Law Commons^™

Neoliberalism And The Law Reassessing Historical Materialist Analysis Of The Law For The 21st Century, Justin Schwartz

Justin Schwartz

Historical materialism has been called in question by the triumph of neoliberalism and the fall of Communism. I show, by consideration of two examples, the 2008 crisis and recent Supreme Court campaign spending First Amendment jurisprudence, that neoliberalism instead vindicates the explanatory power of (non-mechanical and non-deterministic) historical materialism in accounting for a wide range of recent legal developments in legislation, executive (in)action, and judicial decision-making.

Placeholder, Seth Barrett Tillman

Seth Barrett Tillman

This is a placeholder.

[June 21, 2011]

Emerging Patterns Of Global Constitutionalization: Toward A Conceptual Framework, Karolina Milewicz

Indiana Journal of Global Legal Studies

Global constitutionalization is a recent phenomenon that is decisively changing the character of the international order. This argument was put forward recently by scholars of international law and has gained significance in the institutional school of thought. However, the notion of "global constitutionalization" is often used imprecisely and has so far been largely neglected in the field of international relations. It still lacks a consistent and operational definition, which would enable political scientists and international relations scholars to conduct empirical research. This article explores a preliminary framework for the concept of global constitutionalization.

Global Constitutionalism – Process and Substance, Symposium. Kandersteg ...

Crowdfunding: A New Form Of Investing, Requires A New Form Of Investor Protection, Jorge Pesok

Jorge Pesok

No abstract provided.

Extract From Lawrence Lessig's What An ‘Originalist’ Would Understand ‘Corruption’ To Mean (Forthcoming Feb. 2014), Citing Tillman's Reply To Professor Zephyr Teachout, Seth Barrett Tillman

Seth Barrett Tillman

Extract from Lawrence Lessig, What an ‘Originalist’ Would Understand ‘Corruption’ to Mean, 102 Calif. L. Rev. (forthcoming Feb. 2014), citing Tillman's Reply to Professor Zephyr Teachout.

[May 1, 2013]

Citation List To "Why Our Next President May Keep His Or Her Senate Seat," And To "Why President-Elect Obama May Keep His Senate Seat After Assuming The Presidency," And To "Member Of The House Of Representatives And Vice President Of The United States: Can Ryan Hold Both Positions At The Same Time?", Seth Barrett Tillman

Seth Barrett Tillman

This document is a citation list to "Why Our Next President May Keep His Or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause," (including the Professor Prakash-Tillman exchange), and to "Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency," (including the Professor Calabresi-Tillman exchange), and to "Member Of The House Of Representatives And Vice President Of The United States: Can Ryan Hold Both Positions At The Same Time?".

[April 25, 2013]

"To Kill A Cleric?: The Al-Awlaki Case And The Chaplaincy Exception Under The Laws Of War", K Benson

K Benson

Anwar al-Awlaki was the first American citizen to be targeted for extrajudicial assassination by the Obama administration. While scholarly attention has focused on legality of his killing under domestic law, his status as a chaplain under International Humanitarian Law (IHL) has gone unexamined. The possibility that Anwar al-Awlaki may have been a protected person as a chaplain has profound ramifications for the legality of his killing and for the conduct of the war on terror more generally. As the definition of a "Chaplain" under IHL is under-developed at best and vague at worst, ideologues such as Mr. al-Awlaki operate in ...

Sovereign Immunity And Sovereign Debt, W. Mark C. Weidemaier

W. Mark C. Weidemaier

The law of foreign sovereign immunity changed dramatically over the course of the 20th century. The United States abandoned the doctrine of absolute immunity and opened its courts to lawsuits by private claimants against foreign governments. It also pursued a range of other policies designed to shift such disputes into litigation or arbitration (and thus relieve political actors of pressure to intervene on behalf of disappointed creditors). This article uses a unique data set of sovereign bonds to explore how international financial contracts responded to these legal and policy initiatives.

The article makes three novel empirical and analytical contributions. The ...

Functional Government In 3-D, Robert L. Glicksman, Alejandro E. Camacho

Robert L. Glicksman

The creation of new administrative agencies and the realignment of existing governmental authority are commonplace and high-stakes events, as illustrated by the recent creation of the Department of Homeland Security after 9/11 and of new financial regulatory agencies after the global recession of 2009. Scholars and policymakers have not devoted sufficient attention to this subject, failing to clearly identify the different dimensions along which government authority may be structured or to consider the relationships among them. Analysis of these institutional design issues typically also gives short shrift to whether authority should be allocated differently based on agency function. These ...

Speech Engines, James Grimmelmann

James Grimmelmann

Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.

A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized ...

Why Do Cities Innovate In Public Health? Implications Of Scale And Structure, Paul Diller

Paul Diller

Big cities have frequently enacted public health regulations—especially with respect to tobacco use and obesity—that go beyond the state and federal regulatory floors. That cities innovate in public health at all is remarkable. They have less to gain financially from more stringent regulation than higher levels of government, which shoulder more of the burden of Medicare and Medicaid. Cities are supposed to fear mobile capital flight; if they regulate, businesses will leave. Moreover, cities have little reason to innovate because innovation is costly and any successful innovation is likely to be copied by others.

Cities’ prolific regulation in ...

Administrative Common Law Toolbox For Enhancing Court-Agency Dialogue, Christopher J. Walker

Christopher J. Walker

When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Despite that the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation-of-powers values that motivate the rule. This Article is the first to conduct such an investigation—focusing on judicial review of agency immigration adjudications and ...

Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Ryan G. Vacca

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1 ...

Finding Fault?: Exploring Legal Duties To Return Incidental Findings In Genomic Research, Elizabeth R. Pike, Karen H. Rothenberg, Benjamin E. Berkman

Faculty Scholarship

The use of whole genome sequencing in biomedical research is expected to produce dramatic advances in human health. The increasing use of this powerful, data-rich new technology in research, however, will inevitably give rise to incidental findings (IFs), findings with individual health or reproductive significance that are beyond the aims of the particular research, and the related questions of whether and to what extent researchers have an ethical obligation to return IFs. Many have concluded that researchers have an ethical obligation to return some findings in some circumstances, but have provided vague or context-dependent approaches to determining which IFs must ...

Open-Sourcing The Global Academy: Aaron Swartz’S Legacy, Rebecca Gould

Rebecca Gould

No abstract provided.

The Case-Law Of The European Court Of Human Rights On The Immunity Of States, Theodor Jr Schilling

Theodor JR Schilling

Invoking State immunity in court proceedings is a way for a State to prevent judicial scrutiny of its responsibility for its actions. Such scrutiny, however, is the main raison d'être at least of those human rights regimes that provide for a supervision of States' compliance with human rights. It would therefore come as no surprise if human rights jurisprudence, especially the jurisprudence of the European Court of Human Rights would prove to be a challenge to State immunity. However, it is not, or, at most, in a roundabout way.

Religious Freedom In The Jurisprudence Of The Egyptian And European Court Of Human Rights, Saba Mahmood, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context ...

Due Process Is Overdue With The Rise In Teen Suicide: Reconsidering Deshaney V. Winnebago Counrty Department Of Social Services, Richard Bahrenburg

Richard Bahrenburg

No abstract provided.

Public Employee Speech And The Privatization Of The First Amendment, Adam Shinar

Adam Shinar

Constitutional protection of public employee speech has been declining for the past forty years, yet the reason for the decline has remained elusive. This Article puts forward a novel theory situating public employee speech in larger structural transformations in governmental organization. It identifies a “public/private convergence,” the main feature of which is that public officials are increasingly viewed as private employees, resulting in a significant erosion of their free speech rights. This erosion is exacerbated by rising levels of privatization and civil service reforms exhibiting the same mode of thought, that public employees are no different from private employees ...

The Promise Of Parentheticals: An Empirical Study Of The Use Of Parentheticals In Federal Appellate Briefs, Michael D. Murray

Michael D. Murray

The attached article, "The Promise of Parentheticals: An Empirical Study of the Use of Parentheticals in Federal Appellate Briefs," reports an empirical study of federal appellate court briefs to answer the question: How are parentheticals currently used for rhetorical purposes in appellate briefs to explain a synthesis of authorities? My hypothesis is that parentheticals currently are used beyond a simple informational function in citation forms for four rhetorical purposes: (1) to quote and highlight portions of authorities (“quotation” function); (2) to explain and illustrate the principles induced from a synthesis of authorities (“explanatory synthesis” function); (3) to explain and illustrate ...

Legal Theory From The Regulative Point Of View, Alani Golanski

Alani Golanski

I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas. Logically prior to their structuring of a legal system, individuals interact, hence transact. This in turn gives rise to obligations, commitments, resentments and, generally, the group’s “deontic” authority over what is right or wrong, and what “ought” to be done or not be done. Authority organizes, coordinates and prioritizes those obligations, resentments and powers; and, more abstractly, balances group members’ security and liberty interests. So a legal system emerges and evolves ...

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Ryan G. Vacca

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three ...

Sue My Car Not Me: Products Liability And Accidents Involving Autonomous Vehicles, Jeffrey K. Gurney

Jeffrey K Gurney

Autonomous vehicles will revolutionize society within the decade. These cars will cause accidents. Tort liability, however, is not ready for the introduction of autonomous vehicles, and, thus, liability will not be assessed to the party that is responsible for the accident. This Note addresses the liability of autonomous vehicle by examining products liability through the use of four scenarios: the Distracted Driver; the Diminished Capabilities Driver; the Disabled Driver; and the Attentive Driver. Based on those scenarios, this Note argues that the autonomous technology manufacturer should be liable for accidents while the vehicle is in autonomous mode. This Note suggests ...

Grassroots_Grassroots Grassroots Rs 15 August 15, 2012 - Volume 4 Issue 8 I N S I D E A Journal Of The Press Institute Of India Promoting Reportage On The Human Condition, Professor Vibhuti Patel

Professor Vibhuti Patel

During the past 15 years, Women’s Grievance Redressal Cells set up by the Mohalla Committee Movement in Maharashtra have played an important role in cementing the bonds between communities, spouses, neighbours and enlightened the youth. Meaningful relationships between individuals in the family have been forged as a result

16. Lyon, T.D. (2013). Child Witnesses And Imagination: Lying, Hypothetical Reasoning, And Referential Ambiguity. In M. Taylor (Ed.), The Oxford Handbook Of The Development Of Imagination. (Pp. 126-136). New York: Oxford., Thomas D. Lyon

Thomas D. Lyon

No abstract provided.

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Villanova University School of Law Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is ...

What Can Intellectual Property Law Learn From Happiness Research?, Estelle Derclaye

Estelle Derclaye

As the description of the 2012 ATRIP congress’s theme highlights, traditionally, scholars have used historical, doctrinal or comparative analyses, law and economics, political economy or philosophy, to discuss intellectual property law. Other methods such as empirical analysis, international relations, and human development are more recent. This paper looks at intellectual property law in a new way namely through the angle of happiness or well-being research.

The field of happiness research is not that recent but strangely, so far, happiness researchers have hardly discussed the relationship between well-being and technology despite the pervasive role of the latter in contemporary society ...

Ending Judgment Arbitrage: Jurisdictional Competition And The Enforcement Of Foreign Money Judgments In The United States, Gregory Shill

Gregory Shill

Recent multi-billion-dollar damage awards issued by foreign courts against large American companies have focused attention on the once-obscure, patchwork system of enforcing foreign-country judgments in the United States. That system’s structural problems are even more serious than its critics have charged. However, the leading proposals for reform overlook the positive potential embedded in its design.

In the United States, no treaty or federal law controls the domestication of foreign judgments; the process is instead governed by state law. Although they are often conflated in practice, the procedure consists of two formally and conceptually distinct stages: foreign judgments must first ...