Law Commons^™

Visual Clarity In Contract Drafting, Karin Mika

Law Faculty Articles and Essays

No abstract provided.

Brief Of Political Scientists And Historians As Amici Curiae In Support Of Respondent, National Labor Relations Board, Petitioner V. Noel Canning, No. 12-1281, United States Supreme Court (Nov. 25, 2013), David F. Forte, Hadley P. Arkes, Joseph M. Bessette, Nelson Lund, Jeremy A. Rabkin, Ralph A. Rossum

Law Faculty Briefs and Court Documents

The Recess Appointments Clause does not permit the unilateral appointments to the NLRB made by the President in this case. Those appointments - made during a three-day “intra-session” break when the Senate was meeting pro forma - are unique in the history of the Republic. They are also the culmination of unnecessary and inappropriate Executive overreaching. This overreaching has undermined a valuable Senate prerogative in a manner unfathomable to the Founders and inconsistent with the design of the Constitution.

The primary purpose of this brief is to show that adhering to the original meaning of the Recess Appointments Clause has …

Selecting The Very Best: The Selection Of High-Level Judges In The United States, Europe And Asia, Christa J. Laser, Tefft Smith, Michael Fragoso, Christopher Jackson, Gregory Wannier

Law Faculty Articles and Essays

This paper has been prepared by Kirkland & Ellis LLP for the Due Process of Law Foundation (“DPLF”), an organization dedicated to promoting and strengthening the rule of law and the respect for human rights in the Americas. The goal is to provide further stimulus to the enhancement of due process and the rule of law in Latin America by encouraging the transparent, merit-based selection and appointment of competent, independent, and impartial judges. An independent and impartial judiciary is an essential precondition to the effective operation of the rule of law, with due process for all. This, in turn, is …

Academic Freedom In An Increasingly Corporate Model Of Leadership, Karin Mika

Law Faculty Articles and Essays

Mika argues that the corporate structure of management in academia poses a severe threat to academic freedom.

The Future Of Corporate Tax Reform: A Debate, Deborah A. Geier, Omni Y. Marian, David S. Miller, Adam H. Rosenzweig

Law Faculty Articles and Essays

Professor Geier participated in a Lincoln-Douglas style debate, where the debaters were assigned different roles, so the opinions expressed were not necessarily their own. On the first point debated, Professor Geier was assigned to argue: The Affirmative: We Need to Tax Corporationsat the Entity Level. Others argued the negative: The United States Should Repeal the Corporate Income Tax. On the second point debated, Professor Geier argued the negative, that Dividend Exemption Is NOT the Best Method of Corporate/Shareholder Integration, and is in fact the worst method. On the third point, Professor Geier argued in the affirmative, that the corporate tax …

Due Date: Enforcing Surrogacy Promises In The Best Interest Of The Child, Browne C. Lewis

Law Faculty Articles and Essays

Professor Lewis argues that the courts should apply contract principles and not family law principles to resolve surrogacy disputes. Since children are unique, Professor Lewis argues, courts should presume that the contract should be specifically enforced. As a result, the intended mother should be adjudicated the legal mother. However, Professor Lewis further argues the the surrogate should be able to present evidence of changed circumstances to rebut the presumption of specific performance and permit the court to determine maternity based upon the best interests of the child.

A Third Semester Of Lrw: Why Teaching Transactional Skills And Problems Is Now Essential To The Legal Writing Curriculum, Karin Mika

Law Faculty Articles and Essays

The article advocates including drafting and transactional courses in Legal Writing programs to better prepare students for practice. The article also advocates teaching various upper level skills courses so that students learn "soft skills," such as dealing with clients and understanding their personal legal needs.

Interagency Litigation And Article Iii, Joseph Mead

All Maxine Goodman Levin School of Urban Affairs Publications

Agencies of the United States often find themselves on opposite sides of the "v." in disputes ranging from alleged unfair labor practices in federal agencies to competing statutory interpretations to run-of-the mill squabbles over money. Yet Article III's case-or-controversy requirement includes—at a minimum—adverse parties and standing. Courts have disagreed with one another over the extent to which litigation between the sovereign and itself meets Article III standards. Despite the volume of scholarship on Article III standing, relatively little attention has been paid to Article III's requirement of adverse parties in general, or the justiciability of intrabranch litigation in particular. Looking …

Of Outside Monitors And Inside Monitors: The Role Of Journalists In Caremark Litigation, Michael J. Borden

Law Faculty Articles and Essays

In this article I argue for a change in Delaware corporate law that would allow for competitive forces to improve the quality of corporate compliance programs, thus reducing harm to society from corporate illegality and improving shareholder welfare. Specifically, courts should remove some obstacles that prevent plaintiffs in shareholder derivative actions from forcing defendant directors to demonstrate the efficacy of their compliance programs in cases where outside monitoring by journalists appears to have detected illegal corporate actions before those actions have been detected by the internal monitoring of the compliance department. Currently, the rigorous demand requirement and the deferential good …

Applying Some Lessons From The Gulf Oil Spill To Hydraulic Fracturing, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

In this article, Robertson notes that Ohio is moving quickly towards hydraulic fracturing of horizontal wells and some argue it has insufficiently considered and managed that rush in light of the potentially disastrous, albeit unlikely, consequences of groundwater contamination, explosion at wells or drilling sites, depletion of freshwater supply as high volumes are used in fracturing, and disposal of contaminated flowback water. Similarly, although drilling for oil from deep water rigs was neither a new idea nor a new technology when the Macondo well blew out on April 20, 2010—killing 11 people, spewing tons of oil in the Gulf of …

The Future Of Ad Hoc Tribunals: An Assessment Of Their Utility Post-Icc, Milena Sterio

Law Faculty Articles and Essays

Over the past two decades, various mechanisms of international and regional justice have developed. The proliferation of international courts, hybrid tribunals, domestic war crimes chambers, truth commissions, civil compensation commissions, and other tools of accountability has sparked an academic debate over the usefulness of any such mechanism for redressing past violations of international law. This Article briefly discusses some of the best-known mechanisms of international, national, and "hybrid" justice, and assesses their role in light of the creation and existence of the International Criminal Court (ICC), the only permanent tribunal in international criminal law. Does international justice have a place …

Sight And Sound In The Legal Writing Classroom: Engaging Students Through Use Of Contemporary Issues, Karin M. Mika

Law Faculty Articles and Essays

Using the Fair Use Act as the basis of a research problem done in conjunction with YouTube music videos presents a variety of ways to demonstrate the range of situations in which the Fair Use Act might apply. Karin Mika discusses ways to force students to think in depth about various scenarios while comparing and contrasting them. As an example, when comparing two similar musical compositions using a Fair Use factor analysis, one need only concentrate on the notes and the various choruses in the songs. However, when combining a song with a video, the nature of the composition changes. …

Juvenile Life Without The Possibility Of Parole: Constitutional But Complicated, Christopher A. Mallett

Social Work Faculty Publications

The Supreme Court's recent decision in Miller v. Alabama found that juvenile life without the possibility of parole sentences for homicide crimes was unconstitutional if mandated by state law. Thus, allowing this sentence only after an individualized decision determines the sanction proportional given the circumstances of the offense and mitigating factors. This decision, for a number of reasons, does not go far enough in protecting those youthful offenders afflicted with maltreatment victimizations, mental health problems, and/or learning disabilities - all potential links for some adolescents to serious offending and potentially homicide. While the Supreme Court has not protected these youthful …

International Criminal Law In 2013: The Most Significant Developments (Proceedings Of The Asil Annual Meeting), Milena Sterio

Law Faculty Presentations and Testimony

While many events have shaped the development of international criminal law over the past year, the most significant ones, in my view, included the Special Court for Sierra Leone's appellate confirmation of the Charles Taylor verdict, as well as the United Nations Security Council's failure to refer the Syrian situation to the International Criminal Court (ICC).

How The Rescue And Return Agreement Can Protect (And Harm) The Interest Of A Creditor Under The Cape Town Convention, Mark J. Sundahl

Law Faculty Contributions to Books

This volume contains the proceedings of the 55th Colloquium on the Law of Outer Space held in Naples, Italy in October 2012, including the 27th IAA-IISL Scientific-Legal Roundtable, as well as the papers presented at the IISL-ECSL Space Law Symposium held on the occasion of the 51st session of the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space in Vienna, Austria in March 2012, and of the 7th Eilene M. Galloway Symposium on Critical Issues In Space Law, held in Washington D.C., United States in December 2012. It also contains the report and best written …

Teaching American Legal History In A Law School, Peter D. Garlock

Law Faculty Articles and Essays

Professor Peter Garlock describes his legal history course.

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …

The Paradox Of Being An Interim Dean: The Permanent Nature Of A Transitory Position, Phyllis L. Crocker

Law Faculty Articles and Essays

No abstract provided.

Courts, Capacity And Engagement: Lessons From Hlophe V. City Of Johannesburg, Brian E. Ray

Law Faculty Articles and Essays

The case was one of the first applying the Constitutional Court’s holding in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another, (2) BCLR 150 (CC) (1 December 2011) (Blue Moonlight) that municipalities have an independent obligation to plan and budget for the emergency accommodation needs of people evicted from private property. The City also was the defendant in that case, and so its repeated failures to accommodate the occupants in Hlophe demonstrated a broader failure to implement the planning, budget and policy requirements that flowed from Blue Moonlight. Judge Satchwell recognised this and issued …

Juvenile Pirates: "Lost Boys" Or Violent Criminals?, Milena Sterio

Law Faculty Articles and Essays

Piracy off the coast of Somalia has flourished over the past decade, and has both caused a global crisis in maritime shipping and destabilized regional security in East Africa. In addition, piracy attacks have spread more recently to the coast of West Africa, and in particular, the Gulf of Guinea. Thus, piracy is an ongoing global issue that should continue to occupy many maritime nations in the near future, and one that should command continuous scholarly attention.

This article examines the issue of juvenile piracy, with a specific focus on the treatment of juvenile piracy suspects by both the capturing …

Book Review: "Taking Law Seriously" A Review Of Reading Law: The Interpretation Of Legal Texts, By Antonin Scalia And Bryan A. Garner, David F. Forte

Law Faculty Articles and Essays

No abstract provided.

Life, Heartbeat, Birth: A Medical Basis For Reform, David F. Forte

Law Faculty Articles and Essays

This Article does not revisit the moral, legal, and constitutional critiques of the Court’s position [in Roe v. Wade]. The voluminous commentaries on the flaws in the Court’s opinions speak for themselves. Rather, this Article seeks to ground an expansion of the protection available to the unborn on the implicit principles underlying current Supreme Court doctrine, refined and modified by recent medical research on nature of pregnancy and human pre-natal development. It will argue that the State’s compelling interest in the protection of what the Court has called “potential life” ripens at an earlier point in time than what the …