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Does the State Have a Compelling Interest in Searching Device Data at the Border? Emerging Approaches to Reasonable Search in Canada and the United States

by Robert Diab *

(2018) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

Courts in Canada and the United States currently hold warrantless and groundless device searches at the border to be reasonable. They do so by assuming the state’s pressing interest in search at the border extends to the search of device data at the border. Apex courts in both nations have yet to address the issue. Yet in recent cases on device searches on arrest (Fearon and Riley) both courts have made holdings about privacy and the state interest in device searches that run contrary to assumptions in the border search cases. In the wake of Fearon and Riley, courts in border cases have conceded the greater privacy in device data but have tended not to question assumptions about the state interest in data search at the border.

This paper examines the development of the law on border device searches in both nations with three aims. The first is to show that governments and courts have not been sufficiently critical of state interest in assessing reasonable border data searches. The second aim is to consolidate critical opinion on the nature of the state’s interest in border data searches, and to add the argument that the state has a less pressing interest in data search here than in the search of a person’s body, calling for a higher standard than reasonable suspicion. The third aim is to demonstrate that in recent reform efforts in Parliament and Congress, lawmakers have begun to question whether groundless border device searches are reasonable but have lacked clarity on state interest. The paper concludes by suggesting that reasonable search should be assessed in this context by foregrounding the question of state interest and taking an evidence-based approach, and that doing so supports a warrant standard.

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Cooperation as Philosophical Foundation of Good Faith in International Business-Contracting – A View Through the Prism of Transnational Law

By Lorena Carvajal-Arenas* and A F M Maniruzzaman**

(2012) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

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The Doctrines Of Unconscionability And Abusive Clauses: a Common Point Between Civil And Common Law Legal Traditions

By Camilo A. Rodriguez-Yong*

(2011) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

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Juxtaposing BTE and ATE: the Role of the European Insurance Industry in Funding Civil Litigation

Willem H. van Boom*

(2010) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

Abstract

One of the ways in which legal services are financed, and indeed shaped, is through private insurance arrangements. Two contrasting types of legal expenses insurance contracts (LEI) seem to dominate in Europe: before the event (BTE) and after the event (ATE) legal expenses insurance. Notwithstanding institutional differences between different legal systems, BTE and ATE insurance arrangements may be instrumental if government policy is geared towards strengthening a market-oriented system of financing access to justice for individuals and business. At the same time, emphasizing the role of a private industry as a keeper of the gates to justice raises issues of accountability and transparency, not readily reconcilable with demands for competitive markets. Moreover, multiple actors (clients, lawyers, courts, insurers) are involved, causing behavioural dynamics which are not easily predicted or influenced.

Against this background, this article looks into BTE and ATE arrangements by analysing the particularities of BTE and ATE arrangements currently available in some European jurisdictions against the backdrop of their respective markets and legal contexts. This allows for some reflection on the performance of BTE and ATE providers as both financiers and keepers of the gates to justice. Two issues emerge from the analysis that are worthy of some further reflection. Firstly, the long-term sustainability of some ATE products appears problematic. Secondly, policymakers that would like to nudge consumers into voluntarily taking out BTE LEI are facing certain challenges.

JEL classification: G22, K12, K41

Keywords: legal expenses insurance, conditional fee arrangement, after the event insurance

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The Regulation of Electoral Financing

Anthony Gray*

(2009) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

Abstract

Various governments around the world have sought to pass legislation regulating electoral campaigns, in particular their financial aspects. Electoral reform is high on the Australian Government’s agenda. In a Green Paper published in December 2008, the Australian Government canvasses some possible reforms to Australia’s electoral system, most especially in the funding area.1 These proposals to some extent mirror developments elsewhere. In this paper, I consider the specific suggestion that caps or bans should be placed on private funding of political parties. This policy suggestion is considered primarily from a constitutional point of view in terms of its validity. In so considering, comparisons will be made with other jurisdictions in which such reforms have been made, and political science issues pertinent to the discussion will also be considered. Much can be learned from experiences in this regard overseas.

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