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Articles 1 - 11 of 11
Full-Text Articles in Law
Fictional Pleas, Thea B. Johnson
Fictional Pleas, Thea B. Johnson
Faculty Publications
A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, …
The Brave New World Of Energy And Natural Resources Development, Donald N. Zillman
The Brave New World Of Energy And Natural Resources Development, Donald N. Zillman
Faculty Publications
The world of energy and natural resources development has changed a great deal over the past 30 months, perhaps more so than in the preceding 30 years. Beginning with the June 2016 vote in the United Kingdom to leave the European Union and continuing through today, there are global signs of increasing emphasis on protecting national sovereignty and less on world efforts to address major environmental and energy issues. Admittedly, the United Nations-based effort to reduce greenhouse gas emissions continues to move forward. However, more than a few nations are hinting that they may not live up to their commitments …
Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa
Traditional Ecological Knowledge In Environmental Decisionmaking, Anthony Moffa
Faculty Publications
Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed …
Attacking Innovation, Jeffrey A. Maine
Attacking Innovation, Jeffrey A. Maine
Faculty Publications
Economists generally agree that innovation is important to economic growth and that government support for innovation is necessary. Historically, the U.S. government has supported innovation in a variety of ways: (1) a strong legal system for patents; (2) direct support through research performed by government agencies, grants, loans, and loan guarantees; and (3) indirect support through various tax incentives for private firms. In recent years, however, we have seen a weakening of the U.S. patent system, a decline in direct funding of research, and a weakening of tax policy tools used to encourage new innovation. These disruptive changes threaten the …
The Cognitive Dissonance Between The Rule Of Law And Rural Realities: Reading Gillian Hadfield’S Rules For A Flat World In The Context Of Rural Identity And Politics, Danielle M. Conway
The Cognitive Dissonance Between The Rule Of Law And Rural Realities: Reading Gillian Hadfield’S Rules For A Flat World In The Context Of Rural Identity And Politics, Danielle M. Conway
Faculty Publications
Rural communities – as well as other marginalized communities – see their access to legal infrastructure declining, so much so that they feel disconnected from the rule of law. Current complex law and legal infrastructure focus on big “I” innovation, which is hyper-transactional and benefits the few. Rural communities, and others, would find law and legal infrastructure more relevant if they focused more on small “i” innovation, which centers on negotiating real, societal relationships.
Precedent And Dialogue In Investment Treaty Arbitration, Richard C. Chen
Precedent And Dialogue In Investment Treaty Arbitration, Richard C. Chen
Faculty Publications
Since the turn of the century, investment treaty arbitration (ITA) tribunals have begun citing past decisions with increasing frequency. They do so despite the absence of any formal doctrine of stare decisis and the presence of structural obstacles to the use of precedent in this context. Scholarship in this area has focused on explaining the rise of this de facto doctrine of precedent and evaluating the merits of the practice. Few have grappled with more practical questions about how precedent should operate in this unique sphere, but even a cursory examination of ITA decisions would reveal that some order and …
Keeping It In The Family: Minor Guardianship As Private Child Protection, Deirdre Smith
Keeping It In The Family: Minor Guardianship As Private Child Protection, Deirdre Smith
Faculty Publications
Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and …
Community Development Finance And Economic Justice, Peter R. Pitegoff
Community Development Finance And Economic Justice, Peter R. Pitegoff
Faculty Publications
This chapter reflects on the history of community economic development, community development financial institutions, and their relationship with law and legal scholarship. It describes the robust use of complex legal and financial tools in community development practice today and presents Maine-based Coastal Enterprises Inc. (CEI) as a window into the evolution of the field over the last four decades. Part II traces the wider history and context of community development finance and of the dramatic expansion in tax credit financing. Part III explores the implications of this trend for sustainability and local accountability, underscoring the distinction between community organizing and …
Law As Strategy: Thinking Below The State In Afghanistan, Charles H. Norchi
Law As Strategy: Thinking Below The State In Afghanistan, Charles H. Norchi
Faculty Publications
U.S.engagement in Afghanistan is inevitable, but there will be choices about strategy. In 1952, the U.S.Naval War College convened a lecture series devoted to strategy. On March 20, the lecturer was Harold D.Lasswell, an architect of the New Haven School of Jurisprudence. Lasswell observed, “The aim of strategy is to maximize the realization of the goal values of the body politic.” This article proposes that law is among the available strategic instruments to advance goal values common to the United States, Afghanistan,and the world community.
Uniform Climate Control, Anthony Moffa
Uniform Climate Control, Anthony Moffa
Faculty Publications
In Washington, D.C., the “Green New Deal” may be nothing more than a symbolic, Twitter-friendly legislative campaign with no real hope of adoption. But in New York, it is the new legal reality. The efforts of sub-national governments - like New York’s - to tackle widespread environmental harms, in particular climate change, have drawn increased media and scholarly attention since the United States declared its intention to withdraw from the Paris Agreement. In truth, the trend towards so-called “environmental federalism” predates the election of President Donald J. Trump. We are ushering in the next generation of environmental laws, and those …
Judicial Partisanship In A Partisan Era: A Reply To Professor Robertson, Dmitry Bam
Judicial Partisanship In A Partisan Era: A Reply To Professor Robertson, Dmitry Bam
Faculty Publications
Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the growing political polarization in America. And it is not just senate judicial confirmation battles that have become highly bitter and partisan. Scholars writing about the substantive work of the Court have argued that it is more akin to a political body than a judicial one, and …