Law Commons^™

Rethinking Norms On Return To Urban Refugee Situations: Sub-Saharan African Refugees In Cairo And Irregular Secondary Movement To Israel, Mallory Charlotte Wankel

Archived Theses and Dissertations

The long-running controversy in international refugee law over the concept of safe third countries is particularly challenging when refugees migrate irregularly from urban settings. While urban-based refugees often face a distinct set of human rights violations, the complexity that characterizes how these abuses fit into the larger picture of urban poverty and state ineffectiveness, combined with continued ambiguity concerning the minimal standards of protection necessary to allow a state to return a refugee to a first country of asylum, allows receiving states to deny protection obligations by relying on the argument that the hardships compelling movement, if they did not …

Nathan Chapman, Gerald B. Tjoflat

Special Collections

A discussion with Judge Tjoflat regarding litigation tactics, ethics, and the growth of magistrates’ system.

Ute Indian Tribe Of The Uintah & Ouray Reservation V. U.S. Dep't Of Interior, Valan Anthos

Public Land & Resources Law Review

The Ute Indian Tribe of the Uintah & Ouray Reservation brought 16 claims against federal agencies and the State of Utah for alleged mismanagement of water resources held in trust and for alleged discrimination in water allocation. The United States District Court for the District of Columbia dismissed several of the claims as time-barred and others as lacking a proper statutory basis to create an enforceable trust duty. The remaining claims were transferred to the United States District Court of the District of Utah because the events occurred in Utah and most of the parties reside there.

Divorcing Partners And Fighting Siblings: Using The Collaborative Law Model To Resolve Disputes In Family Businesses, Hayley R. Goodman

University of Miami Business Law Review

This paper focuses on the ways that collaborative law can be used to resolve family business disputes. Such disputes can get ugly and leave families and businesses in shambles after years of fighting and even litigation. Such disputes can involve those between divorcing partners, parents and children, extended family members, and new and ex partners. Sometimes, these disputes cannot be resolved, forcing family members to sell all or part of the company. Moreover, when families try to resolve disputes through litigation, they end up spending a lot of money. Mediation is often used to resolve disputes in the family business …

With Coronavirus Ravaging The Economy, Congress Shows Highest Tax Priorities: An Exploration Of The Provisions In The Cares Act And Beyond, Paul Nylen, Brian Huels, Shane Wheeler

University of Miami Business Law Review

The virus known as SARS–CoV–21 (Coronavirus) swept over the United States in ways that no other crisis has affected modern society. While the Spanish Flu of 1918 has often been cited for its pandemic similarities to the Coronavirus, from an economic standpoint the attacks of September 11, 2001, and the Great Recession of 2008 are perhaps the Coronavirus’s best analogy for the modern economic carnage that has occurred. In those previous events, Congress responded with sweeping legislation like Dodd–Frank and the Patriot Act. With the Coronavirus, Congress responded with the CARES Act. Within the CARES Act are historical changes to …

On Solid Ground: How Sterling Strengthened Airspace Ownership Rights In Florida, Nicolas Torres

University of Miami Business Law Review

No other form of property ownership is as synonymous with Florida as the condominium. While ownership of airspace was possible under common law, modern condominiums are more accurately described as creatures of statute. Although the Florida Condominium Act (FCA) expressly provides for fee simple airspace ownership of condominium property, it had been unclear if the Act could provide for fee simple airspace ownership of non–condominium property. Sterling Breeze v. New Sterling Resorts cleared up that ambiguity and found that the FCA can provide for fee simple ownership of non–condominium airspace. First, this note will review the development of airspace ownership …

Buyer Beware: Who Is Paying The Home Buyer’S Real Estate Agent?, Melissa Stewart

University of Miami Business Law Review

Within the past few years, unprecedented class action lawsuits have been filed against the National Association of Realtors (“NAR”) and major real estate brokerage firms that could have multibillion-dollar implications to homeowners across the United States. One lawsuit claims that NAR rules requiring home sellers’ brokers (“seller-broker”) to offer home buyers’ brokers’ (“buyer-broker”) compensation when listing a property on a local database of properties for sale called the Multiple Listing Service (“MLS”) have driven up costs to the seller and discouraged competition, violating the Sherman Antitrust Act. This commission structure has been upheld in the courts before, but the real …

New Book From India Thusi Explores Conflicts Between Sex Work And Policing In Johannesburg, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Exploitation Of Space And Patent Law: How The Current Legal System Ineffectively Protects Private Companies In The Commercial Space Industry, Malmen, Liz

Santa Clara Journal of International Law

Over fifty years ago man first landed on the moon. Since then, outer space has become increasingly closer with the direction and development of the commercial space industry. What was once an exclusive government function is turning into a private business. It is no longer difficult to imagine the possibility of going to space when companies like SpaceX have launched private crews into orbit. However, encouraging technological advancements to support the commercial space industry requires adequate legal protections of such innovation. This can be challenging when international space law has had little growth since man was first on the moon, …

Classrooms Into Courtrooms, Naomi M. Mann

Faculty Scholarship

The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …

Islamist Terrorism And The Classical Islamic Law Of War, Joseph Hoelz

International Law Studies

Islamist terrorists have had a large influence on U.S. foreign and domestic policy for more than twenty years, and yet policy makers, legal practitioners, and the public know very little about what motivates these violent extremist organizations. A primary unifying principle among the various Islamist terrorist groups is their desire to return to a religiously ordered State, justified and based upon their interpretation of the Shari’a, or Islamic law. This article explores the Islamist terrorist interpretation of Shari’a law and how it generally contradicts that of mainstream Islamic scholars. The article begins with a review of the primary and secondary …

The Arkansas Code And Georgia V. Public.Resource.Org, Daniel Bell

Arkansas Law Notes

The United States Supreme Court decided Georgia v. Public.Resource.Org, Inc. (“PRO”) in late April, 2020, a case with major implications for those who rely on the Arkansas statutes. The case addressed whether extra materials Georgia includes in its official statutes, the annotations, can be copyrighted, or if they are in the public domain and can be freely distributed without permission. The case pitted two important competing interests against each other: the ability of citizens to freely access the official versions of laws of their state, versus the interests of a third-party publisher in being compensated for its work. Arkansas produces …

Witnessing Anew: Human Rights Advocacy For Migrants At The U.S. Southern Border In Covid-19 Times, Ellen Maccarone

Biennial Conference: The Social Practice of Human Rights

In this paper I provide a case study of transnational migrant advocacy done by the Kino Border Initiative during the COVID-19 pandemic. Shortly before the pandemic I spent a week with KBI for an immersion experience part of which focused on the ideas of human rights advocacy and witnessing. “Witness” in this context has both a spiritual/moral dimension and an experiential one that can form a foundation for advocacy. Using accounts of migrants to inform and humanize changed when interpersonal witnessing became impossible during the pandemic. This increased the levels of human rights abuses experienced by migrants and limited the …

Refugee Homes And The Right To Property: Sunk Costs And Networked Mobility, Jordan Hayes

Biennial Conference: The Social Practice of Human Rights

For refugees outside their state of origin, access to humanitarian protection can come at the cost of the right to own a home. Following Anneke Smit’s scholarship on the possible contradictions between humanitarian protection and property rights, this paper explores the case of refugee homes built in the Kurdistan Region of Iraq (KRI) by Syrian asylum seekers. Interviews with Syrian refugees collected in Iraq from 2018-2019 reveal the paradoxical situation faced by refugees who invest time, expertise, memory, hope, and money in a house—yet do not own it. While non-citizens in the KRI rarely have the chance to secure legal …

Developing A Practice In Remote Sensing For Next-Generation Human Rights Researchers, Theresa Harris, Jonathan Drake, Umesh K. Haritashya, Wumi Asubiaro Dada, Fredy Cumes

Biennial Conference: The Social Practice of Human Rights

Remote sensing is increasingly recognized as an important tool for documenting human rights abuses. When used alongside interviews, case studies, surveys, forensic science, and other well-established research methods in human rights and humanitarian practice, remotely sensed data can effectively geolocate and establish chronologies for mass graves, forced displacement, destruction of cultural heritage sites, and other violations. But as a highly technical field of science that relies on ever-changing technologies, remote sensing and geospatial analysis are not readily accessible for human rights and humanitarian practitioners. The community of practice grew out of innovative work by practitioners at NGOs and specialized inter-governmental …

Migration And Mortality: Social Death, Dispossession, And Survival In The Americas, Miranda Cady Hallett, Joseph Nevins, Jamie Longazel, Amelia Frank-Vitale, Alicia Yvonne Estrada, Abby C. Wheatley

Biennial Conference: The Social Practice of Human Rights

This panel presents research from the new edited volume Migration and Mortality (edited by Longazel and Hallett, Temple University Press, 2021). Death threatens migrants physically during perilous border crossings between Central and North America, but many also experience legal, social, and economic mortality. Rooted in histories of colonialism and conquest, exclusionary policies and practices deliberately take aim at racialized, dispossessed people in transit. Once in the new land, migrants endure a web of systems across every facet of their world—work, home, healthcare, culture, justice—that strips them of their personhood, denies them resources, and creates additional obstacles that deprive them of …

Cardozo Law News Brief: December 2, 2021, Benjamin N. Cardozo School Of Law

Cardozo Law News Brief 2021

Featured Faculty:

• Myriam Gilles
• Pamela Foohey
• Jessica Roth
• Ekow N. Yankah
• Kate Shaw
• Gabor Rona
• Jocelyn Getgen Kestenbaum
• Ngozi Okidegbe
• Deborah Pearlstein
• Alexander A. Reinert
• Edward Zelinsky

Campus News:

• Innocence Project Wins Historic Victory, Overturning Conviction of Two Men in Malcolm X Killing

Events:

• Follow the Law, Break the Mold: An Interview with Sarah Feingold, Etsy’s First General Counsel

December 2021 Events, Cardozo Fame Center

2021 Event Invitations

Featured Events:

Follow the Law, Break the Mold: An Interview with Sarah Feingold, Etsy's First General Counsel

Thursday, December 2 at 6:30 p.m.

Punishment Without Trial: Why Plea Bargaining Is A Bad Deal, Jacob Burns Center For Ethics In The Practice Of Law

2021 Event Invitations

When Americans think of the criminal justice system, they picture a trial. The right to a trial by jury is supposed to undergird our entire justice system – but that bedrock constitutional right has all but disappeared thanks to plea bargaining. In 2018, more than 97 percent of defendants pleaded guilty.

In Punishment Without Trial: Why Plea Bargaining Is A Bad Deal, Carissa Byrne Hessick makes the case against plea bargaining and illustrates why we need to fix it if we ever hope to achieve lasting criminal justice reform.

Join the Jacob Burns Center for Ethics in the Practice …

Community-Based Rehabilitation's Effectiveness In Reducing Singapore Juvenile Recidivism, Denzil Neo, June Hyuk Lee, Mervin Xin Hong Chew, Munisraj Sarfoji, Timothy Prakash

Introduction to Research Methods RSCH 202

Singapore's juvenile recidivism rate has climbed by around 5% since 2013, putting the country at risk of increased youth crime. With several mandatory rehabilitative programmes classified into two categories, Community-Based Rehabilitation (CBR) and Institutional-Based Rehabilitation (IBR), it is unclear whether the mandatory individual rehabilitative programmes for offenders were actually effective in achieving their corrective goals. This proposal would undertake a regression analysis to compare the effectiveness of CBR and IBR programmes utilizing secondary data gathered by the Ministry of Social and Family Development (MSF) and primary data from a survey. The survey will provide previously unstudied insights into the offender's …

Frontline Justice: The Evolution And Reform Of Summary Trials In The Canadian Armed Forces By Pascal Lévesque, David Galvin Heppenstall

Osgoode Hall Law Journal

The security of Canada and the safety of its inhabitants depend on the readiness of the Armed Forces. To maintain this readiness, service members are subject to special disciplinary standards and penal processes that ordinary courts are ill-suited to handle. A separate military justice system—which exists parallel to the civilian criminal justice system—imposes these distinct standards and enforces swift, stern discipline.

Past As Prologue: Intercept & Surveillance Rules Under Hong Kong’S National Security Law, Hargreaves, Stuart

Santa Clara Journal of International Law

In response to civil unrest in 2019, in 2020 Beijing directly applied a new National Security Law to Hong Kong. Part of this law established a new system of rules for the authorisation of communications intercepts and covert surveillance in the context of certain national security offences. Interestingly, this new scheme looks in many ways like a prior system that was deemed unconstitutional by a Hong Kong court in 2006: it centralizes authorization authority in the executive branch and there is little external oversight of the process. This paper argues that the new system of rules regarding covert surveillance of …

The Puzzle Of Soft Law, Lorne Sossin, Chantelle Van Wiltenburg

Osgoode Hall Law Journal

Soft law is a puzzle. It shapes a wide range of public decision making, but its contents are said to lie beyond the rule of law. This paper explores the largely uncharted terrain of soft law in Canada. It is organized in three parts. Part I examines the existing treatment of soft law in Canadian jurisprudence, including soft law’s relationship to administrative law concepts such as the standard of reasonableness and the Constitution. Part II proposes the foundations of a new framework to characterize soft law, termed the “spectrum approach.” This approach aims to assist courts in responding to the …

The Human Rights-Based Approach To Carbon Finance By Damilola S. Olawuyi, Christie Mcleod

Osgoode Hall Law Journal

Rising sea levels, changing rainfall patterns, annual average temperature increases, and other impacts of climate change threaten the security and livelihood of individuals around the world today.3 Projects intended to mitigate greenhouse gas emissions and lessen future impacts of climate change (“carbon projects”), however, can also cause significant harm.

Police Officers Use Of Ketamine To Subdue Alleged Criminals, Maria Onofre

Honors Program Theses and Research Projects

This review highlights the recent use of ketamine to subdue alleged criminals as an anesthetic. The history and usage of ketamine are studied as a focus on the implementation of ketamine to treat different human needs. The properties and similarities to PCP are compared. All forms of administration, both legal and illegal, and dosages are studied. The review is concluded by a look at the use of ketamine by law enforcement, especially by the Aurora police department.

Section 24(2) In The Trial Courts: An Empirical Analysis Of The Legal And Non-Legal Determinants Of Excluding Unconstitutionally Obtained Evidence In Canada, Steven Penney, Moin Yahya

Osgoode Hall Law Journal

This empirical study explores the legal and non-legal factors influencing trial judges’ decisions to admit or exclude illegally obtained evidence under section 24(2) of the Canadian Charter of Rights and Freedoms. Mining an original dataset of 1,472 reported decisions from 2013–2018, we found little evidence that they are affected by judges’ gender or partisan ideology. We did find, in contrast, that they are substantially influenced by judges’ previous professional backgrounds: Former criminal defence lawyers are more likely to exclude evidence than former non-criminal practitioners, who are in turn more likely to exclude evidence than former prosecutors. We also found significant …

Black Voices Matter Too: Counter-Narrating Smithers V The Queen, Amar Khoday

Osgoode Hall Law Journal

This article presents a legal history and counter-narrative of the Supreme Court of Canada’s unanimous 1977 decision in Smithers v The Queen. Smithers is a criminal law case that focused largely on the issue of causation and is likely taught in most if not all Canadian law faculties annually. The case arose out of a fight following a midget league hockey game where one of the combatants died. In constructing its brief narrative of the facts, the Court drastically understated the racial dynamics that were in play during the game which prompted Paul Smithers, a Black and white biracial teenager …

Positive Charter Rights: When Can We Open The “Door?”, Michael Da Silva

Osgoode Hall Law Journal

Whether the Supreme Court of Canada can and should recognize so-called “positive” rights (viz., rights that require the performance of certain actions, possibly including the provision of goods, by the government) under the Canadian Charter of Rights and Freedoms remains contentious. Binding Supreme Court precedent states that there are no positive Charter rights—at least under sections 7, 12, and 15, under which demands for positive action are most controversially raised—but positive aspects of Charter rights could be recognized in the future. Yet the circumstances under which such recognition would be appropriate remain opaque. This work suggests that the law of …

Smart Cities In Canada: Digital Dreams, Corporate Designs Edited By Mariana Valverde And Alexandra Flynn, Matt Malone

Osgoode Hall Law Journal

Canada received an early and important education in smart cities but has been slow to distill the lessons to be learned from it. The challenge lies in conducting an objective post-mortem of the collapse of Sidewalk Toronto, a joint venture between Alphabet subsidiary Sidewalk Labs and tri-level government entity Waterfront Toronto. The latter was originally established in 2001 to develop a site south of the Gardiner Expressway in Toronto. The site, known as Quayside, had languished in development hell for decades. Originally purposed as part of a possible bid by Toronto for the 2008 Summer Olympics, the site had continued …

Radical Hope: A Teaching Manifesto By Kevin M. Gannon, Fenner L. Stewart

Osgoode Hall Law Journal

Kevin Gannon's Radical Hope: A Teaching Manifesto (“Radical Hope”) is a call for all of us who teach in higher education to realize the full extent of our opportunity to improve the lives of others. He argues that by inspiring our students to develop their practice of learning, we not only help them to succeed in school, but throughout their lives.