Law Commons^™

Revitalizing Regulation, Daniel A. Farber

Daniel A Farber

A Review of Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector by David Osborne and Rethinking the Progressive Agenda: The Reform of the American Regulatory State by Susan Rose-Ackerman

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

Ariana R. Levinson

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

The United Kingdom Bill Of Rights 1998: The Modernisation Of Rights In The Old World, Clive Walker, Russell L. Weaver

Russell L. Weaver

Into a steadfastly conservative constitutional landscape, the United Kingdom Parliament has now introduced a Bill of Rights, the Human Rights Act of 1998, which takes effect in October 2000. The Act provides for a full catalogue of civil and political rights which are enforceable by the courts. This development raises two questions in evaluating the future of English law. First, does this signify the dawn of a new British radicalism? And second, why has it happened now? In answering these questions in relation to England and Wales, Part I of this Article provides an introduction to the traditional treatment of …

Properly Accounting For Domestic Violence In Child Custody Cases: An Evidence-Based Analysis And Reform Proposal, Debra Pogrund Stark, Jessica M. Choplin, Sarah Elizabeth Wellard

Debra Pogrund Stark

Promoting the best interests of children and protecting their safety and well-being in the context of a divorce or parentage case where domestic violence has been alleged has become highly politicized and highly gendered. There are claims by fathers’ rights groups that mothers often falsely accuse fathers of domestic violence to alienate the fathers from their children and to improve their financial position. They also claim that children do better when fathers are equally involved in their children’s lives, but that judges favor mothers over fathers in custody cases. As a consequence, fathers’ rights groups have engaged in a nationwide …

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

Paul Lewis

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the …

Debunking The Myth Of Universal Male Privilege, Jamie R. Abrams

Jamie R. Abrams

Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military’s statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male …

Facing The Facts: An Empirical Study Of The Fairness And Efficiency Of Foreclosures And A Proposal For Reform, Debra Pogrund Stark

Debra Pogrund Stark

Lenders view real estate foreclosures as too expensive and time consuming a process which needlessly increases the costs of making loans. Others complain that the foreclosure process fails to adequately protect the borrower's equity (the value of the property in excess of the debt secured by the property) in the mortgaged property.

This article tests these views by gathering new data on the fairness and efficiency of the foreclosure process. Based on the data collected (which confirms some assumptions but disproves others), the author proposes a reform of the foreclosure process to promote the interest of both lenders and borrowers. …

Behavioral Public Choice And The Law, Gary M. Lucas Jr., Slavisa Tasic

Gary M. Lucas Jr.

No abstract provided.

The Future Of The Law Of Armed Conflict: Ostriches, Butterflies, And Nanobots , Eric Talbot Jensen

Eric Talbot Jensen

The historical fact that the law of armed conflict (LOAC) has always lagged behind current methods of warfare does not mean that it always must. This Article will argue that the underlying assumption that law must be reactive is not an intrinsic reality inherent in effective armed conflict governance. Rather, just as military practitioners work steadily to predict new threats and defend against them, LOAC practitioners need to focus on the future of armed conflict and attempt to be proactive in evolving the law to meet future needs.

Introducing Plea Bargaining Into Post-Conflict Legal Systems, Cynthia Alkon, Ena Dion

Cynthia Alkon

Criminal justice systems around the world face overwhelming caseloads and ever-increasing pressure to handle more. This pressure can be even more serious in post-conflict countries that face additional problems such as limited resources and fragile political environments. In overloaded criminal justice systems it may be difficult, if not impossible, to hold trials for every accused person in a timely way. As a result, countries are increasingly looking to alternative processes to handle criminal cases beyond traditional formal trials. Plea bargaining is frequently considered as a possible solution to problems of case backlogs, long periods of pretrial detention, and to help …

Resolving Economic Disputes In Russia's Market Economy, Karen Halverson

Karen Halverson Cross

The purpose of this paper is to examine the recent transformation of state arbitrazh into economic courts along with the development of commercial arbitration in Russia, and to consider the relative utility of these mechanisms for resolving disputes in Russia's evolving market economy. Part I describes state arbitrazh and details its evolution into the existing system of economic courts. Part II discusses the past and recent development of commercial arbitration in Russia as an alternative to litigating domestic disputes. Part III considers various social and historic factors that hinder genuine reform.

La Responsabilisation De L'Economie: What The United States Can Learn From The New French Law On Consumer Overindebtedness, Jason J. Kilborn

Jason Kilborn

This Article on the French law continues a study of European consumer debt-relief systems, which the author began previously in an article on the German system. With rapid legal and practical developments in consumer debt-relief law, Europe provides an excellent comparative legal laboratory for observing the potential benefits and pitfalls of consumer bankruptcy reforms. In particular, French and German experiences with long-term payment plans shed useful light on the great debate raging in the United States over similar plans.

When 'Good' Corporate Governance Makes 'Bad' (Financial) Firms: The Global Crisis And The Limits Of Private Law, Nicholas Howson

Nicholas Howson

In the aftermath of the global financial crisis of 2008–2009, investors, analysts, legislators, and pundits have spotlighted “good” or “improved” corporate governance as a remedy for all that presently ails us. It is one remedy in a long wish list that includes tougher requirements for risk capital, liquidity, and leverage; compensation and bonus reform; reimposition ofthe Glass-Steagall-like separation of bank “utility” and “casino” functions; the downsizing or breakup of institutions deemed “too big to fail;” enhanced consumer protection; securities law liability for secondary violators (like credit rating agencies); direct taxation of proprietary trading; “macroprudential” regulation; and new transparency requirements for …

Panel 3: Lunch [Keynote Speaker], Roderick A. Macdonald, Harry W. Arthurs

Harry Arthurs

PANEL III: KEYNOTE ADDRESS: Moderator: Lorne Sossin, Dean, Osgoode Hall Law School; Remarks: Mamdouh Shoukri, President & Vice-Chancellor, York University; Introduction: Harry A. Arthurs, Professor Emeritus, Osgoode Hall Law School; Keynote Speaker: Roderick A. Macdonald, F.R. Scott Professor of Constitutional and Public Law, Faculty of Law, McGill University, "Law Reform for Dummies (Third Edition)."

Measuring The Effects Of Feminist Legal Research: Looking Critically At "Failure" And "Success", Lisa Philipps

Lisa Philipps

No abstract provided.

Choices And Commitments For Women: Challenging The Supreme Court Of Canada In The Context Of Social Assitance, Mary Jane Mossman

Mary Jane Mossman

No abstract provided.

Feminism, Consequences, Accountability, Sonia Lawrence

Sonia Lawrence

No abstract provided.

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.

Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Gregory S. Alexander, Mary L. Fellows

Gregory S Alexander

In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when …

The Sky Didn’T Fall: The Meaning And Legal Effects Of The North Carolina Marriage Amendment, E. Gregory Wallace

E. Gregory Wallace

No abstract provided.

Following English Footsteps? An Empirical Study Of Singapore's Reported Insurance Judgments And Disputes Between 1965 And 2012, Christopher Chao-Hung Chen

Christopher Chao-hung Chen

This article presents an empirical study of the development of Singapore’s insurance contract law in relation to English law. The gene of Singapore’s insurance law is very English. The empirical data show a lack of momentum in driving insurance law forward by case law. This may justify further legislative reform to address not only the known doctrinal issues inherited from English law but also the specific problems facing consumer insurance. Singapore’s competitiveness in the global insurance market will be an instrumental factor to determine how far Singapore continues to follow English law in the future.

Reframing Domestic Violence Law And Policy: An Anti-Essentialist Proposal, Leigh Goodmark

Leigh S. Goodmark

This Article focuses on a central failure in domestic violence law and policy reform—the creation of a body of law and set of policies based on outmoded notions of what domestic violence is, the identities of the women who experience violence, the identities of their partners, and what such women need and want. The theoretical underpinnings of domestic violence law and policy largely are to blame for this excessively narrow and problematic view of domestic violence.

The Family Responsibilities Convention Reconsidered: The Work-Family Intersection In International Law Thirty Years On, Lee Adams

Lee Adams

This year marks the thirtieth anniversary of the International Labour Organization’s (ILO) Workers with Family Responsibilities Convention, 1981, No. 156 coming into force. Family responsibilities in the context of paid work and its implications for gender equality have been the subject of international regulation most specifically in ILO 156, although it remains a marginalized convention. Since then, the interaction of work and family and the conflict between them have exploded as a subject of scholarly importance. This article examines ILO 156 in the context of chronological development of other major international legal instruments which address the intersection of work and …

Law Reform On Sexual And Gender-Based Crimes In Mass Violence, Saumya Uma

Dr. Saumya Uma

‘Best Practices’: What’S The Point?, Ira P. Robbins

Ira P. Robbins

In a separate article - Best Practices on “Best Practices”: Legal Education and Beyond - Professor Robbins formulated a paradigm for “best practices” and applied it to the book, Best Practices for Legal Education. Professor Robbins concluded that the book did not meet any of the criteria necessary to constitute best practices and, further, that using the concept of best practices when thinking and writing about legal education is misleading and inappropriate. The primary author of the book, Roy Stuckey, responded, claiming that “best” can mean something other than best, that the difference really doesn’t matter, and that the debate …

Best Practices On ‘Best Practices’: Legal Education And Beyond, Ira P. Robbins

Ira P. Robbins

“Best practices” has become one of the most common research and development techniques in the United States and throughout the international community. Originally employed in industry, the concept sought to identify superior means to achieve a goal through “benchmarking,” thereby allowing companies to obtain a competitive advantage in the marketplace. In recent decades, the use of best practices has become widely popularized, and is frequently utilized in the areas of administrative regulation, corporate governance, and academia. As the term has grown in popularity, however, so too has room for its abuse. In many instances, the term has been invoked to …

‘Best Practices’: What’S The Point?, Ira P. Robbins

Ira P. Robbins

In a separate article - Best Practices on “Best Practices”: Legal Education and Beyond - Professor Robbins formulated a paradigm for “best practices” and applied it to the book, Best Practices for Legal Education. Professor Robbins concluded that the book did not meet any of the criteria necessary to constitute best practices and, further, that using the concept of best practices when thinking and writing about legal education is misleading and inappropriate. The primary author of the book, Roy Stuckey, responded, claiming that “best” can mean something other than best, that the difference really doesn’t matter, and that the debate …

Marriage And Law Reform: Lessons From The Nineteenth Century Michigan Married Women’S Property Acts, Ellen Dannin

Ellen Dannin

If law reform had the neat trajectory of a bullet from a smoking gun, life and law would be neater – but less interesting. This article began as a simple empirical study to test whether Michigan’s 1844 Married Women’s Property Act affected conveyancing.

When the results showed that it had no effect – that married women were included as grantors even before the MWPA made it legal for them to own property – the study expanded into a quest to identify the processes that led to its enactment and explained its operation on the family, a fundamental social institution. In …

New Fraud And Identity-Related Crimes In New South Wales, Alex Steel

Alex Steel

The Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 commenced on 22 February 2010. It represents a significant change to fraud offences in New South Wales. The Act codifies dishonesty in line with the Ghosh test, replaces over 30 fraud offences with one main offence based on deceptively obtaining financial advantage, rewords the forgery offences and introduces a suite of identity crime offences. The Act continues to move away from offences based on common law larceny and interference with property rights toward general offences based on a statutory defined concept of dishonesty. However, larceny and related offences have been …

The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun

Caroline A Forell

Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. It causes dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose …