Law Commons^™

The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore Dr.

Dalhousie Law Journal

Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. …

Transnational Corporations And Climate Governance: A Case Study Of Amazon.Com’S Net-Zero Climate Pledge, Jason Maclean

Dalhousie Law Journal

“Net zero” has become the predominant way of framing global, national, and nonstate climate change commitments. Hundreds of countries and thousands of corporations promise to achieve net-zero emissions by 2050 or earlier. Hopeful as this may seem, early evidence suggests the need to carefully scrutinize corporations’ climate promises. Specifically, there is an urgent need to critically assess the claim that strategic collaboration and compromise at the science-business-society interface can deliver the transformative social, economic, and political change required to address climate change.

Analyzing Amazon.com’s net-zero pledge as a case study, this article argues that strategic conflict with—and within—transnational corporations is …

Mmu: 10/24/22–10/30/22, Student Bar Association

Monday Morning Update

This Week @ NDLS

Mass Times

Commons Daily Menu

General Announcements

1L of the Week: Rania Khamees

2Ls Taking Ls: Jackie Muallem

Ask a 3L: Jensen Rehn!

LLM Feature: Faisal Yamil Meneses

Jackie's Corner

Refashioning Old Tools For Modern Society, Christine P. Bartholomew

Book Reviews

Reviewing Peter Ormerod, Privacy Qui Tams, 98 Notre Dame L. Rev. __ (forthcoming 2023), available at SSRN.

Salter ’03, Putting Legal Analysis Skills To Use As Ceo Of The News Literacy Project, James Owsley Boyd

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

You can handle the truth. Or at least that’s what Chuck Salter and the News Literacy Project hope. In a world where fake news, disinformation, propaganda, and misinformation are more prevalent than ever, the 2003 Indiana Law alumnus and the nonprofit organization he leads are doing all they can to help citizens determine the credibility of news and other information they’re receiving.

“We’re based on the idea that information—we live in the most complex information landscape in human history—is also easily manipulated,” said Salter. “People are just not equipped to deal with this much information and to detect when they’re …

Vol. 63, No. 09 (October 24, 2022)

Indiana Law Annotated

No abstract provided.

New York Times, Law Of War, And Congressional Overreach In U.S. Military Operations, Brian L. Cox

Cornell Law Faculty Working Papers

Recent high-profile reporting by the New York Times and other media organizations involving U.S. military combat operations has elevated public awareness related to Department of Defense targeting and accountability practices. While scandal generated by media coverage forms the basis for demands for reform of DoD practice from civil society groups and select members of Congress, the narratives developed in the investigative reporting have thus far not been exposed to comprehensive scrutiny. This article conducts a critical analysis of recent New York Times reporting involving U.S. military combat operations to assess the legitimacy of the narratives developed therein. After considering various …

Concerns Re: Rikers Island And The Increase In Inmate Deaths, Emma Guggenheimer

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

In recent years, New York City’s jail system has been in a state of constant crisis due to overcrowding, violence, and consistent sick outs from correction officers. When Mayor Eric Adams took office in January 2022, Department of Corrections commissioner Louis Molina said he was “unequivocally committed to transparency and restoring public trust in the agency.” The agency has been plagued by corruption and sixteen detainee deaths in 2021. As of September 27, 2022, sixteen people have died after being held in Riker’s Island, even as officials have rushed to implement reforms to stave off a looming June 2022 threat …

Welcome Home: Aboriginal Rights Law After Desautel, Kent Mcneil, Kerry Wilkins

Osgoode Hall Law Journal

In R. v. Desautel, decided 23 April 2021, a majority of the Supreme Court of Canada held, for the first time, that an Indigenous community located in the United States, whose members are neither citizens nor residents of Canada, can have an existing Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt in a specified area within Canada. This will be so, the Supreme Court majority held, where the community can show that it descends from (is a successor of) an Indigenous community that was present in what is now Canada at the time of the …

The Reintroduction Of The Consumer Bankruptcy Reform Act: Throwing Debtors A Lifeline, Zoe Zingale

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

In an ideal world, the United States consumer bankruptcy system provides a “fresh start” to individuals who find themselves in financial distress for reasons beyond their control while also stimulating the economy by allowing debtors the ability to engage in transactions. In reality, however, overly complex laws and procedures in the Bankruptcy Code prevent this system from functioning at its full potential. Moreover, current procedural complications too often lead to significant racially disparate outcomes that disadvantage people of color.

This post was originally published on the Cardozo Journal of Equal Rights and Social Justice website on October 24, 2022. The …

Some Reflections On The Threshold For International Armed Conflict And On The Application Of The Law Of Armed Conflict In Any Armed Conflict, T.D. Gill

International Law Studies

This essay discusses the threshold of application of international humanitarian law (IHL) in both international (IAC) and non-international armed conflicts (NIAC). In relation to IAC it questions whether the International Committee of the Red Cross (ICRC) “first shot” approach is the most appropriate, since it opens the way for the intensification of conflicts beyond what is necessary in relation to relatively minor armed incidents and argues that the humanitarian protection clauses of IHL should be separated from the rules governing hostilities and makes a case for the application of ad bellum considerations of necessity and proportionality to act as a …

First Amendment Scholar Timothy Zick Dismantles Trump V. Cnn Lawsuit, Timothy Zick

Popular Media

Former President Donald Trump filed a $475 million defamation lawsuit against CNN arguing the network has maligned him with “fake news” for the purposes of damaging his political future heading into 2024.

The complaint filed Oct. 3 stated, “CNN has sought to use its massive influence – purportedly as a ‘trusted’ news source – to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically, culminating in CNN claiming credit for ‘[getting] Trump out’ in the 2020 presidential election.”

First Amendment Watch asked First Amendment scholar Timothy Zick to annotate the 29-page …

The Law’S Apprehension Of Religion As A Legal Fiction, Blair Major

Osgoode Hall Law Journal

This article addresses issues surrounding the way in which law apprehends religion in the judicial context. The first part of the article proposes the notion of legal fiction as a theoretical lens through which to view the law’s apprehension of religion. It is argued that this highlights and articulates a useful set of ideas about the social-symbolic process of the law’s interaction with religion. The second part of the article applies these theoretical ideas through an in-depth discussion of three cases: Ktunaxa Nation v. British Columbia, Multani v. Commission scolaire Marguerite-Bourgeoys, and Bentley v. Anglican Synod of the Diocese of …

The Principle Of Proportionality In Sentencing: A Dynamic Evolution And Multiplication Of Conceptions, Marie Manikis

Osgoode Hall Law Journal

This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks: desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and demonstrates that this concept was primarily rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. It is argued that this multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. The article therefore proposes a nuanced framework, similar to the one in …

Animal Rights Activism And The Constitution: Are Ag-Gag Laws Justifiable Limits?, Jodi Lazare

Osgoode Hall Law Journal

It is a troubling time to be an animal rights activist in Canada. Recently, Alberta adopted legislation to create harsh penalties for trespassing onto private property, for obtaining permission to enter private property based on false pretences, and for interfering with vehicles on public highways. These laws relate to agricultural lands, to private property generally, and, where roads are concerned, to public property. Ontario has adopted similar legislation aimed specifically at agricultural property. The legislation in both provinces purports to protect the security of farmers, their families, and rural property owners generally, as well as the safety of the food …

Between The Devil And The Deep Blue Sea—Towards Access To Justice For Local Communities In Investor-State Arbitration Or Business And Human Rights Arbitration, Akinwumi Ogunranti

Osgoode Hall Law Journal

This article focuses on the proposal to adapt international arbitration to business disputes involving human rights. The Business and Human Rights arbitration (BHR arbitration) proposal seeks to give local communities who are victims of multinational corporations’ human rights and environmental abuses access to justice in a specialized international BHR arbitration tribunal. Through a comparison between investor-state arbitration (ISA) and BHR arbitration, this article contends that it would be more efficient to reform ISA than to create a BHR arbitration tribunal. Reforming ISA would avoid the possible parallel arbitration systems that may arise from the duplication of international governance efforts. It …

Chinese Antitrust Exceptionalism: How The Rise Of China Challenges Global Regulation By Angela Huyue Zhang, Dana Levin

Osgoode Hall Law Journal

HOW IS CHINA DISTINCT? What are the implications of Chinese exceptionalism? Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation (“Chinese Antitrust Exceptionalism”) explores these questions in the context of antitrust law and policy making. The book, authored by Angela Huyue Zhang, positions the relatively young Chinese antitrust regime in contrast to its more mature global counterparts, namely, the European Union (EU) and the United States (US). In this analysis, Chinese Antitrust Exceptionalism considers how China crafts and enforces antitrust policy, as well as how its counterparts enforce their policies against China. While it focuses on this one …

Lost In Transmission: A Constitutional Approach To Achieving A Nationwide Net Zero Electricity System, Kristen Van De Biezenbos

Osgoode Hall Law Journal

Canada has announced plans to meet its Paris Agreement commitments on reducing greenhouse gas emissions and achieving net-zero by 2035; but standing in the way of these ambitions is an electricity crisis. The crisis is provincially balkanized electricity systems with a dearth of interprovincial transmission lines, and the impacts are three-fold. First, the country is divided into renewable have- and have-not provinces, with some jurisdictions generating more hydropower than they need while others struggle to wean themselves off coal and natural gas. Second, the lack of interprovincial transmission is a deterrent to private investment in renewable energy projects, which is …

Concessionaires, Financiers And Communities: Implementing Indigenous Peoples’ Rights To Land In Transnational Development Projects By Kinnari I. Bhatt, Ethan Guthro

Osgoode Hall Law Journal

THE PUBLICATION OF DOCTOR KINNARI I. Bhatt’s first book, Concessionaires, Financiers and Communities: Implementing Indigenous Peoples’ Rights to Land in Transnational Development Projects (“Concessionaires”), comes at a time of uncertainty for the field of Aboriginal law in Canada and across the globe. To contextualize the key themes found throughout Concessionaires, and to provide a basis upon which my critiques shall be built, it is important to briefly detail recent developments in Aboriginal law in Canada.

The New Breed: What Our History With Animals Reveals About Our Future With Robots By Kate Darling, Amanda Turnbull

Osgoode Hall Law Journal

ROBOTS WERE ONCE RELEGATED to roles that were “dirty, dull, or dangerous,”3 such as welding parts on car assembly lines, but today, they occupy more visible spaces in our workplaces, homes, and public areas. This visibility has provoked questions frequently seen in media inciting moral panic: Will robots cause job loss? Will robots become sentient? In The New Breed: What our History with Animals Reveals About our Future with Robots (“The New Breed”), Kate Darling explains that these fears are misplaced and that our tendency to anthropomorphize robots fosters false determinism. Darling imagines a different kind of agency, drawing on …

A Commercial Law Of Privacy And Security For The Internet Of Things By Stacy-Ann Elvy, Melissa Indome

Osgoode Hall Law Journal

FROM SMART CARS TO SMART REFRIGERATORS, the internet of things (IoT) has revolutionized various facets of our lives. These novel developments galvanized what scholars now deem to be the Fourth Industrial Revolution. This new era is characterized by technology-driven innovation that marries aspects of the physical, digital, and biological domains, going so far as to defy preconceived notions of human capabilities and behaviour. The societal proclivity towards digitization and automated processes has spurred the proliferation of companies entering the technology arena. Corporations are leveraging emerging technologies to cater to consumers’ idiosyncratic needs more effectively. Central to this objective is the …

Where There Is A Right, There Is A Remedy—Or Is There?, Grace Panicola

SLU Law Journal Online

Courts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.

Does An Initial Public Offering (Ipo) Issuer's Securities And Exchange Commission Registration Fee Calculation Method Predict Pricing Revisions And Ipo Underpricing?, Patrick M. Corrigan

Journal Articles

This paper proposes a new proxy for the ex ante expectations of issuers and their underwriters about the direction of pricing revisions during the roadshows of an initial public offering (IPO): the way issuers elect to calculate the registration fees owed to the Securities and Exchange Commission. Consistent with fee-minimizing decision-making, I find that the choice of fee calculation method is associated with pricing revisions and IPO underpricing. This relationship suggests that issuers or their advisors may not incorporate economically significant private valuation information into the initial pricing range estimate and initial public offering price. The results provide empirical support …

Advocates’ Perspectives On The Canadian Prison Mother Child Program, Martha Paynter, Clare Heggie, Ruth Martin-Misener, Adelina Iftene, Gail Tomblin Murphy

Articles, Book Chapters, & Popular Press

Over twenty years ago, Correctional Services Canada launched the Mother Child Program (MCP) to mitigate harms of separating incarcerated mothers from their babies. It has never been subjected to internal evaluation or independent study. The aim of the qualitative study was to explore the experiences of advocates employed by Elizabeth Fry Societies (EFS), community organizations dedicated to the support of incarcerated women, with respect to supporting people who were pregnant or had young children while federally incarcerated and did or did not participate in the MCP.

Reconciling Copyright "Restoration" For Pre-1972 Foreign Sound Recordings With The Classics Protection And Access Act, Tyler T. Ochoa

Faculty Publications

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: …

Case Files From The Late Hon. Michael S. Kanne Donated To The Jerome Hall Law Library, James Owsley Boyd

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

The case files of the late Judge Michael S. Kanne have been donated to the Indiana University Maurer School of Law’s Jerome Hall Law Library.

Kanne, a 1968 graduate of the Law School, served on the U.S. Court of Appeals for the Seventh Circuit from 1987 up until his death in June 2022. Prior to his elevation to the Seventh Circuit, Judge Kanne served on the bench of the U.S. District Court of the Northern District of Indiana.

Judge Kanne’s files span the entirety of his service on the Seventh Circuit, and contain papers regarding opinions, concurrences, and dissents …

More On The Varying Meanings Of “Congress” And “Legislature”, Michael Herz

Online Publications

In a recent Election Law Blog post regarding the Independent State Legislature doctrine, Rick Pildes observes that the term “Congress” in the U.S. Constitution sometimes means Congress acting alone and sometimes means Congress acting through legislation. Given that, it makes perfect sense that the term “legislature” can also sometimes mean the one and sometimes the other. I agree. This post just expands the intratextual analysis.

State Of Utah, Plaintiff/Appellee V, Joshua Martin, Defendant/Appellant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from The Forth District Court, Utah County, From Judgement on post-conviction relief before the Honorable James Brady

Mark C. Field (8340), Counsel for Appellee

Joshua Martin, Appellant Pro Se

Path Choice Of Algorithm Intellectual Property Protection, Yulu Jin, Youdan Xiao

Bulletin of Chinese Academy of Sciences (Chinese Version)

Protection of algorithm by intellectual property is a powerful way to stimulate innovation and regulate the risk of the algorithm. Algorithm that can be protected by intellectual property right is the program algorithm, which is compiled in computer language, in the form of coded instruction sequence, run by the computer and produce independent rational value results. The article is combed out that there are drawbacks to the traditional path of IP to protect program algorithms:it has conflict between program algorithm and copyright law system; the trade secret path is at odds with program algorithmic governance; and program algorithm can hardly …

The Wages Of Crying Life: What States Must Do To Protect Children After The Fall Of Roe, Leah A. Plunkett, Michael S. Lewis

Pepperdine Law Review

In the post-Roe world, can a state rationally claim that the value of human life justifies the imposition of abortion bans but does not demand that a state protect the vulnerable young who are “born human beings”—commonly called “minors” or “children”—and are entitled to protection under a state’s laws? This essay advances the claim that it cannot. This essay asks that those who say they are “Pro-life” in politics and law demonstrate that they protect vulnerable life beyond the abortion context, and that they do so in the most minimal fashion: through a demonstrated commitment to protecting the basic welfare …