Litigation Strategy Research Articles

Election Administration in Times of COVID-19: How the Texas Supreme Court Failed Texas Voters

On May 27, 2020, the Supreme Court of Texas (SCOTX) handed down an opinion on mail-in voting in record time, only seven days after oral argument (held via Zoom) and only 14 days after the case arrived in its inbox. The High Court’s haste, however, was to curtail voting by mail (VBM) in times of pandemic--rather than expand it--and they did so upon an emergency mandamus petition filed by Attorney General Paxton, the state’s chief legal officer, rather than in a case brought by advocates for voters. In a glaring disconnect, the members of the SCOTX voted remotely from their respective homes to deny all Texans the ability to vote remotely from their home under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, __ S.W.3d ___, 2020 WL 2759629 (Tex. May 27, 2020). In construing the absentee voting provision as urged by the Attorney General, the Court held that lack of immunity to COVID-19 does not, without more, constitute a “physical condition” that entitles the voter to vote absentee to avoid the risk of infection at the polling place. Part I and II of this article will show how the all-Republican state supreme court went out of its way to interpret the Election Code contrary to the best interest of Texas voters when there was no good reason to do so, and will dispel the notion that the state supreme court was merely giving effect to the Legislature’s will in a nonpartisan fashion. In Part III I will argue that the Texas Supreme Court’s ruling does not have the force of binding precedent because the question of statutory construction was improperly addressed in an unsuccessful mandamus case against election clerks who had done nothing wrong. No writ of mandamus was issued against them. The Court’s interpretation of the “disability” provision to exclude a lack of immunity to COVID-19 as a valid reason to apply for a mail ballot therefore constitutes dictum because it was not essential to the disposition of the case. In Part IV and V I will explore the partisan political dimension of the dispute over absentee voting in Texas, and describe and assess the conduct of the state supreme court and the major players in the legal wrangling over mail-in voting in Texas. Integrating the various strands of analysis, I conclude that the Supreme Court did Texans a disservice by thwarting a remedy for the better management of health risks inherent in election administration under pandemic circumstances; - a remedy that was available within the letter and the spirit of the existing absentee voting provision in the Texas Election Code; that the Court ruled contrariwise for extra-jurisprudential reasons; and that the Court’s disposition of the case leaves voters and others at the risk of being criminally prosecuted for not “correctly” reading and heeding the Supreme Court’s ruling. I also conclude that the proponents of easier access to mail-in voting (most notably, the Texas Democratic Party) pursued a suboptimal litigation strategy, and should not have capitulated to Attorney General Paxton after being bested by him. AG Paxton’s successful gambit consisted of by-passing a pending state-court appeal (in the case in which he had lost at the trial court level and in the first round on appeal) so as to obtain a favorable ruling against the Democrats on an emergency basis in a separate case against different parties; a mandamus case filed directly in the all-GOP Texas Supreme Court while at the same time excluding his political nemesis from that arena. In the wake of the Texas Supreme Court’s ruling, the Texas Democrats abandoned their state-court litigation in favor of their federal strategy centered on an age-discrimination argument under the Twenty-Sixth Amendment. That bid for a federal remedy, however, does not look promising, given the current jurisprudential climate and ideological complexion of the Fifth Circuit and the U.S. Supreme Court. In the first salvo, a panel of the Fifth Circuit ruled against the Democrats on the Texas Solicitor General’s motion for stay, and the SCOTUS declined to get involved on an emergency basis so early in the game. Justice Sotomayor noted that the articulated concerns were weighty, and the arguments seemingly novel, but concurred in the denial of extraordinary relief. Texas Dem. Party v. Abbott, 2020, 961 F.3d 389 (5th Cir. Jun. 4, 2020) (staying preliminary injunction order) (motion to vacate stay denied by Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (Jun. 26, 2020)).

Austerity-Based Labour Market Reforms in Greece v. Fundamental Rights in the Aftermath of the European Debt Crisis: An Analysis of Supranational and National Bodies’ Jurisprudence

The recent debt crisis in Europe has resulted in a significant number of structural reforms implemented in EU Member States across various fields, including the labour market, either in the context of the bailout mechanisms or the EU Economic Governance framework. This development has provoked fundamental rights concerns and has consequently given rise to litigation strategies that put austerity reforms under the test of legality before supranational and national competent bodies and courts. However, the jurisprudence that has developed in that regard seems incoherent and shows real differences in approach. This study analyses the paths of judicial reasoning that supranational and Greek bodies have adopted in fundamental rights cases challenging austerity-based labour market reforms implemented in Greece during the European Debt Crisis. It concludes that different paths of reasoning have been adopted, which could even be regarded as conflicting at several instances. They are thus reflecting the well-known particularities and discrepancies of fundamental rights protection in Europe as well as the conflicting relationship of social rights with economic and fiscal considerations imposed by austerity in times of crisis and beyond. Austerity, Greece, labour market reforms, fundamental rights, European Debt Crisis, social rights, labour law, ECHR, European Social Charter, Court of Justice of the European Union

Back to the Future: IMF Article VIII Section 2 (B) - A Sovereign Debt Standstill Mechanism

This article provides a proposal to use IMF Article VIII, Section 2 (b) to establish a binding mechanism on private creditors for a sovereign debt standstill. The proposal builds on the original idea by Whitney Deveboise (1984). Using arguments brought forward by confidential IMF staff papers (1988, 1996) and the IMF General Counsel (1988), this paper shows how an authoritative interpretation of Article VIII, Section 2 (b) can provide protection from litigation to countries at risk of debt distress. The envisaged mechanism presents several advantages over recent proposals for a binding standstill mechanism, such as the International Developing Country Debt Authority (IDCDA) by UNCTAD and a Central Credit Facility (CFF) by the Bolton Committee. First, this approach would not require the creation of new intergovernmental mechanisms or facilities. Second, the activation of the standstill mechanism can be set in motion by any IMF member country and does not require a modification of its Articles of Agreement. Third, debtor countries acting in good faith under an IMF program would be protected from aggressive litigation strategies from holdout creditors in numerous jurisdictions, including the US and the UK. Fourth, courts in key jurisdictions would avoid becoming overburdened by a cascade of sovereign debt litigation covering creditors and debtors across the globe. Fifth, private creditors would receive uniform treatment and ensure intercreditor equality. Sixth and last, the mechanism would provide additional safeguards to protect emergency multilateral financing provided to tackle Covid-19.

IP 5 국가에서 영업비밀 보호에 관한 최신 입법동향 및 영업비밀 소송전략에 관한 비교법적 고찰 - 미국, 유럽연합, 일본, 중국 및 우리나라를 중심으로 -

디지털 시대를 맞이하여 영업비밀의 침해 환경은 과거보다 훨씬 용이해졌다. 최근 우리나라 기업들의 경쟁력이 높아지면서 이들이 보유하고 있는 영업비밀이 외국 기업들의 주요 표적이 되는 경우도 많아지고 있으며, 이에 기업들은 영업비밀이 무단 유출되지 않도록 자체적으로 관리 감독을 강화하고 있다. 이러한 현상은 우리나라를 포함하여 미국, 유럽연합, 일본, 중국의 소위 IP(Intellectual Property) 5 국가에서 마찬가지로 일어나고 있으며, 이에 각 국가들은 영업비밀 의 무단유출에 대한 법적 처벌을 강화하고 있는 추세이다. 즉 이들 국가들은 영업비밀의 무단유출에 대한 심각성 및 영업비밀의 보호가 국가경쟁력 차원에서도 매우 중요하다는데 공통적으로 인식을 같이 하면서 최근 영업비밀 관련 법률을 개정하였다. 이들 국가에서 영업 비밀 관련 법령을 개정한 시기는 공교롭게도 2015년 내지 2017년에 집중적으로 이루어졌다. 이는 영업비밀의 무단유출 또는 침해 문제 가 전 세계적으로 매우 심각한 반면 이에 대한 법적 보호는 그동안 제대로 이루어지지 않았거나 미흡하였음을 보여주는 방증이다. 따라 서 이들 국가에서 왜 이와 같이 비슷한 시기에 영업비밀 관련 법령 이 개정되었는지 그 배경, 주요 쟁점 등에 대한 연구는 우리나라 기업 차원에서는 물론 국가경쟁력 차원에서 볼 때 매우 중요하고 필요 한 연구이다. 우리나라의 경우 특허청은 2019년 ‘부정경쟁방지 및 영 업비밀 보호에 관한 법률’을 개정하였는데, 개정법의 취지는 기업의 영업비밀보호를 강화하기 위하여 보호대상이 되는 영업비밀의 요건 을 완화하고, 영업비밀 침해행위에 대해 손해액의 3배의 범위에서 징 벌적 손해배상제도를 도입하며, 영업비밀 침해행위의 유형을 확대하 고, 영업비밀 유출에 대한 벌칙 수준을 상향하는 등 현행 제도의 운 영상 나타난 일부 미비점을 개선ᆞ보완하려는 것이라고 밝히고 있 다. 본 연구에서는 IP 5 국가에서 영업비밀 보호와 관련한 개정 내용 이나 입법적 취지 또는 영업비밀 실무에 관하여 비교법적 고찰 및 분석을 행하였고, 영업비밀 보호와 관련하여 제 외국에서 개정된 법 률을 우리나라 해당 법률인 부정경쟁방지법과 주요 쟁점별로 비교 분석하였다.

Patents, Litigation Strategy and Antitrust in Innovative Industries

In a patent infringement suit, the alleged infringer wins with a ruling of either invalidity or non-infringement, and may strictly prefer either outcome. Invalidity may increase current-period competition, but removes constraints to future innovation. We adapt the Segal and Whinston (Am Econ Rev 97(5):1703–1730, 2007) model, and show that a legal regime that considers infringement before validity maximizes the entrant patentee’s innovation incentives. But the incumbent alleged infringer may prefer litigating validity first if the future blocking effect of validity is strong. This litigation strategy effect may reduce innovation levels. Antitrust policy should seek to attenuate this effect by reducing the advantage to incumbency.

Assessing Litigation Strategies by Government Respondents to Human Rights Complaints

In all jurisdictions in Canada, individuals have the right to non-discrimination when receiving services available to the public. While some of these statutes expressly exempt specific government activities from their scope of application, these laws otherwise prohibit discriminatory practices in the context of service provision, without drawing a distinction of whether these services are public or private in nature. Despite this, most notably in the past decade, respondents in government services cases have sought to advance various arguments based on the purported claim that they ought to be treated differently and more leniently than other respondents who face human rights complaints. There are three primary examples of this. Firstly, government respondents have increasingly attempted to argue that some of their activities do not constitute “services” under human rights legislation in order to prevent human rights tribunals from hearing complaints relating to their programs, policies, activities, and laws. In my view, there is a deliberate and calculated objective behind such arguments. It is to push groups and individuals alleging discrimination outside of human rights systems, which are generally more affordable and faster than courts, and leave them with no other option than to bring constitutional challenges under section 15 of the Canadian Charter of Rights and Freedoms (“Charter”) with little odds of success. Second, when government respondents are unsuccessful at forcing discrimination complaints out of the human rights system using what I will refer to as the “services argument”, they have implored tribunals to allow them to play by different rules than other respondents. In particular, they argue that the appropriate test in human rights cases involving government services ought to be the more onerous inquiry developed under section 15 of the Charter, rather than the prevailing prima facie discrimination standard normally applied. Finally, government respondents found to be engaging in discriminatory conduct in the context of service provision have also begun to claim that human rights tribunals ought to refrain from making certain remedial orders against them. They have most vigorously attempted to fend off orders of systemic remedies by invoking arguments relating to Crown immunity and deference. Many of these arguments have, to a certain extent, born fruit as we are now witnessing the emergence of a new trend in human rights jurisprudence. In my view, this trend is increasingly and unjustifiably letting government respondents off the hook. This paper examines this trend.

2019 in Review: Some recent developments in US Case Law

A recent Supreme Court case, Helsin Helathcare S.A. v. Teva Pharm. VSA, Inc., and three recent Federal Circuit cases, Arthrex, Inc. v. Smith & Newphew, Inc., Grunenthal GmbH v. Alkem Labs. Ltd, and Athena Diagnostics, Inc. v. Mayo Collaborative Servs., LLC will provide generic pharmaceutical manufacturers with greater clarity in devising litigation strategies.

Children’s Equality: The Centrality of Race, Gender, and Class

Hierarchies among children dramatically impact their development. Beginning before birth, and continuing during their progression to adulthood from birth to age 18, structural and cultural barriers separate and subordinate some children, while they privilege others. The hierarchies replicate patterns of inequality along familiar lines, particularly those of race, gender, and class, and the intersections of those identities. These barriers, and co-occurring support of privilege for other children, emanate from policies, practices, and structures of the state, including education, health, policing and juvenile justice, and limited social welfare. Reimagining Equality: A New Deal for Children of Color takes on the task of confronting and addressing these hierarchies, as well as articulating a comprehensive strategy for change to achieve equality, equity, and dignity for all children. In this Essay, I outline the core components of the book as a backdrop and focal point for dialogue and discussion on children and poverty in this Issue of the Fordham Urban Law Journal. I also present questions that remain in order to achieve children’s equality. Part I of the book synthesizes the interdisciplinary research on the life course of African American boys from birth to adulthood as a means to concretely examine the creation of hierarchies among children. Black boys are presented as exemplars, not as a prioritized group. Their life patterns have been extensively examined, often to reinforce a stereotype of deviance, but this research nevertheless clearly exposes the making of hierarchy based on race, gender, and class. Part II of the book uses the pattern of Black boys to explore the impact of subordination on development, and the making of inequality. Developmental analysis in law and other disciplines commonly centers around a neutral child, ignoring the impact and pattern of hierarchies among children. This Part argues developmental analysis — the use of development in law — must instead consciously focus on the actual developmental path of children of color in order to be a vehicle for equality. Introducing the theoretical contributions of Margaret Beale Spencer and Cynthia Garcia Coll, this part constructs a model of developmental equality. Developmental equality centers the goal of equality on the lived experiences of children of color upon whom heavy additional burdens as children developing into adulthood have been imposed. Burdens and barriers to maximizing the development of all children must be removed to achieve children’s equality. With this reimagined definition of equality in mind, Part III of the book explores strategic alternatives. These include potential statutory and constitutional litigation strategies, but most expansively, a legislative strategy — A New Deal for Children. Borrowing from the tradition of prior expansive legislative programs enacted in response to the need for dramatic change and problem solving, such as the 1930s New Deal, the post-World War II GI Bill, and the Great Society programs of the 1960s, a New Deal for Children argues for a comprehensive approach of intersecting programs to create the necessary supports for children. At its core, the New Deal would ensure equality, equity, and dignity, and change children’s hierarchies to children’s opportunities. Both visionary and pragmatic, the New Deal for Children is grounded in systems and policies in place elsewhere in the world, as well as localized models of comprehensive, intersecting programs in place in the U.S. Finally, the essay concludes with a series of questions that remain to be explored, discussed, and debated to achieve the goal of equality among children. Equality has eluded America’s children for generations because their ability to develop has been stymied, blocked, and undermined. The process to challenge that reality and implement real change raises complex, but not insurmountable, issues.

Political ecologies of the post-mining landscape: Activism, resistance, and legal struggles over Kalimantan's coal mines

This study explores contestation over the meanings, rules and practices of coal mine reclamation and mine closure in the context of East Kalimantan, Indonesia's major coal producing province. As mining intensified in the province, and coal was mined out, concessions were left with large mine voids un-refilled and abandoned without closure – many within close vicinity to human settlements. Following an extended campaign led by a diverse group of social movement actors, utilising various advocacy and litigation strategies, the East Kalimantan legislature adopted a provincial regulation in 2013, reinforcing higher-level regulations that mandate coal mining companies to conduct reclamation and post-mining clean up. The regulation was the first time that activists had directly influenced policy regulating mining at the sub-national level in Indonesia. Yet the policy outcome alone has not been sufficient to shape change: an estimated 1735 coal mine voids remain un-refilled in East Kalimantan, and the number of human fatalities from deaths in mine voids continues to grow. Remediation of mine sites is rarely performed to return land to its pre-mined conditions. By bringing together relevant scholarship in political ecology, the politics of development and legal geography, we analyse the relationships between pact-making, political settlements, contestation and policy reform related to the governance of post-mine landscapes.

The Power of Insults

Insults work on both a structural level and a personal level. This Article argues that the economic and political power elite has effectively hurled insults at civil rights activists, plaintiffs, and their lawyers to undermine civil rights reform. It has long been understood that the civil rights community must engage in cultural, political, and legal work to attain effective reforms. But insufficient attention has been paid to how the power elite uses the cultural tool of insults to undermine these reforms. Limitations on effective civil rights reform range from constraints on the private attorney general model of enforcement to the ban on the Legal Services Corporation’s use of class action lawsuits. Insults have played an important and previously unrecognized role in the creation of these limitations. After discussing the undertheorized phenomenon of the power of public insults, this Article presents a case study of defense pleadings filed in accessibility cases brought under the Americans with Disabilities Act. These pleadings reflect how defendants can use insults as part of their litigation strategy to make it difficult for plaintiffs to attain effective relief under a statute designed to create structural reform. Rather than worrying about whether civil rights activists should go high when the power elite goes low, this Article argues that it is crucial that civil rights statutes be constructed with a stronger foundation. Then, plaintiffs will be better able to withstand the barrage of insults they typically encounter when seeking effective relief. Straw houses are too easy to blow down.

Hungary and the EU’s rule of law protection

ABSTRACT The EU is in the process of adopting a new Rule of Law Regulation which passed Parliament in January 2019. How is this a useful addition to the existing political procedures under the Treaties? Also, in what way would a revised litigation strategy before the European Court of Justice (CJEU) add anything to the arsenal of remedies thus available? Using principally the example of Hungary, the authors argue that the newly proposed regulation is a valuable addition, but that a somewhat revised litigation strategy can also help defend EU values.

The Enforcement of Punitive Damages Awards Between United States and Europe: An Introduction for U.S. Practitioners

This article’s objective is to introduce U.S.-based practitioners to European civil-law perspectives on whether U.S. punitive damages awards are enforceable in their jurisdictions. After a brief review concerning the birth of punitive damages within common law, valuable to better understand their cultural and legal significance, this article will outline how the prominent European jurisdictions — France, Germany, Italy, Spain, and Switzerland — have dealt with the enforcement of U.S. punitive damages awards. Through each jurisdiction’s policy principles and relevant law, this article aims to afford U.S.-based practitioners initial tips and litigation strategies about how to maximize their chances of enforcing a U.S.-obtained judgment in one of the analyzed foreign jurisdictions. In a globalized world, interconnected largely through international transactions, disagreements about punitive damages can no longer be treated merely as a product of history or culture. This difference impacts how (and if) transnational disputes are resolved. When a defendant is foreign, or when a defendant’s assets are abroad, U.S.-based attorneys must be aware of the current European trends about the enforcement of United States punitive damages awards when assessing civil litigation strategies. In preparing a litigation plan, lawyers must remain mindful of their clients’ primary interest: not to obtain a favorable judgment, which is nothing more than a legal fiction, but to secure from that judgment an actual, tangible result that can be obtained only through governmental enforcement mechanisms. Absent the prospect of enforcement, a judgment with no execution is nothing more than an expensive piece of paper.

Children's Equality: The Centrality of Race, Gender, and Class

Hierarchies among children dramatically impact their development. Beginning before birth, and continuing during their progression to adulthood from birth to age 18, structural and cultural barriers separate and subordinate some children, while they privilege others. The hierarchies replicate patterns of inequality along familiar lines, particularly those of race, gender, and class, and the intersections of those identities. These barriers, and co-occurring support of privilege for other children, emanate from policies, practices, and structures of the state, including education, health, policing and juvenile justice, and limited social welfare. Reimagining Equality: A New Deal for Children of Color takes on the task of confronting and addressing these hierarchies, as well as articulating a comprehensive strategy for change to achieve equality, equity, and dignity for all children. In this Essay, I outline the core components of the book as a backdrop and focal point for dialogue and discussion on children and poverty in this Issue of the Fordham Urban Law Journal. I also present questions that remain in order to achieve children’s equality. Part I of the book synthesizes the interdisciplinary research on the life course of African American boys from birth to adulthood as a means to concretely examine the creation of hierarchies among children. Black boys are presented as exemplars, not as a prioritized group. Their life patterns have been extensively examined, often to reinforce a stereotype of deviance, but this research nevertheless clearly exposes the making of hierarchy based on race, gender, and class. Part II of the book uses the pattern of Black boys to explore the impact of subordination on development, and the making of inequality. Developmental analysis in law and other disciplines commonly centers around a neutral child, ignoring the impact and pattern of hierarchies among children. This Part argues developmental analysis — the use of development in law — must instead consciously focus on the actual developmental path of children of color in order to be a vehicle for equality. Introducing the theoretical contributions of Margaret Beale Spencer and Cynthia Garcia Coll, this part constructs a model of developmental equality. Developmental equality centers the goal of equality on the lived experiences of children of color upon whom heavy additional burdens as children developing into adulthood have been imposed. Burdens and barriers to maximizing the development of all children must be removed to achieve children’s equality. With this reimagined definition of equality in mind, Part III of the book explores strategic alternatives. These include potential statutory and constitutional litigation strategies, but most expansively, a legislative strategy — A New Deal for Children. Borrowing from the tradition of prior expansive legislative programs enacted in response to the need for dramatic change and problem solving, such as the 1930s New Deal, the post-World War II GI Bill, and the Great Society programs of the 1960s, a New Deal for Children argues for a comprehensive approach of intersecting programs to create the necessary supports for children. At its core, the New Deal would ensure equality, equity, and dignity, and change children’s hierarchies to children’s opportunities. Both visionary and pragmatic, the New Deal for Children is grounded in systems and policies in place elsewhere in the world, as well as localized models of comprehensive, intersecting programs in place in the U.S. Finally, the essay concludes with a series of questions that remain to be explored, discussed, and debated to achieve the goal of equality among children. Equality has eluded America’s children for generations because their ability to develop has been stymied, blocked, and undermined. The process to challenge that reality and implement real change raises complex, but not insurmountable, issues.

Predicting Supreme Court Behavior in Indian Law Cases

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian interest, that trend is generally weak with considerable variance from Justice to Justice. Finally, the article then creates a logistic regression model in order to try to predict whether a pro-Indian outcome is likely to prevail at the Court. It finds six potential variables to be statistically significant. It uses quantitative analysis to prove that the Indian interest is more likely to prevail when the Tribe is the appellant, when the issue is framed as a jurisdictional contest, and when the case arises from certain regions of the country. It suggests that Indian law advocates may use these insights to help influence litigation strategies in the future.

17세기 소송 현장과 노비의 소송 전략 -1635년 의령현(宜寧縣) 결급입안(決給立案)을 중심으로-

17세기 소송 현장과 노비의 소송 전략 -1635년 의령현(宜寧縣) 결급입안(決給立案)을 중심으로-

Personal reflections 25 years after the International Conference on Population and Development in Cairo

Personal reflections 25 years after the International Conference on Population and Development in Cairo

One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada

In 2018, thirty one years after the equality rights guarantee in the Canadian Charter of Rights and Freedoms took effect, women won their first Supreme Court of Canada appeal based on sex discrimination under section 15 of the Charter. Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la sante des services sociaux struck down provisions of Quebec’s Pay Equity Act that denied women remedies for sex discrimination in pay that was identified through pay equity audits. Since 1987, the SCC has recognized that systemic discrimination infuses the systems, institutions and relationships of power through which our society is organized. Yet, only rarely do truly systemic cases of discrimination come before the Court and when they do the Court has struggled to apply an appropriately systemic analysis. Alliance marks a meaningful breakthrough. This paper examines how Alliance and its companion case, Centrale des syndicats du Quebec v Quebec (Attorney General), represent a strong step forward in protecting against systemic discrimination. It analyzes jurisprudential advances on substantive equality, the role of section 15(2) of the Charter, and bringing a gender lens to the section 1 analysis. Examining the dissenting reasons, the paper also analyzes how the two cases simultaneously highlight the unresolved fractures at the foundation of equality rights jurisprudence that threaten its stability going forward. Finally it reviews a federal legislative initiative and a provincial litigation strategy – both on pay equity – that followed in the immediate aftermath of Alliance and CSQ to highlight the fragility of section 15’s protection in the face of political resistance to substantive equality. It asks whether, in a period of intensifying political polarization, governments have stopped engaging in the “Charter dialogue” when it comes to equality rights.

Social Movements and the Legal Field: Becoming-Constituent

The relationship between social movements and the legal field is controversial and complex. This paper begins by recognizing that the concept of social movement does not belong to legal doctrine and then synthetically reconstruct the relevance of it for a legal understanding. In fact, even if this concept is not formally taken into account by constitutions or by legal codes, a socio-legal approach underscores the need for the comprehension and inclusion of collective phenomena into legal theory. First, the paper explores the way in which ‘social movement’ has been taken up and translated in the legal field through the concept of social change and constitutional change. Second, this research goes through various cases in which social movements use law strategically, from the phenomenon of cause lawyering to the litigation strategy. Finally, it stands for a theoretical understanding of the role of social movements in legal theory as a lively expression of ‘becoming-constituent’.

Women Negotiating the Boundaries of Justice in Britain, 1300–1700: An Introduction

AbstractThis introduction places the articles featured in this special issue of theJournal of British Studieswithin the context of recent scholarship on late medieval and early modern women and the law. It is designed to highlight the many boundaries that structured women's legal agency in Britain, including the procedural boundaries that filtered their voices through male advisers and officials, the jurisdictional boundaries that shaped litigation strategies, the constraints surrounding women's appearance as witnesses in court, the gendered differentiation of rights determined by primogeniture and marital property law, and the boundaries between legal and extralegal activity. Emphasizing the importance of a nuanced approach, it rejects the construction of women's litigation simply as a form of resistance to patriarchal norms and also urges caution against overestimating or oversimplifying the choices available to women in legal disputes or their latitude to operate as autonomous individuals. Gender intersected in British courts with locality, resources, jurisdiction, social status, and familial, religious, and political affiliations to inform different women's access to justice, which involved negotiations between unequal actors within various constraints and in complex alignment with multiple and often competing interests.

Big tobacco focuses on the facts to hide the truth: an algorithmic exploration of courtroom tropes and taboos

ObjectiveTo use methods from computational linguistics to identify differences in the rhetorical strategies deployed by defence versus plaintiffs’ lawyers in cigarette litigation.MethodsFrom 318 closing arguments in 159 Engle progeny trials...