Hauptman-Woodward Medical Research Institute
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Looking Backward, Looking Forward
Get PDFPublished as Chapter 17 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song.https://digitalcommons.law.buffalo.edu/book_sections/1353/thumbnail.jp
Client Selection
Get PDFPublished as Chapter 6 in Insiders, Outsiders, Injuries, and Law: Revisiting The Oven Bird’s Song.https://digitalcommons.law.buffalo.edu/book_sections/1352/thumbnail.jp
The Theory and Practice of Contestatory Federalism
Get PDFMadisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.
This paper investigates Madison’s hypothesis by documenting the methods actually deployed on the ground to influence or to thwart national policy making used by subnational units in nine federal or quasi-federal states: Argentina, Austria, Belgium, Canada, Germany, Italy, Spain, Switzerland, and the United States.
The study produces two notable findings. First, the evidence confirms Madison’s prediction that subnational units in federal states will from time to time assert themselves against national power – ambition does appear to counteract, or at least to be deployed against, ambition. Second, the data show strikingly that subnational units in federal states have energetically developed a great variety of methods to attempt to shape, influence, or thwart national policies. Indeed, the evidence demonstrates that subnational units have not confined themselves to the use of tools of influence provided by their constitutions, but have in many cases creatively developed new tools of influence outside of the formal constitutional scheme. This phenomenon raises the possibility that Madison’s institutional prescription for constitutional stabilization may have the perverse effect of creating the conditions for constitutional destabilization instead. This conclusion in turn throws doubt on the Madisonian premise that constitutions can, through careful engineering, be made to stabilize themselves at their initial design specifications
Neuromarks
Get PDFThis Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminal defendants’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural map unique to each well-known brand—a “neuromark ”—into evidence. With the neuromark at their disposal, courts could potentially abandon the crude proxies for consumer perception that guide modern trademark doctrine. The current tests for trademark distinctiveness, likelihood of confusion, and dilution will all change, but will these changes be good for trademark law? By itself, measurement of consumer perception does not reveal how courts resolving trademark disputes should account for that measurement. New insights into the functioning of the consuming mind make a searching interrogation of the rationales behind trademark law more imperative than ever
Dethroning State Security: Introducing a Human Security Perspective to Absorb the Dangers of Climate Change to the Self-determination of Island State Inhabitants
Get PDFOne unmistakable and indisputable consequence of Climate Change is found in the realm of oceans. Sea-levels are currently rising at a pace unknown to mankind and as a consequence island states are destined to lose habitable land territory. Whereas some may lose parts, others will lose all of it in the current business as usual scenario. This reality first begs the question as to whether an island state will continue to be a state once bereft of a territorial basis. Secondly, it must be considered how islanders might retain legal personality should this is no longer be possible through the institution of statehood as it exists in positive law. Donning a long-term perspective and taking into account the need for a state to be an effective duty-holder.for its citizens, a state may arguably no longer be an effective state when missing the statehood criterion of habitable territory. However, this finding need not create a non liquet situation where we can only point out a gap in law to stare at, or revert to creative solutions such as recognizing deterritorialized entities as states with permanent ex situ governments. When setting aside a classical approach focusing fixedly on ways to ensure state security, the islanders\u27 predicament can be viewed through a human security approach, which taps into the humanized side of today\u27s international law and allows us to acknowledge that the islanders\u27 situation is embedded in much more than the lore of statehood With this awareness, it can be concluded that to attempt retaining the legal personality, cultural identity and effective empowerment of islanders without an island-a people\u27s human right to self-determination needs to take center stage
Caged In: The Devastating Harms of Solitary Confinement On Prisoners With Physical Disabilities
Get PDFForum Selection Clauses and Consumer Contracts in Canada
Get PDFEvery day, billions of people use the online social media platform, Facebook. Facebook requires, as a condition of use, that users “accept” its terms and conditions—which include a forum selection clause nominating California as the exclusive forum for dispute resolution. In Douez v. Facebook, the Supreme Court of Canada considered whether this forum selection clause was enforceable, or whether the plaintiff could proceed with her suit in British Columbia.
The Supreme Court of Canada ultimately decided that the forum selection clause was not enforceable. It held that the plaintiff had established “strong cause” for departing from the forum selection clause. The Court premised its decision on two primary considerations: the contract involved a consumer and was one of adhesion, and the claim involved the vindication of privacy rights.
The Court’s analysis suffers from several major weaknesses that will undoubtedly cause confusion in this area of law. This Article will examine those weaknesses, and argue that the Supreme Court of Canada actually abandoned the strong cause test that it claimed to be applying. The consequence of the Douez decision is that many forum selection clauses—at least in the consumer context—will be rendered unenforceable. While this may be a salutary development from the perspective of consumer protection, it will undoubtedly have an effect on companies choosing to do business in Canada