Law Commons^™

Legislated Rights As Trumps: Why The Notwithstanding Clause Overrides Judicial Review, Geoffrey Sigalet

Osgoode Hall Law Journal

This article argues that the Charter’s notwithstanding clause makes exception to judicial review. In the counter-factual world where laws “shall operate” as they “would have but for” Charter provisions, courts may not question the consistency of laws with selected Charter rights. Courts must legally treat such laws as though selected Charter provisions do not exist to be applied to them; but of course, they continue to exist. Because the provisions do exist, judgements about their consistency with statutes invoking section 33 are left to the political process. This reading is grounded in the subjunctive mood (conditionnel passé) of the text. …

Collective Attribution In Cyberspace: A Rebranded Version Of Attribution Does Not Make It More Effective, Dan Efrony

International Law Studies

The international community has been unsuccessful in establishing an effective legal framework for holding States accountable for cyber wrongdoing. Instead, official political attribution—collectively denouncing States for irresponsible conduct in cyberspace—has become a common substitute to encourage compliance with voluntary non-binding international norms. Since December 2017, the United States and United Kingdom, along with their closest allies, have embraced and implemented collective attributions and responses. They thereby seek to shape “rules of the road” for responsible State behavior in cyberspace and to enhance accountability and deterrence. However, these attributions rely primarily on the outcomes of American and British attribution processes that …

The Highest Suggestion In The Land: Obiter Dicta And The Modern Supreme Court Of Canada, Amitpal C. Singh

Osgoode Hall Law Journal

The Supreme Court of Canada is unlike any court of appeal in Canada. Many decades ago, the Court shed the traditional mould of an error-correcting appellate court. The modern Court is a “jurisprudential overseer” and its appeals are occasions for legal innovation. This essay explores whether the distinction between non-binding obiter dicta and binding ratio decidendi has any continued significance for the Court. In this essay, I argue that the modern orthodoxy about the Court’s institutional role obliterates any such distinction. This conclusion runs contrary to the Court’s own jurisprudence on this topic, which attempts to preserve the distinction by …

Spanish Fork City Plaintiff/ Appellee V. Christian Jackson Defendant Appellant : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ANA BURGIS, TANNER PREECE, Counsel for Appellee

NATHAN E. BURDSAL, HUTCH U. FALE, Counsel for Appellant

The Bank Of The People, 1835-1840: Law And Money In Upper Canada, Dan Rohde

Osgoode Hall Law Journal

In Upper Canada, money and banking were viscerally political issues, considered central to the broader legal order. Faced with a chronic shortage of coin, the British flooded the colony with publicly issued bills to fund the War of 1812. By the 1830s, this monetary issue was fully redeemed and replaced with notes issued by the colony’s first three chartered banks. Upper Canada’s Reformers saw those banks as public agents, playing a public role, but without democratic accountability. After several failed attempts to modify that system, they turned to establishing their own institution, named the Bank of the People. In doing …

Tawdry Or Honourable? Additional Payments To Representative Plaintiffs In Ontario And Beyond, Suzanne Chiodo

Osgoode Hall Law Journal

Certain class action practices have always fit uncomfortably within the traditional model of civil litigation, not least the payment of honoraria (“additional payments”) to representative plaintiffs. This subject has received little attention in Canada and elsewhere. However, recent decisions in Ontario and the United States have put a spotlight on this practice. These decisions raise crucial questions about the purpose of such payments and the purposes of class actions generally. This article considers the doctrinal and theoretical basis for additional payments, and whether they should be permitted at all. It then proposes a structure for the awarding of additional payments, …

Making And Breaking Settler Space: Five Centuries Of Colonization In North America By Adam J. Barker, Tripat K. Sandhu

Osgoode Hall Law Journal

MAKING AND BREAKING SETTLER SPACE: Five Centuries of Colonization (“Making and Breaking Settler Space”) is a powerful piece published in the area of Indigenous studies and embodies a spatially focussed synthesis of settler colonial literature. The book offers an innovative account of the ways space, power, and identity are produced in settler colonial societies and identifies the cracks, flows, and failures that expose the fragility of the settler colonial assemblage. Adam J. Barker’s work provides theoretical and practical ideas on how to confront and dismantle the settler colonial project through these cracks, which ultimately becomes the text’s raison d’être.

Rwu School Of Law Social Justice Camp, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

First Amendment And Media Law Diversity Moot Court Competition, Roger Williams University School Of Law, Michelle Choate

School of Law Conferences, Lectures & Events

No abstract provided.

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

Reconciliation At The Border Of Public And Private Law: Rethinking Contract Principles In The Context Of Impact And Benefit Agreements, Logan Stack

Osgoode Hall Law Journal

Over the past decade, corporate developers have increasingly sought to conclude Impact and Benefit Agreements (“IBAs”) with Indigenous groups when undertaking resource projects on traditional lands. Despite this development, significant concerns have been raised about the nature and scope of Indigenous consent, as well as the substantive deficiencies within IBAs. However, less has been written about how legal principles derived from contract law would apply to IBAs in the event of a dispute before an arbitrator or a judge. This article therefore considers the ways in which specific contractual principles can be reconceptualized for IBA disputes. First, it examines the …

Reconsidering The Test For Interlocutory Injunctions Affecting Homeless Encampments: A Critical Assessment Of Bc Case Law, Stepan Wood

Osgoode Hall Law Journal

Using a 2020 decision in which a judge granted an interlocutory injunction evicting a homeless encampment from an unused, unfenced, publicly-owned parking lot in the midst of the COVID-19 pandemic as a springboard, I present the first comprehensive survey of British Columbia homeless encampment injunction decisions, revealing a whopping 85% success rate when governments seek interlocutory injunctions against encampments. The stakes are high: Interlocutory injunction applications dominate homeless encampment litigation, exposing encampment residents to continual displacement and elevated risks of isolation, illness, violence, and death. I argue that courts hearing applications for interlocutory injunctions against homeless encampments on publicly-owned land …

From Law And Literature To Legality And Affect By Greta Olson, Azka Anees

Osgoode Hall Law Journal

IN A SPEECH ADDRESSING the Canadian Bar Association in 1970, leading literary critic of the twentieth century Northrop Frye said that “all respect for the law is a product of the social imagination, and the social imagination is what literature directly addresses.”3 In her book From Law and Literature to Legality and Affect, Greta Olson makes an important contribution in her reimagination of law and literature as a discipline. What is remarkable is the extent to which Olson’s thesis, arguing for broadening the scope and aims of the field, gives effect to Frye’s characterization of the field more than half …

Screening Out: Hiv Testing And The Canadian Immigration Experience By Laura Bisaillon, Rachel Cruz

Osgoode Hall Law Journal

IN 2002, CANADA’S FEDERAL IMMIGRATION DEPARTMENT enacted a new policy regime that mandated HIV testing in the immigration medical examination.3 This moment provided the primary motivation for the research that underlies Professor Laura Bisaillon’s first book, Screening Out: HIV Testing and the Canadian Immigration Experience (“Screening Out”).

All Is Well: Catastrophe And The Making Of The Normal State By Saptarishi Bandopadhyay, Tianchu Gao

Osgoode Hall Law Journal

AS PUBLIC HEALTH CONCERNS REGARDING the COVID-19 pandemic have ebbed, the media and politicians portrayed this change as a “return to normal.” Indeed, the pandemic years are seen as a state of exception from the normal condition. However, Saptarishi Bandopadhyay’s monograph, All Is Well: Catastrophe and the Making of the Normal State (“All Is Well”), questions the idea that disasters are exceptional events, and examines how this narrative can strengthen the power of the state.

It’S Getting Hot In Here: Maine’S Right To Food As A Mechanism To Address The Impact Of The Warming Of The Gulf Of Maine On Lobster, Rachel Fischer

Maine Law Review

In United States v. Washington, the Ninth Circuit considered a series of treaties called the Stevens Treaties between the Washington state government and a group of twenty-one Native American nations in the pacific northwest. The court held that embedded in a treaty right to take fish was a promise by the Washington state government that fish would still exist in that region. This case ultimately required the state government to protect the region’s fish against environmental degradation. In the age of climate change, this case provides a model for states like Maine to impose a duty on the state government …

What The Cluck? Backyard Chickens And Maine's Mysterious Right To Food, Lucy Weaver

Maine Law Review

When Maine voters approved the nation’s first “right to food” constitutional amendment, many were concerned about the amendment’s potential to conflict with animal welfare, food safety, and other regulations currently in place at the state and local level. Born from a decade of advocacy, the amendment represents a new era for Maine’s food sovereignty movement. However, the boundaries of the amendment remain unclear, and Maine’s municipalities lack sufficient guidance as they attempt to navigate how this amendment applies to them. This Comment explores one example of the many challenges that may arise from the enactment of the right to food …

You Can Grow Your Own Way: Maine's Constitutional "Right To Food" Amendment, Kristin Hebert

Maine Law Review

Maine is the first state to constitutionalize a right to food. This is significant not only because no other states have enshrined such a right, but because this is Maine’s first foray into constitutionalizing any new individual rights. This raises a host of questions for courts to grapple with: What level of scrutiny should apply? What kinds of protections does this right afford? What are its limitations? This Comment offers a framework for courts to use when interpreting the right to food that is grounded in the legislative and voter intent. Given the amendment’s broad language, this comment argues that …

“Food Of Their Own Choosing”: Improving Access To Locally Grown, Sustainable, And Real Food, Alexia M. Kulwiec, Tom Starck

Maine Law Review

The State of Maine is leading the nation in efforts not only to promote production of locally and sustainably grown food, but the right of consumers to grow, produce, and consume the food of their choosing. This includes creation of a constitutional right to food, a right recognized in the global community but not throughout the United States. Many advocates in the United States emphasize the right to food as a human right, advocating for the same attention and protection as other human rights such as the right to life, liberty, freedom from slavery, and freedom from discrimination. The right …

Green Amendments And Ham: How Green Amendment Jurisprudence Can Inform Maine’S Right To Food, Sarah M. Everhart

Maine Law Review

Maine’s constitutional right to food is the first state constitutional right to food and the extent of the rights created by the amendment is largely unknown. The right to food, as enacted in Article I, Section 25 of the Maine Constitution, provides: Section 25. Right to food. All individuals have a natural, inherent and unalienable right to food, including the right to save and exchange seeds and the right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being, as long as an individual does not commit trespassing, …

Constitutionalizing The Human Right To Food In Maine: A People’S Tool To Advance Food Sovereignty In The U.S., R. Denisse Cordova Montes, Heather Retberg, Photini Kamvisseli Suarez

Maine Law Review

On November 2, 2021, Maine voters overwhelmingly supported a statewide referendum approving an amendment to enshrine the right to food in Maine’s constitution. This vote was preceded by a decade of food sovereignty advocacy in Maine. This advocacy was led by small farmers and homesteaders and supported by people looking to opt out of the industrial food system, which is dominated by a few corporate monopolies and promotes charity-based solutions to hunger. This vote was a resounding proclamation by the people of Maine in support of the right to food, the right to save and exchange seeds, and the right …

Realizing The Right To Food In Maine: Insights From International Law, Smita Narula

Maine Law Review

In November 2021, Maine made history as the first U.S. state to constitutionally recognize the right to food. Maine’s right to food amendment—which sought to address widespread food insecurity and corporate control of the food supply—proclaims food as a “natural, inherent and unalienable right,” and empowers Mainers to grow and consume food of their own choosing, affirming their right to food sovereignty. This Article makes three key contributions to scholarly examinations of this historic amendment. First, it situates the amendment within the broader landscape of domestic and global struggles for the right to food and food sovereignty. Second, the Article …

Law, Language, And Authority: The Algorithmic Turn, Amanda Turnbull

PhD Dissertations

Law is formed by language and law utilizes language. Law is also like language in that it consists of social rules that aid in the structuring of society. From the time that we first put language into writing, we have been invested in the technologizing of language. There is a clear trajectory of our interest in having machines do things with language that we would otherwise do ourselves. This dissertation investigates how law’s relationship with language changes with the use of algorithmically driven technologies, and correspondingly, the consequences for the changing nature of authority since the use of language in …

Amber Montgomery, An Individual, Appellant/ Cross-Appellee V. Dr. Jeffrey P. Gardiner, D.O., An Individual, And Utah Valley Eye Center, Inc., A Utah Corporation, Appellees/ Cross-Appellants : Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from a Final Order and Judgment of the Fourth Judicial District Court in and for Utah County, State of Utah Trial Judge Robert Lund

ATTORNEYS FOR APPELLANT, Justin D. Heideman, Justin R. Elswick

ATTORNEYS FOR APPELLEES, Kirk G. Gibbs, Gary T. Wight

The Voice Of Criminal Law, Michelle Madden Dempsey

Faculty Publications

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the …

Nutrien Ag Solutions, Inc. V. Agreeta Solutions Usa, Llc Order On Discovery And Evidentiary Disputes, John J. Goger

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Consulting To Avoid Kessler, Madison Walker

Space and Defense

The consultation obligation of Article IX from the Outer Space Treaty may be used to create a framework for sharing space situational awareness data, globally, with the intention of facilitating enduring coordination agreements for collision avoidance.

Protecting The Cosmos: Defining Celestial Bodies In The Outer Space Treaty, David Epstein

Space and Defense

Lack of a clear definition of the term “celestial bodies” as used in the 1967 Outer Space Treaty risks exporting legal and political conflict into the cosmos. *This essay is updated from a previously published version and appears here by permission of the Journal of Space Law at Ole Miss.

Lindsay Ortega Plaintiff-Appellee, V. Cynthia Jones Defendant-Appellant : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

Appeal from [Modified by the Court] Final Order and Judgment in Favor or Plaintiff Lindsay Ortega, Fourth Judicial District Court, Wasatch County, State of Utah, District Court No. 160500012, Honorable Jennifer A. [Brown] Mabey presiding Appellant’s Opening Brief Patricia Geary Glenn (#5280)

ATTORNEY AT LAW, P.C. Attorney for Defendant

/Appellant ii TABLE OF CONTENTS IDENTIFICATION OF PARTIES ........................................................................iv INTRODUCTION .................................................................................................... 1 STATEMENT OF THE ISSUES ............................................................................ 5 1. Whether the district court erred in reinstating its initial 2018 Final Order and Judgment after excluding the evidence which formed the basis of its decision as improperly proffered by Plaintiff under Rule …

Democracy's Ruling Hand, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

The claim of liberal constitutionalism is that a text-like object or a ‘diplomatically abstract’ set of principles can work a deflection of disagreements within a pluralist polity. But this project assumes both that pluralism remains amenable to reason and that reason is a capacity independent of the profound differences of meaning, value, and forms of life that shape those disagreements. Neither assumption is correct. Differences in norms, values, and forms of life inevitably undergird and structure differences in meaning, perception, and interpretation. Consequently, a constitution (even when written and accompanied by judicial review) will necessarily unfold in an ongoing process …