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Articles 1 - 26 of 26
Full-Text Articles in Law
Three Ways Of Looking At A Health Law And Literature Class, Jennifer S. Bard, Thomas Wm. Mayo, Stacey A. Tovino
Three Ways Of Looking At A Health Law And Literature Class, Jennifer S. Bard, Thomas Wm. Mayo, Stacey A. Tovino
Faculty Journal Articles and Book Chapters
The authors of this Article participated in a panel at the American Society of Law, Ethics & Medicine Conference in 2008 that discussed the use of literary materials in law school to teach medical ethics (and related matters) in a law school setting. Each author comes at the topic from a different perspective based on his or her own experience and background. This Article and the panel on which it was based reflect views on how literature can play a valuable role in helping law students, as well as medical students, understand important legal and ethical issues and concepts in …
International Decision, Civil Party Participation In Provisional Detention Appeals, Extraordinary Chambers In The Courts Of Cambodia, Jenia I. Turner
International Decision, Civil Party Participation In Provisional Detention Appeals, Extraordinary Chambers In The Courts Of Cambodia, Jenia I. Turner
Faculty Journal Articles and Book Chapters
No abstract provided.
The U.S. Discovery-Eu Privacy Directive Conflict: Constructing A Three-Tiered Compliance Strategy, Carla L. Reyes
The U.S. Discovery-Eu Privacy Directive Conflict: Constructing A Three-Tiered Compliance Strategy, Carla L. Reyes
Faculty Journal Articles and Book Chapters
This note examines the conflicts of laws issue faced by trans-border civil litigants attempting to comply with both the U.S. Federal Rules of Civil Procedure and the requirements of the EU Privacy Directive. This note first sifts through the quagmire of regulations, and then attempts to help trans-border litigants view the U.S. discovery-EU data protection conflict through a transnational legal lens, and concludes by constructing a three-tiered strategy for compliance that respects U.S., EU and international law.
International Governance Of Domestic National Security Measures: The Forgotten Role Of The World Trade Organization, Carla L. Reyes
International Governance Of Domestic National Security Measures: The Forgotten Role Of The World Trade Organization, Carla L. Reyes
Faculty Journal Articles and Book Chapters
The current perception of the United Nations as the only institution charged with governing international security issues was neither intended nor required. Although the historical development of the World Trade Organization (WTO) caused a significant shift in its governance focus, the WTO is uniquely situated to remedy several of the governance failures suffered by the United Nations and to act as an effective governor of national security in the economic sphere. need for such an alternative governance mechanism is especially acute when nation-states refuse to recognize the authority of the United Nations over a security dispute or when a veto-holding …
The Real Value Of Tax Deferral, Christopher H. Hanna
The Real Value Of Tax Deferral, Christopher H. Hanna
Faculty Journal Articles and Book Chapters
A leading law professor wrote, almost 25 years ago, that Deferral of gain is not as serious as outright exemption [exclusion], but it is the next best thing, as sophisticated taxpayers and their counsel are now well aware. If exclusion is not possible, then according to the professor, the next best result is to defer paying taxes on the item of income. From a tax law standpoint, very few academics would disagree with the statement that deferral is the next best thing to exclusion.
But how important is tax deferral in the real word, particularly with respect to the Fortune …
Building A Framework To Address Failure Of Complex Global Financial Institutions, Douglas W. Arner, Joseph J. Norton
Building A Framework To Address Failure Of Complex Global Financial Institutions, Douglas W. Arner, Joseph J. Norton
Faculty Journal Articles and Book Chapters
The systemic phase of the current global financial crisis was triggered by the failure of large complex global financial institutions (LCGFIs). In this context, as recognised by the Group of 20, one of the greatest failures of both international and domestic legal and regulatory systems has been the lack of appropriate arrangements, including adequate insolvency arrangements, to address such failures when they occur. Following a discussion of the difficulties of dealing with the failure of large complex global financial conglomerates, the article discusses advocates a framework based upon prevention of failure as the first element and mechanisms to address failure …
Making Pregnancy Work: Overcoming The Pregnancy Discrimination Act's Capacity-Based Model, Joanna L. Grossman, Gillian Thomas
Making Pregnancy Work: Overcoming The Pregnancy Discrimination Act's Capacity-Based Model, Joanna L. Grossman, Gillian Thomas
Faculty Journal Articles and Book Chapters
This article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, they seek to avoid certain tasks or situations because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against "pregnancy discrimination," but it provides absolute rights …
International Health Care Convergence: The Benefits And Burdens Of Market-Driven Standardization, Nathan Cortez
International Health Care Convergence: The Benefits And Burdens Of Market-Driven Standardization, Nathan Cortez
Faculty Journal Articles and Book Chapters
For over thirty years, health scholars have debated whether health care policies are converging, or becoming more alike, internationally. Convergence theories have always been particularly appealing in health care. Most countries generally struggle with the same challenges: how to provide quality care, to as many people as possible, for a reasonable price. Moreover, modern scientific medicine has not only influenced how countries around the world provide and regulate health care, but has also driven rising patient expectations. These commonalities invite theories of convergence: If policymakers in different jurisdictions face similar challenges, why wouldn't they adopt roughly similar solutions?
In this …
Universal Jurisdiction As An International 'False Conflict' Of Laws, Anthony J. Colangelo
Universal Jurisdiction As An International 'False Conflict' Of Laws, Anthony J. Colangelo
Faculty Journal Articles and Book Chapters
This symposium Essay uses the private law notion of a "false conflict" of laws to develop a coherent and normatively sound legal framework for evaluating the exercise of universal jurisdiction by states in the international legal system. The Essay suggests that properly exercised, universal jurisdiction creates no conflict of laws among states because, as a matter of prescriptive jurisdiction, universal jurisdiction is never really extra-territorial, and thus never generates the possibility of conflicting, overlapping laws. Rather, universal jurisdiction comprises a comprehensive territorial jurisdiction, originating in a universally-applicable international law that covers the globe. Individual states may apply and enforce that …
Double Jeopardy And Multiple Sovereigns: A Jurisdictional Theory, Anthony J. Colangelo
Double Jeopardy And Multiple Sovereigns: A Jurisdictional Theory, Anthony J. Colangelo
Faculty Journal Articles and Book Chapters
This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and sharpens normative assessment of that doctrine.
The Article develops a jurisdictional theory of double jeopardy under which sovereignty signifies independent jurisdiction to make and apply law. Using this theory, the Article recasts the history of the U.S. Supreme Court's dual sovereignty doctrine entirely in terms of jurisdiction, penetrating the opacity of the term sovereign as …
The Unification Of Law In The Russian Federation, Jeffrey D. Kahn, Alexei Trochev, Nikolay Balayan
The Unification Of Law In The Russian Federation, Jeffrey D. Kahn, Alexei Trochev, Nikolay Balayan
Faculty Journal Articles and Book Chapters
How have fluctuating approaches to federalism in post-Soviet Russia affected its legal system? This article examines the core legal subjects, processes,and institutions composing the Russian legal system. The source of legal changes, as Russian federalism has shifted from decentralized beginnings under Yel’tsin to the current centralized system under Medvedev and Putin, is evaluated. Seeds for centralization in the original 1993 Constitution and the roles of “top down,” “bottom up,” and “outside in” pressures to centralize the federal system are examined. The degree of unification and centralization of Russian law and the de facto nature of the legal system are analyzed.
Incorporating Endogenous Preferences In Cost-Benefit Analysis, Gregory S. Crespi
Incorporating Endogenous Preferences In Cost-Benefit Analysis, Gregory S. Crespi
Faculty Journal Articles and Book Chapters
The conventional assumption made by cost-benefit analysts is that individual preference structures are not altered by any of the policies that are under consideration. This simplifying "exogenous preferences" assumption is not always satisfied, however, and in some instances the preference structures of a significant proportion of the people who are impacted by a policy are "endogenous" in that they are also altered by that policy. Under those endogenous preferences circumstances an important question is presented as to whether the willingness to pay-based valuations of the impacts of the policies should be calculated with regard to the pre-policy implementation preference structures, …
A Brief Reflection On The Problem Of Person-Altering Consequences, Gregory S. Crespi
A Brief Reflection On The Problem Of Person-Altering Consequences, Gregory S. Crespi
Faculty Journal Articles and Book Chapters
Many social policies require substantial sacrifices by existing persons in order to benefit the yet-unborn members of future generations. There is a substantial consensus that we do have ethical obligations to consider the interests of those future persons in our decisions. However, the questions of whether we do in fact have such ethical obligations, and if so then how to properly balance those obligations with our obligations to existing persons, are greatly complicated by the often-overlooked "problem of person-altering consequences." This brief essay is intended to communicate to a broad readership the nature and scope of this problem and its …
Privilege Or Punish: Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib
Privilege Or Punish: Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib
Faculty Journal Articles and Book Chapters
This book answers two basic but under-appreciated questions: first, how does the American criminal justice system address a defendant's family status? And, second, how should a defendant's family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination? After surveying the variety of "family ties benefits" and "family ties burdens" in our criminal justice system, we explain why policymakers and courts should view with caution and indeed skepticism any attempt to distribute these benefits or burdens based on one's family status. This is a controversial stance, but we …
Immortal Fame: Publicity Rights, Taxation, And The Power Of Testation, Joshua C. Tate
Immortal Fame: Publicity Rights, Taxation, And The Power Of Testation, Joshua C. Tate
Faculty Journal Articles and Book Chapters
Publicity rights, or the rights to the use of one’s image and likeness, are a relatively recent form of property. Several states now recognize rights of publicity as survivable, meaning that the heirs of deceased celebrities can inherit those rights. Because U.S. law has traditionally granted each individual the power of testation, a celebrity can also freely devise the rights to persons of her choosing. Nevertheless, some scholars have recently envisioned the adoption of hypothetical state statutes under which publicity rights would pass automatically to specified statutory heirs regardless of the celebrity’s wishes. Destroying the power of testation, these scholars …
Social Factoring The Numbers With Assisted Reproduction, Lolita Buckner Inniss, Bridget J. Crawford
Social Factoring The Numbers With Assisted Reproduction, Lolita Buckner Inniss, Bridget J. Crawford
Faculty Journal Articles and Book Chapters
In early 2009 the airwaves came alive with sensational stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother's well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long history …
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Faculty Journal Articles and Book Chapters
On March 1, 2009, the Special Tribunal for Lebanon (STL) commenced operations in the Netherlands. The mandate of the STL is to try those allegedly responsible for the 2005 bombing in Beirut which killed former Lebanese Prime Minister Rafiq Hariri. A collaborative effort between Lebanon and the United Nations, the STL is to be of “international character based on the highest standards of justice.” However, the STL’s in absentia trial provisions are based on a far different, and lower, standard. This article posits that the STL’s in absentia trial provisions violate human rights norms, indeed the U.N. expressly rejected such …
Corporate Tax Reform: Listening To Corporate America, Christopher H. Hanna
Corporate Tax Reform: Listening To Corporate America, Christopher H. Hanna
Faculty Journal Articles and Book Chapters
In the last few years, academics, practitioners and government officials have engaged in serious discussions in reforming the U.S. corporate income tax system. Some, if not much of the discussion, has focused on maintaining the competitiveness of U.S. corporations in a global economy. As a result, some have argued that the U.S. needs to reduce its top corporate tax rate from 35 percent, which is currently among the highest of the 30 OECD countries, to a rate around 30 percent or even lower. Others have maintained that the U.S. needs to enact specific or targeted tax incentives, such as expensing …
Eight Is Enough, Naomi R. Cahn, Jennifer M. Collins
Eight Is Enough, Naomi R. Cahn, Jennifer M. Collins
Faculty Journal Articles and Book Chapters
On January 26, 2009, the nation's second set of live-born octuplets was delivered. The public fascination with this event quickly turned ugly when the media revealed that the mother was thirty-three year-old Nadya Suleman, who is single, unemployed, and already caring for six children under the age of eight.
The cultural backlash against Suleman has focused on three separate issues. The first revolves around Suleman herself, and her ability as a single, unemployed mother to parent fourteen young children successfully. A second set of concerns revolves around the medical procedures at her fertility clinic. How could the clinic agree to …
Arrow's Theorem And The Exclusive Shareholder Franchise, Grant M. Hayden, Matthew T. Bodie
Arrow's Theorem And The Exclusive Shareholder Franchise, Grant M. Hayden, Matthew T. Bodie
Faculty Journal Articles and Book Chapters
In this essay, we contest one of the main arguments for restricting corporate board voting to shareholders. In justifying the limitation of the franchise to shareholders, scholars have repeatedly turned to social choice theory—specifically, Arrow’s theorem—to justify the exclusive shareholder franchise. Citing to the theorem, corporate law commentators have argued that lumping different groups of stakeholders together into the electorate would result in a lack of consensus and, ultimately, the lack of coherence that attends intransitive social choices, perhaps even leading the corporation to self-destruct. We contend that this argument is misguided. First, we argue that scholars have greatly overestimated …
A 'Ho New World: Raced And Gendered Insult As Ersatz Carnival And The Corruption Of Freedom Of Expression Norms, Lolita Buckner Inniss
A 'Ho New World: Raced And Gendered Insult As Ersatz Carnival And The Corruption Of Freedom Of Expression Norms, Lolita Buckner Inniss
Faculty Journal Articles and Book Chapters
Carnivalization, a concept developed by literary theorist Mikhail Bakhtin and later employed in broad social and cultural contexts, is the tearing down of social norms, the elimination of boundaries and the inversion of established hierarchies. It is the world turned upside down. Ersatz carnival is a pernicious, inverted form of carnival, one wherein counter discourses propounded by outsiders are appropriated by elites and frequently redeployed to silence and exclude those same outsiders. The use of the slur 'ho by gangsta' rappers in the performance of songs that articulate a vision of urban culture is an example of carnivalization. However, when …
Law From Above: Unmanned Aerial Systems, Use Of Force, And The Law Of Armed Conflict, Chris Jenks
Law From Above: Unmanned Aerial Systems, Use Of Force, And The Law Of Armed Conflict, Chris Jenks
Faculty Journal Articles and Book Chapters
The United States employing armed unmanned aerial systems (UAS) or “drones” against al qaeda and Taliban targets in northwest Pakistan continues to spur discussion and disagreement. Some label UAS “armed robotic killers,” while others describe them as providing a much greater degree of distinction between intended targets and the surrounding population and infrastructure, thus limiting civilian casualties and property damage. The overt disagreement as to whether the strikes are legal masks that the discussants are utilizing wholesale different methodologies, talking past each other in the process. The origin of this divergence is to what extent the law of armed conflict …
Celebrity, Death, And Taxes: Michael Jackson's Estate, Bridget J. Crawford, Joshua C. Tate, Mitchell M. Gans, Jonathan G. Blattmachr
Celebrity, Death, And Taxes: Michael Jackson's Estate, Bridget J. Crawford, Joshua C. Tate, Mitchell M. Gans, Jonathan G. Blattmachr
Faculty Journal Articles and Book Chapters
The untimely death of Michael Jackson this past June presents an opportunity to reassess certain thorny estate tax issues that may arise when a celebrity dies owning valuable intellectual property. Elsewhere we have debated hypothetical, tax-motivated changes to state laws relating to postmortem publicity rights. This article focuses on existing legislation, like California’s, that makes publicity rights both devisable and descendible. Federal transfer taxes are levied on intangible property as well as tangible assets, and therefore apply to intellectual property, including a celebrity’s right of publicity and copyrights retained by an artist in his or her creations. Using Michael Jackson’s …
'De Facto Sovereignty': Boumediene And Beyond, Anthony J. Colangelo
'De Facto Sovereignty': Boumediene And Beyond, Anthony J. Colangelo
Faculty Journal Articles and Book Chapters
In Boumediene v. Bush, which grants non-citizens detained at Guantanamo Bay, Cuba, constitutional habeas corpus privileges the Supreme Court took notice that the United States maintains "de facto sovereignty" over that territory. As its sole precedential support, the Court cited a case that never mentions the term de facto sovereignty. What is this concept? How important is it to the Court's holding? Did the Court get the concept right given its longstanding usage and meaning in Supreme Court precedent? And what can de facto sovereignty tell us about when the Court will find habeas to extend to other situations …
The Baby Doe Rules And Texas’S 'Futility Law' In The Nicu, Thomas Wm. Mayo
The Baby Doe Rules And Texas’S 'Futility Law' In The Nicu, Thomas Wm. Mayo
Faculty Journal Articles and Book Chapters
The applicability in the NICU of the futility provision of Texas's Advance Directives Act and its relationship to the Baby Doe rules are reasonably straightforward. Nonetheless, many comments have been written about Texas's so-called “futility law,” some of them complimentary and others, not so much. The most serious critiques of the Texas futility provision, however, are based upon assumptions that result from a fundamental misreading of the law. After a brief discussion of the futility provision and its principal features, this Essay examines the misunderstandings that plague many critiques of the law and then offers a list of proposed amendments …
Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of International Armed Conflict, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks
Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of International Armed Conflict, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks
Faculty Journal Articles and Book Chapters
The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …