Law Commons^™

Bringing The Spies In From The Cold: Legal Cosmopolitanism, And Intelligence Under The Laws Of War, Peyton A. Cooke

Peyton A. Cooke

Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to work for even more reform. This paper addresses the roots and effects of such changes. It begins …

Composer Avec Du Droit, Des Sciences Et Le Mode Technique : Une Exploration, Serge Gutwirth

Serge Gutwirth

Le droit, le mode technique et les science sont des pratiques singulières, différentes et irréductibles. Dès lors, comment les articuler sans les aplatir, sans les trahir ? Il faut donc d'abord bien distinguer leur régimes d'énonciation et modes d'existence propres, afin de pouvoir ensuite penser des modes possibles d'articulation respectueux de leur singularité.

From Unsolicited Communications To Unsolicited Adjustments. Redefining A Key Mechanism For Privacy Protection, Gloria Gonzalez Fuster, Serge Gutwirth, Paul De Hert

Serge Gutwirth

The right to respect for private life is developed in European legal frameworks through different legal notions and instruments. One of such mechanisms for privacy protection, constantly backed up by the European Union (EU) legislator for already more than a decade, is the regulation of so-called unsolicited communications. This contribution explores this EU approach and argues that, in the light of current and upcoming developments, a profound revision of the notion might be needed. More concretely, it concludes that there is a need to move from a regulation of unsolicited communications to the regulation of unsolicited ‘adjustments’ (i.e., automatic adaptations …

Liberté Religieuse: Vers Un Devoir De Neutralité De L'Etat Dans L'Enseignement Public ?, Cécile Mathieu, Paul De Hert, Serge Gutwirth

Serge Gutwirth

La convention européenne des droits de l'homme se limite-t-elle à interdire aux Etats d'endoctriner les élèves sur le plan confessionnel dans l'enseignement public ou va-t-elle jusqu'à leur imposer un devoir de neutralité dans ce domaine ?

Variations Sur Le Thème De La Banalisation De La Surveillance, Rocco Bellanova, Paul De Hert, Serge Gutwirth

Serge Gutwirth

Les études de la surveillance (Surveillance studies) sont-elles en mesure d’appréhender dans leur globalité des formes atypiques de surveillance où le présupposé d’un contrôle disciplinaire ne peut être démontré ? Comment saisir ces formes de surveillance qui se développent dans le quotidien de nos activités ? Rocco Bellanova, Paul de Hert et Serge Gutwirth se livrent à cet exercice réflexif sur leur discipline de recherche. Pour dépasser les points d’achoppement des Surveillance studies, ils explorent le concept polysémique de « surveillance banalisée ».

Some Caveats On Profiling, Serge Gutwirth, Mireille Hildebrandt

Serge Gutwirth

In this chapter the authors endeavor to expose the singularity of profiling techniques, data mining or knowledge discovery in databases. Pursuant to this, they point at a number of caveats that are linked to the specifics of profiling. Those caveats pertain to issues related to dependence, privacy, data protection, fairness (non-discrimination), due process, auditability and transparency of the profilers and knowledge asymmetries

Sorting Out Smart Surveillance, David Wright, Michael Friedewald, Serge Gutwirth, Marc Langheinrich, Emilio Mordini, Rocco Bellanova, Paul De Hert, Kush Whadwa, Didier Bigo

Serge Gutwirth

Surveillance is becoming ubiquitous in our society. We can also see the emergence of “smart” surveillance technologies and the assemblages (or combinations) of such technologies, supposedly to combat crime and terrorism, but in fact used for a variety of purposes, many of which are intrusive upon the privacy of law-abiding citizens. Following the dark days of 9/11, security and surveillance became paramount. More recently, in Europe, there has been a policy commitment to restore privacy to centre stage. This paper examines the legal tools available to ensure that privacy and personal data protection are respected in attempts to ensure the …

Hijos Tuyos,Hijos Mios, Hijos Nuestros. Un Reto Legislativo, Olga Maria Castro Perez Treviño

Olga Maria Castro Perez Treviño

“Habíase una vez un hombre que había perdido a su mujer, y una mujer a quien se le había muerto el marido. El hombre tenía una hija, y la mujer, otra. Las muchachas se conocían y salían de paseo juntas; Un día, la mujer le dijo a la hija del viudo: Di a tu padre que me gustaría casarme con él…Y se celebró la boda...”

Operações Urbanas Em Belo Horizonte: Apontamentos Sobre As Leis 9952/2010 E 9959/2010, Rafael De Oliveira Alves, Helena Dolabela Pereira

Rafael de Oliveira Alves

No abstract provided.

Artigo Científico: Concepção, Temas, Métodos E Técnicas, Rafael Mafei Rabelo Queiroz

Rafael Mafei Rabelo Queiroz

No abstract provided.

Regulatory Reform In The States: Lessons From New Jersey, Stuart Shapiro, Deborah Borie-Holtz

Stuart Shapiro

While numerous examinations of the rulemaking process have occurred at the federal level, there is a dearth of studies about the effects of the proceduralization of the rulemaking process on state regulations. Our examination focuses on regulations promulgated in New Jersey, both prior to and following, major procedural changes enacted in the state in 2001. By choosing distinct leadership periods, one governed by Democrats and one by Republicans, we attempt to control for differences in political preferences for regulation. During the study years, we collected data on 1,707 regulations on a wide array of variables from the type of rulemaking, …

"Sports Image And The Law" Presented At The International Sport Law & Business Conference, That Took Place In Instanbul, 6-7 September 2010, Marios Papaloukas

Marios Papaloukas

In the context of what is called the new media environment, the term “sports image” is used meaning the athlete’s right to their own image as well as the right to exploit commercially a sports event. Under Greek law sports events are not recognised as original intellectual products, so they are not protected under the Law on Intellectual Property. Individuals (sportsmen) producing the sports event, are not aware of the result, i.e. its final form. The elements of competition and improvisation combined with physical contact are enough to guarantee a different result every time, no matter how many times the …

The Sporting Exemption In European Case Law, Marios Papaloukas

Marios Papaloukas

In the early nineties, when the “Bosman” case arose, sports authorities were faced with a great challenge. The widely accepted autonomy and self-regulation of the sports sector was at stake. If sports were to be treated as just another economic activity without exceptions and if its specific characteristics were not recognised, the whole athletic establishment would be endangered. Since then there were many efforts both from member states and from sports entities in order to establish the so called “sporting exemption” on a political level as well as before the European Court of Justice (henceforth ECJ). The “Olympique Lyonnais” case …

Competition Rules And Sports Broadcasting Rights In Europe, Marios Papaloukas

Marios Papaloukas

Sports broadcasting is among the most popular of television programmes. The viewers watching such programmes are usually the ones with the highest purchase capacity, therefore the audience is of particular interest to publicists, as it is considered a very special audience not easily attracted by other programmes. As a result, the competition on publicity transmission during these programmes as well as on acquiring TV broadcasting rights to sports events is much higher. However Sports television broadcasting is of a very individual nature in comparison with the broadcast of other events. In addition to that it is a common practice that …

Sports Betting And European Law, Marios Papaloukas

Marios Papaloukas

As early as 1992 the European Court of Justice ruled that the principle of proportionality will apply in order to examine whether a restrictive measure, imposed by a member state in order to regulate gambling, is valid. As a result member states monopolies and oligopolies concerning gambling and sports betting will have to comply with these new developments.

Euthanasia, The Doctor And The Patient, Marios Papaloukas

Marios Papaloukas

No abstract provided.

Competition Rules And Sports Broadcasting Rights In Europe, Marios Papaloukas

Marios Papaloukas

Sports broadcasting is among the most popular of television programmes. The viewers watching such programmes are usually the ones with the highest purchase capacity, therefore the audience is of particular interest to publicists, as it is considered a very special audience not easily attracted by other programmes. As a result, the competition on publicity transmission during these programmes as well as on acquiring TV broadcasting rights to sports events is much higher. However Sports television broadcasting is of a very individual nature in comparison with the broadcast of other events. In addition to that it is a common practice that …

Sports Betting And European Law, Marios Papaloukas

Marios Papaloukas

As early as 1992 the European Court of Justice ruled that the principle of proportionality will apply in order to examine whether a restrictive measure, imposed by a member state in order to regulate gambling, is valid. As a result member states monopolies and oligopolies concerning gambling and sports betting will have to comply with these new developments.

Valuing Intellectual Property: An Experiment, Christopher Sprigman, Christopher Buccafusco

Christopher Sprigman

In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

The Invisible Woman: Availability And Culpability In Reproductive Health Jurisprudence, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Women’s health is widely assumed to be a significant consideration in reproductive rights cases. Court decisions relating to contraception, abortion, and childbirth demonstrate that while this assumption may have historical validity, consideration of women’s health is often truncated in recent reproductive rights jurisprudence. This occurs, in part, through the application of one or both of two recurring tools. First, judges regularly—and often inaccurately—cite the theoretical availability of alternative reproductive health services as proof that women’s health will not suffer even if a law curtailing reproductive rights is upheld. I label this the “availability tool.” Second, when alternatives are not available, …

Qualitative And Quantitative Proportionality - A Specific Critique Of Retributivism, John D. Castiglione

John D. Castiglione

This Article presents a normative model of proportionality review under the Cruel and Unusual Punishments Clause. I divide proportionality into two organizing concepts: “qualitative proportionality,” which concerns the methods used to punish the individual and the conditions under which he serves his sentence, and “quantitative proportionality,” which concerns the temporal length of the sentence imposed. I argue that the Cruel and Unusual Punishments Clause is best understood to mandate review of the qualitative proportionality of the sentence, but not the quantitative proportionality of the punishment. The most significant feature of this model is an appreciation for the role of human …

The Presumption Of Innocence In The French And Anglo-American Legal Traditions, Francois Quintard-Morenas

Francois Quintard-Morenas

Despite evidence that the presumption of innocence was something more than an instrument of proof, common law scholars in the nineteenth century reduced the doctrine to an evidentiary rule without acknowledging the role of the principle as a shield against punishment before conviction in both the civil and common law traditions. The resulting narrow conception of the presumption of innocence has since pervaded the legal and public discourse in the United States, where suspects are increasingly treated as guilty before trial. Using the French Declaration of Rights of 1789 and the English Prison Act of 1877 as points of reference, …

Race Treason: The Untold Story Of America's Ban On Polygamy, Martha M. Ertman

Martha M. Ertman

Legal doctrines banning polygamy grew out of nineteenth century Americans’ view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine’s famous observation that the move in progressive societies is “from status to contract.” It frames antipolygamists’ contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was “natural” for people of color but so “unnatural” for whites as to produce a …

Congress, Corporate Boards, And Oversight: A Private Law / Public Law Comparison, Paul S. Miller

Paul S. Miller

This article argues that a system of congressional oversight based on trust can produce more effective government than one based on highly detailed regulations. The article first presents historic examples of congressional oversight and the ways in which trust contributed both to the effectiveness of the oversight and to the success of the policies at issue. The article goes on to examine the rise of trust theory in corporate governance as a means of making oversight by boards of directors more effective and thereby making corporations more profitable. The final part of the article explores how use of trust theory …

The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko

Kimberly Yuracko

This paper seeks to explain a paradox: Why does Title VII’s prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Jordan C. Budd

A FOURTH AMENDMENT FOR THE POOR ALONE:

SUBCONSTITUTIONAL STATUS AND THE MYTH OF THE INVIOLATE HOME

Jordan C. Budd

ABSTRACT

For much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence …

Foreword: Competitiveness Of The Asean Countries: Corporate And Regulatory Drivers, Karl P. Sauvant

Karl P. Sauvant

The BRICs, leading home countries among emerging markets, face a steep learning curve to meet the internationalization challenge, the host country challenge and the home country challenge. Each challenge requires an in-depth understanding of outward FDI and policy implications related to these challenges.

Approbation Of Tillman's The Puzzle Of Hamilton's Federalist No. 77: Letter From Professor Forrest Mcdonald To Seth Barrett Tillman (Feb. 14, 2009), Seth Barrett Tillman

Seth Barrett Tillman

Approbation of Tillman's The Puzzle of Hamilton's Federalist No. 77 in a letter from Professor Forrest McDonald to Seth Barrett Tillman (Feb. 14, 2009).

[March 14, 2011]

Killing Two Constitutional Birds With One Linguistic Stone: Tricky Resignation And The "Poorly Drafted" Ineligibility Clause And Impeachment Clause (Not Yet Drafted, Planned For 2011-2012 Publication), Seth Barrett Tillman

Seth Barrett Tillman

This paper is not yet drafted. It is just in the idea stage.

[June 2, 2010]

Some Conjectures On The Original Public Meaning Of The Constitution's Quorum Clause (Not Yet Drafted, Planned For 2011-2012 Publication), Seth Barrett Tillman

Seth Barrett Tillman

This paper is not yet drafted. It is just in the idea stage. This paper will discuss the original public meaning of the Constitution's quorum clause and also responds to John Bryan Williams's How to Survive a Terrorist Attack, which appeared in William & Mary Law Review.

[June 4, 2010]