Publications

Cities concern themselves with the organization of space. Their principal work involves the mapping, zoning, regulating, taxing, developing, owning, protecting, patrolling, and servicing of land. As a result, cities exert considerable control over the rights of use that property owners enjoy, but they also make many uses possible through the building of infrastructure and the provision of services. However, the effects are not unidirectional; the institution of property is not simply inert clay in the hands of a city. Cities govern the actions of owners and, by extension, shape the institution of property, but this multidimensional institution is, in turn, …

Owning And Dissolving Strata Property, Douglas C. Harris

All Faculty Publications

Strata or condominium property creates multiple privately owned lots or units within an association of owners. Dissolving strata property involves winding-up the association and terminating the private interests. As a result, the non-consensual dissolution of strata property involves the taking of property from those owners who oppose dissolution. The owners of individual lots become co-owners of the land formerly within the association, but the non-consenting owners have their property interests in separate lots taken from them. Beginning with the observation that non-consensual dissolution of strata property results in a taking of property, this article analyzes British Columbia’s move to facilitate …

Looking Back, Looking Forward: Feminist Legal Scholarship In Sls, Susan B. Boyd, Debra Parkes

All Faculty Publications

This article offers a review of shifts in feminist legal theory since the early 1990s. We first use our respective histories and fields of expertise to provide a brief overview and highlight some key themes within feminist legal theory. We then examine Social & Legal Studies (SLS), asking whether it has met its key goal of integrating feminist analyses at every level. Our review suggests that SLS has offered many important contributions to feminist legal scholarship but has not fulfilled its lofty goal of integrating feminist analyses at every level of scholarship. It features feminist work quite consistently and some …

Title Page

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Novel Negotiation, Rebecca Hollander-Blumoff

Journal of Dispute Resolution

Over the past half-century, the study of negotiation has blossomed into a robust discipline – negotiation and conflict resolution are recognized fields, with dedicated courses of study, experts, and institutional capital. The field has been inherently interdisciplinary from the outset, combining elements from fields including, but not limited to, economics, political science, law, psychology, anthropology, and sociology. At the University of Missouri Law School’s Tower of Babel symposium in the fall of 2016, the program focused on whether it is possible or even desirable to unify a discipline that is ineluctably diverse. Furthermore, if unification is a desired goal, how …

Building Negotiation Theory From Real-Life Negotiations, John Lande

Journal of Dispute Resolution

For this symposium on improving negotiation theory, Professors David Matz and Adrian Borbély wrote an excellent article advocating the use of full-length accounts of actual negotiations to develop more realistic negotiation theory. They propose using “full-length accounts databases against which to measure good practice prescriptions.” Their article illustrates how we can use rich data from actual negotiations to build and ultimately test negotiation theories. Based on their reading of full-length accounts of negotiations, they suggest five key variables that are critical in understanding negotiation: “ghosts,” history, interactions, uncertainty, and power. Their observations provide a useful framework for further analysis and …

Sharia Law And International Commercial Arbitration: The Need For An Intra-Islamic Arbitral Institution, George Khoukaz

Journal of Dispute Resolution

The goal of this Comment is to address the relationship between Middle-Eastern Islamic countries with the rest of the world from an international commercial arbitration perspective. To do that, we will first briefly address the historic sectarian divide between the two main sects in Islam—Sunna and Shia—which will allow the reader to gain a better understanding of the theoretical differences within Islam, resulting in different legal systems and competing political interests. Section II will also briefly address the modern history of both the Kingdom of Saudi Arabia (KSA) and the Islamic Republic of Iran (Iran) because these two countries are …

Negotiation Is Changing, Noam Ebner

Journal of Dispute Resolution

Many changes – those we notice, and those that escape our attention until we are quite a ways down a new path – are only the tip of the iceberg of the change that individuals and society are experiencing as a result of the technological developments of the past couple of decades. Introducing technology into every area of our lives, every aspect of our work, and every pocket of our clothes has far-reaching effects, which researchers are only just now uncovering.

We are not only changing our behaviors; we are being changed by our new behaviors: We now conduct our …

Arbitration Clause Issues In Sharing Economy Contracts, Carissa Laughlin

Journal of Dispute Resolution

This Comment will explicate the successes and failures of sharing economy arbitration clauses, and discuss the future legal climate for companies like Airbnb and Uber. First, this Comment will give an overview of the sharing economy and its current legal implications, then it will provide an overview of arbitration clauses and their success in sharing economy contract agreements, and finally, it will evaluate the potential advantages and disadvantages of arbitration clauses in the future based on a current labor and employment suits pending against Uber.

The Securities Black Market: Dark Pool Trading And The Need For A More Expansive Regulation Ats-N, Brian P. Baxter

Vanderbilt Law Review

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve "substantive justice" and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims-are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Sector Agnosticism And The Coming Transformation Of Education Law, Nicole S. Garnett

Vanderbilt Law Review

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private school choice devices like vouchers, tax credits, and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors-discussed in detail below-that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public …

Does Judicial Independence Matter? A Study Of The Determinants Of Administrative Litigation In An Authoritarian Regime, Wei Cui

All Faculty Publications

Lawsuits against the government form a part of the regular functioning of legal systems in democratic countries, and responding to such lawsuits an unavoidable part of governance. However, in the context of authoritarian regimes, administrative litigation has been viewed as a distinctively valuable institution for promoting the rule of law and individual rights. Moreover, the judiciary is portrayed as the keystone to this institution and to the rule of law in general: the more powerful and competent is the judiciary, the more it is able to “constrain government” through judicial review. Through empirical and comparative analyses of over two decades …

The Honoré-Waldron Thesis: A Comparison Of The Blend Of Ideal-Typic Categories Of Property In American, Chinese, And Australian Land Law, Paul T. Babie, John V. Orth, Charlie Xiao-Chuan Weng

Faculty Publications

The Article proceeds in five parts. Part II briefly describes the principal features of each of the four ideal-typic categories of property. Parts III through V examine, respectively, the real property law of the United States, Australia, and China, demonstrating examples of each of the four ideal-typic categories, in varying mixes of ideal-types found in representatives of the two main legal traditions (common and civil). In order to test the thesis, the three jurisdictions are organized here according to the extent to which most people intuitively consider one of the ideal-types to predominate. Thus, the United States is dealt with …

Valuing Identity, Osamudia James

Faculty Publications

No abstract provided.

Claiming The Copyright, Amanda Reid

Faculty Publications

No abstract provided.

Torrens Title In North Carolina--Maybe A Hundred Years Is Long Enough, John V. Orth

Faculty Publications

No abstract provided.

Attacking Smart Growth, Michael Lewyn

Scholarly Works

Review of The Human City, by Joel Kotkin

Does The Threat Of Gentrification Justify Restrictive Zoning?, Michael Lewyn

Scholarly Works

Historically, progressives have opposed restrictive zoning, arguing that by restricting the housing supply to high-end housing, zoning reduces the supply of housing available to lower-income Americans. But recently, some progressives have suggested that new market-rate housing facilitates gentrification and displacement of lower-income renters. This article critically examines that theory.