Law Commons^™

Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert

Dalhousie Law Journal

Across Canada, health care institutions that operate under the umbrella of religious traditions refuse to offer medical assistance in dying (MAiD) on the grounds that it violates their Charter-protected rights to freedom of religion and conscience. This article analyses the Supreme Court jurisprudence on section 2(a) and concludes that it should not extend to the protection of institutional rights. While the Court has not definitively pronounced a view on this matter, its jurisprudence suggests that any institutional right to freedom of religion would not extend to decisions on publicly-funded and legal health care. MAiD is a constitutionally-protected option for individuals …

Unifying The Field: Mapping The Relationship Between Work Law Regimes In Ontario, Then And Now, Claire Mumme

Dalhousie Law Journal

Since the mid-20th century in Canada, labour and employment law have been treated as two separate but related fields. In 1981 Brian Langille argued in “Labour Law is a Subset of Employment Law” for the unification of the fields, so that all forms of waged work were understood as matters of public policy, rather than leaving some types of work to private law regulation. Taking up Langille’s argument, this paper argues that employment contracts, individual and collective, are structured through the overlap, interaction and gaps between work law regimes. The creation of a unified field moves from studying the regimes …

Pogg And Treaties: The Role Of International Agreements In National Concern Analysis, Gib Van Ert

Dalhousie Law Journal

Canada’s international treaty obligations have featured prominently in Privy Council and Supreme Court of Canada jurisprudence on Parliament’s power to make laws for the peace, order and good government of Canada (POGG). How treaties ought properly to be used in determining Parliament’s POGG jurisdiction is a constitutionally fraught question. The federal executive cannot be permitted to extend Parliament’s legislative jurisdiction by making promises to foreign states. Yet the existence of treaty obligations is undoubtedly relevant to the question of whether a given subject has become a matter of national concern. In the upcoming Greenhouse Gas Pollution Pricing Act references, the …

Consumer Credit In Canada: A Regulatory Patchwork, Micheline Gleixner

Dalhousie Law Journal

With unlimited access and consequent increased use of consumer credit in Canada and the federal government’s gradual abandonment of consumer credit regulation since Confederation, Provinces and Territories have progressively enacted provincial consumer protection legislation aiming to regulate the consumer credit industry and protect vulnerable consumers.

A review of current provincial and territorial legislative frameworks governing consumer credit reveals significant discrepancies and limitations. Given the expansion of the consumer credit industry and the inherent vulnerability of consumers, the article confirms the need and urgency of strengthening financial consumer protection and provides possible avenues of reform.

It is recommended that Parliament reassert …

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

Dalhousie Law Journal

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision-making about major development projects with implications for environmental protection and the rights and title of Indigenous Peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern EA can be understood through three public law frames: procedural fairness, public inquiry, and the framework for the duty to consult and accommodate. It further argues …

The Conceptual Gap Between Doré And Vavilov, Mark Mancini

Dalhousie Law Journal

This paper argues that there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review; a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and a “culture of justification” for administrative decision-makers. On the other hand, Doré is motivated by a functionalist understanding of administrative law, in which the expertise of decision- makers is emphasized. The paper explores the doctrinal …

On The Presence Of The Past In The Future Of International Labour Law, Adelle Blackett

Dalhousie Law Journal

Professor Blackett presented this talk as the Invited Speaker at the Schulich School of Law’s Horace E Read Memorial Lecture on 9 October 2019.

*This contribution has not been peer-reviewed.

Foreword, Table Of Contents & Introduction

Dalhousie Law Journal

Labour Law versus Employment Law in the UK and Canada: A Brian Langille Legacy

The special segment in this Volume 43, which is devoted to an exercise in comparative labour, is the brain-child of Alan Bogg and Mark Freedland. Both were at Oxford University in 2016, thinking about the up-coming third conference of the Labour Law Research Network (LLRN) in Toronto, which was scheduled for summer of 2017. (Alan is now at Bristol.) They thought it would be interesting to explore distinctions between labour law and employment law in both Canada and the United Kingdom, where the notions have different …

Employment Law Revisited, Mark Freedland

Dalhousie Law Journal

This critique of Brian Langille’s famous “Subset” article considers the historical and current meaning of “employment law” in Canada and in the UK. In Canada, “employment law” was fashioned by Innis Christie in the 1980s as the law of personal work relations for the non-unionized sector, with “labour law” applying to the unionized sector of the economy. In the UK, “individual employment law” appeared in the 1970s to be a distinct discipline; but since that time it has largely re-merged with labour law, with the terms “employment law” and “labour law” becoming virtually synonymous. An enlarged scope is proposed for …

Who Decides?: Civil Consent Jurisdiction Of U.S. Magistrate Judges And Third-Party Intervention, Eric Lim

Fordham Law Review

The Federal Magistrates Act permits a U.S. magistrate judge to preside over and enter final judgment in a civil case as a district judge would if all parties to the case have consented to the magistrate judge’s jurisdiction. Parties must consent voluntarily and affirmatively—although consent can be implied from the circumstances—to protect the parties’ constitutional right to have their case heard by an Article III judge. To vindicate this right, a body of jurisprudence has developed distinguishing dispositive matters, for which a magistrate judge requires the consent of all the parties in a case to rule on the matter, and …

A Common Law Of Choice Of Law, Lea Brilmayer, Daniel B. Listwa

Fordham Law Review

For more than a generation, choice of law has been the victim of a historical contingency. The “conflicts revolution” of the mid-twentieth century and its legal realist leaders bundled together three concepts that, although all typifying the traditional approach, are not inherently connected: the “scientific formalism” of Bealean territorialism, attention to “system values” like uniformity and predictability, and judicial activism. The revolutionaries tied an anchor to formalism, sinking the regard for system values and judge-led decision-making in the process. This Essay argues that the rejection of system values and judicial lawmaking in the choice-of-law context was a mistake—and it offers …

Online Marketplaces' Responsibility For Harm From Counterfeit Cosmetics, Samantha J. Levin

North Carolina Journal of Law & Technology

No abstract provided.

Innovation Warfare, Jeanne Suchodolski, Suzanne Harrison, Bowman Heiden

North Carolina Journal of Law & Technology

No abstract provided.

Redefining The Trips Agreement To Accommodate En Masse Compulsory Licensing Of Vaccines & Other Pharmaceuticals For The Treatment Of Covid-19, Alexandra H. Farquhar

North Carolina Journal of Law & Technology

No abstract provided.

Too Dangerous To Exist: Holding Compromised Internet Platforms Strictly Liable Under The Doctrine Of Abnormally Dangerous Activities, Jordan Glassman

North Carolina Journal of Law & Technology

No abstract provided.

The Drug (Pricing) Wars: States, Preemption, And Unsustainable Prices, Isaac D. Buck

North Carolina Law Review

No abstract provided.

Procedural Whipsaw: Allocating The Burden Of Proving Reasonable Notice To Prisoners Of Forfeiture Proceedings And The (Renewed) Call For Actual Notice, Jamison Wynn

North Carolina Law Review

No abstract provided.

A Formalist Theory Of Contract Law Adjudication, Felipe Jiménez

Utah Law Review

Formalism has a bad name. It is often seen as a naïve and unsophisticated approach to the adjudication of legal disputes. This negative view of formalism is widespread in American legal culture and has been particularly influential in contract law. This Article challenges this prevailing view and argues that a formalist theory of adjudication is the best approach to resolve contractual disputes.

The argument of this Article starts from the assumption that contract law is not morally justified because of its enforcement of promissory rights or some other dimension of interpersonal morality. Instead, like contemporary law and economics, this Article …

Labor Redemption In Work Law, Andrew Elmore

Articles

People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks. This Article challenges this standard account by shifting focus to the state in imposing arbitrary barriers to work. I expose a dignity interest in the removal of these unnecessary barriers, or "labor redemption." I find foundations of labor redemption in successful constitutional challenges to denials of public employment and occupational licenses. Labor redemption is also, increasingly, a statutory right, in …

A Poll Tax By Another Name: Considering The Constitutionality Of Conditioning Naturalization And The “Right To Have Rights” On An Ability To Pay, John Harland Giammatteo

Journal Articles

Permanent residents must naturalize to enjoy full access to constitutional rights, particularly the right to vote. However, new regulations from U.S. Citizenship and Immigration Services (USCIS), finalized in early August and originally slated to go into effect one month before the 2020 election, would drastically increase the cost of naturalization, moving it out of reach for many otherwise-qualified permanent residents, while at the same time abolishing any meaningful fee waiver for low-income applicants. In doing so, USCIS has sought to condition naturalization and its attendant rights on an individual’s financial status. In this Essay, I juxtapose the new fee regulations …

Technologies Of Language Meet Ideologies Of Law, Anya Bernstein

Journal Articles

No abstract provided.

All-Caps, Yonathan A. Arbel, Andrew Toler

Articles

A hallmark of consumer contracts is their use of long blocks of capitalized text. These "all-caps" clauses are meant to alert consumers to nonstandard, risky, or important aspects of the transaction that would otherwise be hidden in the fine print. Based on a belief in the power of all-caps, courts will often deny enforcement of many key terms-such as war­ranty disclaimers, liability releases, arbitration clauses, and automatic billing-unless they are presented in all-caps. This article is the first to empirically examine the effectiveness of all-caps. Using an experimental methodology, the article finds that all-caps fail to apprecia­bly improve consent. Moreover, …

Disparities In Oral Health: Socioeconomic Status And Policies To Increase Access To Primary Dental Care, Mckenzie Nutter

Theses/Capstones/Creative Projects

Primary dental care is a patient-centered service consisting of routine dental checkups. The oral cavity is the first point of entrance to the body for many harmful pathogens. Therefore, primary dental care is essential to not only prevent and treat conditions in the mouth, but to also reduce the number of systemic diseases in the rest of the body. However, people with higher incomes or wealth have increased access to primary dental care. People with low socioeconomic status have decreased access to primary dental care, at least in part due to difficulties in paying for separate dental insurance. Disparities in …

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

Articles

Confederate monuments have again received increased attention in the aftermath of George Floyd's tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the "death" or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …

Mcgirt Policy Briefs: Regulation Of The Environment And Natural Resources, Monte Mills

Faculty Journal Articles & Other Writings

On July 9, 2020, the United States Supreme Court issued its decision in McGirt v. Oklahoma. Although the only actual effect of that decision was on Mr. McGirt’s state court criminal conviction, rendering it invalid in light of the continuing existence of the Muscogee (Creek) Nation’s reservation, the implications of McGirt reverberated throughout Oklahoma and the nation. By rejecting Oklahoma’s arguments that the march to statehood had resulted in the implicit disestablishment of the Creek’s reservation (and, by analogy, those of the neighboring and similarly situated Cherokee, Chickasaw, Choctaw, and Seminole Nations), Justice Gorsuch’s opinion on behalf of the Court’s …

Criminal Law, John A. Regan

Mercer Law Review

This Article reviews opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period of June 1, 2019, up until May 21, 2020.This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes, and it serves as a broad guideline to how these decisions will affect their practices.

Domestic Relations, Andrew B. Mcclintock, Allison C. Kessler, Barry B. Mcgough, Elinor H. Hitt

Mercer Law Review

This Article reviews opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period of June 1, 2019, up until May 21, 2020. This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes, and it serves as a broad guideline to how these decisions will affect their practices.in the State of Georgia in the first quarter of 2020 and continuing through the end of the survey period.

Insurance, Maren R. Cave, Thomas D. Martin, Bradley S. Wolff

Mercer Law Review

During this Survey period, the courts in Georgia returned to the usual abundance of automobile and uninsured motorist (UM) cases, the summaries of which make up most of this annual update. The courts decided three cases involving UM coverage limits that were less than the policies’ liability limits and the claims of insureds that the carriers owed coverage equal to the liability limits. The insurers prevailed in all three cases. In a fourth case, the Georgia Court of Appeals determined that an insured could not sue a tortfeasor in the name of “John Doe,” where the person’s name was known …

Labor & Employment Law, W. Jonathan Martin Iii, Alyssa K. Peters, Patricia-Anne Brownback, Graham Newsome, Aaron Chang

Mercer Law Review

This Article surveys revisions to the Official Code of Georgia Annotated (O.C.G.A.) and decisions interpreting Georgia law from June 1, 2019 to May 31, 2020, that affect labor and employment relations for Georgia employers.

Construction Law, Ward Stone Jr.

Mercer Law Review

During the Survey Period, the Georgia appellate courts handed down a number of decisions underscoring the requirement that contractors hold valid and current contractor’s licenses issued by the Secretary of State’s office in order to be able to enforce construction contracts.Several attempts to side‑step the statute,carve out exceptions, or avoid the harsh consequences of violating the statute were rejected in favor of strict interpretation. As several courts noted concerning the licensing statutes:

[I]n construing any statutory text, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the …