Digital Commons Network^™

Fall 2017 Symposium: The Challenge Of Crime In A Free Society: Fifty Years Later, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

My longstanding interest in the Johnson Crime Commission traces back to my earlier scholarly work on the history of criminal law reform movements, going back to the progressive criminal justice reform agenda in the early twentieth century and the activities of private law-reform coalitions and government-sponsored crime commissions during the interwar period, including the Wickersham Commission and the American Law Institute's various model code projects. This research eventually led me to the Johnson Commission, the subject of this Symposium.

Supreme Court Of Canada On The Appropriateness And Scope Of A Global Website Takedown Order, Jennifer C. Daskal

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In Google v. Equustek, the Supreme Court of Canada ordered Google to delist all websites used by Datalink, a company that stole trade secrets from Equustek, a Canada-based information technology company. Google had agreed to do so in part, but with respect to searches that originated from google.ca only, the default browser for those in Canada. Equustek however, argued the takedowns needed to be global in order to be effective. It thus sought an injunction ordering Google to delist the allegedly infringing websites from all of Google's search engines whether accessed from google.ca, google.com, or any other entry point. Google …

Another View Of The Cathedral: What Does The Rule Of Law Crisis Tell Us About Democratizing The Eu?, Fernanda Nicola

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INTRODUCTION: The rule of law in the EU is in crisis. The independence of national judiciaries in Hungary and Poland is under attack by governments that call themselves ‘illiberal’ democracies. Not surprisingly, scholars pointing to the cracks in the EU architecture have offered some solutions to avoid its collapse. These solutions range from the Commission enforcing a rule of law framework by bringing systemic infringement actions based on democratic values enshrined in Article 2 of the Treaty on European Union (TEU) or by cutting EU cohesion funds to the autocrats. Both solutions seem to have been taken seriously in Luxembourg …

International Arbitration - Between Myth And Reality: The 9th John E.C. Brierly Memorial Lecture, Susan Franck

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The first woman to deliver the John E.C. Brierly Memorial Lecture in November 2016, Susan Franck explores common but flawed accounts of international arbitration based on anecdotes and myths while encouraging the audience to pay more attention to scientific facts. While acknowledging the challenges of living in a “post-factual” society, she argues that international arbitration, whether commercial or investment-based, is caught within a larger geo-political maelstrom which includes a backlash against globalization, the popularization of populism, and a turn toward nationalism. Rather than permitting decisions to be affected by an emotive torrent of intuitive forces that facilitate decisions based upon …

Property, Race, Segregation, And The State Property, Ezra Rosser

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Property scholars have neither forgotten nor ignored the government's role in creating and furthering racial segregation. Scholars have written extensive work on redlining, racially restrictive covenants, the siting of public housing in minority poor communities and the resistance of wealthier white towns to affordable housing.

Nevertheless, Richard Rothstein's book, The Color of Law, should be required reading for property scholars and students. Beautifully written, the book is packed with new details and stories that illustrate the many ways government-at the local, state, and federal levels-denied African-Americans equal access to space and property.

The Key To Law Student Well-Being? We Have To Love Our Law Students, David Jaffe

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This article is an effort to close the gap in the care provided to law students — offering concrete suggestions to take each of us beyond merely agreeing that more needs to be done to making a commitment to action.

Scaling Development Finance For Our Common Future, Daniel D. Bradlow, Kevin P. Gallagher, Leandro Serino, Jose Siaba Serrate

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The G-20 and the broader world community has committed to ambitious goals to close global infrastructure gaps, mitigate climate change, and advance the 2030 Agenda for development. We call on G20 leaders to task development finance institutions (DFIs) such as the development banks in member countries and the Multilateral Development Banks (MDBs) of which G-20 countries are members, to commit to scaling up resources by 25 percent, to calibrate new financing to international commitments to mitigate climate change and the 2030 agenda, and to work together as an inclusive system toward achieving those shared goals.

Assessing The Potential For Global Economic Governance Reform, Daniel D. Bradlow

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Every dynamic social system’s adaptive capacity is finite. Eventually, the ability of the system’s legal and institutional arrangements to adapt to the changing operational context is exhausted. At this point, unless the system is significantly reformed, it begins losing its legitimacy and efficacy.

This article contends that the structure, operation and scale of the global economy has changed so dramatically that the current arrangements for global economic governance are approaching this crisis moment. They are failing to deliver an inclusive, sustainable and efficient international economic system that can contribute to peace, prosperity and human welfare. Their governance arrangements and operating …

Intellectual Property Law Gets Experienced, Victoria Phillips

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Introduction: A decade ago, in Clinical Legal Education and the Public Interest in Intellectual Property Law, I described with my faculty colleagues our motivations for launching a public interest intellectual property law clinic at the American University Washington College of Law. That article introduced our goals and framework for a pioneering clinic framed around a variety of live-client student representations performed under close faculty supervision, weekly case rounds focusing on issues experienced directly by the students in their representations, and a seminar built around a year-long lawyering simulation addressing the public interest dimensions of intellectual property. In that article, we …

2017 Symposium Discussion: The Life Of An Immigration Attorney, Cori Alonso-Yoder

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No abstract provided.

Reining In A 'Renegade' Court: Tc Heartland And The Eastern District Of Texas, Jonas Anderson

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In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a “reshuffling” of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced that this …

Unlocking Antitrust Enforcement, Jonathan Baker

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No abstract provided.

Think Of An Elephant? Tweeting As "Framing" Executive Power, Fernando R. Laguarda

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No abstract provided.

Exploring The Meaning Of Experiential Deaning, Robert Dinerstein, Margaret Martin Barry

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This article explores the position of associate dean of experiential education in law schools across the country and the central role associate deans play in the changing landscape of legal education. Experiential deans have broad responsibility for overseeing law schools’ experiential education programs. Additional responsibilities differ between institutions, but range from leading efforts to comply with new ABA standards to overseeing the integration of experiential education into the broader curriculum. Analyzing survey data collected from associate experiential deans across the country, the authors find the structure, content, and authority of the position is under-developed. The authors make recommendations on how …

Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia Jones

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Under the current state of the law, there is no mechanism in place to ensure that a criminal defendant receives information in the exclusive possession of the government that negates guilt, undermines the strength of the government's case, or reduces the sentence that could be imposed. Whenever a prosecutor wants to do so, she can suppress this favorable information and prevent the court and the defense from ever learning of its existence. Without oversight and with very little accountability, prosecutors have been vested with the power to determine whether and when to disclose favorable evidence to the defense. Although many …

User-Generated Evidence, Rebecca Hamilton

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Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Ethics And The History Of Social Movement Lawyering, Susan Carle

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No abstract provided.

The Legal Risks Of Big Data Policing, Andrew Guthrie Ferguson

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No abstract provided.

Practice And Fitness Making Writing Perfection More Nearly Attainable, Heather Ridenour, David Spratt

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No abstract provided.

Take Time To Wander Outside Your Comfort Zone, David Spratt

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No abstract provided.

Thwarting Speech On College Campuses, Stephen Wermiel

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No abstract provided.

Borders And Bits, Jennifer Daskal

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Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

Inaccessible Apexes: Comparing Access To Regional Human Rights Courts And Commissions In Europe, The Americas, And Africa Symposium: Comparing Regional Human Rights Regimes, Claudia Martin, Francoise Hampson, Frans Vilijoen

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The three well-established regional human rights systems (in Europe, the Americas, and Africa) aim to provide access to individuals to a decision and remedy based on the violation of human rights in the founding treaties. In this article, the notion of the "dispute pyramid," developed in sociolegal studies, generally, is adjusted to describe and help us better understand regional access. Access differs considerably across the three systems, and its major stumbling blocks present themselves at different stages. In the European system, most cases are dismissed at the admissibility phase. In the Inter-American system, most cases are weeded out at the …

Equity In Contemporary Immigration Enforcement: Defining Contributions And Countering Criminalization, Jayesh Rathod, Alia Al-Khatib

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Since the 2016 Presidential election, discussions of immigration policy and enforcement have taken center stage in the public debate. In contrast to the Obama administration, which had articulated specific priorities for removal, the Trump administration has significantly expanded its enforcement targets. Indeed, high-level officials have confirmed that virtually anyone who is in the country without authorization is susceptible to removal. To make its case for enhanced immigration enforcement, the current administration has deployed familiar tropes regarding immigrant criminality and dangerousness. This rhetoric, operationalized through varied structures of criminalization, has shrunk the pool of individuals who can argue against removal, notwithstanding …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules?, Jeffrey Lubbers

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The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court. In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the …

Fail To Comment At Your Own Risk: Does Issue Exhaustion Have A Place In Judicial Review Of Rules, Jeffrey Lubbers

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Lubbers discusses whether issue exhaustion have a place in judicial review of rules.

Academy On Human Rights And Humanitarian Law Articles And Essays On Emerging Challenges In The Relationship Between International Humanitarian Law And International Human Rights Law: Introduction, Claudia Martin, Diego Rodriguez-Pinzon

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We are delighted to present this year's publication of the Academy on Human Rights and Humanitarian Law, which includes the three best essays in English and in Spanish recognized in the 2017 Human Rights Essay Award competition. It is satisfying to think that this competition allowed a number of participants an opportunity to expound their thoughts on so many important topics and areas of the world. We hope these participants are able to use their articles as mechanisms for change.

Sovereignty In The Age Of Cyber, Gary Corn

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International law is a foundational pillar of the modern international order, and its applicability to both state and nonstate cyber activities is, by now, beyond question. However, owing to the unique and rapidly evolving nature of cyberspace, its ubiquitous interconnectivity, its lack of segregation between the private and public sectors, and its incompatibility with traditional concepts of geography, there are difficult and unresolved questions about exactly how international law applies to this domain. Chief among these is the question of the exact role that the principle of sovereignty plays in regulating states' cyber activities.

International Financial Regulatory Standards And Human Rights: Connecting The Dots, Daniel D. Bradlow, Motoko Aizawa, Margaret Wachenfeld

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This paper’s hypothesis is that the international standard setting bodies (SSBs) could improve the quality of their international standards by incorporating a human rights analysis. It focuses on five SSBs and seven of their international standards and its findings include the following: First, the standards all implicate the right of non-discrimination, and the rights to information, privacy and an effective remedy. Second, they each raises economic, social and cultural rights issues, including the obligation to allocate ‘maximum available resources’ to the progressive realization of economic, social and cultural rights; the human rights responsibilities of private actors exercising delegated regulatory authority, …

Antitrust Enforcement Against Platform Mfns, Jonathan Baker, Fiona M. Scott Morton

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Antitrust enforcement against anticompetitive platform most favored nations (MFN) provisions (also termed pricing parity provisions) can help protect competition in online markets. An online platform imposes a platform MFN when it requires that providers using its platform not offer their products or services at a lower price on other platforms. These contractual provisions may be employed by online platforms offering hotel and transportation bookings, consumer goods, digital goods, and handmade craft products. They have been the subject of antitrust enforcement in Europe but have drawn only limited antitrust scrutiny in the U.S. Our paper explains why MFNs employed by online …