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  1. Student review of selected panels at the Thelton E. Henderson Centre for Social Justice 2010 Symposium ‘Empowered Partnerships: Participatory action research for environmental justice [Download]

    Title: Student review of selected panels at the Thelton E. Henderson Centre for Social Justice 2010 Symposium ‘Empowered Partnerships: Participatory action research for environmental justice
    Creator: Lund, Anna
    Description: The following articles are student responses and observations of a selected few panels at Berkeley Law's 2010 Symposium "Empowered Partnerships: Participatory Action Research for Environmental Justice" hosted by the Thelton E. Henderson Center for Social Justice and cosponsored by Students for Economic and Environmental Justice at UC Berkeley School of Law; the Center on Race, Poverty & the Environment; Communities for a Better Environment; Asian Pacific Environmental Network; West Oakland Environmental Indicators Project; iPODER! - People Organizing to Demand Environmental & Economic Rights; California Rural Legal Assistance, Inc.; Greenaction for Health and Environmental Justice; The Pacific Institute; Environmental Studies Institute at Santa Clara University; Cal Corps at UC Berkeley; La Raza Law Students Association at UC Berkeley School of Law; Berkeley La Raza Law Journal; Ecology Law Quarterly; Central Valley Air Quality Coalition; California Law Review; California Environmental Justice Alliance; and the Women of Color Collective at UC Berkeley School of Law.
    Subjects: Conservation/Environmental Law
    Date Created: 2011
  2. Reconciliation in the corporate commercial classroom [Download]

    Title: Reconciliation in the corporate commercial classroom
    Creator: Lund, Anna
    Description: The 28th Call to Action of the Truth and Reconciliation Commission (“TRC”) is for law schools to “require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations.” Professors teaching corporate and commercial law may want to respond to the TRC’s Call to Action, but the connection between Aboriginal people and the law in these courses is less obvious than in public law courses. This article provides concrete examples of how six corporate and commercial law professors have tried to advance the project of reconciliation in their classroom, and identifies common themes emerging from their efforts.
    Subjects: Truth and Reconciliation Commission of Canada
    Date Created: 2016
  3. Good Faith in Contractual Performance: Recent Developments [Download]

    Title: Good Faith in Contractual Performance: Recent Developments
    Creator: O'Byrne, Shannon
    Description: Judicial interpretation of contracts in some ways assumes that good faith is required unless otherwise explicitly stated, a trend made clear by Gateway v Arton Holdings. While common law has long relied on the notion of good faith, judges are enforcing an implied duty to both negotiate and perform contracts in good faith. Practitioners should assume a good faith standard adheres to most contracts, though courts may be reluctant to unreasonably impose moral standards contrary to contract provisions.
    Subjects: Good faith (Law) -- Analysis, Contracts -- Interpretation and construction
    Date Created: 1995
  4. Good Faith in Contractual Performance: The Supreme Court’s Confusing Lesson in Wallace v. United Grain Growers Ltd [Download]

    Title: Good Faith in Contractual Performance: The Supreme Court’s Confusing Lesson in Wallace v. United Grain Growers Ltd
    Creator: O'Byrne, Shannon
    Description: In Wallace v. United Grain Growers Ltd. l the Supreme Court of Canada was asked to remedy the alleged bad faith by an employer, both for the fact of dismissing the plaintiffand for its manner ofeffecting thedismissal . This marks the first time that Canada's highest court has had to decide whether an indeterminate employment contract contains an implied term not to dismiss an employee, absent a good faith reason to do so, as well as whether a harsh manner ofdismissal falling short ofthe standard articulated in Vorvis v .Insurance Corp. ofBritish Colunzbia,2 can nonetheless found a cause of action in contract or in tort .
    Subjects: Employment, Employer, Supreme Court--, Contracts, Bad faith(law)--
    Date Created: 1998
  5. The Implied Term of Good Faith and Fair Dealing: Recent Developments [Download]

    Title: The Implied Term of Good Faith and Fair Dealing: Recent Developments
    Creator: O'Byrne, Shannon
    Description: This article assists common law practitioners to predict when good faith obligations are owed in the context of contractual performance by organizing recent case law. The article concludes by advocating for express recognition of a common law rule that would mandate good faith as the governing, default standard out of which parties must expressly contract.
    Subjects: Contracts -- Laws, regulations and rules, Good faith (Law) -- Laws, regulations and rules, Government regulation, Breach of contract -- Laws, regulations and rules
    Date Created: 2007
  6. Cry Me a River: Recovery of Mental Distress Damages in a Breach of Contract Action - A North American Perspective [Download]

    Title: Cry Me a River: Recovery of Mental Distress Damages in a Breach of Contract Action - A North American Perspective
    Creator: O'Byrne, Shannon
    Description: The article focuses on the recovery of mental distress damages in breach of contract cases in an American and Canadian legal context. It argues that U.S. and Canadian courts should dismiss the general rule against the recovery of intangibles. The article offers discussions of mental distress damages in tort cases and as related to the Restatement (Second) of Contracts, contract law, and recovery based on the fact of breach. Several cases are cited.
    Subjects: DISTRESS (Psychology), BREACH of contract, TORTS, DAMAGES (Law), LIABILITY for emotional distress
    Date Created: 2005
  7. Assessing Exclusion Clauses: The Supreme Court of Canada’s Three Issue Framework in Tercon Contractors Ltd v British Columbia(Transportation and Highways) [Download]

    Title: Assessing Exclusion Clauses: The Supreme Court of Canada’s Three Issue Framework in Tercon Contractors Ltd v British Columbia(Transportation and Highways)
    Creator: O'Byrne , Shannon
    Description: Introduction The Supreme Court of Canada's 2010 decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways ) concerned the enforceability of a broadly drafted exclusion clause in the context of public procurement tendering. It is noteworthy for several reasons. First, the decision unanimously articulated a three-issue framework for determining the enforceability of exclusion clauses. Second, and on a more theoretical front, Tercon offered competing visions as to how contracts are to be interpreted. Though the Supreme Court was unanimous that parties to a contract should--of course--generally be bound by its terms, the majority and dissent followed significantly different paths for determining the scope of the agreement at bar. Justices LeBel, Deschamps, Fish, Charron, and Cromwell (in a majority decision delivered by Cromwell J.) approached the task of contractual interpretation by elevating the long-standing and judicially enforced values that specifically inform the tendering process including notions of integrity, transparency, and business efficacy. The dissent, per McLachlin C.J., Binnie, Abella, and Rothstein JJ., in a judgment delivered by Binnie J., emphasized another set of long-standing and judicially enforced values, namely freedom of contract and fidelity to the legal principle that contracts are to be enforced according to their words. And third, the Supreme Court of Canada laid to rest the doctrine of fundamental breach as it applies to exclusion clauses--or attempted to at least. In order to explore these themes, this comment provides a brief account of the facts of Tercon and the ...
    Subjects: enforceability, transportation, transparency, interpretation, contract law
    Date Created: 2012
  8. Damages for Mental Distress and Other Intangible Loss in a Breach of Contract Action [Download]

    Title: Damages for Mental Distress and Other Intangible Loss in a Breach of Contract Action
    Creator: O'Byrne, Shannon
    Description: Introduction The general rule in contracts is that a plaintiff is not entitled to general damages for mental distress and other intangibles such as annoyance, humiliation, upset, disappointment, frustration, anguish, or anxiety in the face of breach. There are a number of reasons why this is so -- both practical and theory-driven. First, contract law has historically limited recovery for breach of contract to financial loss only. As the House of Lords recently stated in Johnson v. Gore Wood & Co., \"[c]ontract-breaking is treated as an incident of commercial life which players in the game are expected to meet with mental fortitude.\" For a distinct but related second reason, courts are wary of opening the floodgates of contractual damages tied to the plaintiff's emotional suffering. As Justice Newbury of the British Columbia Court of Appeal has observed, given that in almost every contractual scenario, the innocent party will experience some emotional upset in the face of breach, judicial parameters have been erected to limit successful claims in this area. Third, there is a concern over problems of proof and claim inflation. According to David Capper, \"[t]his reticence about compensating for intangible losses is sensible also because of the risk of claimants who have suffered no real damages harassing defendants by artificially inflating their damages and alleging all kinds of minor losses to which they are largely indifferent.\" Fourth, since many plaintiffs in commercial litigation are corporations, they are not capable of suffering mental ...
    Subjects: civil procedure, business & corporate law, torts, contracts law, insurance law, real property law, governments, labor & employment law
    Date Created: 2005
  9. Public Power and Private Obligation: An Analysis of the Government Contract [Download]

    Title: Public Power and Private Obligation: An Analysis of the Government Contract
    Creator: O'Byrne , Shannon
    Description: This paper analyzes contracts made by the Government' in terms of political theory.2 From this perspective, it explores the assumptions, utility, and accuracy of the private law model which historically has governed the Government's liability in contract.3 The paper's overarching objective is to question the propriety of applying private law principles to a public entity, particularly within the context of liberal democratic values to which both the Canadian State and society are pledged.4 In accord with McAuslan, it regards theoretical inquiry as significant.5 It asserts that if the current model of State liability collides with fundamental Canadian political constructs, or falls into descriptive inaccuracy, or generates false conclusions, the model ought to be replaced with a more competent one.
    Subjects: Government liability -- Analysis, Public contracts -- Interpretation and construction, Canada
    Date Created: 1992
  10. Breach of Good Faith in Performance of the Franchise Contract: Punitive Damages and Damages for Intangibles [Download]

    Title: Breach of Good Faith in Performance of the Franchise Contract: Punitive Damages and Damages for Intangibles
    Creator: O'Byrne, Shannon
    Description: This paper explores case law concerning breach of good faith in the franchise contract. Given the relational nature of the franchise contract, the good faith term forbids the franchisor from exploiting the franchisee’s classic vulnerability. The paper also illustrates why the franchisor is more susceptible to an award of punitive damages. It concludes by making the novel argument that franchisees should be permitted to recover damages for mental distress and other intangibles resulting from breach of the good faith term.
    Subjects: Breach of contract -- Remedies, Exemplary damages -- Laws, regulations and rules, Good faith (Law) -- Laws, regulations and rules, Contract agreement, Government regulation, Franchises -- Contracts, Performance (Law) -- Laws, regulations and rules
    Date Created: 2004