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Full-Text Articles in Law
Fukushima And New Zealand V. France Nuclear Tests: Can Japan Be Brought To The International Court Of Justice For Damages Caused By Fukushima Plants?, Harold S. Yun
Minnesota Journal of International Law
No abstract provided.
Palestinian Economic Development: Israeli Actions In Light Of The 1994 Paris Protocol And International Economic Law, Vincent El Hayek
Palestinian Economic Development: Israeli Actions In Light Of The 1994 Paris Protocol And International Economic Law, Vincent El Hayek
Minnesota Journal of International Law
No abstract provided.
A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs
A Response To The Ipcc Fifth Assessment, Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, David Takacs
Articles
The Intergovernmental Panel on Climate Change's (IPCC) Fifth Assessment Report presented significant data and findings about climate change. But the IPCC's working groups' summaries for policymakers avoid making normative statements about the IPCC's findings. The authors, members of the Environmental Law Collaborative, bridge this gap by identifying the normative claims that stem from the working groups' summaries to spark deeper discussion and help shape the IPCC's sixth assessment.
The Liberal Case For Hobby Lobby, Brett Mcdonnell
The Liberal Case For Hobby Lobby, Brett Mcdonnell
Articles
The Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. has stirred strong objections from political liberals. Those objections are misguided, and the Court's opinion reflects core liberal values of social responsibility and tolerance of diversity. In the first half of its decision, the Court held that in some circumstances, for-profit corporations committed to religious goals may invoke the religious liberty protection of the Religious Freedom Restoration Act (RFRA). Liberals have treated this as an appalling and/or humorous extension of rights, which should apply only to humans. However, the Court's decision rightly recognizes that corporations can, and sometimes do, …
Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen
Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen
Articles
Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction allocates power between states in a way that can support or undermine regulatory interests, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and …
Comparative International Law At The Icty: The General Principles Experiment, Neha Jain
Comparative International Law At The Icty: The General Principles Experiment, Neha Jain
Articles
For a significant period of time, the comparativist and the international lawyer were con- sidered to inhabit different worlds: the former scrutinized similarities and differences between domestic legal systems while the latter focused on the universal realm of international law that overlays these systems. This comfortably segregated image has been conclusively shattered by numerous studies demonstrating the multiple areas of interaction between international and comparative law.1 Of these, one of the ripest areas for further reflection is the “general prin- ciples of law” as a source of international law. Puzzlingly, given the traditional domestic law origins of the general principles …
Identity And Form, Jessica A. Clarke
Identity And Form, Jessica A. Clarke
Articles
Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars …
Revitalizing Dormant Commerce Clause Review For Interstate Coordination, Alexandra B. Klass, Jim Rossi
Revitalizing Dormant Commerce Clause Review For Interstate Coordination, Alexandra B. Klass, Jim Rossi
Articles
Interstate coordination presents one of the most difficult challenges for American federalism as well as for energy markets and policy. Existing laws vest the approval of large-scale energy infrastructure projects such as interstate oil pipelines and high-voltage, interstate electric transmission lines with state and local levels of government. At the same time, state siting and eminent domain regimes routinely enable and even encourage state regulators to hold out from approving interstate infrastructure projects, hobbling any hope for interstate coordination. This Article analyzes how judicial review under dormant Commerce Clause principles and doctrine can promote better interstate coordination by discouraging regulatory …
Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather Than Liberty After Walden V. Fiore, Allan Erbsen
Reorienting Personal Jurisdiction Doctrine Around Horizontal Federalism Rather Than Liberty After Walden V. Fiore, Allan Erbsen
Articles
The Supreme Court’s jurisprudence addressing personal jurisdiction has vacillated between different rationales for limiting judicial authority. Some decisions emphasize liberty, some invoke federalism, and some rely on both. This Article uses the Court’s 2014 decision in Walden v. Fiore to show that recent emphasis on gilded rhetoric about liberty blurs the distinction between venue and jurisdiction, misconstrues the relevant private interests, and fails to consider the allocation of authority among coequal states in a federal system. Walden held that adjudication of a civil suit in a Nevada federal court rather than in a Georgia federal court would infringe the defendant’s …
Gender Diversity And Disparity In The Legal Profession: An Empirical Analysis Of The Gender Profile In National Law Firms And Law Schools, Edward S. Adams, Samuel P. Engel
Gender Diversity And Disparity In The Legal Profession: An Empirical Analysis Of The Gender Profile In National Law Firms And Law Schools, Edward S. Adams, Samuel P. Engel
Articles
Gender representation in the context of large law firms has received extensive scholarly attention and has been the subject of multiple Supreme Court cases.1 Recently, Ellen Pao lost a highly publicized gender discrimination case against Kleiner, Perkins, Caufield & Byers.2 The case unveiled disturbing gender discrimination that affects the lives of many people, especially in the legal profession. With a renewed attack on the “gender gap,” and on cultural sexism in the highest areas of business and law, the question remains: where are we today? How bad is gender discrimination in these desirable fields? What disadvantages do women face and …
The Right Not To Hold A Political Opinion: Implications For Asylum In The United States And The United Kingdom, Stephen Meili
The Right Not To Hold A Political Opinion: Implications For Asylum In The United States And The United Kingdom, Stephen Meili
Articles
This article analyzes the vastly different approaches taken by the United States Supreme Court and the Supreme Court of the United Kingdom toward asylum claims based on political neutrality. In the recent case of RT (Zimbabwe) v. Secretary of State for the Home Department (UKSC 38 (2012)), the U.K. Supreme Court ruled in favor of several apolitical Zimbabweans who sought asylum in the U.K. on the grounds that they would be tortured if they refused to swear allegiance to the Mugabe regime if deported. This case stands in stark contrast to the U.S. Supreme Court decision in INS v. Elias-Zacarias …
What Works For Women At Work: Four Patterns Working Women Need To Know (Book Review), Naomi Cahn, June Carbone
What Works For Women At Work: Four Patterns Working Women Need To Know (Book Review), Naomi Cahn, June Carbone
Articles
An essential resource for any working woman, What Works for Women at Work is a comprehensive and insightful guide for mastering office politics as a woman. Authored by Joan C. Williams, one of the nation’s most-cited experts on women and work, and her daughter, writer Rachel Dempsey, this unique book offers a multi-generational perspective into the realities of today’s workplace. Often women receive messages that they have only themselves to blame for failing to get ahead—Negotiate more! Stop being such a wimp! Stop being such a witch! What Works for Women at Work tells women it’s not their fault. The …
Lawyers On Trial: Juror Hostility To Defendants In Legal Malpractice Trials, Herbert M. Kritzer, Neil Vidmar
Lawyers On Trial: Juror Hostility To Defendants In Legal Malpractice Trials, Herbert M. Kritzer, Neil Vidmar
Articles
In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence …
Fracking And The Public Trust Doctrine: A Response To Spence, Alexandra Klass
Fracking And The Public Trust Doctrine: A Response To Spence, Alexandra Klass
Articles
No abstract provided.
Against Immutability, Jessica A. Clarke
Against Immutability, Jessica A. Clarke
Articles
Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and …
A Critical Take On Group Regulation Of Insurers In The United States, Daniel Schwarcz
A Critical Take On Group Regulation Of Insurers In The United States, Daniel Schwarcz
Articles
U.S. insurance regulation focuses predominantly on individual insurance entities, rather than on groups of commonly owned and managed companies. Yet the bailout of AIG and emerging international norms increasingly suggest that effective insurance regulation must operate on both a legal-entity and a group-wide basis. For this reason, state insurance regulators have in recent years focused renewed attention on group insurance regulation. These efforts have produced a “windows and walls” framework for group regulation that attempts to insulate individual insurance companies from potential financial risks associated with their parents and affiliates (“walls”), while simultaneously allowing regulators to remain attuned to these …
The Imaginary Trademark Parody Crisis (And The Real One), William Mcgeveran
The Imaginary Trademark Parody Crisis (And The Real One), William Mcgeveran
Articles
In the two decades since the Supreme Court protected a crude rap spoof from copyright liability in Campbell v. Acuff-Rose Music, Inc., courts have grown to understand the great value of parodic expression in trademark cases as well. Today, plausible claims of parody almost always prevail over trademark rights in judicial rulings. This Article demonstrates that it is simply wrong to suggest, as commentators often do, that we face a crisis in the results of trademark parody cases. That distortion is harmful because it distracts reform efforts and it lends credence to overbroad assertions of trademarks against parody and other …
The Special Value Of Public Employee Speech, Heidi Kitrosser
The Special Value Of Public Employee Speech, Heidi Kitrosser
Articles
In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special value. If one tunnels into that subterrane, one finds that the value of public employee speech is a function not just of content, but of form. Public employees play a special role under the …
Contracts, Persons And Property: A Tribute To Margaret Jane Radin, Ruth Okediji
Contracts, Persons And Property: A Tribute To Margaret Jane Radin, Ruth Okediji
Articles
In 2011, the United States was only just beginning to emerge from what some claimed to be the most significant economic crisis since the Great Depression. The devastation wrought by unregulated subprime mortgages unfolded as a political, legal, financial and social tragedy. Millions of homeowners had purchased homes for amounts they most certainly could not afford, with terms and conditions written on documents they even more certainly had never read. Many of those most severely affected were, as one might expect, racial minorities and underrepresented groups, but plenty of other members of society were also caught in the intricately woven …
Rent-Seeking And Litigation: The Hidden Virtues Of Limited Fee-Shifting, Francesco Parisi, Emanuela Carbonara, Georg Von Wangenheim
Rent-Seeking And Litigation: The Hidden Virtues Of Limited Fee-Shifting, Francesco Parisi, Emanuela Carbonara, Georg Von Wangenheim
Articles
In the past couple of decades, scholars have predominantly employed rent-seeking models to analyze litigation problems. In this paper, we build on the existing literature to show how alternative fee-shifting arrangements (i.e., the American rule and modified English rule) affect parties' litigation expenditures and their decisions to litigate. Contrary to the prevailing opinion, we discover some interrelated advantages of the English rule over the American rule, including the reduction of litigation rates and reduction of expected litigation expenditures. Our results unveil a hidden virtue of the English rule, showing that an increase in fee-shifting may have the effect of reducing …
The New Way Of War: Is There A Duty To Use Drones?, Oren Gross
The New Way Of War: Is There A Duty To Use Drones?, Oren Gross
Articles
Drones have become the poster child for America’s continuing fight against terrorism under President Obama, playing the role that torture had occupied during the Bush administration: a morally, legally, and politically controversial issue that drives a wedge between the United States and much of the rest of the world. Covert drone attacks orchestrated by the CIA around the world, including in areas that lie outside recognized war zones, raise a range of difficult questions that have been heavily debated by scholars, policy-makers and in the general media. However, that discussion has focused on whether states have the legal right to …
Milliken, Meredith And Metropolitan Segregation, Myron Orfield
Milliken, Meredith And Metropolitan Segregation, Myron Orfield
Articles
No abstract provided.
Dog Whistling, The Color-Blind Jurisprudential Regime, And The Constitutional Politics Of Race, Calvin Terbeek
Dog Whistling, The Color-Blind Jurisprudential Regime, And The Constitutional Politics Of Race, Calvin Terbeek
Constitutional Commentary
Book review: Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class. By Ian Haney LÌ_pez. New York, N.Y.: Oxford University Press, 2014. Pp. ix + 277. Reviewed by Calvin TerBeek.
Corporate Religious Liberty, Caroline Mala Corbin
Corporate Religious Liberty, Caroline Mala Corbin
Constitutional Commentary
No abstract provided.
There Is Nothing That Interpretation Just Is, Cass R. Sunstein
There Is Nothing That Interpretation Just Is, Cass R. Sunstein
Constitutional Commentary
No abstract provided.
Popular Constitutionalism Contra Populism, Corey Brettschneider
Popular Constitutionalism Contra Populism, Corey Brettschneider
Constitutional Commentary
Book review: The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy. By Elizabeth Beaumont. Oxford University Press, 2014. Pp. xvi + 343. Peopling the Constitution. By John E. Finn. University Press of Kansas, 2014. Pp. xv + 350. Reviewed by Corey Brettschneider
Corporate Democracy From Say On Pay To Say On Politics, Ciara Torres-Spelliscy
Corporate Democracy From Say On Pay To Say On Politics, Ciara Torres-Spelliscy
Constitutional Commentary
No abstract provided.
Constitutional Faith, Or Constitutional Stealth? -- The Puzzling Resurgence Of American Monarchism, Daniel N. Hoffman
Constitutional Faith, Or Constitutional Stealth? -- The Puzzling Resurgence Of American Monarchism, Daniel N. Hoffman
Constitutional Commentary
Book review: The royalist revolution: monarchy and the American founding. By Eric Nelson. 2014. Cambridge, Mass.: Belknap Press. 400 pages. -- The executive unbound: after the Madison republic. By Eric A. Posner and Adrian Vermeule. 2011. New York: Oxford University Press. 256 pages. -- Secrets and leaks: the dilemma of state secrecy. By Rahul Sagar. 2013. Princeton: Princeton University Press. Pages xiii, 304. Reviewed by Daniel N. Hoffman
The Dark Future Of Constitutionalism, Dennis Patterson
The Dark Future Of Constitutionalism, Dennis Patterson
Constitutional Commentary
Book review: The Cosmopolitan Constitution. By Alexander Somek. 2014. Oxford: Oxford University Press, xii, 291. Reviewed by Dennis Patterson
The Civic Dimensions Of American Constitutionalism, George Thomas
The Civic Dimensions Of American Constitutionalism, George Thomas
Constitutional Commentary
Book review: The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy. By Elizabeth Beaumont. Oxford University Press, 2014. Pp. xvi + 343. Peopling the Constitution. By John E. Finn. University Press of Kansas, 2014. Pp. xv + 350. Reviewed by George Thomas