Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- BLR (8)
- SelectedWorks (7)
- Schulich School of Law, Dalhousie University (5)
- University of Colorado Law School (4)
- American University Washington College of Law (2)
-
- Columbia Law School (2)
- Maurer School of Law: Indiana University (2)
- Northwestern Pritzker School of Law (2)
- Pepperdine University (2)
- Selected Works (2)
- University of Cincinnati College of Law (2)
- University of Washington School of Law (2)
- Vanderbilt University Law School (2)
- Seattle University School of Law (1)
- St. Mary's University (1)
- Touro University Jacob D. Fuchsberg Law Center (1)
- University of Georgia School of Law (1)
- University of Kentucky (1)
- University of Missouri School of Law (1)
- University of Pennsylvania Carey Law School (1)
- University of Pittsburgh School of Law (1)
- University of San Diego (1)
- Villanova University Charles Widger School of Law (1)
- West Virginia University (1)
- Publication Year
- Publication
-
- ExpressO (8)
- Dalhousie Law Journal (5)
- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (4)
- Dr. Richard Cordero Esq. (3)
- Articles in Law Reviews & Other Academic Journals (2)
-
- Faculty Articles and Other Publications (2)
- Faculty Scholarship (2)
- Faculty Working Papers (2)
- Indiana Law Journal (2)
- Pepperdine Law Review (2)
- Thomas E. Baker (2)
- Vanderbilt Law Review (2)
- Washington Law Review (2)
- All Faculty Scholarship (1)
- Articles (1)
- Faculty Articles (1)
- Faculty Publications (1)
- Hon. Mark C. Dillon (1)
- Kentucky Law Journal (1)
- Margo Schlanger (1)
- Miguel Martínez (1)
- San Diego International Law Journal (1)
- Scholarly Works (1)
- Seattle University Law Review (1)
- Touro Law Review (1)
- Villanova Law Review (1)
- West Virginia Law Review (1)
- Zena Denise Crenshaw-Logal (1)
- Publication Type
Articles 1 - 30 of 53
Full-Text Articles in Entire DC Network
Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang
Washington Law Review
Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …
Law's Credibility Problem, Julia Simon-Kerr
Law's Credibility Problem, Julia Simon-Kerr
Washington Law Review
Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.
Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …
A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella
A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella
Seattle University Law Review
The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …
How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat
How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat
Touro Law Review
There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …
Lech's Mess With The Tenth Circuit: Why Governmental Entities Are Not Exempt From Paying Just Compensation When They Destroy Property Pursuant To Their Police Powers, Emilio R. Longoria
Lech's Mess With The Tenth Circuit: Why Governmental Entities Are Not Exempt From Paying Just Compensation When They Destroy Property Pursuant To Their Police Powers, Emilio R. Longoria
Faculty Articles
On June 29, 2020, the Supreme Court denied certiorari in Lech v. Jackson, a Tenth Circuit inverse condemnation case, which held that governmental entities are categorically exempt from paying just compensation when they destroy private property pursuant to their police powers. This denial of certiorari cements a highly controversial circuit court holding into our takings jurisprudence the effects of which will be serious and far reaching. This article dissects the Tenth Circuit's opinion in Lech and explains how and why this holding should be revisited. If it is not, we risk losing the protection that the Fifth Amendment's Just Compensation …
The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg
The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg
Faculty Scholarship
It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the …
Betterment, Michael G. Pratt
Betterment, Michael G. Pratt
Dalhousie Law Journal
When property is wrongfully damaged the cost of reinstatement is often the appropriate measure of damages. Reinstatement by repair or replacement is, however often possible only by replacing old materials with new materials that enhance the value of the property, generating "betterment." In such cases courts are faced with a choice whether to abide the betterment and award the cost of reinstatement, or reduce damages to offset the betterment. Examples of both responses to betterment are found in the cases, but no clear principle has been articulated by Canadian courts as to when one is to be preferred over the …
The Appeals Process, Thomas M. Reavley, Thomas E. Baker, William M. Richman
The Appeals Process, Thomas M. Reavley, Thomas E. Baker, William M. Richman
Thomas E. Baker
No abstract provided.
2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker
2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker
Thomas E. Baker
No abstract provided.
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez
Miguel Martínez
The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.
Retaliation And The Reasonable Person, Sandra F. Sperino
Retaliation And The Reasonable Person, Sandra F. Sperino
Faculty Articles and Other Publications
When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.
Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …
Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" And The Dangers Of An Objective Test For Hypersensitivity, Eugene C. Lim
Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" And The Dangers Of An Objective Test For Hypersensitivity, Eugene C. Lim
Dalhousie Law Journal
The extent to which "hypersensitivity" can serve as a legal basis for demanding additional compensation has always been a controversial issue in tort law. A key challenge facing courts lies in determining how the "thin-skull rule," traditionally related to physical conditions that predispose an individual to additional injury, can be applied to claims from "hypersensitive" plaintiffs citing personality-linked vulnerabilities of a religious, socio-cultural, or psychiatric nature. This article critically evaluates the viability of the "ordinary-fortitude test" adopted by the Supreme Court of Canada in Mustapha v. Culligan, and discusses the relative merits of a "multi-factorial test" in determining the admissibility …
Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon
Hon. Mark C. Dillon
Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …
Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.
Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.
Dr. Richard Cordero Esq.
This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …
Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.
Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.
Dr. Richard Cordero Esq.
This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …
Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.
Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.
Dr. Richard Cordero Esq.
This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustard, Chamallas, And Robinette, John C. Goldberg, Benjamin Zipursky
Civil Recourse Defended: A Reply To Posner, Calabresi, Rustard, Chamallas, And Robinette, John C. Goldberg, Benjamin Zipursky
Indiana Law Journal
American Association of Law Schools Torts & Compensation Systems Panel
Thresholds Of Actionable Mental Harm In Negligence: A Policy-Based Appraisal, Louise Bélanger-Hardy
Thresholds Of Actionable Mental Harm In Negligence: A Policy-Based Appraisal, Louise Bélanger-Hardy
Dalhousie Law Journal
Common law courts, in Canada and elsewhere, currently insist on proof of a recognizable psychiatric illness (RPI) before granting damages to plaintiffs seeking compensation for stand-alone mental harm caused by negligent acts. This article argues that the time has come to revisit this well-entrenched principle. The inquiry focuses specifically on the policy concerns underlying the current rule. As a first step, policy considerations for and against limiting the extent of actionable mental harm are canvassed and assessed. The author concludes that some of the perceived advantages of the RPI rule, in particular predictability,are debatable and that insistence on the traditional …
Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman
Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman
Faculty Scholarship
China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding …
The Appeals Process, Thomas M. Reavley, Thomas E. Baker, William M. Richman
The Appeals Process, Thomas M. Reavley, Thomas E. Baker, William M. Richman
Pepperdine Law Review
No abstract provided.
2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker
2020 Year-End Report On The Judiciary By The Chief Justice Of The United States, Thomas E. Baker
Pepperdine Law Review
No abstract provided.
University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal
University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal
Zena Denise Crenshaw-Logal
On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …
An Essay On Torts: States Of Argument, Marshall S. Shapo
An Essay On Torts: States Of Argument, Marshall S. Shapo
Faculty Working Papers
This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …
Defending The Majoritarian Court, Amanda Frost
Defending The Majoritarian Court, Amanda Frost
Articles in Law Reviews & Other Academic Journals
No abstract provided.
"Controlling" Securities Fraud: Proposed Liability Standards For Controlling Persons Under The 1933 And 1934 Securities Acts, Nancy Staudt
"Controlling" Securities Fraud: Proposed Liability Standards For Controlling Persons Under The 1933 And 1934 Securities Acts, Nancy Staudt
Faculty Working Papers
This Student Note investigates the history and intent underlying the controlling person liability provisions of the 1933 and 1934 Securities Act. It notes that courts have adopted a ranges of standards for holding controlling persons liability, but whichever standard is chosen--that standard is applied to both Acts. This note argues that courts should impose unique liability standards for each statute in order to fully realize Congress' purpose in adopting the laws.
Operationalizing Deterrence: Claims Management (In Hospitals, A Large Retailer, And Jails And Prisons), Margo Schlanger
Operationalizing Deterrence: Claims Management (In Hospitals, A Large Retailer, And Jails And Prisons), Margo Schlanger
Margo Schlanger
No abstract provided.
Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation
Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …
Slides: What's In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband
Slides: What's In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
Presenter: James R. Rasband, J. Reuben Clark Law School, Brigham Young University
23 slides
Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace
Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School
22 slides