Law Commons^™

Race On The Brain, By Jonathan Kahn, Shruti Ramesh

Osgoode Hall Law Journal

Canadians and Americans alike are often reluctant to honestly confront our respective nations’ histories of racism and discrimination. Unflinchingly describing a legacy of colonialism, genocide of Indigenous peoples, and multigenerational slavery, is a great deal more uncomfortable than the academically “safe” analyses advanced by critical race theory. Simply put, academic conversations around “racism” are increasingly being replaced with conversations about “bias.” This is what legal scholar Jonathan Kahn addresses in his book Race on the Brain: What Implicit Bias Gets Wrong about the Struggle for Racial Justice. Kahn’s book is a response to a trend toward scientism within the interdisciplinary …

“Help Is The Sunny Side Of Control”: The Medical Model Of Gambling And Social Context Evidence In Canadian Personal Bankruptcy Law, Anna J. Lund

Osgoode Hall Law Journal

At the start of the twentieth century, people who gambled excessively were viewed as morally deviant. Now, they are viewed as suffering from a medical disorder. Legal actors incorporate this medical approach to gamblers into how they apply the law. This shift from a moral to a medical model reorients actors from punishing gamblers to helping them, and thus can be characterized as a positive, humane development. Yet the medical model has drawbacks too. The medical model can be used to justify paternalistic and potentially harmful interventions in the lives of individuals, and it obscures the social context in which …

Paradises Lost? The Constitutional Politics Of “Indian” Enfranchisement In Canada, 1857–1900, Coel Kirkby

Osgoode Hall Law Journal

Enfranchisement was the legal process for an individual or community to end their legal status as “Indians” under the Indian Act. The Canadian government hoped it would break up bands before assimilating them into settler society. This article aims to excavate the untold story of this attempt to extinguish special “Indian” status in the nineteenth century. It first traces enfranchisement as part of a Victorian discourse of civilization and as a specific Canadian legal process for the assimilation of “Indian” subjects. It then uses new archival sources to tell the untold story of the politics of enfranchisement over the second …

Whipping Up A Storm: Trying To Make Sense Of Constitutional Law, Allan C. Hutchinson

Osgoode Hall Law Journal

The effort to make sense out of what the judges of any Supreme Court do is all the more pressing and acute in times of political turbulence. Lawrence Lessig’s Fidelity and Constraint offers itself as one such effort to distinguish constitutional decision-making from “the ad hoc in politics” by its reliance upon principled and neutral reasons; it is the judges’ detached and professional nature that underwrites their democratic legitimacy and institutional commitment. This review challenges those claims and demonstrates how Lessig’s analysis does more to undermine that project than achieve it.

Humans As A Service: The Promise And Perils Of Work In The Gig Economy, By Jeremias Prassl, Ara Dungca

Osgoode Hall Law Journal

The gig economy is “the collection of markets that match providers to consumers on a gig basis in support of on-demand commerce.” Some of the most recognizable examples in Canada are Lyft and Uber. In a September 2017 report by the Bank of Montreal on the gig economy, it was estimated that 2.18 million Canadians were categorized as temporary workers, which include people who take on term, contract, or temporary employment, such as freelancers. This report defines a gig as “any job, especially one of short or uncertain duration.” A recent Ontario Court of Appeal Case, Heller v Uber Technologies …

Industry Of Anonymity: Inside The Business Of Cybercrime, By Jonathan Lusthaus, Robert Van De Mark

Osgoode Hall Law Journal

In Industry of Anonymity: Inside the Business of Cybercrime, Jonathan Lusthaus attempts to demystify the increasingly sophisticated business of cybercrime and examine how it has matured into a large, profit-driven industry. Through interviews with hundreds of subjects involved in the cybercrime industry in varying capacities, Lusthaus has sought to draw a map that, by showing how seemingly disparate elements in the industry relate to one another, can better explain how the cybercrime industry functions. In particular, Lusthaus strives to produce a better understanding of the people behind cybercrime and the contexts in which they operate. By doing so, the book …

Baldia Town Factory Inferno: Justice Delayed And Denied, Rabia Bugti

MSJ Capstone Projects

The Baldia Town Factory Fire — as it came to be known — was one of the deadliest incidents in the history of Pakistan — the 9/11 of the country.

Over 260 ill-fated people lost their lives in the garments factory named Ali Enterprises, 16 of whom were charred beyond recognition. In September this year, finally after eight years, the anti-terrorism court announced its verdict (ANTI-TERRORISM COURT, 2017). Two key culprits were sentenced to death and four handed life imprisonment. According to the joint investigation team’s report, the factory was set on fire deliberately by the facilitators of a political …

Chevron Abroad, Kent Barnett, Lindsey Vinson

Notre Dame Law Review

This Article presents our comparative findings of how courts in five other countries review agency statutory interpretation. These comparisons permit us to understand and participate better in current debates about the increasingly controversial Chevron doctrine in American law, whereby courts defer to reasonable agency interpretations of statutes that an agency administers. Those debates concern, among other things, Chevron’s purported inevitability, functioning, and normative propriety. Our inquiry into judicial review in Germany, Italy, the United Kingdom, Canada, and Australia provides useful and unexpected findings. Chevron, contrary to some scholars’ views, is not inevitable because only one of these countries …

A Case For Zoning, Christopher Serkin

Notre Dame Law Review

Due to a remarkable convergence of criticisms from both the right and the left, zoning is under more sustained attack than at any time in the last seventy-five years. A consensus is building that zoning is what ails America. Simultaneously, the traditional justifications for zoning, like separating incompatible uses, have become increasingly anachronistic in an age of mixed-use development and a desire for vibrant, dynamic places. This Article offers an updated defense of zoning, and in particular density regulations. Today, local governments deploy zoning not primarily to keep industry (or apartment buildings) out of residential neighborhoods, but to preserve community …

Lira In Criminal Cases, John Lande

Faculty Blogs

This post describes how the LIRA framework can be adapted in criminal cases and used in plea bargaining. It suggests how to calculate and use bottom lines in these cases.

Substantive Remedies, Hanoch Dagan, Avihay Dorfman

Notre Dame Law Review

Often, private law remedies enforce or vindicate infringed underlying rights. Substantive remedies are different. Substantive remedies do not aim at restoring these rights; nor do they seek to change them. Instead, substantive remedies adjust the remedial response for a right violation so as to ensure post-wrong justice. They require the law of remedies not merely to look back, but rather to take a second look at the parties’ post-wrong situation. At times, such a second look affects the type of remedy awarded (damages in lieu of injunctive relief); in other cases—for instance, the tort doctrine of crushing liability—it imposes a …

Taxing Local Energy Externalities, Hannah J. Wiseman

Notre Dame Law Review

There is a fundamental problem of scale in the governance of industrial development. For some of the fastest-growing U.S. industries, the negative impacts of development fall primarily at the local level, and the benefits tend to accrue more broadly to states and the federal government. These governments accordingly have inadequate incentives to address the very localized negative externalities of development. Yet states also increasingly preempt most local control over some forms of development. This creates a regulatory void, in which state and federal regulations are inadequate, and local governments lack the power to use traditional Pigouvian tools such as regulation, …

The Problem Of Foreign Convictions In U.S. Immigration Law, Geoff Cebula

Notre Dame Law Review

Part I argues that the definition of “conviction” in the INA implicitly leaves room for courts to inquire into the procedural fairness underlying a foreign conviction. Part II surveys the traditional standards for evaluating the sufficiency of foreign convictions in the contexts of extradition and international comity, two areas where U.S. courts have had to decide when to honor foreign judgments for centuries. These longstanding criteria formed the background against which the INA definition was adopted and may provide guidance on how to apply this definition. Accordingly, Part III derives from this analysis suggestions for how the Department of State …

Law Enforcement’S Use Of Facial Recognition Software In United States Cities, Samantha Jean Wunschel

Honors Program Theses and Projects

Facial recognition software is something we use every day, whether it’s a suggested tag on our Facebook post or a faster way to unlock our phones. As technology becomes increasingly pervasive in our lives, law enforcement has adapted to utilize the new tools available in accessory to their investigations and the legal process.

Constitutional Law's Conflicting Premises, Maxwell L. Stearns

Notre Dame Law Review

Doctrinal inconsistency is constitutional law’s special feature and bug. Virtually every salient doctrinal domain presents major precedents operating in tension. Bodies of precedent are rarely abandoned simply because a newer strand makes an older one appear out of place. And when an earlier strand is redeployed or substituted, the once-newer strand likewise persists. This dynamic process tasks law students, often for the first time, with reconciling the seemingly irreconcilable.

These doctrinal phenomena share as their root cause dual persistent conflicting premises. Some examples: Standing protects congressional power to monitor the executive branch, or it limits congressional monitoring when the selected …

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan S. Chapman

Notre Dame Law Review

Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) to Espinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid.

Yet the Court and scholars have largely ignored a practice that casts light on …

Fraudulently Induced Confessions, Michael J. Zydney Mannheimer

Notre Dame Law Review

The jurisprudence on the use of police deception during interrogations is singularly unhelpful. Police may deceive in order to induce a suspect to confess, the courts tell us, unless they go too far. Police are permitted, for example, to feign sympathy for the suspect, lie about the existence of incriminating evidence, and falsely downplay the seriousness of the offense under investigation. But when police engage in other forms of deception, such as by offering false promises of leniency or misrepresenting the suspect’s Miranda rights, courts will balk and declare the resulting confession coerced. Yet neither courts nor commentators have successfully …

Enforcing A Wall Of Separation Between Big Business And State: Protection From Monopolies In State Constitutions, Alexandra K. Howell

Notre Dame Law Review

The goal of this Note is not to convince the reader to care more about regulatory monopolies than private ones. In fact, it is not to talk about private antitrust law at all. Instead, the goal is to put today’s concern with monopolies in historical perspective. Part I traces the history of the antimonopoly spirit in the United States starting with the English tradition that was highly influential on the Founders. This Note then demonstrates that today’s concern with private monopolies comes from a shift that took place during the progressive era. In Part II, this Note highlights the role …

Seeing And Responding: How Students Perceive School Personnel To Fail To Respond To Bullying, Ethan M. Higgins, Benjamin W. Fisher, Maury Nation

Qualitative Criminology (QC)

"Although research has shown that students and school personnel believe that adults respond to bullying at different rates, it is unclear why these differences occur. Using open-ended survey responses from 189 students, this study investigates why students perceive that school personnel fail to respond to bullying. Students articulated a variety of reasons for school personnel’s lack of response, including ways in which they could fail to see, notice, or respond to the bullying. In turn, students used their agency to understand and counteract school personnel’s lack of response. Theoretical and policy implications are discussed."

Disparity In Context: Judges’ Perspectives On Disparities In A Sentencing Guideline System, Justin M. Smith

Qualitative Criminology (QC)

"Unwarranted disparity in sentencing continues to be a problem in criminal courts. Sentencing, a final step in the multi-stage process of criminal justice, is seen as such an important component of ensuring consistency that legislative policy has created guidelines to control judicial decision-making. Nonetheless, research shows that disparity under sentencing guidelines persists due to influences external to the law - referred to as substantive rationality. Sentencing research overwhelmingly utilizes quantitative analysis of official court data to produce its conclusions about the influences of disparity. The current study builds upon past research by using qualitative analysis of interviews with 20 judges …

Social Exchange And The Formation Of Prison Visitation Communities, Adam Trahan, Douglas Evans

Qualitative Criminology (QC)

"Family members and significant others of incarcerated individuals suffer when their loved ones are incarcerated. The loss of a parent, sibling, child, spouse, or partner to incarceration can be painful. If they wish to stay physically connected to an incarcerated individual, visitation is their only recourse. Visiting a prison can be costly in terms of the amount of time it takes to travel to the facility, the total expenses incurred during travel, and the socio-emotional effects of limited contact. On top of these costs, visitation can be an intricate process to navigate due to the multitude of facility rules and …

Perceptions Of Rehabilitative Change Among Incarcerated Persons Enrolled In A Prison-Equine Program (Pep), Joyce A. Arditti, Amy A. Morgan, Sara Spiers, Virginia Buechner-Maxwell, Vicky Shivy

Qualitative Criminology (QC)

"Guided by a grounded theory methodology, the authors propose a theory of rehabilitation for incarcerated persons within a prison equine program (PEP). Interviews with ten incarcerated men yielded a grounded theory of rehabilitative change centered around the importance of relationships with program staff and horses, and the uniqueness of the barn-equine environment in promoting safe attachments and positive views of self. Special emphasis is placed on the development of secure reparative attachments between men and their horses grounded in acceptance and mutual empathy, as well as the development of redemptive identities whereby participants viewed themselves as having purpose and value …

Health Insurance And The Undocumented Immigrant, Anja Diercks

Honors Theses

The purpose of this thesis is to perform a comparative analysis on how seven different countries (USA, South Africa, Germany, England, Canada, France and Singapore) organize their healthcare system to cope with the issue of undocumented immigrants and whether or not these systems in place were “fair.” The thesis will also explore the possible ways the United States could change to be more inclusive and fairer in the world of healthcare and health insurance for the undocumented immigrant. A study on what fairness means both in ethical and economical terms is done to suggest a new basis of a fair …

After Nypd: Scores Of New York City Police Officers With Substantiated Complaints Move To New Public Safety Jobs., Luca Powell

Capstones

In the wake of the nation’s 2020 summer protests about policing and use of force, New York State made public the Civilian Complaint Review Board records documenting complaints against police officers, including those at the NYPD, an agency with just over 34,000 officers. Those records showed that officers with substantiated accusations of misconduct and use-of-force were able to remain at the department and get promoted.

The New York City Civilian Complaint Review Board documents show something else: A New York City News Service review found at least 81 former NYPD officers with substantiated accusations of wrongdoing have been able to …

Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Week Of December 14, 2020 - December 18, 2020, Benjamin N. Cardozo School Of Law

Today at Cardozo 2020

Events occurring this week have been sponsored by:

• Jacob Burns Center for Ethics in the Practice of Law

Corporations And The American Polity, Patrick Labossiere

Student Theses and Dissertations

Research on corporate communications’ effects on politics presents an acknowledgement of a relationship between the two topics, leaving a void in the explanation and examination of this topic. The void presents an opening to introduce a conceptual process for how corporations are able to craft communications to influence the American Polity, the democratic social organization within the United States. This research begins with a historical review of how corporations gain prominence in American society, capturing the ability to participate in the democratic social organization of the polity. A qualitative analysis of several conceptual frameworks serves as data, to establish an …

Brief Of Religious Liberty Scholars As Amici Curiae In Support Of Defendants-Appellants, Michael Francisco, Richard W. Garnett

Court Briefs

No. SJC-12988
Margaret DeWeese-Boyd v. Gordon College

On Appeal from a Judgment of the Essex County Superior Court

From the Introduction

In the decision below, the trial court adopted a miserly understanding of the ministerial exception. It refused to apply it to a professor who taught social work at Gordon College, a Christian liberal arts school founded in 1889 which has a mission stating a "commitment to integrating faith and learning" and to "provide instruction in the Bible and other subjects" to prepare students "for the duties of the Christian ministry and other special forms of Christian work." RA/144,215. The …

State Of Utah, Appellee V. Russell Keith Harper, Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM A SENTE,7\TC,'E, JUDGMENT, AND COMMITMENT ENTERED ON AUGUST 28, 2019, BY THE HONORABLE DOUGLAS B. THOMAS OF THE SEVENTH JUDICIAL DISTRICT COURT, IN AND FOR CARBON COUNTY, STATE OF UTAH

Jeffrey D. Mann, Assistant Attorney's General

K. ANDREW FITZGERALD

The State Of Utah, Plaintiff/ Appellee V. Dylan James Kitzmiller, Defendant Appellant., Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a conviction for two counts of child abuse, second-degree felonies in violation of Utah Code section 76-5-109(2)(a). The conviction followed a jury trial in the Third Judicial District, in and for Salt Lake County, State of Utah, the Honorable William K. Kendall presiding.

WILLIAM M. HAINS, SEAN D. REYES, Attorney for Appellee

WENDY M. BROWN, Attorney for Appellant