Federal Jurisdiction Research Articles

A High-Level Overview of the Regulations Surrounding a Clinical Laboratory and Upcoming Regulatory Challenges for Laboratory Developed Tests.

Regulations for clinical laboratories in the United States are complex. The goal of this review is to improve the clarity of laboratory-developed test (LDT) regulation to facilitate innovation. A literature and regulation review of current legislation for compliance by U.S. clinical laboratories was performed, and examples of the steps to implement LDTs within compliance with the regulatory environment are shared. Many federal and state jurisdictions are critical to the functionality of a laboratory in addition to upcoming potential promulgation of the Verifying Accurate Leading-Edge IVCT Development Act. Increased regulation, although imperative to maintain consistent, high-standard clinical care, could mean additional costs for developers and healthcare while also hindering innovation. An extensive discussion of proposed regulations for LDTs needs to occur. Laboratory testing requires the sustained use of innovative methods at a cost that will permit continued, timely, uninterrupted high-quality service.

Spatial use of multiple jurisdictions by Magellanic penguins and assessment of potential conflicts in the face of changing trawl fisheries scenarios

Seabirds often have wide distribution ranges and may travel relatively long distances to breeding grounds, often crossing jurisdictional boundaries. When engaged in foraging behaviour, seabirds are prone to interact with different fisheries and suffer incidental mortality. We assessed the spatial use of foraging Magellanic penguinsSpheniscus magellanicusbreeding at 3 colonies within the Patagonia Austral Marine Park (San Jorge Gulf, Argentina) in relation to different jurisdictions. We also quantified their spatial overlap with 3 trawl fisheries and bycatch (incidental mortality), an interaction previously reported in the region. Breeding Magellanic penguins mainly used waters under provincial jurisdiction within the gulf, with some use of federal waters depending on the breeding season and colony location. Spatial use by breeding penguins resulted in a variable but relatively low overlap with the operations of the 3 fishing fleets in 2014-2016 (1.1-26.3%). Changes in the spatial distribution of fishing operations in recent years resulted in a lower overlap than in 2005-2007 (12.1-60.8%). Incidental mortality during 2008-2014 was also variable and relatively low (0.0-0.363 birds per haul). Breeding Magellanic penguins foraged outside protected area boundaries where they can spatially overlap with and face potential threats from different fishing fleets that operate in waters of provincial and/or federal jurisdiction. Despite the current low spatial overlap, the relatively fast changes in fishing patterns in the recent past draw attention to the need for continuous monitoring. Data obtained in this study may prove valuable in case the implementation of spatial and temporal closures of fishing operations is needed.

The Trajectory of Federal Gun Crimes

Federal gun prosecutions have for decades been a growing part of the federal docket, reflecting not only the priority placed on reducing gun violence, but also a broad range of quite distinct federal priorities. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution, possession of particular weapons such as machine guns, use by drug traffickers, and individual possession of firearms by felons. Second, we describe how in practice, uses of enacted gun crimes have adapted to criminal law priorities of Congress and federal prosecutors over time. Most recently, they became prominent in immigration prosecutions, while in the 1980s, drug gangs were the priority. In so doing, gun cases provided vehicles for testing the reach of federal jurisdiction, use of federal crimes as sentencing enhancements, and boundaries between federal, state, and local enforcement. We argue federal gun crimes reflect a unique dynamic in which legislation is shaped by three forces: (1) aggressive interest group lobbying that ends in compromise on harsh punishment; (2) judges and lawmakers dichotomizing guns, as between “law-abiding citizens” and use by “thugs” and “gangsters”; and (3) prosecutorial power, magnified due to ubiquity of firearms, permitting broad federal jurisdiction, and then leveraging the discretion of federal prosecutors to utilize severe sentences to obtain plea bargains. Our overall goal is to illuminate the central, but inconsistent and complex, place of gun crimes in federal criminal law. We conclude by asking what principles could guide the development of this body of law through judicial interpretation, future legislation, and in enforcement, towards a new vision in which federal law is designed to reduce disparities in enforcement and to prevent gun violence.

The Political Reality of Diversity Jurisdiction

Diversity of citizenship jurisdiction has been a staple of federal civil dockets since 1789. In the mid- to late-twentieth century, academics and some high-profile federal judges led a significant effort to abolish diversity jurisdiction. They were confident that diversity had outlived its purpose, which, they said, was to provide a federal court for out-of-state litigants who feared bias in the local state courts. But diversity survived. Today, it represents a burgeoning percentage of the federal civil docket and is supported by an efficiency rationale that did not exist at the founding. Academics and judges seem relatively ambivalent toward, and even accepting of, this form of federal jurisdiction. We are in the midst of a resurgence of academic interest in diversity – not to abolish it, but to rationalize the various threads of its doctrine. These efforts should be informed by the lessons that should have been learned by those who sought to abolish diversity jurisdiction. First, diversity is not a free-standing phenomenon. It is part of a carefully constructed constitutional plan intended to promote the free flow of commerce and a national identity. Second, what is usually presented as the traditional justification for diversity is sclerotic and understates the value of diversity jurisdiction. Third, as a matter of political power, the bar embraces diversity jurisdiction and will fight to keep it. At one level, we retain diversity for raw political reason. But the bar’s embrace is important for another reason: it likely manifests rational choices made in the interests of litigation clients. At least, the embrace should spur meaningful study of the interests served by diversity jurisdiction (study that remains to be done). And that study must appreciate that, over two centuries, an elaborate legal culture has emerged concerning the relations of state and federal courts.

Federal Jurisdiction as Statutory Interpretation: A Majordomo Purposivist Perspective

The study of federal jurisdiction has traditionally involved little more than a combined examination of judicial doctrine and policy. Under this approach, scholars study how the Supreme Court has decided to shape the jurisdiction of the federal courts, and the policies the Court believes jurisdictional doctrine should reflect. Hardly ever have scholars studied the legislative purposes sought to be achieved by federal jurisdiction. It is important to recall, however, that for the most part modern federal jurisdiction law grows out of a network of congressional statutes—which, in turn, grow out of policy choices made not by unrepresentative judges, but by those politically accountable to the populace. It is also important to realize that since the federal courts enforce substantive federal law, often jurisdictional directives operate as the fundamental means by which to implement the substantive policy choices made by the political branches. It is for these reasons that we believe federal jurisdiction should be studied, in the first instance, not merely as a matter of doctrinal and policy analysis, but rather as a matter of statutory construction, as a means of implementing the goals chosen by those elected by the people. Such an approach, after all, reflects the nation’s foundational commitment to democracy. In this Article, we seek to achieve two goals: First, to explain how the Supreme Court’s general failure to view the shaping of federal jurisdiction as fundamentally a matter of statutory construction has dangerously distorted the central premises of American political theory, and second, to propose an original approach to the “faithful agent” model of statutory interpretation—what we call the “Majordomo Purposvist” approach. By comparing the role of an interpreting judge to that of a majordomo—traditionally, one in charge of a large estate owned by another—we seek both to confine and broaden the judge’s authority. We confine it, by underscoring the interpretive humility a judge must demonstrate in interpreting statutes enacted by a representative, accountable governing body. Yet we simultaneously broaden that authority by recognizing that, much like a real-life majordomo, the interpreting judge will often have a significant degree of implementational discretion in determining how best to achieve legislative goals in particular situations.

Clarifying the Matter: Modernizing Peace, Order, and Good Government in the Greenhouse Gas Pollution Pricing Act Appeals

Few passages in the Canadian Constitution have generated as much debate over the years as the opening words of section 91 of the Constitution Act, 1867 commonly known as the Peace, Order, and Good Government (hereinafter “POGG”) clause. Most of the controversy about POGG centers around how to interpret the clause in a way that allows the federal government to address issues of genuine national concern (that warrant a national response) while respecting provincial autonomy and diversity in our federation. The tensions underpinning POGG were recently revealed in the trio of provincial challenges to the constitutionality of Parliament’s Greenhouse Gas Pollution Pricing Act (GGPPA), in which provinces argued that upholding the GGPPA would have the effect of displacing provincial jurisdiction over GHG emissions. While two of the three Courts of Appeal (Saskatchewan and Ontario) upheld the GGPPA as a matter of national concern under POGG, doing so was apparently a struggle, as they strained against the watertight confines of earlier eras of constitutional interpretation still evident in POGG jurisprudence. Now under appeal to the Supreme Court, this trio of references offers an opportunity for the Court to clarify the contours of POGG in the modern context of flexible, cooperative federalism. In this article, we examine three central tensions that the GGPPA appeals revealed about POGG. First, we consider, and reject, the argument that POGG benefits from a special kind of exclusivity, different from enumerated powers, that has the effect of displacing provincial power. We show that this argument is steeped in the bygone era of watertight compartments and a suggestion that POGG creates an unassailable core, akin to that which underpins the doctrine of interjurisdictional immunity. We explain why this argument is unfounded in the modern era of cooperative federalism. Second, we examine a source of confusion in the GGPPA appeals related to how the word ‘matter’ is used, which we submit contributed to the challenging provinces’ fear that provincial power will be permanent displaced if the legislation is upheld under POGG. Specifically, the challenging provinces argued that upholding the GGPPA would necessarily create a new sub-head of exclusive federal power over a broad subject matter (GHG emissions) that would displace their jurisdiction. We discuss how the word ‘matter’ is used to refer both to the pith and substance of legislation and the possibility of a new sub-head of power that could be recognized for Parliament if the law is upheld. We submit that this terminological confusion fuels the fears about the impact of upholding the legislation under POGG on provinces. Third, and most importantly, we consider the extent to which federal jurisdiction under POGG can peacefully co-exist with related provincial authority. The provincial appeals have revealed that most of the justices – even those that upheld the GGPPA – are operating under an assumption that the double aspect doctrine does not apply to matters justified under POGG. We examine the historical development of the double aspect doctrine to show that there is no basis for this assumption, and suggest the Supreme Court should clarify that the doctrine applies to matters upheld under POGG, just as it would for enumerated powers. We also argue in this paper that the Supreme Court should update the test set out in Crown Zellerbach more than 30 years ago. In the intervening decades, the courts have more fully embraced a flexible interpretation of the division of powers that tolerates more de facto concurrent operation of statutes on similar subject matters. The provincial challenges have revealed the extent to which the Crown Zellerbach test, and specifically the way in which the potential scale of impact on provincial jurisdiction is evaluated, leaves much uncertainty about the level of overlap that can operate. We deconstruct the Crown Zellerbach test and propose a more flexible, nuanced, analytical approach that empowers the federation to address pressing public policy problems such as climate change in a way that respects federalism. Ultimately, the Supreme Court has an opportunity in the GGPPA appeals to interpret POGG in a way that empowers all levels of government in our federation to respond to increasingly pressing, dynamic, multi-dimensional public policy challenges, such as climate change. Our article shows that there is a role for POGG to play in enabling the federal government to be accountable for reducing the country’s overall level of emissions in accordance with international commitments while also allowing the provinces to continue legislating to reduce GHG emissions.

Mediação e conciliação: aplicação prática na Justiça Federal e perspectivas frente às novas tecnologias

O objetivo deste artigo é convidar o leitor a uma reflexão sobre a utilização da conciliação e mediação como instrumentos de gerenciamento dos processos e sua efetividade no desiderato de trazer uma solução mais adequada e justa aos casos em litígio. Foram apresentados dados estatísticos colhidos pelo Conselho Nacional de Justiça revelando em números os efetivos resultados. Ademais, pretende-se mostrar que na atualidade a utilização da mediação e conciliação não se limita às demandas envolvendo particulares, sendo uma realidade positivada no ordenamento jurídico a qual incluiu a Administração Pública no dever de buscar a solução consensual das demandas. Dá-se um enfoque, por fim, à utilização perante à Justiça Federal e ao reflexo desses mecanismos nos processos de competência federal, o que acaba por abranger grandes litigantes e demandas de massa, tornando-se, dessa forma, uma realidade nos dias atuais. É com esse olhar que adentramos no estudo da conciliação e mediação.

Heat-Related Deaths - United States, 2004-2018.

Deaths attributable to natural heat exposure, although generally considered preventable (1), represent a continuing public health concern in the United States. During 2004-2018, an average of 702 heat-related deaths occurred in the United States annually. To study patterns in heat-related deaths by age group, sex, race/ethnicity, and level of urbanization, and to explore comorbid conditions associated with deaths resulting from heat exposure, CDC analyzed nationally comprehensive mortality data from the National Vital Statistics System (NVSS).* The rate of heat-related mortality tended to be higher among males, persons aged ≥65 years, non-Hispanic American Indian/Alaska Natives, and persons living in noncore nonmetropolitan and large central metropolitan counties. Natural heat exposure was a contributing cause of deaths attributed to certain chronic medical conditions and other external causes. Preparedness and response initiatives directed toward extreme heat events, currently underway at local, state, and national levels, can contribute to reducing morbidity and mortality associated with natural heat exposure. Successful public health interventions† to mitigate heat-related deaths include conducting outreach to vulnerable communities to increase awareness of heat-related symptoms and provide guidance for staying cool and hydrated, particularly for susceptible groups at risk such as young athletes and persons who are older or socially isolated (2). Improved coordination across various health care sectors could inform local activities to protect health during periods of high heat. For instance, jurisdictions can monitor weather conditions and syndromic surveillance data to guide timing of risk communication and other measures (e.g., developing and implementing heat response plans, facilitating communication and education activities) to prevent heat-related mortality in the United States. CDC also recommends that federal, state, local, and tribal jurisdictions open cooling centers or provide access to public locations with air conditioning for persons in need of a safe, cool, environment during hot weather conditions. In light of the coronavirus disease 2019 (COVID-19) pandemic, CDC updated its guidance on the use of cooling centers to provide best practices (e.g., potential changes to staffing procedures, separate areas for persons with symptoms of COVID-19, and physical distancing) to reduce the risk for introducing and transmitting SARS COV-2, the virus that causes COVID-19, into cooling centers.§.

LinkedLegal: Investigating social media as evidence in courtrooms

The pervasive nature of social media suggests it would increasingly appear as evidence in the courtroom as it has increasingly documented daily life. This research examines the use of such evidence through the review of appellate judgments. It has identified 5,189 appeal cases in federal and state jurisdictions for the period from 1 October 2000 to 30 September 2017. California was used for the state jurisdictional analysis and the Ninth Circuit Court of Appeals, which includes California, was used for the federal. In 2017, there was a 350% increase in Ninth Circuit cases using social media evidence as compared to the first cases in 2010. There was a 3933% increase in the California state cases from the first cases in 2007. Photos/images evidence were used the most in State criminal cases and all Federal cases, while posts evidence was used the most in State civil cases.

Florida Fishing Guide Requirements Checklist


 
 
 
 
 
 
 Guides and captains maintaining vessels used for recreational fishing are an important part of coastal economies, but regulations affecting them can be complicated and may differ depending on several factors, including targeted species, number of customers, vessel size, etc. These regulations are often described in multiple locations, since for-hire guides operate at the intersection of multiple state and federal jurisdictions. This 3-page fact sheet written by Elizabeth A. Staugler, Ralph Allen, and Edward V. Camp and published by the UF/IFAS School of Forest Resources and Conservation, Program in Fisheries and Aquatic Sciences summarizes the relevant regulations and requirements.https://edis.ifas.ufl.edu/fa218
 
 
 
 
 
 

From equal pay to overcoming undervaluation: The Australian National Pay Equity Coalition 1988–2011

Australian feminists have struggled to define the International Labour Organisation’s Equal Remuneration Convention’ goal of gender pay equity and find a platform for achieving it. Approaches based on discrimination, or a male comparator, have proved unworkable. Networking nationally and internationally, the National Pay Equity Coalition (1988–2011) formulated many submissions to industrial tribunals and parliamentary inquiries. Early interventions argued the disadvantages to women of the decentralisation of bargaining in the 1990s, but following the failure of discrimination-based cases, this focus shifted. National Pay Equity Coalition submissions came to define the gender gap, not as one between women and male comparators, but as a recognition gap. They argued that indicators of a history of gender-based undervaluation should lead to a bias-free work value assessment. Bias lay in the distance between actual job demands and their characterisation in classification descriptions. It could be redressed by fuller recognition of the work value of feminised service roles. This approach to the recognition and remedy of undervaluation informed the 1998 NSW Pay Equity Inquiry and the NSW Equal Remuneration Principle, but is not recognised in federal labour law. No Equal Remuneration Principle yet applies in the federal jurisdiction which since 2009 has governed most Australian wage setting amidst growing social inequality.

Value Added Tax and Fiscal Federalism in Ethiopia

Crucial to the success of any federal state is the fiscal viability of the central government and component federal states. A feature common to most federal systems is the collection of greater revenues by the central government and reliance by states on transfers from the central government in addition to locally imposed taxes to fund budget expenditures. As is the case in many other federal jurisdictions, in Ethiopia the value added tax (VAT), a tax levied on business sales but ultimately borne by consumers, is an important source of central government revenue. As is also the case in many federal jurisdictions, an assignment of a portion of central government VAT revenues to states is one of the main sources of transfer payments by the central government to state governments in Ethiopia. However, the Ethiopian version of fiscal federalism differs significantly from that found in most other jurisdictions in three key design features – the division between the central and state governments of responsibilities to administer the VAT, the basis on which VAT revenues are divided between the central government and the state governments, and a peculiar design feature that results in tax collections by one state government to be offset by tax reductions suffered by another state government. All three features are cause for concern. The division of administrative responsibility undermines the goal of comprehensive uniform tax administration. The basis for division of tax revenues, a distinction built on the legal form of businesses, leads to assignments of VAT revenue unrelated to fiscal needs. And, most importantly, the odd design feature – the assignment of revenues from the VAT, intended to be a tax on consumers, to the state in which the seller is located rather than the state of the buyer – results in effective cross subsidies when businesses located in wealthier states sell goods and services to businesses operating in poorer states. This article provides a history of the Ethiopian regime and explores how the unique features of the Ethiopian fiscal federalism system arose. It suggests a system that divides revenue on the basis of a fiscal equalisation formula that divides VAT revenues on the basis of relative budget needs of states or a system that allocates revenue to the state in which the customer is located would yield a fairer outcome than the current system. It concludes with modernisation of the tax administration coupled with the adoption of a fiscal equalisation formula for distributing VAT revenues and a generous transitional system for transition to this regime would yield the optimal path going forward.

CaRMS at 50: Making the match for medical education.

Entry into postgraduate medical training in Canada is facilitated through a national application and matching system which establishes matches between applicants and training programs based on each party’s stated preferences.Health human resource planning in Canada involves many factors, influences, and decisions. The complexity of the system is due, in part, to the fact that much of the decision making is dispersed among provincial, territorial, regional, and federal jurisdictions, making a collaborative national approach a challenge. The national postgraduate application and matching system is one of the few aspects of the health human resources continuum that is truly pan-Canadian.This article examines the evolution of the application and matching system over the past half century, the values that underpin it, and CaRMS' role in the process.

Healthcare in Secure Environments: Leading a Collaborative for Forensic Nursing Education.

Atlantic Canada hosts six federal and 18 provincial correctional facilities distributed across the four provinces. All employ nurses and offer significant career opportunities, yet minimal content related to forensic nursing is provided in nursing curricula. Furthermore, there is a paucity of continuing educational offerings for Canadian forensic nurses. This article describes the series of events that brought the practice of forensic nursing to the forefront of provincial news media. Actions taken by nurses in academia and practice addressed the lack of educational opportunities for forensic nurses in Atlantic Canada. One of these actions, a Knowledge Forum, was held to nurture partnerships between nurse leaders responsible for healthcare in correctional services in New Brunswick and nurse educators. The idea was to connect nurse leaders responsible for healthcare in federal and provincial jurisdictions, community liaison nurses and nurse managers working in hospital-based forensic mental health assessment units, and nurse educators, to explore nursing practice within secure environments and the current educational needs of forensic nurses.

Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Emissions Legislation on Provincial Jurisdiction

Federal regulation of greenhouse gas (GHG) emissions presents a difficult challenge for Canadian constitutional law. The federal government’s legislation to implement a national minimum standard of GHG emissions pricing, the Greenhouse Gas Pollution Pricing Act (GGPPA), and the trio of reference cases launched by Saskatchewan, Ontario, and Alberta questioning its constitutional validity, have brought the law and politics of GHG emissions pricing to the forefront of Canadian federalism. In the two appellate court decisions delivered to date, the legislation has been sustained as a valid exercise of Parliament’s power to legislate for the Peace, Order, and Good Government (POGG) of Canada. In each case, however, judges have expressed significant concern with respect to the impact of the legislation on provincial jurisdiction.
 We draw on recent and historic jurisprudence to characterize conceptual errors that have bedevilled POGG, specifically in the tendency to overestimate its impact on provincial jurisdiction. We then examine the existing interpretive principles that limit POGG’s ability to upend the critical balance inherent in the division of powers. Finally, we discuss how a properly empowered, calibrated, and constrained POGG relates to the GGPPA. We argue that the reduction of national GHG emissions constitutes a valid federal subject under the national concern branch of POGG, and that the GGPPA is a valid exercise of federal jurisdiction. We see no reason under the double aspect doctrine and cooperative federalism why provinces would lose any existing provincial jurisdiction as a result of the implementation of the GGPPA. Rather, a restrained approach to paramountcy, and the mechanics of the GGPPA itself suggest that provincial and federal legislation will work concurrently on GHGs. That seems entirely appropriate given the nature of the climate change crisis before us. In the legislative challenge of our time, we believe Canada’s Constitution is up to the task.

Canada

The Technical Note focuses on sizeable mortgage exposures and persistent housing market imbalances. The review evaluated oversight of deposit-taking institutions (DTIs) in federal jurisdiction, as well as in British Columbia and Québec. There are many good, well-functioning mechanisms in place for cooperation. Areas that warrant improvement about DTI regulation and supervision include policy development, especially between Office of the Superintendent of Financial Institutions (OSFI) and Autorité des marchés financiers, coordination of data collection, and exchange of useful prudential information between different agencies. The authorities should explore how to remove barriers that prevent close and meaningful cooperation. Risk weights on mortgage lending appear too low for insured mortgages and may not be sufficiently through-the-cycle for banks using the Internal Ratings Based approach. A common forbearance definition and monitoring framework for credit risk (in the context of loan restructuring by DTIs should be adopted across all jurisdictions in Canada. A similar definition, in line with the guidance of the Basel Committee for Banking Supervision, and consistent data will help improve risk monitoring especially given the importance of debt restructuring for managing problem real estate exposures. Finally, OSFI’s guideline on asset pledging should ensure enough unencumbered assets to support the claim of depositors.

Seeing Double: Peace, Order, and Good Government, and the Impact of Federal Greenhouse Gas Emissions Legislation on Provincial Jurisdiction

Federal regulation of greenhouse gas (GHG) emissions presents a difficult challenge for Canadian constitutional law. The federal government’s legislation to implement a national minimum standard of GHG emissions pricing, the Greenhouse Gas Pollution Pricing Act (GGPPA), and the trio of reference cases launched by Saskatchewan, Ontario, and Alberta questioning its constitutional validity, have brought the law and politics of GHG emissions pricing to the forefront of Canadian federalism. In the two appellate court decisions delivered to date, the legislation has been sustained as a valid exercise of Parliament’s power to legislation for the Peace, Order, and Good Government (POGG) of Canada. In each case, however, the Courts have expressed significant concern with respect to the impact of the legislation on provincial jurisdiction. We draw on recent and historic jurisprudence to characterize conceptual errors that have bedevilled POGG, specifically in the tendency to overestimate its impact on provincial jurisdiction. We then examine the existing interpretive principles that limit POGG’s ability to upend the critical balance inherent in the division of powers. Finally, we discuss how a properly empowered, calibrated, and constrained POGG relates to the GGPPA. We argue that the reduction of national GHG emissions constitutes a valid federal subject under the national concern branch of POGG, and that the GGPPA is a valid exercise of federal jurisdiction. We see no reason under the double aspect doctrine and cooperative federalism why provinces would lose any existing provincial jurisdiction as a result of the implementation of the GGPPA. Rather, a restrained approach to paramountcy, and the mechanics of the GGPPA itself suggest that provincial and federal legislation will work concurrently on GHGs. That seems to us entirely appropriate given the nature of the climate change crisis before us. In the legislative challenge of our time, we believe Canada’s Constitution is up to the task.

Electronic Records as Evidence

Electronic records are completely dependent upon their electronic records management systems (ERMS's) for their, existence, accessibility, and integrity. Therefore they, and their ERMS's are a very different technology than pre-electronic paper records and paper records systems. That difference in technology is ignored in the case law and practice concerning electronic discovery and admissibility proceedings in Canada. The "system integrity concept" means, "records integrity requires proof of records system integrity." That system integrity concept is the basis of the admissibility rule in the electronic records provisions which are in 11 of the 14 Evidence Acts in Canada (10 provinces, 3 territories, and the federal jurisdiction). However, the words, "integrity" and "electronic records system," being technical records management concepts, are intentionally not defined. Therefore, the National Standard of Canada for electronic records management, "Electronic Records as Documentary Evidence" CAN/CGSB-72.34-2005 ("72.34"), should be used in all legal proceedings using electronic records as evidence to provide such definitions and related principles and required practices concerning electronic records management. But in fact, 72.34 and the system integrity concept are not referred to in the leading text controlling electronic discovery proceedings, the "Sedona Canada Principles -- Addressing Electronic Discovery." The "prime directive" of 72.34 states: "An organization shall always be prepared to produce its records as evidence." "System integrity," the "prime directive," and the "proportionality principle" of electronic discovery -- together they form a triangle of interdependent concepts; "the disclosure and discovery triangle." That is what is missing from the Sedona Canada Principles text, i.e., the necessary conceptual foundation.This article discusses the necessary legal infrastructure for the efficient use of electronic records evidence. In contrast, if expert opinion evidence were used in the way that electronic records are used as evidence, presentation of the qualifications of the expert would not be necessary, and cross-examination as to such qualifications would not be allowed. The "qualifications" of an electronic record are those of the ERMS in which it is stored and of the quality of its records management. That is ignored in the case law. The reason is that electronic records and ERMS's are still viewed as being merely a speeded-up and more convenient version of pre-electronic paper records technology -- like merely adding a motor to a bicycle, the technology is still "bicycle technology," which is a fundamentally wrong conception of electronic records and ERMS's. Because the information on a paper record is written on a tangible, physical medium of storage, paper, a paper record is not dependent upon paper records system for anything. But an electronic record is not recorded on a tangible, physical medium of storage, and is merely an electronic impression upon an electronic storage device, therefore it is dependent upon its ERMS for everything, like a drop of water in a pool of water.This article also provides, in summary form: (1) a list of points that should be used to argue and determine the admissibility of electronically-produced records and their disclosure and discovery; (2) a list of the serious defects that are very commonly found in ERMS's; (3) a summary of 72.34; and, (4) a list of the business record and electronic record sections in the 14 Evidence Acts in Canada. The article is based upon the author's many years of experience working with experts in electronic records management, by writing legal opinions that accompany such experts' reports concerning their analyses of the ERMS's of large institutional clients in Canada. The author's published writings on these subjects are set out in the footnotes.

Federal Jurisdiction as Statutory Interpretation: A Majordomo Purposivist Perspective

Federal Jurisdiction as Statutory Interpretation: A Majordomo Purposivist Perspective

Kumezo Kawato and “Justice Court”

Kumezo Kawato and “Justice Court” CHARLES J. SHEEHAN The Accident Among the early acts reported in Volume 317 of the Supreme Court Reports was the December 21, 1942, memorial for the late Justice Louis D. Brandeis. Gathered that morning were leading jurists and members of the Court’s bar. The proceedings were called to order by Solicitor General Charles Fahy. His brief remarks recognized the mem­ bers absent, those “called this last year to other tasks and places that need them during the war.”1 Judge Calvert Magruder noted the occasion’s setting “[ajmid the din and distractions of war.”2 Imperial Japan’s fury loosed much of the din. Its baleful reach would deepen the struggle of a middle-aged West Coast working man in the early months of 1942—a story that quietly unfolded in Volume 317. In 1889, Kumezo Kawato was born in the southeast coast city of Ugui, Japan.3 He arrived as a teenager in the United States in 1905 and settled in the Los Angeles area.4 In April 1940, he took work as a fisherman on the “vessel Rally,” with his wages set as a share of the Rally's catch.5 On December 4, the Rally was docked and Kawato, in a small skiff alongside (he was five feet one inch),6 was repairing fish nets hanging from the larger vessel. Suddenly, the skiff was “thrown against” the Rally? Kawato sustained “severe injuries to his left foot and leg,” a fracture, and a wrenched knee.8 Immediate medical care from a physician and surgeon was required. Four months of incapacitation followed. Having paid his own medical bills, Kawato was now unable to support himself.9 In April 1941, Kawato brought suit against the Rally in federal district court. His attorney was Herbert R. Lande, of nearby San Pedro. Lande had practiced in California since 1934.10 He represented injured seamen, and his sometime opponent in these matters was attorney Lasher Gallagher.11 Kawato sought “wages due” ($387) and “mainte­ nance care while ashore” ($264—consisting of $38 in medical expenses and $2 “per day” while unable to work).12 In August, Gallagher answered for the Rally with de­ nials both of responsibility and of federal court jurisdiction.13 In a “SEPARATE AND KUMEZO KAWATO AND THE RIGHTS OF RESIDENT ALIENS 195 Kumezo Kawato was a Japanese-born fisherman who lived on Terminal Island, an enclave of 3,500 Japanese Americans near Los Angeles. Above is a photo of unidentified seamen docked at Terminal Island taken before World War II. SPECIAL DEFENSE,” he asserted that Kawato was a “citizen and subject of the Emperor ofJapan,” and that “no citizen ofthe United States shall pay any ... subject of the said Emperor of Japan.”14 A “Japanese” Seaman The case of Kawato the seaman was not the first encounter between Lande and Gal­ lagher, nor the first in which the two contes­ tants over a seaman’s claim found themselves on the docket of federal district court Judge Leon R. Yankwich. In late 1939, Clarence Robinson, an “ordinary seaman,” had fallen ill after “a voyage to the East Coast and return.”15 Robinson, represented by Lande, was unable to work for several months and sued the ship owner, represented by Gal­ lagher, for lost wages and “maintenance” during convalescence. The owner disputed the diagnosis of malaria. Judge Yankwich rendered a brisk and unhesitating decision on May 17, 1940. Declaring “immaterial” the cause of the illness and finding Robinson “unable to work,” he ruled the seaman “en­ titled to recover his wages to the end of his voyage.”16 The maintenance claim he treated with the same dispatch and awarded “actual costs.”17 Unlike Robinson, Kawato was no “or­ dinary seaman” appearing before Judge Yankwich. The times were far from ordi­ nary. Pearl Harbor still smoldered, its horror acutely raw on the Pacific coast, when the Rally sharpened its rhetoric and characterized Kawato as “a Japanese,” with the United States and Japan “at war.”18 Claiming that 196 JOURNAL OF SUPREME COURT HISTORY The first- and second-generation Japanese-Americans living at Terminal Island were forced to leave their homes in February 1942 and were given...