Law Commons^™

Asean's Liberalization Of Legal Services: The Singapore Case, Pasha Li-Tian Hsieh

Research Collection Yong Pung How School Of Law

This article examines the liberalization of legal services in the Association of Southeast Asian Nations (“ASEAN”) within the framework of the ASEAN Economic Community and ASEAN’s free trade agreements. Although trade in legal services is important to ASEAN’s goal as a “single market and production base,” the article challenges the weaknesses of ASEAN’s legal services liberalization. It then explores Singapore’s experiment on the regulations of foreign law firms and foreign lawyers, which have become substantially liberalized in the past decade. The article argues that while Singapore may serve as a positive example, ASEAN countries should be cautious of the gap …

Led Blindly: One Circuit's Struggle To Faithfully Apply The U.S. Supreme Court's Religious Symbols Constitutional Analysis, William M. Janssen

West Virginia Law Review

No abstract provided.

Secondary-Line Differential Pricing And The Robinson-Patman Act, E. Thomas Sullivan, Herbert J. Hovenkamp, Howard A. Shelanski, Christopher R. Leslie

All Faculty Scholarship

Because it is taught infrequently, the full text of Chapter 8 of our antitrust casebook, on the Robinson-Patman Act, is now posted online and free for anyone to use. This chapter covers all issues related to secondary-line enforcement, the "cost justification," "meeting competition," and other defenses, as well as buyers' liability. Primary-line enforcement is still covered with the materials on predatory pricing in Chapter 6.

Endangered Species In The Oil Patch: Challenges And Opportunities For The Oil And Gas Industry, Gabriel Eckstein, Jesse Snyder

Faculty Scholarship

Tension among competing interests is nothing new in environmental law. Even among the most tenacious adversaries, the ability to find common ground can serve as an impetus to further the aims of both industry and environmental proponents. Broadly speaking, advocates of the oil and gas industry prefer few restraints, if any, on exploration, development, and production. Comparatively, champions of biological and ecological preservation favor regulatory protections to conserve these interests. Cutting across these often disparate objectives, the Endangered Species Act (ESA) presents a not-so-obvious opportunity for both sides to receive a share of the pie through cooperation and forward planning. …

Personalized Bills As Commemorations: A Problem For House Rules?, Brian Christopher Jones

Brian Christopher Jones

The proliferation of personalized bills in Congress has occurred despite a prohibition on commemorations in the House of Representatives. This Essay provides a close examination of the wording behind the ban, especially the definition of “commemoration.” It uses examples from the Adam Walsh Child Protection and Safety Act of 2006 and other statutes to demonstrate how many contemporary personalized bills fall underneath the prohibition, and therefore should not be introduced or considered in the House.

Freedmen And Day Laborers: Why Enforcement Matters, Raja Raghunath

Raja Raghunath

As the one hundred and fiftieth anniversary of Emancipation approaches, there are cautionary lessons for modern workers to be found in Reconstruction, the period that followed the abolition of chattel slavery. It was mostly due to vehement opposition that the promise of universal liberty at work was squelched after the Civil War, but the federal government also bears responsibility for not defending the rights it had granted to the freed slaves, or freedmen, when those rights were contested and eventually nullified in the working fields and cities of the South. In this sense, workers’ rights were the original civil rights, …

The Legitimacy Of Crimmigration Law, Juliet P. Stumpf

Juliet P Stumpf

Crimmigration law—the intersection of immigration and criminal law—with its emphasis on immigration enforcement, has been hailed as the lynchpin for successful political compromise on immigration reform. Yet crimmigration law’s unprecedented approach to interior immigration and criminal law enforcement threatens to undermine public belief in the fairness of immigration law. This Article uses pioneering social science research to explore people’s perceptions of the legitimacy of crimmigration law. According to Tom Tyler and other compliance scholars, perceptions about procedural justice—whether people perceive authorities as acting fairly—are often more important than a favorable outcome such as winning the case or avoiding arrest. Legal …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theftv, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

The Apocalyptic Presidential Right Of Publicity, Michael G. Bennett

Michael G. Bennett

The Apocalyptic Presidential Right of Publicity

Michael G Bennett Associate Professor Northeastern School of Law

Abstract

This article critically examines publicity rights doctrine as applied to celebrity political figures. It is particularly concerned with the prominence of science fictional concepts, theoretical frameworks and tropes in cases that mark the extreme scope of the doctrine and in the scholarship that aims to render case law rationally meaningful. And it situates President Obama and the difficult doctrinal issues his candidacy and subsequent election highlighted at the center of its analysis.

Part one of the article briefly describes the right of publicity and …

The Political Fragmentation Of Land Use Governance In Santiago, Chile, And Its Implications For Socioeconomic Residential Segregation, Diego Gil Mc Cawley

Diego Gil Mc Cawley

Despite decades of economic development and the general improvement in the quality of life of its people, Santiago, the capital of Chile, presents high levels of residential segregation along socioeconomic lines. A debate about legal reforms to address this phenomenon is currently occurring. Existing Chilean research suggests that the current pattern of urban segregation has been caused by social housing policies based on the provision of subsidies to homeless people implemented in the last decades. However, foreign literature, especially in the United States, indicates that residential segregation is also influenced by land use legal structure and practices. This latter factor …

Bioethics And Law In The United States: A Legal Process Perspective, Charles Baron

Charles H. Baron

An analytical exposition of the law regarding a patient's "right to die" as it has developed in the United States over the last 30 years provides an exemplar overview of the variety of legal mechanisms that American legal institutions can and do bring to bear to deal with the challenges posed by new developments in medicine and the biosciences. Opposing "pro-life" and "pro-choice" ideological and political forces have been channeled through the federal and state legislative, judicial, and executive branches, where the various legal actors have developed legal principles that so far provide patients with a right to refuse any …

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles Baron

Charles H. Baron

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the …

Blood Transfusions, Jehovah’S Witnesses, And The American Patients’ Rights Movement, Charles H. Baron

Charles H. Baron

The litigation to protect Jehovah’s Witnesses from unwanted blood transfusions, which their theology considers a violation of the biblical prohibition against drinking blood, has produced important changes in both the right to refuse treatment and in the preferred treatment methods of all patients. This article traces the evolution of the rights of competent medical patients in the United States to refuse medical treatment. It also discusses the impact this litigation has had on the medical community’s realization that blood transfusions were neither as safe nor as medically necessary as medical culture posited.

Competency And Common Law: Why And How Decision-Making Capacity Criteria Should Be Drawn From The Capacity-Determination Process, Charles Baron

Charles H. Baron

Determining competence to request physician-assisted suicide should be no more difficult than determining competence to refuse life-prolonging treatment. In both cases, criteria and procedures should be developed out of the process of actually making capacity determinations; they should not be promulgated a priori. Because patient demeanor plays a critical role in capacity determinations, it should be made part of the record of such determinations through greater use of video- and audiotapes.

Licensure Of Health Care Professionals: The Consumer's Case For Abolition, Charles H. Baron

Charles H. Baron

While state medical licensure laws ostensibly are intended to promote worthwhile goals, such as the maintenance of high standards in health care delivery, this Article argues that these laws in practice are detrimental to consumers. The Article takes the position that licensure contributes to high medical care costs and stifles competition, innovation and consumer autonomy. It concludes that delicensure would expand the range of health services available to consumers and reduce patient dependency, and that these developments would tend to make medical practice more satisfying to consumers and providers of health care services.

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

The Concept Of Person In The Law, Charles Baron

Charles H. Baron

The focus of the abortion debate in the United States tends to be on whether and at what stage a fetus is a person. I believe this tendency has been unfortunate and counterproductive. Instead of advancing dialogue between opposing sides, such a focus seems to have stunted it, leaving advocates in the sort of “I did not!” – “You did too!” impasse we remember from childhood. Also reminiscent of that childhood scene has been the vain attempt to break the impasse by appeal to a higher authority. Thus, the pro-choice forces hoped they had proved the pro-life forces “wrong” by …

A Model State Act To Authorize And Regulate Physician-Assisted Suicide, Charles H. Baron, Clyde Bergstresser, Dan W. Brock, Garrick F. Cole, Nancy S. Dorfman, Judith A. Johnson, Lowell E. Schnipper, James Vorenberg, Sidney H. Wanzer

Charles H. Baron

Despite laws in many states prohibiting assisted suicide, an unknown but significant number of people each year commit suicide with the aid of a physician. In recent years, the phenomenon of physician-assisted suicide has attracted greater attention as physicians have openly risked prosecution to shed light on the subject, advocates have raised a series of legal challenges to laws banning assisted suicide, and a federal judge has struck down the nation's first statute allowing physicians to assist patients in suicide. In this Article, nine authors from the fields of law, medicine, philosophy and economics propose a comprehensive statute to permit …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

On Knowing One's Chains And Decking Them With Flowers: Limits On Patient Autonomy In "The Silent World Of Doctor And Patient", Charles Baron

Charles H. Baron

In this article Professor Baron continues the debate started by Jay Katz in his book "The Silent World of Doctor and Patient" on the necessity of exploring further patients' reasons for refusing treatment.

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron

Charles H. Baron

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …

Fetal Research: The Question In The States, Charles H. Baron

Charles H. Baron

This article is based on a paper delivered at the Third National Symposium on Genetics and the Law in Boston, April 1984.

Hastening Death: The Seven Deadly Sins Of The Status Quo, Charles Baron

Charles H. Baron

The seven deadly sins of the status quo -- inhumanity, paternalism, Utilitarianism, hypocrisy, lawlessness, injustice, and the deadly risk of error and abuse -- are seven arguments against maintaining the artificial bright-line distinction between the prohibition against assisted suicide and the allowance of patients’ right to refuse life-prolonging treatment. This article calls on courts and legislatures to follow the successful example of the Oregon Death with Dignity statute.

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

Weather Permitting: Incrementalism, Animus, And The Art (And Sometimes Artifice) In Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Jeremiah A Ho

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against …

Confucianism And Antitrust: China's Emerging Evolutionary Approach To Anti-Monopoly Law, Thomas J. Horton

Thomas J. Horton

In August, 2007, the People’s Republic of China, through its National People’s Congress, enacted its Anti-Monopoly Law, which took effect in August, 2008. This article discusses the historical, cultural, and philosophical values that have helped to shape and influence China’s current AML. Rather than following the United States and Europe, China appears to be charting its own course in interpreting and enforcing its competition laws. Based upon China’s history, culture, and Confucian ethics and morals, this article forecasts that China’s future AML enforcement will be based upon social, moral, and ethical considerations, as well as economic ones. This article concludes …

North Carolina's Bold Model For Eugenics Compensation, Peter Hardin, Paul Lombardo

Faculty Publications By Year

No abstract provided.