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2012

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Articles 1 - 30 of 214

Full-Text Articles in Law

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski Dec 2012

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski

Articles

Civilian drones are scheduled to be permitted in the national airspace as early as 2015. Many think Congress should establish the necessary nationwide regulations to govern both law enforcement and civilian drone use. That thinking, however, is wrong. This Essay suggests drone federalism instead: a state-based approach to privacy regulation that governs drone use by civilians, drawing on states’ experience regulating other forms of civilian-on-civilian surveillance. This approach will allow necessary experimentation in how to best balance privacy concerns against First Amendment rights in the imminent era of drone-use democratization. This Essay closes by providing some guidance to states as ...


Custom, General Principles And The Great Architect Cassese, Mary Fan Dec 2012

Custom, General Principles And The Great Architect Cassese, Mary Fan

Articles

Major advances in international criminal law and procedure rose on the trusses of judicially elucidated sources of international law—custom and general principles. These sources depend on the crucial art of derivation advanced by the architect of modern international criminal justice, President Antonio Cassese. What has transformed international criminal justice into flourishing law able to address changing configurations of violence is the development of the art of finding law in the dark and wilds of murky unwritten norms. [para] President Cassese pioneered paths through a perilous bog. "[T]he law lives in persons," and to understand the law one must ...


Can Consumers Control Health-Care Costs?, Mark A. Hall, Carl E. Schneider Sep 2012

Can Consumers Control Health-Care Costs?, Mark A. Hall, Carl E. Schneider

Articles

The ultimate aim of health care policy is good care at good prices. Managed care failed to achieve this goal through influencing providers, so health policy has turned to the only market-based option left: treating patients like consumers. Health insurance and tax policy now pressure patients to spend their own money when they select health plans, providers, and treatments. Expecting patients to choose what they need at the price they want, consumerists believe that market competition will constrain costs while optimizing quality. This classic form of consumerism is today’s health policy watchword. This article evaluates consumerism and the regulatory ...


Rehabilitation, Research, And Reform: Prison Policy In Ireland, Mary Rogan Sep 2012

Rehabilitation, Research, And Reform: Prison Policy In Ireland, Mary Rogan

Articles

The paper tracks the concept of rehabilitation within official thinking in

Ireland since the foundation of the State. It explores when and how the term was first

used and how it has fared since. It then examines barriers to and the role of research

in the making of prison policy and comments on data deficits in the system at present.

Finally it looks at the role of interest groups within the criminal justice system in

Ireland, and specifically their effect, or potential effect, on the formation of prison

policy.


Taking, Tort, Or Crown Right? The Confused Early History Of Government Patent Policy, Sean M. O'Connor Sep 2012

Taking, Tort, Or Crown Right? The Confused Early History Of Government Patent Policy, Sean M. O'Connor

Articles

From the early days of the Republic, Congress and the federal courts grappled with the government’s rights to own or use patents it issued. Courts rejected the British “Crown Rights” rule that allowed the sovereign to practice whatever patents it issued. Instead, the federal government was conceptualized as a legal person on par with any other persons with regard to issued patents. But, this simple rule presented challenges as complexities arose in three intertwined patent rights scenarios. The first involved inventions by government employees. The second revolved around government and government contractor use of patents held by private citizens ...


Prisoner's Rights And The Separation Of Powers: Comparing Approaches In Ireland, Scotland And England And Wales., Mary Rogan Jul 2012

Prisoner's Rights And The Separation Of Powers: Comparing Approaches In Ireland, Scotland And England And Wales., Mary Rogan

Articles

The decision of Hogan J in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235 (hereinafter Kinsella) is an important development in the protection of prisoners’ constitutional rights in Ireland. The decision, which found that a prisoner’s right to have his person protected had been breached by his detention in a padded cell with a cardboard box for use as a toilet in conditions amounting to a form of sensory deprivation, may represent a new direction for prison law jurisprudence. The judgment is also of significance for its analysis of the circumstances in which conditions of detention can give ...


From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson Jun 2012

From The Thief In The Night To The Guest Who Stayed Too Long: The Evolution Of Burglary In The Shadow Of The Common Law, Helen A. Anderson

Articles

Burglary began evolving from the common law crime almost as soon as Lord Coke defined it in 1641 as breaking and entering a dwelling of another in the night with the intent to commit a crime therein. But sometime between the Model Penal Code in 1962 and today, burglary lost its core actus reus, “entry.” In the majority of jurisdictions, burglary can now be accomplished by simply remaining in a building or vehicle with the intent to commit a crime. Not only does such an offense cover a wide range of situations, but it allows burglary to be attached to ...


Discipline And Discharge Of Public-Sector Employees: An Empirical Study Of Arbitration Awards, Laura J. Cooper Jan 2012

Discipline And Discharge Of Public-Sector Employees: An Empirical Study Of Arbitration Awards, Laura J. Cooper

Articles

Commentators frequently assert that government employees enjoy a level of protection from discharge far greater than privatesector employees, and, indeed, that government employers are actually unable to fire public employees who perform poorly or engage in misconduct. For example, author Mortimer B. Zuckerman maintained in a 2010 U.S. News & World Report article that there were "two Americas" with a division that "affronts a sense of fairness" between the protections afforded public-sector workers and those available to workers in the private sector.1 He stated, "it is almost impossible to fire government workers except after a long process and only ...


Applying International Human Rights Standards To The Restraint And Seclusion Of Students With Disabilities, David Weissbrodt, Willy Madeira, Daniel Stewart, William Dikel Jan 2012

Applying International Human Rights Standards To The Restraint And Seclusion Of Students With Disabilities, David Weissbrodt, Willy Madeira, Daniel Stewart, William Dikel

Articles

No federal law in the United States prohibits school administrators from physically restraining or secluding students. 1 State laws diverge widely. 2 Unlike in medical, psychiatric, and law enforcement settings, where strict national standards govern the use of physical restraint and seclusion, many schools may have no, or inconsistent, guidelines to follow in deciding when the use of force upon students is appropriate. 3 This lack of industry-approved protocol and standardized training of school personnel makes restraint and seclusion susceptible to misapplication and abuse. 4


Cognitive Warfare And Young Black Males In America, Perry L. Moriearty, William Carson Jan 2012

Cognitive Warfare And Young Black Males In America, Perry L. Moriearty, William Carson

Articles

The result was a veritable feedback loop whose cognitive output, the mental imprint of "morally impoverished" "super- predators,"14 continually fed its input. [...]even as crime rates among black youth have dropped steadily since the mid-1990s, these selfreinforcing associations and dissociations have prompted lawmakers and their constituents to continue to support laws and policies that they know disproportionately punish and incapacitate young black males. [...]is the apparent extent to which even subliminal racial primes can influence our perceptions of individuals.


Environmental Justice And The Bp Deepwater Horizon Oil Spill, Hari M. Osofsky, Kate Baxter-Kauf, Bradley Hammer, Ann Mailander, Brett Mares, Amy Pikovsky, Andrew Whitney, Laura Wilson Jan 2012

Environmental Justice And The Bp Deepwater Horizon Oil Spill, Hari M. Osofsky, Kate Baxter-Kauf, Bradley Hammer, Ann Mailander, Brett Mares, Amy Pikovsky, Andrew Whitney, Laura Wilson

Articles

This Article analyzes the environmental justice implications of the BP Deepwater Horizon oil spill and proposes ways to better address these concerns currently and in the future. It explores the justice problems that have arisen with respect to the spill response, compensation, and employment and workers. The Article argues that these problems result from a mix of inadequate information, failure to incorporate environmental justice into planning, and statutory provisions that favor oil companies and limit protections for vulnerable populations. It proposes ways in which to address these causes in the context of this disaster and more broadly.


Crawford V. Washington: What Would Justice Thomas Do?, Brad Clary Jan 2012

Crawford V. Washington: What Would Justice Thomas Do?, Brad Clary

Articles

No abstract provided.


Transparency And Contrarian Experts In Financial Regulation: A Brief Response To Professor Bradley, Daniel Schwarcz Jan 2012

Transparency And Contrarian Experts In Financial Regulation: A Brief Response To Professor Bradley, Daniel Schwarcz

Articles

No abstract provided.


Deidentification And Reidentification In Returning Individual Findings From Biobank And Secondary Research: Regulatory Challenges And Models For Management, William Mcgeveran, Leili Fatehi, Pari Mcgarraugh Jan 2012

Deidentification And Reidentification In Returning Individual Findings From Biobank And Secondary Research: Regulatory Challenges And Models For Management, William Mcgeveran, Leili Fatehi, Pari Mcgarraugh

Articles

No abstract provided.


Public-Sector Employment Under Siege, Stephen F. Befort Jan 2012

Public-Sector Employment Under Siege, Stephen F. Befort

Articles

This article was prepared for a symposium at Indiana University Maurer School of Law on Labor and Employment Law under the Obama Administration. The article analyzes the current spate of attacks on public employees with particular reference to three sub-topics: teacher tenure and evaluation “reform,” the periodic cycles of public sector fiscal crises, and the unilateral modification of public sector collective bargaining agreements. The article concludes with the assessment that cyclical attacks on public sector workers reflect a skewed viewpoint that public employees owe first-class obligations but possess only second-class rights.


The Constitutional Dimension Of Unilateral Change In Public-Sector Collective Bargaining, Stephen F. Befort Jan 2012

The Constitutional Dimension Of Unilateral Change In Public-Sector Collective Bargaining, Stephen F. Befort

Articles

During cycles of public sector budgetary crises, governmental entities frequently undertake efforts to reduce workforce costs. Sometimes these efforts have gone beyond layoffs and furloughs to include modifications to the terms of existing collective bargaining agreements. In the private sector, such a unilateral alteration would be an unlawful breach of contract and an unfair labor practice. But, unilateral change is more prevalent in the public sector, particularly due to the constitutional structure of state government. This article examines two of these constitutional dimensions. The article first discusses diffused management authority resulting from the separation of powers with particular reference to ...


Cercla, State Law, And Federalism In The 21st Century, Alexandra B. Klass Jan 2012

Cercla, State Law, And Federalism In The 21st Century, Alexandra B. Klass

Articles

This essay discusses the continuing role of state statutory and common law remedies for remediating contaminated property at a time where federal liability under the Comprehensive Response, Compensation, and Liability Act (“CERCLA”) has, after thirty years, become an established part of the legal and business landscape. In recent years, a growing number of courts have struggled with the extent to which CERCLA does or should preempt or displace state statutory or common law governing claims for recovering costs associated with contaminated property. This essay begins with the premise that the language of CERCLA as well as general principles of federalism ...


Renewable Energy And The Public Trust Doctrine, Alexandra B. Klass Jan 2012

Renewable Energy And The Public Trust Doctrine, Alexandra B. Klass

Articles

This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time ...


Bankers Behaving Badly? The Limits Of Regulatory Reform, Claire Hill Jan 2012

Bankers Behaving Badly? The Limits Of Regulatory Reform, Claire Hill

Articles

We may finally be emerging from a "Great Recession." But the economy remains quite fragile. What bankers did was an important cause of the recession. They structured, sold and bought "toxic" securities, taking excessive risks with other people's money. Sometimes they did so recklessly, because they did not sufficiently understand the securities. Other times, they did understand the securities, and sold them to those who didn't, sometimes omitting much relevant information. Some evidence suggests that bankers knew the quality of mortgages being securitized was plummeting; indeed, given the dramatically increasing volume of mortgages being securitized, they had to ...


Financial Regulation Reform And Too Big To Fail, Brett Mcdonnell Jan 2012

Financial Regulation Reform And Too Big To Fail, Brett Mcdonnell

Articles

Perhaps the leading critique of the Dodd-Frank Act is that it does too little to address the problem of too big to fail (“TBTF”) financial institutions. The critique of TBTF institutions has two main components. The economic argument focuses on a major moral hazard problem. The political argument focuses on the political clout of TBTF institutions. There are important truths in both the economic and the political argument against TBTF institutions. However, there are also important limits to the truth of both arguments. I believe the limits are more central than the truths, and that if anything Dodd-Frank has gone ...


Litigation's Role In The Path Of U.S. Federal Climate Change Regulation: Implications Of Aep V. Connecticut, Hari M. Osofsky Jan 2012

Litigation's Role In The Path Of U.S. Federal Climate Change Regulation: Implications Of Aep V. Connecticut, Hari M. Osofsky

Articles

This symposium analyzes the role of litigation in climate change regulation, with a particular focus on the U.S. Supreme Court's June 2011 decision in American Electric Power Co. v. Connecticut ("AEP"). 1 This Essay adds to that conversation by exploring the significance of AEP for U.S. federal legal approaches to regulating climate change.


Suburban Climate Change Efforts: Possibilities For Small And Nimble Cities Participating In State, Regional, National, And International Networks, Hari M. Osofsky Jan 2012

Suburban Climate Change Efforts: Possibilities For Small And Nimble Cities Participating In State, Regional, National, And International Networks, Hari M. Osofsky

Articles

This Article provides a novel analysis of the capacity of suburbs to play a constructive role in addressing climate change. Small suburban cities represent the majority of metropolitan populations and emissions; encouraging their mitigation efforts, in addition to those of large center cities, is critical. In contrast to the conventional critique of suburbs as an undifferentiated group of sprawling emitters, the Article analyzes pathways for different types of small, nimble, suburban governments to learn from other localities and find cost-effective approaches to reducing emissions. It intertwines scholarship on (1) cities, suburbs, and climate change, (2) the complex demography of suburbs ...


The Past, Present, And Future Of Critical Tax Theory: A Conversation, Karen B. Brown, Mary Louise Fellows, Bridget J. Crawford Jan 2012

The Past, Present, And Future Of Critical Tax Theory: A Conversation, Karen B. Brown, Mary Louise Fellows, Bridget J. Crawford

Articles

This essay endeavors to document and to preserve the story of the origins of the book Taxing America (NYU Press 1997) edited by Karen B. Brown and Mary Louise Fellows. The publication of that text was a key milestone in the development of critical tax theory as an intellectual discipline. By identifying and bringing together lawyers and scholars with an interest in the political and discriminatory aspects of tax law, Professors Brown and Fellows created one of the first working groups of critical tax theorists. In this essay, the book's two editors reflect on the book's intellectual antecedents ...


Money As Measure, David Gray Carlson Jan 2012

Money As Measure, David Gray Carlson

Articles

No abstract provided.


Mad Money: Wall Street's Bonus Obsession, Jeanne L. Schroeder Jan 2012

Mad Money: Wall Street's Bonus Obsession, Jeanne L. Schroeder

Articles

No abstract provided.


Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles M. Yablon, Nick Landsman-Roos Jan 2012

Discovery About Discovery: Sampling Practice And The Resolution Of Discovery Disputes In An Age Of Ever-Increasing Information, Charles M. Yablon, Nick Landsman-Roos

Articles

This Article provides the first extended academic consideration of a new practice adopted by an increasing number of courts to resolve e-discovery disputes — the sampling of a small portion of the information sought in backup or other relatively inaccessible files. We provides a comprehensive overview and statistical analysis of contemporary sampling techniques, identifying issues where sampling practice is inconsistent or where additional guidance appears to be required. Our aim is to provide a coherent theoretical approach to the use of sampling, suggesting “best practices” for many unresolved issues, and locating sampling practice within broader contemporary debates about discovery.


Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky Jan 2012

Do Religious Tax Exemptions Entangle In Violation Of The Establishment Clause? The Constitutionality Of Parsonage Allowance Exclusion And The Religious Exemptions Of The Individual Health Care Mandate And The Fica And Self-Employment Taxes, Edward A. Zelinsky

Articles

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code ...


The Constitutional Subject, Its Other, And The Perplexing Quest For An Identity Of Its Own: A Reply To My Critics, Michel Rosenfeld Jan 2012

The Constitutional Subject, Its Other, And The Perplexing Quest For An Identity Of Its Own: A Reply To My Critics, Michel Rosenfeld

Articles

In my book The Identity of the Constitutional Subject (2010) I examined the nexus between constitutionalism, particular constitutions and constitutional identity. I argued that the construction and adaptation of a constitutional identity was essential to the coherence and viability of any working constitution. Such constitutional identity must at once negate and incorporate reworked elements of national identity and other pertinent pre- and extra- constitutional materials associated with the relevant polity. In the present essay, I reply to arguments advanced by several critics of my book with a view to clarifying and expanding on some of the book’s principal assertions ...


Time To Sever The Dead Hand: Fisk University And The Cost Of The Cy Pres Doctrine, Melanie B. Leslie Jan 2012

Time To Sever The Dead Hand: Fisk University And The Cost Of The Cy Pres Doctrine, Melanie B. Leslie

Articles

No abstract provided.


Renegotiating The Social Contract, Jennifer S. Hendricks Jan 2012

Renegotiating The Social Contract, Jennifer S. Hendricks

Articles

This review of The Supportive State: Families, Government and America’s Political Ideals highlights Maxine Eichner’s important theoretical contributions to both liberal political theory and feminist theory, applauding her success in reforming liberalism to account for dependency, vulnerability, and families. The review then considers some implications of Eichner’s proposals and their likely reception among feminists. It concludes that The Supportive State is a sound and inspiring response to recent calls that feminist theory move from being strictly a school of criticism to developing a theory of governance.