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Full-Text Articles in Law
Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew
Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew
Faculty Scholarship
An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …
Conclusion. The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert L. Tsai
Conclusion. The Migration Of Legal Ideas: Legislative Design And The Lawmaking Process, Robert L. Tsai
Faculty Scholarship
This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Legal Transplants and Parliaments: A Possible Dialogue Amongst Legislators? (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S.) …
Compliance Of Canada’S Utility Doctrine With International Minimum Standards Of Patent Protection, Jerome H. Reichman
Compliance Of Canada’S Utility Doctrine With International Minimum Standards Of Patent Protection, Jerome H. Reichman
Faculty Scholarship
This article analyzes the Canadian court case of Eli Lilly v. Novopharm and the "utility" doctrine in Canada, and international standards of patent protection including TRIPS and NAFTA. The ‘‘promise of the patent’’ doctrine in Canada seeks to ensure that firms do not obtain a legal monopoly on the basis of speculative claims about increased utility — especially claims about therapeutic efficacy — that were unsubstantiated at the time of filing. Under this test, some of Eli Lilly’s patented pharmaceutical products have been invalidated retroactively.
The Teaching Of Procedure Across Common Law Systems, Erik S. Knusten, Thomas D. Rowe Jr., David Bamford, Shirley Shipman
The Teaching Of Procedure Across Common Law Systems, Erik S. Knusten, Thomas D. Rowe Jr., David Bamford, Shirley Shipman
Faculty Scholarship
What difference does the teaching of procedure make to legal education, legal scholarship, the legal profession, and civil justice reform? This first of four articles on the teaching of procedure canvasses the landscape of current approaches to the teaching of procedure in four legal systems—the United States, Canada, Australia, and England and Wales—surveying the place of procedure in the law school curriculum and in professional training, the kinds of subjects that “procedure” encompasses, and the various ways in which procedure is learned. Little sustained reflection has been carried out as to the import and impact of this longstanding law school …
The Canadian Criminal Jury, Neil Vidmar, Regina Schuller
The Canadian Criminal Jury, Neil Vidmar, Regina Schuller
Faculty Scholarship
The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process …
Bank Mergers In North America: Comparing The Approaches In The United States And Canada, Eric J. Gouvin
Bank Mergers In North America: Comparing The Approaches In The United States And Canada, Eric J. Gouvin
Faculty Scholarship
This Article provides a summary comparison of the processes in the United States and Canada for governmental approval of bank mergers. The topic came to prominence in 1998 when four of Canada's five largest banks unveiled plans that would have resulted in the Royal Bank of Canada merging with the Bank of Montreal and the Toronto Dominion Bank combining with the Canadian Imperial Bank of Commerce ("CIBC"). These proposed mergers were rejected by the then Finance Minister, Paul Martin. The reasons given included: (1) the resulting banking industry structure would have concentrated too much economic power in the hands of …
The New Face Of Investment Arbitration: Nafta Chapter 11, William W. Park
The New Face Of Investment Arbitration: Nafta Chapter 11, William W. Park
Faculty Scholarship
To protect American investment abroad, the United States traditionally endorsed arbitration as a preferred means to resolve disputes between investors and host countries. Yet a growing awareness of the down-side of arbitration, at least from the perspective of the party seeking the home-town justice of its own courts, has led to media attacks and legislative initiatives intended to hobble neutral international adjudication. This article suggests that assaults on investment arbitration are misguided, and may end up doing more harm than good. On balance, NAFTA arbitration serves as a positive force in the protection of legitimate economic expectations, enhancing the type …
The Political Economy Of Canada's "Widely Held" Rule For Large Banks, Eric J. Gouvin
The Political Economy Of Canada's "Widely Held" Rule For Large Banks, Eric J. Gouvin
Faculty Scholarship
All of the recent changes in foreign access to Canada's banking market have been essentially cosmetic-appearing to make foreign access more liberal while in reality changing the status quo very little. On one point, the so-called widely held rule, Canada does not even bother to pretend that its banking law is friendly to foreign entrants. Under this rule, no person or group may control ten percent or more of a Schedule I bank unless one first obtains the approval of the Minster of Finance. This rule makes foreign acquisition of a Schedule I bank virtually impossible. The widely held rule …
Seeking Justice: An Empirical Map Of Consumer Problems And Consumer Responses In Canada, Neil Vidmar
Seeking Justice: An Empirical Map Of Consumer Problems And Consumer Responses In Canada, Neil Vidmar
Faculty Scholarship
No abstract provided.