Law Commons^™

Transnational Labour Law And Governance: Advancing Workers’ Rights In Global Value Chains, Judy Fudge, Guy Mundlak

Comparative Labor Law & Policy Journal

TRANSNATIONAL LABOUR GOVERNANCE is a multiscalar assemblage of agents, institutions, instruments, and legal concepts that has emerged to address the governance gap caused by the mismatch between the global nature of production and the territorial format of labour law (Blackett & Trebilcock, 2015; Hepple, 2005; Kolben, 2011; Mundlak, 2024). This special issue investigates some of the key components in this assemblage and identifies features that make a transnational labour law approach distinctive. In this introduction to the special issue, we begin in Section II by describing the governance gap and its impact on the wages and working conditions of supply …

The Problem Of Digital Trade Regulation: Silences Regarding Labour And Their Potential Disruption By A Sustainability Agenda, Tonia Novitz

Comparative Labor Law & Policy Journal

The growing impact of digital trade on work in global supply chains is readily detectable but there are curious regulatory silences on labour-related issues. The key problem identified in digital trade law is national obstruction to the free flow of data needed to promote online ordering and delivery of goods and services. In comparison, the concerns of those whose work is constitutive of digital trade, such as platform workers, are largely overlooked. Arguably, provisions often found in trade agreements relating to digital privacy and the effects of algorithmic management could be utilised by those at work. However, there remain uncertainties …

Weaponizing Religion Against The Human Emotion Of Empathy: A Call To Fight Coercive Settlement Attempts On The Merits, Jeffrey Dodge

Faculty Scholarship

In March 2023, America First Legal filed a lawsuit against West Shore School District in Camp Hill, Pennsylvania. In the complaint, the plaintiffs argued that empathy related instruction from the district’s social emotional learning curriculum violated their parental and religious rights. Nearly every headline about the lawsuit included a quote from a plaintiff parent asserting that “Not every human is deserving of my child’s empathy.” At the time of filing, America First Legal and counsel, Wally Zimolong, argued that students in this school district were illegally being subjected to a radical and invasive curriculum.

School officials denied wrongdoing in receiving …

A Conceptual Map Of The Right To Repair: Where Upcycling Fits In, Anthony D. Rosborough

Articles, Book Chapters, & Popular Press

The chapter maps contemporary approaches to the Right to Repair along a spectrum from decentralised freedoms to centralised standard setting and product design. Decentralised approaches propose a Right to Repair that resembles a 'negative right' in that it protects user autonomy through dismantling legal and market barriers. Centralised repairability models, on the other hand, align more with a positive right that is built through stringent product design standards, obligations on manufacturers to repair products directly, and situate repair within larger circular economy governance models.

Using the US and EU approaches to Right to Repair policy as illustrative poles, the chapter …

Desperately Seeking Non-Judgmental Supports: Young People’S Perceptions Of Adult Responses To Technology-Facilitated Harms, Alexa Dodge, Kaitlynn Mendes, Christopher Dietzel, Suzie Dunn

Articles, Book Chapters, & Popular Press

Young people around the world are increasingly impacted by technologyfacilitated harms, yet research shows that teens often do not seek help from adults in their lives to deal with these harms. This article draws data from 25 focus groups with 146 young Canadians (aged 13–18) as they explain why they are reluctant to seek adult help when experiencing technologyfacilitated harms. Young Canadians consistently said that adults speak to them in ways that are judgmental, emotionally reactive, and disempowering. To make them more likely to seek help from adults, young people want adults to avoid scare tactic approaches, listen to their …

The Reception Of International Human Rights Law In Charter Litigation: "Not A Box Of Chocolates" But You Still "Never Know What You're Gonna Get", Karinne Lantz

Articles, Book Chapters, & Popular Press

This article explores the reception of international human rights law(IHRL)in Canada. Focusing on the Charter context, it demonstrates that how IHRL applies in Canada continues to lack clarity despite repeated (and recent) efforts by the Supreme Court of Canada to provide it. This article argues that this lack of clarity is an important matter for the Court to address, particularly as IHRL is increasingly being invoked before courts and other tribunals around the world. It argues that the Court should adopt a methodology that: (i) endorses the “Dickson Doctrine,”according to which the “minimum protection approach”is robustly applied for international human …

Help-Seeking For Technology-Facilitated Sexual Violence: Insights From Canadian Young Adults Across Three Forms Of Harm, Jennifer L. Mcarthur, Anita M. Aucoin, Kayla J. Goruk, Julie Blais, Alexa Dodge, Suzie Dunn

Articles, Book Chapters, & Popular Press

Technology-facilitated sexual violence (TFSV) encompasses a range of harmful digital sexual behaviors, each with unique characteristics and potential impacts on victim-survivors, as well as varying responses from support systems. To address this growing issue, it is necessary to understand the help-seeking behaviors of those affected by the different types of TFSV and the unique barriers they encounter. This study draws on interview (n = 17) and survey (n = 468) data from adults in Canada to compare the help-seeking behaviors and barriers across image-based sexual abuse, image-based sexual harassment, and sexual-, gender-, and sexuality-based harassment. Qualitative findings suggested …

Revisiting Law Society Disciplinary Powers Over The Attorney General: Professional Discipline For Policy Decisions?, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In this article, I assess whether the law society can, and should, discipline the attorney general for their policy decisions and those of the cabinet. In addition to a parallel to policy immunity in tort law, I also consider other potential restrictions applicable to policy decisions, including the scope of parliamentary privilege—and related concepts—as apparently broadened in more recent decisions by the Supreme Court of Canada.

This article consists of five parts after this introduction. I begin in Part II by revisiting the statutory jurisdiction of the law society and the impact of the rule of law considerations embodied in …

Statutory Immunity Of The Attorney General From Law Society Discipline In Alberta: A Comment In Justice Statutes Amendment Act, 2025, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In December 2025, Alberta became the second Canadian province to grant its Attorney General statutory immunity from law society discipline. This comment analyzes this amendment to the Legal Profession Act and the rationales and critiques that emerged during the legislative process. It argues that, while some of the critiques were misplaced, the rationales given by the government are problematic in themselves and insufficient to justify the tension between the immunity of the Attorney General to law society discipline and the constitutional principle of the rule of law. In the absence of a more clearly articulated and justified rationale for adopting …

Collective Bargaining Agreements As Non-Judicial Grievance Mechanisms, Sahiba Gill

Comparative Labor Law & Policy Journal

Do collective bargaining agreements (CBAs) in global value chains meet the United Nations Guiding Principles on Business and Human Rights’ (UN Guiding Principles, or Guiding Principles) benchmark for effective access to remedy through non-judicial grievance mechanisms? The literature on access to remedy in the business and human rights framework has not considered whether they do, despite growing attention to contestation between rightsholders and companies via these mechanisms. This article contributes to filling this gap through empirical analysis of a dataset of 216 CBAs in manufacturing sectors in the Global South with grievance mechanisms. Findings indicate that grievance mechanisms in CBAs …

Supply Chain Bargaining And Worker Voice: Reflections On The Bangladesh Accord And The Dindigul Agreement, Marlese Von Broembsen

Comparative Labor Law & Policy Journal

Both private governance and transnational labour law scholars are concerned with the participation of supply chain workers in “enforceable brand agreements.” Much of the private governance literature is concerned with improving workers’ participation in the negotiation and implementation of enforceable brand agreements. Some transnational labour law scholars are concerned with whether transnational labour law should depart from prescripts typical of national labour law — which generally recognises trade unions as the only legitimate representatives of workers — to recognise civil society organisations as bargaining agents. This article analyses the Bangladesh Accord on Fire and Building Safety and the Dindigul Agreement …

Allocating Electricity, Alexandra Klass, Dave Owen

Articles

The U.S. electricity system is premised on the ideas that utilities have a duty to serve all customers in their service territories and that electricity supply should always meet demand. Until recently, there has been little reason to question these foundational premises. U.S. electricity demand has remained flat for over a decade, and during earlier periods of growth, new energy generation plants were relatively easy to build. Now, however, electricity experts predict massive load growth—most notably from data centers to power artificial intelligence and cryptocurrency—and building new power plants is no longer easy.

Major efforts are underway to increase electricity …

Merger Remedies Unbound, Dhruv Aggarwal, Albert H. Choi, Geeyoung Min

Articles

How should foundational contract law doctrines apply to corporate mergers? This Article argues that recent changes in Delaware law grant parties expansive contractual freedom to define their preferred remedies in merger agreements, untethered from the limits imposed by traditional contract law. A new provision in the Delaware corporate code, or the Delaware General Corporation Law (DGCL), permits penalty clauses in merger agreements, notwithstanding the traditional “anti-penalty doctrine” that forbids punitive liquidated damages in contracts. Delaware courts have also shown deference to specific performance provisions, treating them as presumptively enforceable commitments instead of retaining their traditional judicial discretion over the choice …

Legalistic Noncompliance, Daniel Deacon, Leah Litman

Articles

Will the executive branch comply with court orders? That question has garnered a considerable amount of attention over the first few months of the second Trump administration. But what does it mean to comply? And what if a form of noncompliance is already occurring?

This Article documents an emerging practice that has dominated the second Trump administration's approach to unfavorable court rulings, a practice this Article calls legalistic noncompliance. Legalistic noncompliance occurs when the administration uses the language of the law as cover to claim that it is complying with court orders when in fact it is not. Drawing …

The Crisis Of Appropriations Law, Samuel R. Bagenstos

Articles

Appropriations law is a unique body of federal law.  Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review.  But perhaps that is all about to change.  Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation. 

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act.  In general, the unusual features of appropriations law are built on a …

Corporatism For The Informal Economy: Democratising The Potential Of The Mathadi Tripartite Board Model, Shelley Marshall, Hila Shamir, Babu P. Remesh, Anjali Sharma

Comparative Labor Law & Policy Journal

This article examines the Mathadi Boards in Pune, India, as a pioneering example of corporatist regulation adapted to the informal economy. These tripartite institutions — comprising workers, employers, and the state — negotiate legally binding agreements on wages and working conditions for informal labourers, offering social protections and formalization without relying on traditional employment contracts. Drawing on extensive fieldwork and interviews, the study explores the Boards’ structure, governance, and impact, highlighting their potential as scalable models for informal labour regulation globally. It also identifies challenges related to representation, enforcement, and social exclusion, offering insights into how corporatist frameworks can be …

Lessons Learned From The Last 25 Years Of Anti-Trafficking And Forced Labour Governance: Private Power And Public Policy, Genevieve Lebaron, Janie A. Chuang

Comparative Labor Law & Policy Journal

Twenty-five years after adopting the United Nations Trafficking Protocol, anti-trafficking scrutiny is finally being brought to bear on forced labour in global supply chains. This article identifies and examines key aspects of the contemporary governance regime developed to address this endemic problem: corporate social initiatives and transparency legislation, human rights due diligence laws, strategic litigation, and forced labour import bans. As explored in this article, the interplay between public and private governance these interventions entail has a significant impact on whether workers ultimately benefit from these efforts. More specifically, the rise of corporate power and influence within this regulatory space …

Bracing The Wobbly “Three-Legged Stool” By Increasing Homeownership Opportunities For Low- And Middle-Income Workers, Regina T. Jefferson

Scholarly Articles

Traditionally, the primary sources of retirement income were personal savings, the private retirement system, and Social Security. These three sources have been described metaphorically as the “three-legged stool” of retirement security. In this framework, each leg was viewed as a separate and distinct source of income that provided support throughout a worker’s retirement. Each source presented different and varying degrees of risks that were pooled collectively among the individual, the employer, and the government. Each source also functioned independently of the other two. Thus, the traditional framework of retirement income was thought to be ideal because it balanced and diversified …

System Disparities: Racial Criminalization And The Risk Of Coerced And False Confessions In Youth, Cynthia J. Najdowski

Psychology Faculty Scholarship

Black youth may be even more vulnerable than other youth to admitting to crimes they did not commit in the context of police interrogations. In support, analysis of data from the National Registry of Exonerations indicates that 65% of people who were wrongfully convicted on the basis of false confessions they gave when under 18 years old are Black, whereas only 14% of the U.S. population is Black. In this chapter, I seek to understand the overrepresentation of Black youth in samples of juvenile false confessors by examining the cultural stereotype about Black criminality in relation to both investigators and …

When Climate Change Forces Flight: Legal Duties In The Age Of Retreat, Mark P. Nevitt

Faculty Articles

In the face of climate-driven disasters, government officials and individuals alike must decide whether to invest in climate-exposed areas or retreat. This Article analyzes emerging legal and policy issues associated with both climate retreat (when the government relocates people and infrastructure away from climate-exposed areas) and abandonment (when individuals leave climate-exposed areas, following natural disasters or otherwise). I argue that government-driven climate retreat must consider four overlapping legal duties, raising novel questions in an era of climate destabilization. First, does the government have an affirmative duty to rescue its citizens, and is this duty transformed by the government’s role in …

The Forgotten Income-Attribution Power, Alex Zhang

Faculty Articles

Economic inequality stands at record levels, and constitutional law haunts egalitarian reform. In 2024, the Supreme Court decided the latest contest. Moore v. United States rebuffed an attempt to sharply limit the federal taxing power, as a razor-thin majority upheld Congress’s attribution of foreign corporations’ income to domestic shareholders. But four Justices criticized the reasoning of the majority, faulting its use of a fabricated doctrine.

This Feature provides a systematic account of Congress’s income-attribution power. It excavates overlooked litigation materials and case law from the infancy of the current federal income tax. In the 1920s and 1930s, litigants attacked, on …

How Ip Ends, David Fagundes, Aaron Perzanowski

Faculty Articles

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and …

Do We Really Want Retired U.S. Supreme Court Justices Practicing Law? A Public Policy Critique To U.S. Supreme Court Term Limits, Michael J. Broyde, Hayden H. Hall

Faculty Articles

In its 2021 final report, the Presidential Commission on Judicial Reform discussed the merits of implementing term limits for Supreme Court justices. The Commission began by acknowledging that eighteen-year, non-renewable terms have considerable bipartisan support, including the support of both Conservative and Progressive scholars at the National Constitution Center, whose proposals for improving the Constitution included term limits for justices. They continued by weighing the pros and cons of implementing term limits via constitutional amendment or statute, addressing, in turn, the specifics of what these limits might look like—whether a twelve or eighteen-year term is preferable, how a transition from …

Supporting Comparative Studies Of Judicial Behavior: Introducing The Australian High Court Database, Patrick Leslie, Zoë Robinson, Russell Smyth, Tonja Jacobi

Faculty Articles

Comparative research on law and legal institutions depends on high-quality data infrastructure. This article introduces the Australian High Court Database—a new resource that encodes structured information on all full judgments of the High Court of Australia between 1995 and 2020, and all leave applications (Australia’s equivalent to petitions for certiorari) from 2003 to 2018. The database is built in accordance with core principles that support comparative research: it is adaptable, and comparable. By attending to jurisdictional specificity while adhering to general standards, the database supports both within-country analysis and cross-national comparison. We illustrate how the Australian High Court Database can …

True Threats, Public Safety, And Free Speech: An Empirical Analysis Of Counterman's Consequences, Jordan Birnholtz, Matthew B. Kugler

Journal of Criminal Law and Criminology

Many scholars expected the Supreme Court’s Counterman decision to significantly reshape true threat law, undermining public safety while expanding protections for caustic political speech. Counterman required that a speaker consciously disregard a substantial risk that their communications would be viewed as threatening violence to give rise to liability. This created a concern that it would be difficult to convict harassers and stalkers who were, or claimed to be, delusional, and thus unaware of their speech’s likely impact. Scholars also feared the invalidation of some stalking and harassment statutes and increased difficulty in obtaining protective orders, which play a major role …

An Upside Of Originalism? Jury Size, Meghan J. Ryan

Journal of Criminal Law and Criminology

Originalists have taken over the Supreme Court, and many commentators are up in arms. This historical approach to constitutional interpretation can entrench historical biases, result in what many view as unjust decisions, and even cloak politically motivated opinions. But entirely rejecting a historical approach to constitutional interpretation overlooks what can be an upside of originalism: Because of our country’s unique history of being founded by British rebels, some practices from the time of the Founding—such as recognizing a strong jury right—advantage criminal defendants. Thus, employing a historical approach such as originalism in assessing the scope of constitutional protections can actually …

Revisiting Robinson: How Courts Can Preserve The Status Crimes Doctrine After Grants Pass, Sabina Idriz

Journal of Criminal Law and Criminology

Prior to the Supreme Court’s 2024 decision in City of Grants Pass v. Johnson, legal advocates for the homeless used the status crimes doctrine to successfully argue in multiple cases that anti-homeless laws, which punish life-sustaining acts such as sleeping, camping, or eating in public, are unconstitutional. Under the status crimes doctrine, which comes from the Supreme Court’s 1962 interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause in Robinson v. California, it is unconstitutional to punish individuals for having a status they may have contracted innocently or involuntarily. The Robinson Court struck down a law criminalizing …

Freedom Of Speech And Criminal Solicitation, Nikola R. Hajdin

Journal of Criminal Law and Criminology

Although criminal solicitation is recognized as one of the “historic and traditional categories” of unprotected speech, courts’ understanding of this doctrine remains limited and narrow. Nearly three years ago, the Supreme Court finally made progress in clarifying the boundaries between criminal solicitation and protected advocacy. In United States v. Hansen, the Court held that solicitation is the intentional encouragement of a specific unlawful act and, because speech of this kind “has no social value,” it is therefore unprotected. The Supreme Court, however, left a key question unanswered: Why does restricting advocacy that doesn’t meet the Brandenburg v. Ohio imminence-of-harm …

Uncharted Waters: Addressing The Shortcomings Of Criminal Liability Under The Clean Water Act By Charging Water Polluters With Assault, Abigail English

Journal of Criminal Law and Criminology

Water pollution incidents pose both acute and long-term risks to human health, yet the Clean Water Act (CWA) ineffectively holds water polluters accountable. By defining criminal violations in terms of technical breaches of the statute, the CWA’s criminal provisions are vulnerable to narrow judicial interpretations, leaving many environmental crimes unpunished. Furthermore, the Environmental Protection Agency (EPA) rarely pursues criminal charges under the CWA, relying instead on civil fines, which fail to impose meaningful consequences. This underinclusiveness and under-utilization allows many polluters to evade serious penalties. Even when pollution incidents are covered by the CWA and the EPA pursues prosecution, the …

Popular Constitutionalism In A Populist Age, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, …