Law Commons^™

Aiding And Abetting Under The Antiterrorism Act: Despite Statutory Silence, Why Extending Liability To Aiders And Abettors Of International Terrorism Furthers Congressional Intent To Compensate Plaintiffs And Defeat Terrorist Financial Pathways, Jesse Snyder

Jesse Snyder

No abstract provided.

The Rise And Permanence Of Quasi-Legislative Independent Commissions, Gabriel Gillett, Steven R. Ross, Raphael A. Prober

Gabriel Gillett

This article explores Congress’s recent trend of creating quasi-legislative independent commissions to augment its own investigations, and determines what factors may enhance the chance that a commission will prove successful. Although Congress has never been the lone forum for investigations, since 2001 the legislature has been empanelling entities of outside experts to investigate the most significant economic and national security issues. This Article begins with a history of governmental investigations in America, highlighting activity by Congress, independent agencies, and presidential commissions. Next, it describes the modern political, communications, and scheduling strains on Congress that have created an opportunity for new …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

The First Amendment In The Multicultural Climate Of Colleges And Universities: A Story Ending With Christian Legal Society V. Martinez, Blake M. Lawrence

Blake M Lawrence

This article argues that the “limited public forum” analysis used by the United States Supreme Court in Christian Legal Society v. Martinez correctly addresses the competing concerns of students and university administration when approaching free speech and association on college and university campuses. It extensively analyzes the creation of the “limited public forum” analysis, explains why that particular analysis is ill-equipped for limiting high-school speech, and comprehensively addresses the Christian Legal Society v. Martinez opinion. Further, weaknesses in the dicta of Christian Legal Society v. Martinez are analyzed and points made by dissenting Justices are critiqued.

Skewed Incentives: How Offshore Drilling Policies Fail To Induce Innovation To Reduce Social And Environmental Costs, Gaia J. Larsen

Gaia Larsen Esq.

The accident at the Deepwater Horizon platform in the Gulf of Mexico in April of 2010 showed the potentially catastrophic damage associated with offshore oil drilling. It also highlighted both the technological advances that have made drilling in deeper and more dangerous waters feasible and affordable, and the lack of similar advances in technology to prevent harm resulting from such drilling. In light of that disaster and current debate over offshore oil drilling, this article looks at the failure of current policies to adequately incentivize investment in innovation to reduce the environmental and social costs associated with offshore drilling. It …

Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee

Ruth S Lee

Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …

Sustainable Procurement Is Smart Procurement: A Primer For Local Governments To Successfully Implement Sustainable Procurement Policies, Zachary R. Kobrin

Zachary R Kobrin

Most local governments do not understand the benefits of sustainable procurement or how to successfully implement these policies. This article discusses the challenges facing local governments when adopting sustainable procurement policies and makes recommendations to successfully implement sustainable procurement. The U.S. Environmental Protection Agency describes sustainable procurement as the purchasing of products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. For local governments, sustainable procurement can also be defined by the benefits it will provide the local environment and economy. Before …

The Hierarchy That Wasn't There: Elevating ‘Usage’ To Its Rightful Position For Contracts Governed By The Cisg, William P. Johnson

William P. Johnson

The term ‘usage’ generally refers to any practice that is habitual or customary within a given industry, trade or region. Under domestic U.S. sales law, the term ‘usage of trade’ is defined specifically to refer to any practice or method of dealing that has such regularity of observance as to justify an expectation that parties to a particular contract will observe the usage, even though the parties have not expressly incorporated the usage into their contract. Usage of trade can be used under domestic U.S. sales law to interpret, supplement or explain a written agreement. But usage of trade may …

On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus

Patrick A Corbus

Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …

On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus

Patrick A Corbus

Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …

On Shaky Ground: The Need For The Reexamination Of The Admissibility Of Field Sobriety Testing, Patrick A. Corbus

Patrick A Corbus

Federal and state rules of evidence permit judges to take judicial notice of specific categories of facts, which allows these facts into evidence if the truth of these facts is so notorious or well known that they cannot be refuted. Frequently, judicial notice is used for the most basic, or common sense, facts without being formally introduced by a witness or other rule of evidence. At times, however, a request is made for a court to judicially notice something more complex than which day of the week corresponds to a particular calendar date. While judicial notice can contribute to a …

Over My Dead Body: The Right To Posthumous Bodily Integrity And Implications Of Whose Right It Is, Hilary Young

Hilary Young

This article examines laws that allow people to decide what will happen to their bodies after death, referred to as laws protecting posthumous bodily integrity. It asks whose rights they intend to protect: the rights-holders could consist only of living individuals whose bodies will become the corpses at issue or could include the dead themselves. Whether rights to posthumous bodily integrity belong only to the living or survive death leads to three types of insight. First, the reasons for protecting posthumous bodily integrity are different depending on who the rights-bearers are. Second, to the extent that some laws are more …

The Public Life Of The Virtual Self, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from other Internet users, in total control of his online experience and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – …

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …

Arbitration Agreements Used By Nursing Homes: An Empirical Study And Critique Of At&T Mobility V. Concepcion, Lisa Tripp

Lisa Tripp

Although the health care industry had historically been one of the fields that had not embraced pre-dispute binding arbitration agreements, that reluctance appears to be changing in at least one sector of the health care field. An examination of admission contracts used by North Carolina nursing homes and telephone survey of North Carolina nursing homes revealed that 43 percent of nursing homes now incorporate pre-dispute binding arbitration provisions into their admission contracts. All of the major nursing home chains operating in North Carolina use pre-dispute binding arbitration agreements in at least some of their facilities, while smaller operators use them …

The Ballot As A Bulwark: The Impact Of Felony Disenfranchisement On Recidivism, Guy P. Hamilton-Smith, Matt Vogel

Guy P Hamilton-Smith

Felony disenfranchisement – the exclusion of individuals convicted of felonies from the voting rolls – is a practice that is commonplace in the United States. In 2010, approximately 5.3 million Americans were ineligible to vote because of a prior felony conviction. Despite the fact that the justifications for disenfranchisement in a democratic society could be characterized as dubious, disenfranchisement has withstood various legal challenges and remains a widespread practice in almost every state. One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does. First, this article …

Property On The Borderline: A Comparative Analysis Of The Legal Status Of Animals In Canada And The United States, Maneesha D. Deckha

Maneesha D Deckha

This Article reviews recent animal-related law reform in the United States in the areas of criminal, tort, family, and estate laws, and juxtaposes these developments with the current state of similar areas of law in Canada. While neither country may be described as “animal-friendly,” the article suggests that the United States is far more willing to challenge the traditional classification of animals as property at least where companion animals are concerned. Canada, in contrast, has remained essentially conservative, failing to engage with the posthumanist questions revisiting animals’ legal status as property that have begun to emerge in American jurisprudence. The …

It Ain’T Necessarily So: The Misuse Of “Human Nature” In Law And Social Policy And The Bankruptcy Of The “Nature-Nuture” Debate, Justin Schwartz

Justin Schwartz

Debate about legal and policy reform has been haunted by a pernicious confusion about human nature, the idea that it is a set of rigid dispositions, today generally conceived as genetic, that is manifested the same way in all circumstances. Opponents of egalitarian alternatives argue that we cannot depart far from the status quo because human nature stands in the way. Advocates of such reforms too often deny the existence of human nature because, sharing this conception, they think it would prevent changes they deem desirable. Both views rest on deep errors about what it is to have a nature …

Where Did Mill Go Wrong?: Why The Capital Managed Firm Rather Than The Labor Managed Enterprise Is The Predominant Organizational Form In Market Economies, Justin Schwartz

Justin Schwartz

In this Article, I propose a novel law and economics explanation of a deeply puzzling aspect of business organization in market economies. Why are virtually all firms are organized as capital managed and owned (capitalist) enterprises rather than as labor managed and owned cooperatives? Over 150 years ago, J.S. Mill predicted that efficiency and other advantages would eventually make worker cooperatives predominant over capitalist firms. Mill was right about the advantages but wrong about the results. The standard explanation is that capitalist enterprise is more efficient. Empirical research, however, overwhelmingly contradicts this. But employees almost never even attempt to organize …

Come A Little Closer So That I Can See You My Pretty: The Use And Limits Of Fiction Point Of View Techniques In Appellate Briefs, Cathren Page

Cathren Page

Come a Little Closer so That I Can See You my Pretty, The Use and Limits of Fiction Point of Techniques in Appellate Briefs began when I was struggling to explain point of view to my students in Appellate Advocacy. They represented a fictional criminal defendant whose bag was searched when the police were executing a premises warrant at his friend’s house. My students scrunched up their faces when I tried to explain why they should not start their facts with the friend’s crime that spurred the search. The crime happened first in time, so to them it came first. …

The Economic Espionage Act: Is The Law All Bark And No Bite, Nathaniel J. Minott

Nathaniel J Minott

The Economic Espionage Act suffers from an insurmountable enforcement problem and is thus unlikely to ever be effective in stemming the tide of economic espionage besieging U.S. corporations. Passed in 1996, the EEA has never enjoyed the sort of government backing that foreign espionage agencies targeting the U.S. have received from their governments. That is because from day one, the individual lawyers who would actually use the EEA have been reluctant to do so in the face of excessive political pressure, heavy evidentiary burdens, and feeble institutional support. This paper seeks to isolate and explain the manifold issues presented by …

Wind Turbine Wakes, Wake Effect Impacts, And Wind Leases: Using Solar Access Laws As The Model For Capitalizing On Wind Rights During The Evolution Of Wind Policy Standards, Kimberly E. Diamond, Ellen J. Crivella

Ellen J Crivella

Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners and their neighbors, as well as for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect), as natural wind flow access between adjacent developers and the rights and income streams that flow with it, can be adversely impacted and can influence such developers’ decision as to whether or not to construct a wind project. Applying precedents founded on litigation-based legal theories invites confrontation between impacted parties and may not be the best …

“No Fishing Poles Allowed At The Office,” And Other Suggestions On How To Limit “Fishing Expeditions” To An Outdoor Weekend Activity And Away From The Realm Of E-Discovery, Joanna K. Slusarz

Joanna Slusarz

Early settlement is usually encouraged by the courts and welcomed by most parties involved in a lawsuit. However, it may not always be the most favorable result. This idiosyncrasy arises most when the costs of continuing litigation and adjudication on the merits outweigh those of early settlement. On the other hand, early settlement raises the risk of “encourag[ing] additional, low merit cases that might not otherwise have been filed had the company chosen to litigate existing lawsuits.”

The phenomenon of electronic discovery (“e-discovery”) has exponentially increased the occurrence of the latter result. As a result, defendants, particularly large corporations with …

Is There An Efficient Antitrust Approach To Health Care?, Kathryn Ciano

Kathryn Ciano

As American states and the federal government wrestle to find a solution to health care reform, some regulators are looking towards antitrust laws in the international marketplace to govern domestic health care policy. Antitrust principles dictate that antitrust authorities must intervene only when pressures become so great as to interfere with the very operations of the market. Pharmaceutical and health care markets rely on free trade and competitive global cooperation, so there is no efficient antitrust approach to health care.

Religious Exemption Statutes: Betrayest Thou Me With A Statute?, Shirley D. Howell

Shirley D. Howell

This Article analyzes the causal connection between religious treatment exemption statutes and child deaths. Further, the Article develops a nexus between partial immunity statutes and wrongful prosecutions of religious parents

Restoring The Presumption Of Innocence, Shima Baradaran

Shima Baradaran

The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority …

Fair Trade And Child Labor, Shima Baradaran

Shima Baradaran

Child labor is a global problem that has attracted much discussion. Various solutions proposed include attempts at improving international compliance with human rights standards, levying of trade sanctions or boycotts, and increasing legislation and prosecution of crimes. None of these solutions have achieved more than marginal success, largely because they are rarely enforced and ignore the root causes of child labor and global market forces. The use of fair trade labeling to combat child labor is an approach that has received virtually no attention in the legal community. Yet, primary qualitative research and case studies presented here illustrate that fair …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …