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Series

Articles

University of Minnesota Law School

2016

Articles 1 - 17 of 17

Full-Text Articles in Law

Open Minds And Harmless Errors: Judicial Review Of Post-Promulgation Notice And Comment, Kristin Hickman, Mark Thomson Jan 2016

Open Minds And Harmless Errors: Judicial Review Of Post-Promulgation Notice And Comment, Kristin Hickman, Mark Thomson

Articles

In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked pre-promulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments from the public after issuing the rule, and in most of those cases, the agencies followed up with new final rules, responding to comments and often making changes in response thereto. Post-promulgation notice and comment do not precisely comply with the Administrative Procedure Act, yet are arguably close enough ...


Anticompetitive Patent Injunctions, Erik Hovenkamp, Tom Cotter Jan 2016

Anticompetitive Patent Injunctions, Erik Hovenkamp, Tom Cotter

Articles

The current approach for determining when courts should award injunctions in patent disputes involves a myopic focus on the hardships an injunction might impose on the litigants and the public. This article demonstrates, however, that courts sometimes could rely instead on a consideration far more relevant to the patent system's goal of promoting innovation: the extent to which the right to exclude was actually a necessary quid pro quo for the plaintiff's decision to bring its products to market. We illustrate the value of this approach with a critique of a recent Federal Circuit decision, Trebro Mfg. Inc ...


Judicial Lawmaking And General Principles Of Law In International Criminal Law, Neha Jain Jan 2016

Judicial Lawmaking And General Principles Of Law In International Criminal Law, Neha Jain

Articles

General principles of law are a primary mechanism for “gap-filling” in international criminal law. However, their interpretation by tribunals has been fitful, contradictory, and misguided. Given that general principles have been used to settle crucial legal issues that affect the rights of the accused, the confusion concerning their application threatens the legitimacy of international criminal justice. This Article critiques the various conceptions of general principles developed by scholars and tribunals based on the criteria of formal and material validity and exposes the problems with their application in light of comparative law and criminal law theory. The Article challenges international criminal ...


Arctic Energy Cooperation, Hari M. Osofsky, Jessica Shadian, Sara L. Fechtelkotter Jan 2016

Arctic Energy Cooperation, Hari M. Osofsky, Jessica Shadian, Sara L. Fechtelkotter

Articles

The Arctic – with almost a third of the world’s remaining natural gas and thirteen percent of its oil – is one of the globe’s last frontiers for competition over unexplored natural resources. The rapid pace of Arctic melting due to climate change has created opportunities to extract the region’s previously inaccessible offshore oil and gas. The 2015 controversy over the Obama Administration’s approval of Shell Oil’s drilling in the Chukchi Sea followed by the company’s decision to pull out highlighted the need for clear and effective regulation of Arctic drilling. Offshore oil spills are difficult ...


Energy Partisanship, Hari M. Osofsky, Jacqueline Peel Jan 2016

Energy Partisanship, Hari M. Osofsky, Jacqueline Peel

Articles

Whether the topic is the Paris Agreement on climate change, greenhouse gas emissions from power plants, the Keystone XL pipeline, hydraulic fracturing, offshore drilling, or renewable energy, much of the U.S. policy dialogue about energy and climate change is deeply partisan. Republicans and Democrats debate individual issues in vitriolic sound bites that indicate minimal common ground. For example, officials favoring robust action on climate change are charged with engaging in a “War on Coal.” Those opposed are labeled “members of the Flat Earth Society.” Set against these dysfunctional climate and energy politics, how can progress be made? For people ...


We Are What We Tax, Mary Louise Fellows, Grace Heinecke, Linda Sugin Jan 2016

We Are What We Tax, Mary Louise Fellows, Grace Heinecke, Linda Sugin

Articles

No abstract provided.


The Rhetoric Of Negative Externalities, Claire Hill Jan 2016

The Rhetoric Of Negative Externalities, Claire Hill

Articles

The concept of negative externalities is firmly entrenched in economic analysis even though it is almost impossible to apply with any rigor in many important real-world contexts. For instance, what is the baseline from which “pollution” is measured? How clean must the air and water surrounding the firm be? And whose costs must the firm take into account in order to internalize the externalities? Clearly, the firm’s next door neighbors harmed by the polluted air generated by the firm. But what about people who are more remotely affected? There is no neutral way to set the baseline below which ...


A Consequential Justice, Robert Stein Jan 2016

A Consequential Justice, Robert Stein

Articles

No abstract provided.


The United Nations Working Group On Arbitrary Detention: Procedures And Summary Of Jurisprudence, David Weissbrodt, Brittany Mitchell Jan 2016

The United Nations Working Group On Arbitrary Detention: Procedures And Summary Of Jurisprudence, David Weissbrodt, Brittany Mitchell

Articles

For nearly twenty-five years, the United Nations Working Group on Arbitrary Detention has provided a well-respected jurisprudence on fundamental human rights, such as: freedom of expression and religion; limits on administrative detention; restrictions on discrimination in detention; and violations of the right to fair trial. The Working Group has amassed a unique collection of legal principles applicable to individuals detained by the United States, including asylum seekers, immigrants, and refugees. The decisions of the Working Group have also applied to non-state actors.


Interpretive Modesty, Heidi Kitrosser Jan 2016

Interpretive Modesty, Heidi Kitrosser

Articles

“New originalism” presents a profound challenge to originalist determinacy – that is, to the notion that original constitutional meanings alone can resolve most constitutional controversies. While new originalists purport to seek out and adhere to original meanings of constitutional provisions, they acknowledge that some original meanings are too thin to fully resolve many constitutional questions. Such acknowledgment stands in sharp tension with traditional claims of originalist determinacy. While new originalism improves on “old originalism” in important ways, the former’s break from determinacy is not clean enough. New originalists are correct that it is neither epistemologically defensible nor normatively preferable to ...


No Longer A Neutral Magistrate: The Foreign Intelligence Surveillance Court In The Wake Of The War On Terror, Robert Stein, Walter Mondale, Caitlinrose Fisher Jan 2016

No Longer A Neutral Magistrate: The Foreign Intelligence Surveillance Court In The Wake Of The War On Terror, Robert Stein, Walter Mondale, Caitlinrose Fisher

Articles

Since the founding of our nation, the executive, judicial, and legislative branches of government have struggled with maintaining an appropriate balance between gathering intelligence for national security purposes and protecting the civil liberties of United States citizens. This difficulty is compounded by the uniquely challenging separation of powers issues national security problems present. In 1978, after the scale tipped too far toward “security” at the expense of personal liberties, the United States Senate formed the United States Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee) to investigate executive overreach and recommend structural and statutory changes ...


Public Enforcement Compensation And Private Rights, Prentiss Cox Jan 2016

Public Enforcement Compensation And Private Rights, Prentiss Cox

Articles

Government enforcement actions have returned tens of billions of dollars to consumers, investors and employees. This “public enforcement compensation” is important to effective civil law enforcement, yet it is poorly understood and increasingly criticized. Recent scholarship asserts that public compensation mimics class action recoveries and raises the same concerns of accountability to recipients of relief. This Article rejects the class action analogy and presents an alternative framework grounded in the law and practice of public enforcement for understanding the relationship between public compensation and private rights. One scholar goes further and contends that state attorneys general violate constitutional due process ...


Remaking Energy: The Critical Role Of Energy Consumption Data, Alexandra Klass, Elizabeth Wilson Jan 2016

Remaking Energy: The Critical Role Of Energy Consumption Data, Alexandra Klass, Elizabeth Wilson

Articles

This Article explores the public policy benefits associated with increased access to energy consumption data as well as the legal and institutional barriers that currently prevent such access. As state and local governments as well as electricity users attempt to improve the efficiency of their buildings, reduce greenhouse gas emissions, and realize the promises of improved demand side management of energy resources, the need for electricity and other energy-related data becomes even more pressing. But the current law that balances making energy consumption data available against any privacy or confidentiality interests in the data is underdeveloped. Thus, this Article draws ...


Seeking Clemency For Inmates Serving Outdated Sentences, Janeanne Murray Jan 2016

Seeking Clemency For Inmates Serving Outdated Sentences, Janeanne Murray

Articles

No abstract provided.


Regional Energy Governance And U.S. Carbon Emissions, Hari Osofsky, Hannah Jacobs Wiseman Jan 2016

Regional Energy Governance And U.S. Carbon Emissions, Hari Osofsky, Hannah Jacobs Wiseman

Articles

The U.S. Environmental Protection Agency’s final rule that limits carbon dioxide emissions from existing power plants — the Clean Power Plan — is an environmental regulation that powerfully influences energy law and forms a key part of the U.S. plan to meet its voluntary international commitments under the December 2015 Paris Agreement on climate change. Even if portions of the Plan are ultimately struck down, almost any viable pathway to lower carbon emissions will require greater integration of these two areas of law to address the large percentage of U.S. emissions from the energy sector. This integration produces ...


Nonmarriage, June Carbone, Naomi Cahn Jan 2016

Nonmarriage, June Carbone, Naomi Cahn

Articles

Now that the Supreme Court has reshaped the laws of marriage, attention is shifting to nonmarriage. The law no longer treats intimate couples who do not marry as either deviant or deprived. Yet, rather than regulate nonmarriage in a systematic way, the law applies two inconsistent doctrines to govern these relationships. This Article is the first to explore the fundamental contradiction in the legal approach to unmarried partners. While the laws governing financial obligations between unmarried couples are moving toward a deregulatory model that radically differs from the status-based regulation of marriage, the laws of custody and support insist on ...


Friending The Privacy Regulators, William Mcgeveran Jan 2016

Friending The Privacy Regulators, William Mcgeveran

Articles

According to conventional wisdom, data privacy regulators in the European Union are unreasonably demanding, while their American counterparts are laughably lax. Many observers further assume that any privacy enforcement without monetary fines or other punishment is an ineffective “slap on the wrist.” This Article demonstrates that both of these assumptions are wrong. It uses the simultaneous 2011 investigation of Facebook’s privacy practices by regulators in the United States and Ireland as a case study. These two agencies reached broadly similar conclusions, and neither imposed a traditional penalty. Instead, they utilized “responsive regulation,” where the government emphasizes less adversarial techniques ...