Law Commons^™

Human Rights, Indigenous Peoples, And The Global Climate Crisis, M. Alexander Pearl

Faculty Articles

The global climate crisis is an ongoing event the likes of which we have yet to experience. The science is clear, the phenomenon is traceable, and the effects are far-reaching. But, the consequences of the climate crisis affect particular populations more so than others, and often times the affected populations are voiceless. Among those most impacted are indigenous peoples. Indigenous peoples stand in a unique place in the context of climate change. In general, indigenous peoples have a comprehensive relationship with their place and surroundings, which incorporates culture, livelihood, economy, and a defining sense of self. Land and resources are …

Remarks On Patient Privacy: Problems, Perspectives, And Opportunities, Stacey A. Tovino

Faculty Articles

No abstract provided.

Building Capacity For A Global Genome Editing Observatory: Institutional Design, Krishanu Saha, J. Benjamin Hurlbut, Sheila Jasanoff, Aziza Ahmed, Anthony Appiah, Elizabeth Bartholet, Francoise Baylis, Gaymon Bennett, George Church, I. Glenn Cohen, George Daley, Kevin Finneran, William Hurlbut, Rudolf Jaenisch, Laurence Lwoff, John Paul Kimes, Peter Mills, Jacob Moses, Buhm Soon Park, Erik Parens, Rachel Salzman, Abha Saxena, Hilton Simmet, Tania Simoncelli, O. Carter Snead, Kaushik Sunder Rajan, Robert D. Truog, Patricia Williams, Christiane Woopen

Journal Articles

A new infrastructure is urgently needed at the global level to facilitate exchange on key issues concerning genome editing. We advocate the establishment of a global observatory to serve as a center for international, interdisciplinary, and cosmopolitan reflection.

What Happened To Byrd-Hagel? Its Curious Absence From Evaluations Of The Paris Agreement, Susan Biniaz

Sabin Center for Climate Change Law

In the midst of the negotiations leading to the Kyoto Protocol in 1997, the U.S. Senate adopted the “Byrd-Hagel Resolution,” co-sponsored by Senators Robert Byrd of West Virginia and Chuck Hagel of Nebraska. Passed by a vote of 95-0, it reflected the Senate’s view that the international climate change agreement then being negotiated by the Clinton Administration was not on the right track. Specifically, it signaled dissatisfaction with an agreement that would contain legally binding greenhouse gas emissions commitments for developed countries without such commitments in the same time period for developing countries.

By its terms, the Byrd-Hagel Resolution applied …

Proposed Law Must Balance Effectiveness And Liberties, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

In a commentary, SMU Associate Professor of Law Eugene Tan opined that it is important to have dedicated laws to deal with the evolving threat of fake news in Singapore. As the issue of fake news and online misinformation is rather broad, it would be practical for the Select Committee to focus on one aspect of it: that is, the spread of false or misleading information resulting from a coordinated effort whether as a matter of statecraft or for the purpose of making profits. This sends a clear signal that any law to be considered is targeted and will be …

The The: The Definit(Iv)E Article On Idea, Mark Weber

College of Law Faculty

A wry look at the use of "the" before the acronym for the Individuals with Disabilities Education Act (IDEA) in the Supreme Court's special education law decisions.

Regulatory Bundling, Jennifer Nou, Edward H. Stiglitz

Coase-Sandor Institute for Law & Economics Research Paper Series

Regulatory bundling is the aggregation or disaggregation of legislative rules by administrative agencies. Agencies, in other words, can bundle what would otherwise be multiple rules into just one rulemaking. Conversely, they can split one rule into several. This observation parallels other recent work on how agencies can aggregate adjudications and enforcement actions but now focuses on legislative rules, the most consequential form of agency action. The topic is timely in light of a recent executive order directing agencies to repeal two regulations for every new one promulgated. Agencies now have a greater incentive to pack regulatory provisions together for every …

New Empirical Tests For Classic Litigation Selection Models, Yun-Chien Chang, William H.J. Hubbard

Coase-Sandor Institute for Law & Economics Research Paper Series

Law and economics theorists have long advanced theories of litigation and settlement, including the canonical Landes-Posner-Gould (LPG) and Priest and Klein (PK) models. Famously, PK predict that, as settlement rates rise, plaintiff win rates approach 50%. Empiricists have tested this and other predictions from the theoretical literature, finding qualified support for the PK model. So far, though, empirical testing of these models has been hampered by two major limitations: First, these models make clear predictions about the effect of case stakes on settlement rates and plaintiff win rates, but lack of reliable data on stakes means these predictions have gone …

Contract Governance In Small World Networks: The Case Of The Maghribi Traders, Lisa Bernstein

Coase-Sandor Institute for Law & Economics Research Paper Series

This Article revisits the best known example of successful private ordering in the economics literature: the Maghribi Jewish merchants who engaged in both local and long-distance trade across the Islamic Mediterranean in the eleventh century. Drawing on a case study of over 200 Maghribi merchant letters, it develops a network governance-based account of the way that private ordering might have supported exchange among the Maghribi traders with little or no reliance on the public legal system. The analysis reveals that a particular type of bridge-and-cluster configuration of ties among traders and trading centers--known as a “small-world network”—can have strong reputation-based …

The Spectrum Of Procedural Flexibility, Ronen Avraham, William H.J. Hubbard

Coase-Sandor Institute for Law & Economics Research Paper Series

Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither the parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure.

This Article is the first to document the full spectrum of procedural flexibility— the varied and sometimes …

Personalizing Precommitment, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

This Essay examines the potential for law to facilitate tailored precommitments to help people address self-control problems. This flavor of personalized law is unique in that it is voluntarily chosen and self-administered. There are practical and normative limits on the degree to which people can bind themselves in ways that they cannot later escape, but law can offer mechanisms that would help people design and implement flexible precommitments. Research suggests two potential lines for innovation. First, partitioning access to resources may constrain consumption in contexts from dieting to saving, even when the partitions can be unilaterally broken. Second, the chunkiness …

Assessing The Empirical Upside Of Personalized Criminal Procedure, Matthew B. Kugler, Lior Jacob Strahilevitz

Coase-Sandor Institute for Law & Economics Research Paper Series

Though personalization of law is often viewed as a new idea, pockets of criminal procedure already tolerate it. Many courts have held that Miranda warnings must be tailored when read to juveniles or people with limited English proficiency; a suspect’s age is necessarily part of the judicial calculus when determining whether the police’s questioning of her is a custodial interrogation; and some state courts consider a person’s demographic characteristics when deciding whether they have consented to a search. The question before us now is whether society should go further. Should the law of criminal procedure pay more attention to individual …

A Regulatory Classification Of Digital Assets: Toward An Operational Howey Test For Cryptocurrencies, Icos, And Other Digital Assets, M. Todd Henderson, Max Raskin

Coase-Sandor Institute for Law & Economics Research Paper Series

Digital assets are hot right now. Whether cryptocurrencies, like bitcoin, or initial coin offerings and tokens, this new asset class has captured the imagination of American investors. While it remains to be seen if this phenomenon has staying power, there is no doubt that these assets and their promoters have attracted the attention of the Securities and Exchange Commission. But neither Congress nor the SEC has formally elucidated which digital assets are securities and which are not.

This Article seeks to provide clarity in determining which digital assets are securities. It proposes two tests that operationalize the Supreme Court’s test …

Cardozo And The Civil Jury, Michael D. Green, Ashley Dimuzio

Touro Law Review

No abstract provided.

From Loving V. Virginia To Washington V. Davis: The Erosion Of The Supreme Court's Equal Protection Intent Analysis, Angela Onwuachi-Willig

Faculty Scholarship

In 1967, the United States Supreme Court issued an opinion that contained its most searing and explicit condemnation of white supremacy: Loving v. Virginia. At issue in Loving was the constitutionality of a statutory scheme in the state of Virginia that prohibited marriages between individuals solely on the basis of race. Among other things, provisions in this statutory scheme punished intermarriage between a "white person" and a "colored person," meaning not only Blacks, but also Asian Americans and American Indians who did not fall under the Pocahontas Exception. The provisions also punished evasion of the state's interracial marriage ban by …

The Body Politic: Federalism As Feminism In Health Reform, Elizabeth Mccuskey

Faculty Scholarship

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act's federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting-from a feminist perspective-scholars' arguments that equity in health insurance is essential for human …

Local Tax Incentives And Behavior Of Foreign Enterprises: Evidence From A Large Developing Country, Jing Xing, Wei Cui, Xi Qu

All Faculty Publications

We analyze how profit reporting and investment behavior of foreign enterprises respond to local tax incentives in China, a large developing country. Using firm-level data between 2000 and 2013 from China’s industrial enterprise survey, we first provide strong evidence for tax competition among Chinese cities (especially cities within the same province) over the average effective income tax rate. We then find that, despite stringent capital controls, both reported pre-tax profits and investment of foreign firms respond strongly to local tax incentives, suggesting that subnational tax competition in China is oriented towards both mobile profits and real resources.

Conceptualizing The Urban Commons: The Place Of Business Improvement Districts In City Governance, Alexandra Flynn

All Faculty Publications

Business Improvement Districts (BIDs) are self-taxed organizations that are comprised of businesses and property owners, are approved by city governments, and spend funds to improve profitability within certain neighbourhood boundaries. BID governance structures can also include neighbourhood residents and city councillors as voting or non-voting members. Numerous scholars have written about the role of BIDs in city governance, including the extent to which they improve or undermine inclusivity and accountability. This paper focuses on a related question that has not yet been deeply analysed in legal scholarship: can BIDs be considered a form of urban commons? The term ‘urban commons’ …

The Role Of Section 718.2(A)(Ii) In Sentencing For Male Intimate Partner Violence Against Women, Isabel Grant

All Faculty Publications

This article examines sentencing for male intimate partner violence against women since the 1996 enactment of s 718.2(a)(ii) of the Criminal Code, which requires that a spousal/common-law relationship between an offender and victim be considered an aggravating factor in sentencing. The article argues that, while in general appellate courts in Canada are taking this violence seriously, cases involving level I sexual assaults still demonstrate the longstanding tendency to treat the intimate relationship as mitigating. Further appellate guidance is necessary on how courts should reconcile s 718.2(a)(ii) with s 718.2(e), which requires that all options other than incarceration be considered when …

Corporate Law Federalism In Historical Context: Comparing Canada And The United States, Camden Hutchison

All Faculty Publications

Although American and Canadian corporate law share many similarities, they are also marked by important institutional differences. Among the most notable are the differing roles of federal versus state/provincial policymaking in the two countries: While American corporate law has been deeply influenced by jurisdictional competition among the states, Canadian law has instead been shaped by federal legislative activity, as seen today in the standardizing influence of the Canada Business Corporations Act. These different institutional histories have led to distinct evolutionary paths, with important substantive consequences for contemporary corporate law. Despite considerable academic attention to the subject of corporate law federalism, …

Ode To Judge Leon D. Lazer, Martin A. Schwartz

Touro Law Review

No abstract provided.

Remarks At Memorial Service For Beth Mobley, Jeffrey B. Morris

Touro Law Review

No abstract provided.

Beth Mobley Memorial, Howard Glickstein

Touro Law Review

No abstract provided.

Cardozo, The Canon And Some Critical Thoughts About Pedagogy, Deborah W. Post

Touro Law Review

No abstract provided.

Why Not Believe Women In Sexual Assault Cases?: An Engagement With Professors Tuerkheimer, Colb, And Many Others, Dan Subotnik

Touro Law Review

No abstract provided.

A Tale Of Two Casinos: Unequal Spaces Of Local Governance, Alexandra Flynn

All Faculty Publications

Local actors, including resident and business associations, do not simply influence decision-makers, but can also reshape the purportedly neutral governance model within which decision-making takes place. In big cities like Toronto, this reshaping exacerbates the existing geographic and socio-economic unevenness. The work of James Scott, Mariana Valverde, and Cheryl Teelucksingh helps to explain how local actors interface with seemingly neutral governance bodies to have their interests heard, particularly in relation to locally undesirable land uses. The paper considers two case studies detailing the governance practices at work in differing decisions about casinos in the City of Toronto. A 2012-2013 debate …

Twenty Years Of Web Scraping And The Computer Fraud And Abuse Act, Andrew Sellars

Faculty Scholarship

"Web scraping" is a ubiquitous technique for extracting data from the World Wide Web, done through a computer script that will send tailored queries to websites to retrieve specific pieces of content. The technique has proliferated under the ever-expanding shadow of the Computer Fraud and Abuse Act (CFAA), which, among other things, prohibits obtaining information from a computer by accessing the computer without authorization or exceeding one's authorized access.

Unsurprisingly, many litigants have now turned to the CFAA in attempt to police against unwanted web scraping. Yet despite the rise in both web scraping and lawsuits about web scraping, practical …

What Explains Observed Reluctance To Trade? A Comprehensive Literature Review, Kathryn Zeiler

Faculty Scholarship

Valuation gaps and exchange asymmetries are among the most widely studied phenomena in the field of behavioral economics. The purpose of this chapter is to present the current state of the social science literature related to observed reluctance to trade. Numerous theories have been proposed and only a few might be safe to rule out based on the evidence to date. The chapter begins by describing the standard model of preferences, which generally assumes that valuation is independent of ownership status, and then catalogs early findings that seem to suggest that ownership status influences valuation. Early research tested various potential …

Introduction: Canada's Chief Justice: Beverley Mclachlin's Legacy Of Law And Leadership, Marcus Moore

All Faculty Publications

Summarizes the legacy of law and leadership of Beverley McLachlin, the longest-serving Chief Justice of the Supreme Court of Canada (2000-2017), and first female Chief Justice.

Justice As Harmony: The Distinct Resonance Of Chief Justice Beverley Mclachlin's Juridical Genius, Marcus Moore

All Faculty Publications

Chief Justice McLachlin’s juridical work has earned special praise, but what specifically distinguishes it among the work of other leading jurists has proven elusive for lawyers and social scientists to identify. My experience as a law clerk to McLachlin CJC suggested a distinct approach never comprehensively articulated, but intuitively well-known and widely-emulated among those in her sphere of influence. Drawing on the Chief Justice’s public lectures—where she often explained and offered deeper reflection on the McLachlin Court’s defining jurisprudence—I make the case in this article that at the heart of that approach is a quality best described as the pursuit …