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Veiled in Controversy: Landmark Cases on Religious Accommodations for Muslim Women\u27s Dress
No full textAccess to Justice and the Legal Profession: Three Questions
No full textThere is an increasing recognition – from all sectors of the legal system, including the former Chief Justice of Canada – that justice is in crisis. Even though we have some of the best judges, lawyers, and law schools in the world, delays in the civil, criminal, and family justice systems are massive and increasing. Costs of legal help are going up. An increasing number of people are trying to represent themselves. Legal aid is available only for the least well-off and only for a limited range of services. Many communities feel alienated and do not see themselves represented by the justice system. Public trust and confidence in the legal system is being challenged. According to the president of The Advocates’ Society, “we’re approaching a breaking point.” Something must change
Section 898: Targeting the Companies Behind Gun Violence in New York with Public Nuisance Doctrine
No full textOn July 6, 2021, the New York State Legislature enacted sections 898-a to -e of the New York General Business Law (section 898), creating a clear path for public entities and private gun violence victims to sue gun industry members for their role in the gun violence public nuisance in New York. This Note explores why the legislature took a public nuisance approach to curbing gun violence, framing section 898 within public nuisance doctrine’s broader common law history and legal elements.
To unpack how and why New York took this approach, the first Part of this Note traces the history of public nuisance doctrine from its origin in medieval common law, through modern applications, into gun violence lawsuits in New York, and finally, into section 898. To understand why this approach is legally useful, Parts II and III compare the elements of common law public nuisance doctrine to the elements of section 898 and explore constitutional issues, respectively.
This abstract has been taken from the author\u27s introduction
Unintentional Algorithmic Discrimination: How Artificial Intelligence Undermines Disparate Impact Jurisprudence
No full textArtificial intelligence holds the capacity to revolutionize the economy by capturing efficiencies. These benefits, ostensibly, should pass down to consumers, thereby benefitting the general public. But the immense complexity of AI systems is bound to introduce legal hurdles for plaintiffs and frustrate our disparate impact jurisprudence. Specifically, demonstrating causation and proffering a less discriminatory alternative are herculean tasks for a plaintiff seeking to prove a disparate impact upon which legal relief may be granted. The courts have already begun to wrestle with these issues, primarily in the housing and employment sectors. With the rapid surge of AI systems, courts should expect further inquiry into how these programs interfere with our established antidiscrimination framework. This Note outlines how each step of a plaintiff’s successful disparate impact analysis is hindered by the opaque ways in which AI operates. This Note then proposes several policy reforms to mitigate these consequences
Constitutional Cases 2024 (Pt 1) | A Review of the Supreme Court’s 2023 Constitutional Jurisprudence
No full text00:15:16 - A Review of the Supreme Court’s 2023 Constitutional Jurisprudence
Speaker: Kate Glover Berger (Osgoode Hall Law School)
The 27th iteration of the Constitutional Cases conference was held on Friday, April 12, 2024. Osgoode Hall Law School’s Annual Constitutional Cases Conference, recognized as the leading constitutional law conference in Canada, brings together many highly respected constitutional scholars, lawyers, students, and experts for an insightful and practical analysis of the Supreme Court’s significant constitutional judgments of the past year
Labor and Employment
No full textThis Article focuses on recent cases concerning federal labor and employment laws. The following is a discussion of those opinions
The Missing Links: Why Hyperlinks Must Be Treated as Attachments in Electronic Discovery
No full textThis Article sheds light on a unique but centrally important “twenty-first century” issue involving electronic discovery in federal civil litigation that is just beginning to percolate in federal district courts. Historically, courts have held that a document attached to or enclosed with another document must be produced together when produced in response to a discovery request, as that is how the document was “kept in the usual course of business” and how it is “ordinarily maintained or in a reasonably usable form,” as the Federal Rules of Civil Procedure have required for decades. Today, parties are pushing back on whether they must comply with well-settled civil discovery rules with respect to documents or emails that provide “hyperlinks” to other documents, rather than include the other documents as traditional attachments or enclosures. We conclude that traditional attachments and hyperlinked cloud-based documents should be treated equally under the civil discovery rules, and courts should acknowledge that today’s use of cloud-based document storage systems is not a license to ignore ordinary civil discovery principles and prejudice an opposing party
Judges Should Be Discerning Consensus, Not Evaluating Scientific Expertise
No full textOne of the most constructive critiques of the Daubert admissibility regime is Professor Edward Cheng’s recent proposal for a new Consensus Rule in the Federal Rules of Evidence. Rejecting the notion that judges and juries have the capacity to evaluate scientific expertise, Cheng’s proposal would eliminate Daubert hearings—and judicial gatekeeping concerning expert testimony—and require judges and juries, in their verdicts, to follow consensus in the relevant scientific community. Significantly, Cheng argues that judges and juries would have an easier time identifying consensus than they have in deciding between experts who disagree.
We find Cheng’s emphasis on consensus compelling, and we support it. We agree that judges and juries are typically not capable of making technical decisions based on conflicting scientific testimony, and we support Cheng’s proposal to leave that expert decision in the hands of the appropriate community of experts—the scientific community rather than the legal community. We differ from Cheng insofar as we are skeptical that consensus would be easy for lay jurors to identify. Cheng is correct that identifying consensus in a scientific field (e.g., smoking is unhealthy) is based in the everyday, ubiquitous expertise of lay persons—it is a social decision, not a technical decision—such that consensus is easier for non-specialists to identify than discerning scientific truth in a specialized field. Scientists, however, in legal contexts, may not agree on what counts as consensus, and just as lay jurors do not possess the type of expertise that would allow them to act as peer-reviewers of scientific experts, they do not have the experience needed to discern what counts as consensus where experts disagree. We believe, however, that a consensus regime that places more of the responsibility in the hands of judges would be more successful.
Judges have more experience than lay juries in listening to and evaluating experts and the communities they represent. Jurors are almost always novices, whereas judges, who undergo significant trial experiences and judicial training prior to becoming a judge, are constantly gaining experience in their profession. While judges may not have the deep understanding that specialized experts have, specifically regarding what qualifies as consensus in their field, their experience likely enables most judges to enhance their ubiquitous expertise in judging people. Through repeated experience with expert witnesses, judges could learn to identify reliable expert informants on the issue of consensus. Indeed, many courts already emphasize the importance of consensus in their expert evaluations. Consequently, we recommend that in cases involving scientific or other technical issues, a judge should hold a pre-trial, Daubert-style hearing (alongside a new Consensus Rule), during which a judge would hear arguments about any existing consensus (or lack thereof) in the relevant field.
Like Justice Blackmun in Daubert, we recommend a set of factors to guide judges in this new task. If a judge determines that consensus exists, the jury would be instructed to follow it. If no consensus exists, the current Daubert framework for admissibility of expert witnesses should remain in effect. Despite the problematic fallibility of juries when they choose between opposing experts, their choices should be limited to those experts who were subject to some level of admissibility gatekeeping. In this way, our proposal maintains some current standards while combining the best parts of Cheng’s proposal with recent insights from sociological studies of expertise