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On the Hook: Venue, Vicinage, and Double Jeopardy's Relationship with Modern Data Crimes Smith v. United States, 599 U.S. 236 (2023). I. INTRODUCTION Every fisherman has a place he holds [...]

Give as much as you take, all shall be well. (1) At this stage in history we should neither be impressed by man's total rationality nor his total irrationality. (2) [...], This review essay offers a constructive critique of Peter M. Gerhart's Contract Law and Social Morality ('CLSM'); it examines, in a very preliminary way, whether humans--parties to contractual negotiation--ever behave in other-regarding, or altruistic, ways. The essay does this through three explorations or investigations. The first considers other-regarding behavior, or altruism, from a scientific perspective: is it possible that humans ever act out of concern for others? Second, it considers CLSM using ideas of altruism found in an eclectically selective use of philosophy. Third, it investigates the concept of the other-regarding person in relation to contract law itself which, of course, is Gerhart's focus in CLSM. The three explorations address whether humans are ever truly altruistic, or other-regarding, when the aim of liberal life--and so, presumably, of contract--is to satisfy one's own life-projects (goals and objectives). Having considered other-regarding behavior in these three ways, we conclude, tentatively, that Gerhart's theory accurately describes the real behavior of human actors who negotiate and then conclude a contract.

Article Contents Introduction I. Accountability for the Sale of Standardized Products A. The Citadel of Privity Crumbles B. Seller as a Functional Concept C. Pretzel Privity for Internet Platforms: Manipulating [...], Over the last seven decades, mainstream U.S. torts jurisprudence shifted dramatically from rigid formal rules-focused on duty and culpability--to more flexible norms and principles of accountability. This shift was part of a general transformation of tort law that can be observed in the case law, the Restatements, and academic scholarship. Recently, however, where internet platforms such as Amazon are involved, courts appear to have reverted to a formalistic approach to limit duty, and hence liability, for personal injuries caused by the sale of defective products using the platform. With a few notable exceptions, courts have focused on the word "seller" in [section] 402A of the Second Restatement of Torts and have concluded that Amazon is not a "seller" when it facilitates a sale between a customer and a third-party merchant. This Article is the third in a series of articles that develop a functional, control-based approach to platform liability. It proceeds in five steps. First, we develop the general tort principles that govern liability for transactions in defective consumer products. Second, we show how Amazon, as a platform situated squarely between a third-party seller and the customer, has control over both sides of that transaction. This places Amazon in a position where they should be held accountable as a non-manufacturing seller, where the third-party seller is not amenable to suit. Third, we give an example of how courts have resisted this conclusion, taking shelter in formal concepts of title rather than traditional understandings of culpability and loss allocation. Fourth, we develop a functional approach to platform liability that uses traditional tort principles to evaluate the platform's role in a transaction and apply those principles to Amazon. Lastly, we consider how these principles should apply to platforms generally.

I A RADICAL REPORT [I]t is worth remembering that the apparent heresies of one generation become the orthodoxies of the next. (1) More than a half-century after publication of the [...], The radical principles behind the 1967 Woodhouse Report were eclipsed by shifting political styles--and gradually abandoned as heretical. We can now turn to Sir Owen's own notion, that "the apparent heresies of one generation become the orthodoxies of the next", to explore how core Woodhouse heresies might themselves perform this transition: providing fresh support for a generation grappling with headline challenges of climate change and pandemic control.

I INTRODUCTION A What I Want to Say One of the advantages of doing a talk twice is that you get helpful feedback after the first lecture. In Wellington, a [...], In the 2022 Sir Owen Woodhouse Memorial Lecture, I considered what it means to make law in New Zealand. Using examples from Sir Owen Woodhouse's illustrious career as a judge and law reformer, I argued that there are important differences in judges' and law reformers' conceptions of "making law". The common law is best seen not as a collection of rules but as a custom as to how to go about recognising what the law is. As a result, it is better to think of what New Zealand judges do as making common law in New Zealand, rather than remaking a New Zealand common law outside pre-existing traditions. The lecture illustrates this point by analysing the Supreme Court's decision in Ellis v R (Continuance), which was decided between the lecture being given in Wellington and its being given in Auckland in October 2022.

INTRODUCTION I. JURYLESS TRIBUNALS AND THE CONSTITUTION A. Juryless Tribunals at the Founding B. Unpacking the Seventh Amendment II. THE JURYLESS ADMINISTRATIVE STATE A. The Unrestrained Public Rights Carveout B. [...], This Article argues that the administrative state's most acute constitutional fault is its routine failure to comply with the Seventh Amendment. Properly understood, that Amendment establishes an independent limitation on congressional authority to designate jurisdiction to juryless tribunals, and its dictate as to "Suits at common law" refers to all federal legal rights regardless of forum. Agencies' use of binding, juryless adjudication fails these requirements and must be reformed. But this does not mean dismantling the administrative state; it is possible (indeed, necessary) to solve the jury problem while maintaining modern government. To that end, this Article advances a structural theory of the Seventh Amendment that situates the civil jury as an institution within the modern administrative state. It contends that the Seventh Amendment's demands can be met either by providing a jury trial within administrative adjudication in the first instance, or by providing a de novo jury trial in an Article III court afterward. And it unearths and presents historical and judicial support for both approaches. The Article further considers the consequences of incorporating lay participation into the work of expert agencies and shows that the disruptive impact likely would be minimal. It concludes by arguing that reintroducing the jury will increase the procedural legitimacy of the administrative state and, perhaps, its substantive accuracy and effectiveness, too.

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The [...]

INTRODUCTION 1710 I. DOMINANCE OF THE FEDERAL RULES OF EVIDENCE 1713 II. ONE SIZE DOES NOT FIT ALL 1716 III. ALTERNATIVES TO THE FEDERAL RULES 1719 A. Rules of Procedure [...], The Federal Rules of Evidence have been so successful that many people equate them to the whole field of evidence law. But this is a false equivalence. Our world is complicated, diversified, and dynamic. So, too, is evidence law, which is like a rainforest in which the Federal Rules are simply the largest tree, not a forest unto themselves. In fact, the Federal Rules of Evidence are limited in their applicability due to three fundamental assumptions: the presence of a jury trial, an adversarial process, and witness oral testimony. The universe of dispute resolution, however, extends far beyond a contour that is covered by these three assumptions. This Article illustrates the dominance of the Federal Rules of Evidence since their launch, explains why the Rules do not fit in numerous dispute-resolution contexts outside common-law jury trials, and shifts attention to three featured alternative evidence systems (whether extant or in draft form) from other parts of the world. These evidence systems look structurally and logically different from the Federal Rules but fit well in their own contexts. Such comparative analysis brings out important evidence-rulemaking themes that are traditionally underexplored by U.S. evidence scholars and legislators. On the eve of the fiftieth anniversary of the Federal Rules of Evidence, the author stands at the crossroads of evidence-law development and projects that its next era will necessitate going back into the forest to explore different sets of evidence rules suitable in different dispute resolution settings. Such a shift will help release evidence law from the traditional trap of the common-law jury, significantly expand space for its continual growth, and further develop the law in a sophisticated, diversified way with built-in flexibility.

State-court personal jurisdiction is regulated intensely by the Fourteenth Amendment's Due Process Clause, which the Court has famously used to tie state-court personal jurisdiction to state borders. Although the Fourteenth [...]

In [our statutes, our state] has an invaluable public heritage which should be charged only with intelligent conservatism.... George H. Hand (1) I. INTRODUCTION The trust and fiduciary services industry [...], South Dakota repealed the Rule Against Perpetuities in 1983. The repeal proved to be the seed from which the state's trust industry grew. This article--the first of two linked pieces--begins by surveying the common law version of Rule Against Perpetuities ("RAP"), how it has traditionally been taught, and its labyrinthine, counter-intuitive mechanics. It holds many traps for both the wary and the unwary alike. In the pages which follow, a handful of inadequate contemporary reforms to the rule will be outlined, and the potentially devastating application of the rule to trusts and long-term family wealth planning will be touched upon. A second article will then review the caselaw applying RAP in South Dakota prior to 1983, consider how South Dakota RAP diverged from orthodox common law RAP, and retell the story of the official legislative repeal of the rule.

CONTENTS I Introduction II Situating the Debate A The Constitutional Turn in Statutory Interpretation B The Constitutional Status of the Principle of Legality C Crawford's Account III An Unrecognisable Principle [...], As part of what can now be recognised as an increasing 'constitutional turn in the law and literature of statutory interpretation, Lisa Burton Crawford has recently provided an 'institutional justification for the principle of legality. There are, however, significant limits to Crawford's justification for the principle, which mean that the principle that survives on Crawford's account is so weak as to be barely recognisable. This responsive article identifies the limits to Crawford's account before posing an improved institutional justification for the robust principle of legality as it exists today.

CONTENTS I The Institutional Justification for the Principle of Legality II A Constitutional Turn? III Responding to Murphy's Critique IV Conclusion It is a great thing to see one's work [...], This article defends the 'institutional account' of the principle of legality published in a previous volume of the Melbourne University Law Review against the criticisms made by Julian R Murphy in this issue. The principle of legality is best understood as a judge-made tool for protecting judge-made law, justified by the constitutional role of the courts as both the makers of the common law and the interpreters of legislation. Intentionalist and democracy-enhancing' accounts of this interpretative presumption are both flawed, and it is far from clear that the alternative approach to the principle that Murphy briefly sketches would be legitimate or sound.

CONTENTS I Introduction II The Law Governing Formation Questions at Common Law: A Historical Background A Early to Mid-20th Century: Lex Loci Contractus B Mid-20th Century: The Proper Law of [...], This article revisits the question of what law governs the formation of international contracts from the perspective of the law in Australia. Ever since the High Court of Australia's obiter decision in Oceanic Sun Line Special Shipping Co Inc v Fay in 1988, courts have maintained that Australian law, qua lex fori, should apply to formation questions. The article challenges the suitability of this choice-of-law rule and evaluates the possible ways of reframing this aspect of the law in Australia. The article's main contention is that the lex fori should be replaced by a set of choice-of-law rules under which formation questions in international contracts are resolved based on: (i) the law expressly chosen by the parties to govern such matters; or (ii) in the absence of such express choice, the law of the territory which has the most real and substantial connection with the negotiations preceding the purported agreement.

TABLE OF CONTENTS ABSTRACT 663 TABLE OF CONTENTS 664 I. INTRODUCTION 665 II. WHY IS DEFAMATION LAW SO COMPLEX? 667 III. REFORMS SINCE THE SECOND RESTATEMENT 669 IV. EVERYONE'S A [...], This article, which is based on a keynote address given at the 2023 Missouri Law Review Symposium, addresses the past and predicted future of defamation law in hopes of galvanizing needed reforms. As a necessary backdrop, this article explains why today's defamation law remains so complex, tracks reforms over the last half-century, and explains why the common law of defamation has not adapted adequately to the challenges posed by cheap speech in the digital era. The article then turns to assessing the complaints of defamation law's most prominent would-be reformers and finds them to rest on an incomplete understanding of how defamation law's complex pieces contribute to the whole. Finally, after identifying some important barriers to defamation law reform, the article provides guideposts for the reform process.

INTRODUCTION 1873 I. A FAILED EFFORT TO REFORM ADJUDICATORY HEARINGS 1877 II. A PRESCIENT FRAMEWORK FOR RULEMAKING 1884 III. THE GROWING THREAT OF A SHALLOW TEXTUALISM 1887 CONCLUSION 1891 INTRODUCTION [...]

I INTRODUCTION In 2020, Chief Justice Susan Kiefel shared her vision of a mutually beneficial relationship where judges and the academy work together towards developing law in an ever-changing and [...], Chief Justice Susan Kiefel's vision, shared in a 2020 article, involves a mutually beneficial relationship where judges and the academy work together towards developing law in an ever-changing and complex landscape. The academy writes material that is useful for the courts and, in turn, this material is cited, which is beneficial to the academy. This vision of an interdependent, mutually enriching relationship between the courts and the academy has inspired this article to examine what academic publications judges cite. The literature review reveals that, whereas the High Court of Australia regularly cites academic material, state Supreme Courts rarely do. This article aims to fill a gap in the existing literature on Supreme Courts by examining citation practices in two Australian territories: the Northern Territory and the Australian Capital Territory. Using the law-as-data and citation-counting method, the article examines data published from 2010-20 by the Supreme Courts of the two territories. It compares this data to the existing research of the state Supreme Courts. It finds that the citation patterns of the Supreme Courts in the territories are consistent with those in the existing literature: in brief, the judiciary cites few academic publications. This trend is alarmingly problematic for the academy writing for the judiciary, and its flow-on effects can potentially diminish the symbiotic relationship envisioned by Chief Justice Kiefel.

I INTRODUCTION The interest here is with the lineage of two current criminal law statutes--the Griffith Code (the Queensland Criminal Code Act 1899 prepared by Sir Samuel Griffith) and the [...], Tony Smith was an early contributor to this review. (1) It is fitting therefore that a long and distinguished career in the criminal law be celebrated now in a special issue of the same journal. In the following picaresque-like account a colleague and former student join to celebrate the career of Professor Tony Smith. This article considers two criminal law codes--where they came from and the influence of each beyond its country of origin. The two codes referred to in this article are the Queensland Criminal Code Act 1899 prepared by Sir Samuel Griffith and the draft English Criminal Code 1880 prepared by Sir James Fitzjames Stephen.

I INTRODUCTION The insanity defence has ancient origins in the common law of crimes. However, the modern version of the defence goes back to 1843 and the case of Daniel [...], The M'Naghten Rules formulated in 1843 have provided the basis for the insanity' defence in many Western countries, including New Zealand. Although many candidates for the insanity defence experience psychosis, the principal determining factor is whether they knew their criminal act was morally wrong, a difficult metaethical judgement. In New Zealand the advent of methamphetamine abuse has created a significant challenge for forensic assessors in differentiating between mental disease and chronic intoxication, raising the question of whether the insanity defence as currently formulated is fit for purpose in assessing criminal culpability in such cases. The article explores this problem through an examination of a number of leading cases, noting the variable character of expert testimony on insanity where methamphetamine is involved. The article then examines the question of whether evidence of mental states falling short of insanity may be utilised to support a palliative claim reducing murder to manslaughter. A tentative new approach invites consideration of allowing investigation of insanity in cases involving meth-induced paranoia, whether or not the threshold of disease of the mind is met. In the concluding sections the article examines the impact of developments in cognitive neuroscience and asks whether neuroscience can help in determining criminal responsibility and whether it supports a "control limb" in a reformulated insanity defence. The article concludes with a brief discussion of mental disorder and impulsive aggression.

INTRODUCTION Over the last several years, so-called "gig economies" have been gaining prevalence in the national economy, changing the ways many go about daily activities and creating new types of [...]

The common law rejects 'Aboriginal sovereignty' as being inconsistent with Crown sovereignty. Yet the common law defines Aboriginal sovereignty' as a single, homogenous sovereignty adverse to the Crown. The position [...]

I INTRODUCTION Native title content is sourced in the traditional laws and customs of the relevant First Nations group. Section 223 of the Native Title Act 1993 (Cth) ('NTA') captures [...], Native title rights to take resources for unconstrained or commercial purposes were first recognised almost a decade ago, but the significance and uptake of such rights in Australia is now heightened. Resource ownership and management are critical components of global sustainable development and Indigenous interest holders play a key role in that space. The gradual acceptance of resource use by traditional owners in a modern economy reflects more developed trends overseas such as in Canada. Reluctance to concede the commercial exercise of native title rights may be due not only to evidential thresholds (required by state governments to enter consensual determinations), but also concerns about the possible consequential legal impacts for those governments and other interest holders. This article considers potential consequences of recognising native title rights to take resources for any purpose in several developing areas of native title jurisprudence including: quantum of native title compensation, the regulation of native title under resource management legislation enacted since the Native Title Act 1993 (Cth), competing claims to resource ownership and use, and the risks for government where prior assumptions of resource ownership are displaced by determined native title..

ABSTRACT In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president's personal papers. [...]

In contemporary practice, many children languish in foster care without permanency, due solely to the fact that they have the misfortune of an abusive or neglectful parent who is also [...]

INTRODUCTION 265 I THE FACTUAL CONTEXT: INFODEMICS ARE AN ENDURING PUBLIC HEALTH ISSUE 267 II THE INTERESTS AT PLAY: BODILY INTEGRITY VERSUS MEDICAL AUTONOMY 271 A. The Right to Medical [...], The COVID-19 pandemic has brought about a misinformation crisis which many public health experts have deemed an "infodemic". The putative result of the infodemic has been a widespread crisis of faith in medical science, with large swaths of the public refusing to seek effective treatment and observe public health protocols. This problem demands comprehensive political, legal, and scientific interventions. This article contributes to the discussion on legal interventions by asking the following question: who, if anyone, should be liable in private law for the dissemination of medical misinformation? This article contends that any remedy for medical misinformation must strike a fine balance between the right to bodily integrity and the pressing and substantial public interest in medical dialogue. The existing proposals of platform liability and the current negligent misrepresentation framework fail to strike such a balance. This article instead proposes the creation of a new tort termed "reckless dissemination of medical misinformation", which would target subjectively irresponsible medical misstatements. The tort would combine the structure of the negligent misrepresentation tort with defenses from defamation law in order to create a remedy which combats medical misinformation without unduly curbing medical dialogue. KEYWORDS COVID-19; Infodemic; Medical Misinformation; Reckless Dissemination; Defamation; Negligent Misrepresentation

I. Introduction At their core, charities provide "services that fulfil social and economic needs" not otherwise met. (1) This is especially true when novel public needs arise; charities are often [...]

0. Introduction This article considers inherent Indigenous jurisdiction in the Canadian constitution in light of recent developments in Aboriginal law. Particular attention is paid to the doctrine of Aboriginal title [...]

INTRODUCTION The propriety of Bivens (1) actions is part of the debate about federal common law. (2) For some judges and scholars, implied actions are a particularly reprobated form of [...]

The original common-law doctrine of lis pendens has been supplanted in all of Canada by statutory provisions, except in the Province of Newfoundland and Labrador. In this province, the doctrine [...]

I INTRODUCTION In 1997, the eminent international jurist Ivan Shearer suggested that an 'important question' that was 'likely to grow in importance' was how to interpret a domestic statute that [...], The High Court of Australia has adopted two approaches to interpret domestic statutes that incorporate treaties. The first is to interpret a statute by applying rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties. This is the 'orthodox' approach. The second is to apply rules of statutory interpretation, one rule being that a statute should be interpreted and applied, so far as its language permits, so that it is in conformity and not in conflict with established rules of international law. This is the 'insular' approach. After an examination of High Court decisions, this article first explores the differences in these approaches. It then asks whether the High Court's adoption of both approaches might be explained by either the form of a treaty's incorporation or its substance. Finally, it comments on what the preferred approach should be. The article concludes that neither form nor substance provide a satisfactory explanation for the High Court's divergent approaches. The author suggests that the 'orthodox' approach should be the preferred approach as it best achieves an interpretation that conforms with international law.

A. Introduction I am honoured to be presenting the Ivan C. Rand Memorial lecture on the twenty-fifth anniversary of this important public event in the UNB law school calendar. In [...]

I. INTRODUCTION II. POWERS OF ATTORNEY A. Definitions B. Three Types of Powers of Attorney C. Three Important Issues Raised with a Power of Attorney 1. Is the Principal Competent? [...], ERISA is a federal law that generally regulates employee welfare and retirement benefit plans. One of ERISA 's central purposes is to allow plan administrators to apply uniform laws of administration nationwide. In this Article, the relationship between ERISA and state power of attorney laws is examined, especially as it relates to clients of trust and estate attorneys. Specifically, the author seeks to address whether state law can compel a plan to accept the instructions of an attorney-in-fact. The Article begins with overviews ofpowers of attorneys and ERISA preemption powers. It then addresses specific instances when ERISA completely preempts state powers of attorney laws and analyzes the potential effects of complete preemption. The Article then discusses policies that plans should adopt for accepting powers of attorney. The Article concludes that a participant's use of a power of attorney to delegate investment discretion to someone who is not an investment manager as defined by ERISA would impermissibly conflict with ERISA, and that any state power of attorney law that would compel a plan to recognize such a delegation of authority is therefore pre-empted.

I. INTRODUCTION II. DEVELOPMENT OF THE LAW OF THE DEAD IN THE UNITED STATES III. THE DECEDENT'S RIGHT TO CONTROL OWN REMAINS A. Common Law B. Statutory Law 1. Personal [...], Americans have more choices than ever before with respect to the disposition of their remains after death. For some people, the choice of burial place, or the election to have their remains cremated, is the final opportunity to express and fulfill important values. American common law has long provided decedents with the broad right to direct the disposition of their own remains after death. However, an inconsistent patchwork of state statutes has complicated and frustrated this fundamental common law right. Many states require decedents to comply with strict formalities, or prohibit decedent control outright. This disconnect between common and statutory law creates problems for decedents and estate planning professionals for several reasons. First, funeral and disposition directions are often a neglected aspect of estate planning. Second, the laws that determine the enforceability of such directions are based on where the remains are located, not where the decedent resided. This Article examines these problems and provides a comprehensive appendix listing and summarizing each state 's "personal preference " and "designated agent" laws as an aid to practitioners.

I. INTRODUCTION II. MOTIVATION III. INTERPRETATION IV. AMPHIBOLY A. The Defense of Reasonable Reliance B. Legislative History of Section 105 C. Legislative History of Section 808 V. SELF-FRUSTRATION VI. CORRECTION [...], Almost twenty years after the promulgation of the Uniform Trust Code, the Uniform Directed Trust Act touched on a latent ambiguity in the UTC's specification of a trustee's "fundamental obligation. " The resolution of that ambiguity is doctrinally knotty; the UDTA cuts the knot by means of a "Legislative Note "; this Article suggests how the knot might rather be untied.