2009 Issue

Legal Holes


by Noa Ben-Asher

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In the years that followed the events of September 11, 2001, a debate crystallized

between those who think that “legal grey and black holes”—which I call simply “legal

holes”—are necessary and integral to U.S. law and those who think that they are dan-

gerous and should be abolished.  Legal black holes “arise when statutes or legal rules

‘either explicitly exempt the executive from the requirements of the rule of law or

explicitly exclude judicial review of executive action.’”1  Grey holes, in contrast,

“arise when ‘there are some legal constraints on executive action . . . but the[y] are so

insubstantial that they pretty well permit government to do as it pleases.’”2  Currently

both sides of the legal holes debate agree that in legal holes executive action is not

bound by the rule of law.  The debate turns on what should be done about this.

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Holding onto Humanity: Animals, Dignity, and Anxiety in Canada’s Assisted Human Reproduction Act


By Maneesha Deckha

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The Assisted Human Reproduction Act is an anxious statute.  As far as statutes go, this

is not too unusual.  Many statutes are enacted to address an actual or looming

problem of social disorder.  Law is often invoked at these moments to cabin real and

imagined effects, and the AHRA is no exception.  As a single piece of legislation, it

establishes Canada’s position on a range of controversies surrounding the human

body and the manipulation of its different stages and parts in the name of science.

Such controversies include human cloning, embryo research, trade in reproductive

parts, germline genetic alteration, pre-conception sex selection, and pre-

implantation sex diagnosis.  For the most part, the AHRA is a prohibitive statute,

enacted to restrict researchers from practicing certain technologies and procedures

and for-profit transactors from creating a market out of these technologies and


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Conviviality, Cosmopolitan Citizenship, and Hospitality


by Michelle A. McKinley

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It’s not just that increasingly many people have no roots,

It’s also that they have no soil.

On August 29, 2005, Hurricane Katrina hit Southeastern Louisiana with

devastating force.  Those most affected within the city of New Orleans, the majority

of whom were poor, elderly, and African-American, lost their lives, homes, and means

of livelihood.  As the world looked on at the televised coverage of Katrina, journalists

and news reporters routinely referred to the displaced as “refugees.”  Although the

media images of desperation resonated with the racial logic of refugee status, the term

sparked considerable controversy, particularly within the African-American

community.  Rev. Jesse Jackson angrily chided reporters in a televised interview,

stating, “It’s racist to call American citizens refugees.”  In a moment of apparent

agreement with Rev. Jackson, President Bush remarked, “The people we are talking

about are not refugees.  They are Americans, and they need the help and compassion

of our [sic] fellow citizens.”

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