Law Commons^™

Global Laboratories Of Third-Party Funding Regulation, Victoria Sahani

Faculty Scholarship

Third-party funding, also known as "dispute finance," is a controversial, dynamic, and evolving arrangement whereby an outside entity ("the funder") finances the legal representation of a party involved in litigation or arbitration, whether domestically or internationally, on a non-recourse basis, meaning that the funder is not entitled to receive any money from the funded party if the case is unsuccessful.' It has been documented in more than sixty countries on six continents worldwide-including in many of the jurisdictions highlighted in this symposium that are experimenting with other aspects of international commercial dispute resolution. Indeed, funding greases the wheels of this …

Facilitating Investment Through Iias: The Case Of The Regional Comprehensive Economic Partnership Agreement, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

As many recently concluded IIAs, the RCEP agreement includes provisions on investment facilitation. Following ASEAN’s “built-in work program” approach, the agreement provides flexibility for RCEP parties to further implement investment facilitation measures. Such flexibility can arguably be an opportunity to set a collaborative framework for investment facilitation in the region.

We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey

Faculty Scholarship

Fifteen years after the Piracy Paradox explained how most anti-copying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making and re-mixing practices that are the life blood of the internet's expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples of this "new piracy paradox": a legal regime that ostensibly punishes piracy in a culture in which it is …

Submission To The Ministry Of Justice On Judicial Review: Proposals For Reform – ‘Prospective Invalidation/Overruling’, Samuel Beswick

All Faculty Publications

The Government Response to the Independent Review of Administrative Law proposes to provide judges a discretionary power to grant prospective-only remedies in judicial review proceedings. It further proposes to legislate a presumption or a requirement of prospective-only remedies when statutory instruments are quashed. The Government’s Report relies on arguments made in Sir Stephen Laws QC’s IRAL Submission advocating for prospective-only judicial remedies. My submission responds to the content of both documents.

The Government should abandon its proposal to legislate in favour of Prospective Invalidation in the judicial review context (and in any other context) because:

a. Prospective Invalidation violates the …

Understanding University Fee Litigation: A Few Lessons About The Perils Of Imprudence For Higher Ed Plan Sponsors, Maria O'Brien, Calvin Utter

Faculty Scholarship

Beginning in August 2016, a series of class action lawsuits were filed on behalf of participants and beneficiaries of 403(b) employee retirement plans sponsored by major American colleges and universities. These plans are regulated by the 1974 Employee Retirement Income Security Act (“ERISA”), which sets minimum standards to protect the participants and beneficiaries of voluntarily established retirement and health plans. The allegations in the several lawsuits have centered primarily around breaches of fiduciary duties by those charged with administering the plan.

These cases are all class action lawsuits brought on behalf of the participants and beneficiaries of the plans in …

Starting With Life: Murder Sentencing And Feminist Prison Abolitionist Praxis, Debra Parkes

All Faculty Publications

Advocates of decarcation often focus their critiques on imprisonment for non-violent offences. In this vein, current advocacy efforts to end mandatory sentences in Canada tend to carve out “serious violent offences” as not part of a reform agenda. In this chapter, Debra Parkes sketches out the contours of an argument for why feminists might not want to cede that ground, why anti-carceral feminism might involve centering our analysis on the most, rather than the least, serious crimes – starting with those who are serving life sentences for murder. Parkes identifies four non-exhaustive reasons for that focus. The first reason relates …

Immigration Detention In The Age Of Covid-19, Efrat Arbel, Molly Joeck

All Faculty Publications

In this chapter, we analyze Canada’s response to the outbreak of COVID-19 as it relates to immigration detention. We focus on decisions released by the Immigration Division (ID) of the Immigration and Refugee Board, the quasi-judicial administrative tribunal tasked with detention-related decision-making in Canada. Writing in the four months after pandemic measures were first introduced in Canada, our analysis is by necessity provisional, and focuses on seventeen ID decisions released between mid-March and mid-May 2020, at the height of the pandemic in Canada. Our analysis of this dataset reveals an identifiable shift in ID practice: prior to the outbreak of …

R V. Turtle: Substantive Equality Touches Down In Treaty 5 Territory, Sonia Lawrence, Debra Parkes

All Faculty Publications

Court comes to Pikangikum First Nation through the air. Judges, Crown attorneys, and defence lawyers fly into this Anishinaabe community, located 229 kilometres north of Kenora, Ontario, to hear bail, trial, and sentencing matters involving members of the community. And then they fly out. Many of those provincial court proceedings involve sentencing members of the community to jail in Kenora or to a penitentiary even further away. We suspect that s. 15 of the Charter is rarely discussed in the Pikangikum courtroom (which is sometimes a room in the business development centre and sometimes the Chinese restaurant), a reality that …

Faculty List

Journal of Dispute Resolution

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Journal of Dispute Resolution

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Journal of Dispute Resolution

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Ai In International Arbitration: Need For The Human Touch, Derick H. Lindquist, Ylli Dauta

Journal of Dispute Resolution

Technology is rapidly changing the way law is practiced. The legal profession, including arbitration, will feel the effect of technological advancements in AI and Legal Tech. In fact, the Covid-19 pandemic has already pushed arbitration to either be virtual in toto or hybrid in other cases. An exclusively physical arbitration hearing is currently the exception, rather than the norm. Admittedly this is a temporary and perhaps unsustainable situation, nevertheless the current landscape underscores that humans are replaceable.

Domestic Courts' Impact On Arbitral Awards: Pragmatic Reflections On The New York Convention, Mohamed Sweify

Journal of Dispute Resolution

On June 1, 2018, the heirs of the late Sheikhs Abdullah Al-Solaiman AlHamdan and Khalid Abu Al-Waleed Al-Oarqani ("Claimants") petitioned to confirm and enforce an $18 billion arbitral award against Chevron entities before the Northern District of California and the Southern District of Texas. The award was issued under the auspices of the illegitimate "International Arbitration Centre" ("IAC") in Cairo, Egypt. The dispute involved a decades-old concession agreement in which the Saudi government permitted Chevron's predecessor, the Standard Oil Company of California ("SoCal"), to develop certain Saudi oil fields. Both enforcement petitions were dismissed.

The Grass Is Always Greener: Applying Adr To Marijuana Disputes, Garrison Harms

Journal of Dispute Resolution

As the public opinion of marijuana use continues to evolve, the legal landscape surrounding marijuana evolves as well. The progressive changes made in state law and accompanying range of legal permissibility have created problems for those that consume, cultivate, produce, and distribute marijuana and marijuana-infused products. Such challenges arise because federal law does not mirror the many different approaches taken by the states that have legalized--or, at least, decriminalized-marijuana use. Under federal law, the use, sale, or distribution of marijuana is illegal.

Rethinking Swing Voters, Jonathan S. Gould

Vanderbilt Law Review

In recent decades, swing voters in courts and legislatures have made many of the United States’ most important decisions of law and policy. It would be easy to conclude from the recent history of the Supreme Court and Congress that democracy or majority rule inevitably entails placing many of a society’s most important decisions in the hands of swing voters. Far from being inevitable, however, swing voters result from a highly contingent set of circumstances, both ideological and institutional.

This Article probes these contingencies, describing and evaluating swing voters and the power they hold. It first explains the conditions under …

Brown, Massive Resistance, And The Lawyer's View: A Nashville Story, Daniel J. Sharfstein

Vanderbilt Law Review

Editors’ Note: For nearly 75 years, the Vanderbilt Law Review has sought to publish rigorous, intellectually honest scholarship. In publishing the following Essay, we seek to provide an equally unflinching look at one way in which Vanderbilt Law School and its graduates have participated in the creation of inequities that persist today.

The Law School has produced legions of graduates committed to the pursuit of justice. Some alumni’s legacies, however, are more complicated. Brown, Massive Resistance, and the Lawyer’s View: A Nashville Story tells the story of one such alumnus. In many ways, Cecil Sims is a model of an …

Team Production Theory Across The Waves, Brian R. Cheffins, Richard Williams Faculty Of Law

Vanderbilt Law Review

Team production theory, which Margaret Blair developed in tandem with Lynn Stout, has had a major impact on corporate law scholarship. The team production model, however, has been applied sparingly outside the United States. This article, part of a symposium honoring Margaret Blair’s scholarship, serves as a partial corrective by drawing on team production theory to assess corporate arrangements in the United Kingdom. Even though Blair and Stout are dismissive of “shareholder primacy” and the U.K. is thought of as a “shareholder-friendly” jurisdiction, deploying team production theory sheds light on key corporate law topics such as directors’ duties and the …

Worker Voice And Corporate Governance: Putting Words Into Actions, Thomas A. Kochan

Vanderbilt Law Review

Two decades ago, Margaret Blair and I edited a book focused on governance of modern corporations. At the time it was evident that the dominant paradigm governing corporate governance and behavior centered on maximizing shareholder value. This was a shift in practice that began in the 1980s and was endorsed in 1997 by the Business Roundtable, when it recanted on its 1990 statement that supported a broader stakeholder view of corporate responsibilities.

The effects of the shift from a stakeholder to a shareholder-maximizing set of practices have been devastating for American workers and the overall economy. It reinforced and accelerated …

What Was The "Dartmouth College" Case Really About?, Charles R.T. O'Kelley

Vanderbilt Law Review

This Article is the first modern work of corporation law scholarship fully examining the Dartmouth College case as it was lived and understood at the time. Earlier scholars, the author of this Article included, have relied on the case to make doctrinal and theory-of-the firm arguments about Supreme Court precedents regarding the constitutional rights of corporations. Moreover, these earlier works have primarily focused on, and found talismanic meaning, in two sentences in Marshall’s opinion:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties …

"A Code Red For Humanity": Judicial Relevance In A Time Of Climate Emergency, Margot Young

All Faculty Publications

The Washington Post calls it the “the biggest political story in the world, a grinding global crisis in public view.” The Globe and Mail’s coverage is more muted, but its Editorial Board notes about this crisis that “[t]wo things have since changed: urgency and ability. The danger is growing closer, but so is humanity’s capacity to avert disaster.” These statements reference the 9 August 2021 release by the Intergovernmental Panel on Climate Change (IPCC) of its Working Group I report, first instalment of the IPCC’s Sixth Assessment due out in 2022. The recent report, compiled by 234 authors based on …

The Hmcs Unconscionability: Adrift In The Atlantic, Marcus Moore

All Faculty Publications

This paper traces the Canadian doctrine of unconscionability’s distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English ‘unconscionable bargains’ family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court of Canada, the position of the doctrine shifted significantly. Its movement can be identified as towards the American doctrine of unconscionability, a distinct doctrine not part of the English family, based rather on §2-302 of the Uniform Commercial Code. Courtwatchers in the United Kingdom and other …

Reflections On Building And Then Teaching In A Hyflex Classroom At Allard Hall, Douglas C. Harris, Samuel Beswick

All Faculty Publications

How to teach in a pandemic? This is the question we were forced to answer over the course of a weekend in March when UBC’s physical campus closed and in-person teaching was no longer possible. The pivot to the world of online teaching was abrupt and reactive; there simply wasn’t time to do anything other than keep courses going as best we could, with technology and techniques we were learning as we taught.

Business Improvement Districts And The Urban Commons, Alexandra Flynn

All Faculty Publications

This chapter contributes to existing work that bridges two rich scholarly conversations by examining the role that BIDs play in city governance and their relationship to the urban commons. The first section summarizes the existing literature on the scope and meaning of the urban commons: what do we mean by the governance of the ‘urban commons,’ and how do BIDs fit into this scheme? Section two contends that decision-making, representation, and accountability should be used as factors in evaluating urban commons institutions. Third, the chapter concludes that, instead of framing BIDs as singular bodies capable of managing a common pool …

Re- Imagining Agenda 2063: A Socio-Legal Foundation Of The Africa We Want, Sara Ghebremusse, Toby S. Goldbach, Oludolapo Makinde

All Faculty Publications

Re- Imagining Agenda 2063: A Socio-Legal Foundation of the Africa We Want, June 21 - 24, 2021 Virtual Conference Report

Prospective Overruling Unravelled, Samuel Beswick

All Faculty Publications

Judges have a dual role: they decide cases and they determine the law. These functions are conventionally understood to be intertwined: adjudication leads to case law, and disputes over judge-made laws lead to adjudication. Because judgments involve the resolution of past disputes, judge-made law is retrospective. The retrospective nature of judicial law-making can seem to work an injustice in hard cases. It appears unfair and inefficient for novel judicial decisions to apply to conduct occurring prior to the date judgment is handed down. A proposed solution is to separate the law-making and adjudicatory functions of courts. This is the technique …

Climate Disruption In Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act, Jocelyn Stacey

All Faculty Publications

This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism toward a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, …

The Growth Of Vancouver As An Innovation Hub: Challenges And Opportunities, Camden Hutchison, Li-Wen Lin

All Faculty Publications

This article assesses the development of Vancouver as an entrepreneurial region. Using data collected from commercial startup databases, we find that Vancouver produces more startups and receives more venture capital financing per capita than any other major Canadian city. However, we also find that Vancouver lags many U.S. cities on these same metrics. In light of our empirical findings, we explore whether differences in entrepreneurial activity between Canada and the United States are due to differences in the countries’ legal environments. We conclude that legal differences do not explain observed economic disparities, and that differences in entrepreneurial activity are due …

Amicus Brief Of Law And Religion Professors For Petitioners, Lippard V. Holleman, Leslie C. Griffin

Court Briefs

No abstract provided.

Contracts On The Seabed, Christiana Ochoa

Articles by Maurer Faculty

Four million square kilometers of seabed within the sovereignty of Pacific Island nations are currently under contract for mineral exploration or exploitation. Over a million additional square kilometers of the non-sovereign seafloor are licensed for such use. Historically, these licenses have served to establish “squatters’ rights” in anticipation of a distant future when the industry would develop the machinery to exploit oceanic mineral wealth. That moment has arrived, with the first seafloor mining machines rolling off production lines in 2015-2016. Indeed, but for failed financing, the first seabed mine would now be operating in the territorial ocean waters of Papua …

Fintech's Role In Exacerbating Or Reducing The Wealth Gap, Pamela Foohey, Nathalie Martin

Articles by Maurer Faculty

Research shows that Black, Latinx, and other minorities pay more for credit and banking services, and that wealth accumulation differs starkly between their households and white households. The link between debt in-equality and the wealth gap, however, remains less thoroughly explored, particularly in light of new credit products and debt-like banking services, such as early wage access and other fintech innovations. These innovations both hold the promise of reducing racial and ethnic disparities in lending and bring concerns that they may be exploited in ways that perpetuate inequality. They also come at a time when policy makers are considering how …