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Articles

University of Minnesota Law School

2013

Articles 1 - 30 of 42

Full-Text Articles in Law

Cyber-Conflict, Cyber-Crime, And Cyber-Espionage, David Weissbrodt Jan 2013

Cyber-Conflict, Cyber-Crime, And Cyber-Espionage, David Weissbrodt

Articles

Computers and the Internet have changed and are continuing to change the way governments, militaries, businesses, and other organs of society manage their activities. While computers can improve efficiency, they are vulnerable to cyber-attack, cyber-crime, and cyber-espionage. 1 The international community, states, and businesses are still adapting to the unique set of challenges posed by cyber-attack, cyber-crime, and cyber-espionage. States are creating military operations that specialize in cyber-attack and defense to adapt to these relatively new threats to national security operations. 2


Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld Jan 2013

Adolescent Criminal Responsibility, Proportionality, And Sentencing Policy: Roper, Graham, Miller/Jackson, And The Youth Discount, Barry C. Feld

Articles

The Supreme Court in Roper v. Simmons 1 prohibited states from executing offenders for murders committed when younger than eighteen years of age. Roper found a national consensus existed against executing adolescents based on state statutes and jury practices. 2 The Justices also conducted an independent proportionality analysis and concluded that youths' immature judgment, susceptibility to negative peer influences, and transitory personality development reduced their culpability and precluded the most severe sentence. 3


The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time, Barry C. Feld Jan 2013

The Youth Discount: Old Enough To Do The Crime, Too Young To Do The Time, Barry C. Feld

Articles

In a trilogy of cases, the Supreme Court applied the Eighth Amendment to the entire category of juvenile offenders, repudiated its “death is different” jurisprudence, and required states to consider youthfulness as a mitigating factor in sentencing. Roper v. Simmons prohibited states from executing offenders for murder they committed when younger than eighteen years of age.1 Roper reasoned that immature judgment, susceptibility to negative influences, and transitory personalities reduced youths’ culpability and barred the most severe sentence.2 Graham v. Florida extended Roper’s diminished responsibility rationale and prohibited states from imposing life without parole (LWOP) sentences on youths ...


The Capstone Course In Labor And Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, And Professionalism, Laura J. Cooper Jan 2013

The Capstone Course In Labor And Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, And Professionalism, Laura J. Cooper

Articles

The twenty-first century challenge for law schools in general, and for labor and employment law professors in particular, is truly to prepare students for the practice of law. Diverse voices have criticized the legal academy for how far it has fallen short of meeting that challenge.1 The most detailed and comprehensive critique of law schools’ failure adequately to prepare students for the practice of law was presented by The Carnegie Foundation for the Advancement of Teaching in its 2007 study generally known as the “Carnegie Report.”2


Building A Strong Foundation: Justice John Simonett And Constitutional Law In Minnesota, Robert Stein Jan 2013

Building A Strong Foundation: Justice John Simonett And Constitutional Law In Minnesota, Robert Stein

Articles

I am delighted to join in this Tribute to the remarkable judicial career of Minnesota Supreme Court Justice John E. Simonett—a great justice and, equally important, a great human being. I remember Justice Simonett with deep respect and affection. During my years as dean of the University of Minnesota Law School, I could always count on Justice Simonett to enliven any program with his erudite and pithy remarks, his wit, and his joyful presence. I remember particularly a Judges in Residence program in which Justice Simonett and Justice Anthony Kennedy of the Supreme Court of the United States were ...


Law And Reasons: Comments On Rodriguez-Blanco, Brian Bix Jan 2013

Law And Reasons: Comments On Rodriguez-Blanco, Brian Bix

Articles

Veronica Rodriguez-Blanco explora con minuciosidad en su detallado e importante artículo, “Reasons in Action v Triggering Reasons: A Reply to Enoch on Reason-Giving and Legal Normativity”, la naturaleza del otor- gamiento de razones, en aras de cuestionar el influyente trabajo reciente de David Enoch sobre el otorgamiento de razones y el derecho. Si bien el artículo de Rodriguez-Blanco constituye una importante contribución a la literatura en cuanto a la mejor comprensión del otorgamiento de razo- nes y la razón práctica, no está claro si el enfoque hacia las razones para la acción, reformado ...


What's "Different" (Enough) In Eighth Amendment Law?, Richard Frase Jan 2013

What's "Different" (Enough) In Eighth Amendment Law?, Richard Frase

Articles

In Miller v. Alabama1 and Jackson v. Hobbs2 the Supreme Court reaffirmed its conclusions in two earlier cases, Roper v. Simmons3 and Graham v. Florida,4 that “children are constitutionally different from adults for purposes of sentencing”5 in ways that justify greater Eighth Amendment protection from severe sentences. Miller and Jackson (hereafter referred to for most purposes as Miller) also reaffirmed the Court’s conclusion in Graham that, although “death is different” for purposes of Eighth Amendment law, some of the substantive and analytic principles previously applied only in death penalty cases can also be applied to the most ...


Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy Jan 2013

Teaching Law Students, Judges, And The Community: Rational Sentencing Policies, Robert Levy

Articles

I devoted a great deal of my teaching energy during the last ten years of my tenure at the University of Minnesota Law School to a course I called the Sentencing Workshop. The Workshop provided a unique opportunity for law students and judges to learn from each other about the intricacies, the successes and failures of the American criminal justice sentencing structure and practice. I will describe it in three phases: initially, to give some context, I will report a dramatic Workshop discussion which occurred the fth or sixth year the course was o ered. A short summary of the ...


Litigation's Regulatory Pathways And The Administrative State: Lessons From U.S. And Australian Climate Change Governance, Hari Osofsky, Jacqueline Peel Jan 2013

Litigation's Regulatory Pathways And The Administrative State: Lessons From U.S. And Australian Climate Change Governance, Hari Osofsky, Jacqueline Peel

Articles

The administrative state struggles to address massive, complex problems such as ameliorating the financial crisis, preventing terrorism, or responding to climate change. These problems cut across levels of government — local, state, national, international — and substantive areas of law. Yet our governance structures, for the most part, are not designed to deal well with issues that involve multiple types of governance authority and institutions. A burgeoning literature by leading U.S. scholars describes this problem and proposes solutions. These analyses often include some case law, but their primary focus has been on the legislative and executive branches in the United States ...


Monitoring, Reporting, And Recalling Defective Financial Products, Daniel Schwarcz Jan 2013

Monitoring, Reporting, And Recalling Defective Financial Products, Daniel Schwarcz

Articles

In recent years, innovations in consumer financial protection have drawn heavily from the law governing the safety of tangible products. This short essay, prepared for a symposium entitled Frontiers of Consumer Protection, extends this approach by evaluating whether the law governing post-sale product safety for tangible consumer products offers potential lessons for consumer financial protection. In particular, it considers the extent to which the law could require providers of consumer financial products to affirmatively monitor, report or correct regulatory problems with their products that come to light after sale. Such post-sale self-policing by financial firms could offer benefits similar to ...


Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna Jan 2013

Confusion Isn't Everything, William Mcgeveran, Mark P. Mckenna

Articles

The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything ...


The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer Jan 2013

The Trials And Tribulations Of Counting "Trials", Herbert M. Kritzer

Articles

This paper was prepared for the 2012 Clifford Symposium honoring Marc Galanter which was held at DePaul Law School. One aspect of Galanter’s recent work is on the phenomenon he labeled the “vanishing trial.” In this paper I examine the problems that arise when one seeks to count the number of trials. I show that the definition of a trial, other than a jury trial, is highly ambiguous. There are many trial-like events taking place in venues we do not label “courts.” Even in the court setting, and even for jury trials, there are vast differences in when a ...


It's The Law Schools Stupid! Explaining The Continuing Increase In The Number Of Lawyers, Herbert M. Kritzer Jan 2013

It's The Law Schools Stupid! Explaining The Continuing Increase In The Number Of Lawyers, Herbert M. Kritzer

Articles

Many countries around the world have experienced sharp increases in the number of legal professionals over the last 40 to 50 years. In this paper, I focus on the role of the gatekeepers which in most countries today are the institutions that provide education and training for those hoping to enter the profession. I argue that while the profession may have an incentive to control the “production of producers,” the educational institutions do not share this incentive. While this argument has been made previously, in this paper I seek to draw out the implications of the institutional incentives, both with ...


Private Enforcement, Steven B. Burbank, Sean Farhang, Herbert M. Kritzer Jan 2013

Private Enforcement, Steven B. Burbank, Sean Farhang, Herbert M. Kritzer

Articles

Our aim in this paper, which was prepared for an international conference on comparative procedural law to be held in July 2011, is to advance understanding of private enforcement of statutory and administrative law in the United States, and, to the extent supported by the information that colleagues abroad have provided, of comparable phenomena in other common law countries. Seeking to raise questions that will be useful to those who are concerned with regulatory design, we briefly discuss aspects of American culture, history, and political institutions that reasonably can be thought to have contributed to the growth and subsequent development ...


Inferring Desire, Jessica A. Clarke Jan 2013

Inferring Desire, Jessica A. Clarke

Articles

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results. This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual ...


Erie's Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen Jan 2013

Erie's Four Functions: Reframing Choice Of Law In Federal Courts, Allan Erbsen

Articles

This Article seeks to mitigate decades of confusion about the Erie doctrine’s purposes, justifications, and content. The Article shows that “Erie” is a misleading label encompassing four distinct components. Jumbling these components under a single heading obscures their individual nuances. Analyzing each component separately helps to clarify questions and values that should animate judicial analysis. The Article thus reconceptualizes the Erie doctrine, offers a more precise account of how Erie operates, and provides a framework for rethinking several foundational aspects of Erie jurisprudence. 2013 marks Erie’s seventy-fifth anniversary. The years have not been kind to Erie and its ...


"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin Jan 2013

"Anything Can Happen:" Interpreting The 'End' Of War, Fionnuala Ní Aoláin

Articles

Reviewing Thomas U. Berger, War Guilt, and World Politics After World War II (2012), Larry May, After War Ends: A Philosophical Perspective (2012), and Kimberly Theidon, Intimate Enemies: Violence and Reconciliation in Peru (2012).


Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin Jan 2013

Justice In Times Of Transition: A Reflection On Transitional Justice, Fionnuala Ní Aoláin

Articles

Transitional Justice as a motif, a discourse and a practice continues to entice analysis from scholars, practitioners and policy makers. It is a field that has rapidly expanded, and that has both the fortune and disadvantage of being termed an "industry." The growth of transitional justice is both an opportunity and a warning, as the challenges raised by massive human rights violations and transitions from violence to peace or from repressive regimes to more liberal ones continue to preoccupy scholars and practitioners. Each new country specific context facilitates revisiting old trade-offs and concepts revealing new elements to transitional dilemmas.


Situating Women In Counterterrorism Discourses: Undulating Masculinities And Liminal Femininities, Fionnuala Ní Aoláin Jan 2013

Situating Women In Counterterrorism Discourses: Undulating Masculinities And Liminal Femininities, Fionnuala Ní Aoláin

Articles

The preoccupation with the challenges posed by violent actors has long existed for many states, whether such actors are characterized as terrorists or insurgents, nonstate or paramilitary actors. The events of September 11, 2001, brought a new urgency and vibrancy to state action in the realm of counterterrorism, illustrated by both the response of national legal systems as well as more concerted efforts to achieve multilateral and multilevel counterterrorism reactions on the international plane.1 From a feminist perspective, it is notable that terrorism and counterterrorism have long been of marginal interest to mainstream feminist legal theorizing.2 This is ...


Rethinking The Law Firm Organizational Form And Capitalization Structure, Edward S. Adams Jan 2013

Rethinking The Law Firm Organizational Form And Capitalization Structure, Edward S. Adams

Articles

The goal of this Article is to examine the partnership model and advocate for a change in the Model Rules that would allow for public ownership of law firms, and to make disclosure of firm financials a mandatory requirement for all firms with over 100 lawyers. Part II explores the history and evolution of limited liability and law firm structures in the United States. Part III discusses incorporated law firms and MDPs and how they might benefit U.S. law firms. Part IV looks at the developments in the United Kingdom and Australia and the forces of globalization that have ...


Free Speech Aboard The Leaky Ship Of State: Calibrating First Amendment Protections For Leakers Of Classified Information, Heidi Kitrosser Jan 2013

Free Speech Aboard The Leaky Ship Of State: Calibrating First Amendment Protections For Leakers Of Classified Information, Heidi Kitrosser

Articles

The Obama Administration has initiated six prosecutions of government employees for leaking classified information. This is double the number of prosecutions brought by all previous administrations combined. The rise in prosecutions, coupled with other developments – most notably a series of disclosures from the website wikileaks – has brought a renewed focus to the first amendment status of classified information and those who disseminate it. Most of the attention and concern, however, has centered on the protections due non-governmental third parties who publish information that is leaked to them. When their attention turns to leakers, commentators most often argue or assume that ...


An Empirical Analysis Of Case Outcomes Under The Ada Amendments Act, Stephen F. Befort Jan 2013

An Empirical Analysis Of Case Outcomes Under The Ada Amendments Act, Stephen F. Befort

Articles

Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines ...


Designing Countercyclical Capital Buffers, Brett Mcdonnell Jan 2013

Designing Countercyclical Capital Buffers, Brett Mcdonnell

Articles

This essay explores the new countercyclical capital buffer requirement that is a part of both the Basel III and Dodd-Frank rulemaking efforts following the financial crisis. The new buffer will require banks to hold higher levels of capital reserves during times that regulators determine capital markets have created excessive levels of debt. This essay briefly explores why financial regulation tends to be procyclical, how the new capital buffer attempts to address that tendency, and how well the attempt is likely to work. The verdict is mixed. The new countercyclical buffer may do some good. However, some features in its design ...


Limits Of Disclosure, Steven Davidoff Solomon, Claire Hill Jan 2013

Limits Of Disclosure, Steven Davidoff Solomon, Claire Hill

Articles

Disclosure has its limits. One big focus of attention, criticism, and proposals for reform in the aftermath of the 2008 financial crisis has been securities disclosure. But most of the criticisms of disclosure relate to retail investors. The securities at issue in the crisis were mostly sold to sophisticated institutions. Whatever retail investors’ shortcomings may be, we would expect sophisticated investors to make well-informed investment decisions. But many sophisticated investors appear to have made investment decisions without making much use of the disclosure. We discuss another example where disclosure did not work as intended: executive compensation. The theory behind more ...


Reconsidering Board Oversight Duties After The Financial Crisis, Claire Hill, Brett Mcdonnell Jan 2013

Reconsidering Board Oversight Duties After The Financial Crisis, Claire Hill, Brett Mcdonnell

Articles

The financial crisis has yielded significant losses for shareholders, and for the greater society. Shareholder suits arguing that boards should have been more active monitors have failed. We argue here for an expansion of board monitoring duties. The crisis suggests that corporations may sometimes abuse the privilege of limited liability. Boards should be charged with monitoring for risks arising from corporations' operations and procedures (including their compensation practices) that might significantly harm both shareholders and society at large.


Contract Texts, Contract Teaching, Contract Law: Comment On Lawrence Cunningham, Contracts In The Real World, Brian H. Bix Jan 2013

Contract Texts, Contract Teaching, Contract Law: Comment On Lawrence Cunningham, Contracts In The Real World, Brian H. Bix

Articles

Lawrence Cunningham's Contracts in the Real World offers a good starting place for necessary conversations about how contract law should be taught, and, more generally, for when and how cases--in summary form or in longer excerpts--are useful in teaching the law. This Article tries to offer some reasons for thinking that their prevalence may reflect important truths about contract law in particular and law and legal education in general.


Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter Jan 2013

Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter

Articles

This essay, which builds on my recent work on the law and economics of comparative patent remedies, presents three proposals relating to the enforcement of domestic patent rights. The first, which may be close to being adopted in the United States, is for the courts and the International Trade Commission (ITC) to adopt a general presumption, grounded in patent law and policy, that patent owners who have committed to license their standard essential patents (SEPs) on fair, reasonable, and nondiscriminatory terms are not entitled to permanent injunctions or exclusion orders, but rather only to a damages in the form of ...


U.K. Refugee Lawyers: Pushing The Boundaries Of Domestic Court Acceptance Of International Human Rights Law, Stephen Meili Jan 2013

U.K. Refugee Lawyers: Pushing The Boundaries Of Domestic Court Acceptance Of International Human Rights Law, Stephen Meili

Articles

This Article analyzes how refugee lawyers in the United Kingdom navigate the tension between state power and international norms. Based on interviews with lawyers representing persons seeking asylum and other forms of refugee protection in the United Kingdom, the Article reveals how these lawyers successfully utilize international human rights treaties on behalf of their clients despite domestic policies making it more difficult for refugees to assert their rights. The Article argues that U.K. refugee lawyers play a critical role in the globalization struggle by encouraging state actors (in this case, the judiciary) to adhere to international norms that might ...


Dynamic Energy Federalism, Hari M. Osofsky, Hannah J. Wiseman Jan 2013

Dynamic Energy Federalism, Hari M. Osofsky, Hannah J. Wiseman

Articles

U.S. energy law and the scholarship analyzing it are deeply fragmented. Each source of energy has a distinct legal regime, and limited federal regulation in some areas has resulted in divergent state and local approaches to regulation. Much of the existing energy law literature reflects these substantive and structural divisions, and focuses on particular aspects of the energy system and associated federalism disputes. However, in order to meet modern energy challenges — such as reducing risks from deepwater drilling and hydraulic fracturing, maintaining the reliability of the electricity grid in this period of rapid technological change, and producing cleaner energy ...


Costly Mistakes: Undertaxed Business Owners And Overtaxed Workers, Mary Louise Fellows, Lily Khang Jan 2013

Costly Mistakes: Undertaxed Business Owners And Overtaxed Workers, Mary Louise Fellows, Lily Khang

Articles

This Article advocates fundamental changes in the federal income tax base by systematically challenging conventional understandings of consumption and investment. As signaled by its title, “Costly Mistakes,” this Article's thesis has to do with the disparate treatment of expenditures incurred by business owners and workers. Where the current tax law treats a business owner's expenditure as investment, the Article sometimes finds consumption and questions why the law should allow the expenditure to be deducted. Where the tax law treats a worker's expenditure as consumption, the Article sometimes finds investment and questions why the law does not allow ...