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Articles 1 - 30 of 31
Full-Text Articles in Law
A New American Dream For Detroit, Andrea Boyack
A New American Dream For Detroit, Andrea Boyack
Faculty Publications
The problem of neighborhood deterioration is keenly visible in Detroit today, but Detroit’s housing struggles are not unique. Like most of America, the Detroit metropolitan area is racially fragmented, and minority neighborhoods are the most likely to be impoverished and failing. Detroit’s problems of housing abandonment and neighborhood decay are both caused and exacerbated by decades of housing segregation and inequality. The “American Dream” has always been one of equal opportunity, but there can be no equality of opportunity when there is such stark inequality among home environments. Detroit’s neighborhood decline is a symptom of the city’s population loss and …
References To Baseball In Judicial Opinions And Written Advocacy, Douglas E. Abrams
References To Baseball In Judicial Opinions And Written Advocacy, Douglas E. Abrams
Faculty Publications
No abstract provided.
References To Television Programming In Judicial Opinions And Lawyers’ Advocacy, Douglas E. Abrams
References To Television Programming In Judicial Opinions And Lawyers’ Advocacy, Douglas E. Abrams
Faculty Publications
"Think of the poor judge who is reading ... hundreds and hundreds of these briefs," says Chief Justice John G. Roberts, Jr. "Liven their life up just a little bit. . . with something interesting." Lawyers can "liven up" their briefs with references to television shows generally known to Americans who have grown up watching the small screen. After discussing television's pervasive effect on American culture since the early 1950s, this Article surveys the array of television references that appear in federal and state judicial opinions. In cases with no claims or defenses concerning the television industry, judges often help …
The Hague Convention On The Civil Aspects Of International Child Abduction And The Latent Domestic Relations Exception To Federal Question Jurisdiction, Sam F. Halabi
Faculty Publications
This article explores the discrepancy in the law of federal jurisdiction as it has developed under the Hague Child Abduction Convention. In contrast to return claims where the remedy is discrete, finite, and closely tied to fundamental international obligations under the treaty, orders to enforce access rights are, or would be, amorphous, ongoing, and subject to other administrative structures codified in the convention as well as, in the U.S. system, adding responsibilities for federal judges more generally associated with those undertaken by state judges. Even in the one federal appellate decision that explicitly acknowledged a judicially enforceable right to ensure …
Respectful Identifiers, Douglas E. Abrams
Respectful Identifiers, Douglas E. Abrams
Faculty Publications
The bills teach that respectful legal writing replaces outdated identifiers of race, ethnicity, sexual orientation, religion, disability or challenge, or other differences among identifiable groups in American society. As Professors Laurel Currie Oates and Anne Enquist advise, respect normally means identifying a group by a name commonly preferred by its members in everyday communication.
Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong
Book Review: Challenges And Recusals Of Judges And Arbitrators In International Courts And Tribunals, S. I. Strong
Faculty Publications
The proliferation of international courts and tribunals over the last few decades has made it increasingly important to ensure that such proceedings are entirely above reproach. In particular, questions have arisen about what should be done in cases where a judge’s or arbitrator’s continued presence threatens the legitimacy of the proceedings. As fundamental as this question is, very little has been written about the standards for challenge and removal of such officials. Fortunately, Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, a new collection of essays edited by Chiara Giorgetti, Associate Professor of Law at the …
Encounters With An Inconstant Cerberus: A Response To Mr. Schmitt, Frank O. Bowman Iii
Encounters With An Inconstant Cerberus: A Response To Mr. Schmitt, Frank O. Bowman Iii
Faculty Publications
For the December 2015 issue of the Federal Sentencing Reporter, I analyzed the pieces of sentencing legislation pending in the present session of Congress. Part of that analysis was an effort to assess the probable practical impact of the bill most likely to move forward, the Senate's Sentencing Reform and Corrections Act (SRACA). My impact analysis of the SRACA drew on three sources: figures provided by the Sentencing Commission in a statement by Commission Chair Patti B. Saris to the Senate Judiciary Committee, an independent analysis by Dr. Paul Hofer, formerly a senior member of the Sentencing Commission's staff and …
Book Review: Human Smuggling And Border Crossings, Rachel J. Wechsler
Book Review: Human Smuggling And Border Crossings, Rachel J. Wechsler
Faculty Publications
This is a review of Gabriella Sanchez's monograph, which challenges dominant narratives of human smugglers as violent members of organized criminal networks with qualitative research conducted with smuggling facilitators, their families, and those who utilized their services.
Long Ideas, Short Words, Douglas E. Abrams
Long Ideas, Short Words, Douglas E. Abrams
Faculty Publications
This article urges lawyers to invigorate their writing with short words that forcefully and accurately present fact and law For legally trained and lay readers alike, law and public policy are complex enough as it is. Lawyers serve their clients and causes most effectively with the simplest possible writing that, in the context as the lawyer perceives it, conveys the intended message.
Amending The Uniform Guardianship And Protective Proceedings Act To Implement The Standards And Recommendations Of The Third National Guardianship Summit, David M. English
Amending The Uniform Guardianship And Protective Proceedings Act To Implement The Standards And Recommendations Of The Third National Guardianship Summit, David M. English
Faculty Publications
The Third National Guardianship Summit, which was held in 2011, recommended the adoption of 70 standards and recommendations relating to guardianship law and practice. This article analyzes the standards and recommendations that might best be implemented by statutory change. The article focuses in particular on how the standards and recommendations might be applied in the current project to amend the Uniform Guardianship and Protective Proceedings Act (UGPPA), various versions of which have been enacted in numerous states.
More Talking, More Writing, Andrea Boyack
More Talking, More Writing, Andrea Boyack
Faculty Publications
Coming from a lifetime of more passive learning, where tests demanded mere recall of specific facts, new law students often find it hard to transition into a more active learning model, where exams require students to explain and apply, not just remember. The only way to smooth the transition, I believe, is to give students ample opportunities to practice articulating legal rules and applications prior to the exam. After all, our goal for our law students is not mere familiarity with legal rules, but fluency in applying and articulating legal concepts.
Large-Scale Dispute Resolution In Jurisdictions Without Judicial Class Actions: Learning From The Irish Experience, S. I. Strong
Large-Scale Dispute Resolution In Jurisdictions Without Judicial Class Actions: Learning From The Irish Experience, S. I. Strong
Faculty Publications
Recent years have seen an unprecedented expansion of the ability to assert large-scale claims in national judicial systems, either on a collective or representative (class) basis. Numerous countries, including many that excoriated United States-style class actions in the past, have now adopted various forms of collective redress as society's need to respond large-scale claims has increased. Although every jurisdiction has developed its own unique method of responding to large-scale legal injuries, there appears to be a growing consensus that contemporary legal systems require some means of responding to widespread harm involving the same or similar facts. Not every jurisdiction has …
Of Reasonable Readers And Unreasonable Speakers: Libel Law In A Networked World, Lyrissa Lidsky, Ronnell Anderson Jones
Of Reasonable Readers And Unreasonable Speakers: Libel Law In A Networked World, Lyrissa Lidsky, Ronnell Anderson Jones
Faculty Publications
Social-media libel cases require courts to map existing defamation doctrines onto social-media fact patterns in ways that create adequate breathing space for expression without lincensing character assassination. This Article explores these challenges by investigating developments involving two important constitutional doctrines - the so-called opinion privlege, which protects statements that are unverifiable or cannot be regarded as stating actual facts about a person, and the actual malice rule, which requires defamation plaintiff's who are public officials or public figures to prove that the defendant made a defamatory statement with knowledge of or reckless disregard for, its falsity. Given the critical role …
Symposium Introduction: Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective, Carli N. Conklin
Symposium Introduction: Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective, Carli N. Conklin
Faculty Publications
The Federal Arbitration Act (FAA), enacted in 1925, provides a framework for how we think about arbitration procedure, practice, and policy in the United States today. Yet, the FAA, and the interpretive lens it provides, are relatively new on the horizon, historically speaking
Choosing A Criminal Procedure Casebook: On Lesser Evils And Free Books, Ben L. Trachtenberg
Choosing A Criminal Procedure Casebook: On Lesser Evils And Free Books, Ben L. Trachtenberg
Faculty Publications
Among the more important decisions a law teacher makes when preparing a new course is what materials to assign. Criminal procedure teachers are spoiled for choice, with legal publishers offering several options written by teams of renowned scholars. This Article considers how a teacher might choose from the myriad options available and suggests two potentially overlooked criteria: weight and price.
Last Lecture: Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande
Last Lecture: Tips For Lawyers Who Want To Get Good Results For Clients And Make Money, John M. Lande
Faculty Publications
Lawyers often assume that they know what their clients want-to get as much money or pay as little money as possible. While clients usually are very concerned about their bottom line, they often have additional interests. In virtually any kind of case, parties may have an interest in being treated respectfully and fairly, minimizing the cost and length of the process, freeing time to focus on matters other than the dispute, reducing the emotional wear and tear caused by continued disputing, and protecting privacy and reputations. Plaintiffs may have interests such as obtaining favorable tax consequences, getting nonmonetary opportunities, and …
Writing In Law Reviews, Bar Association Journals, And Blogs (Part Ii), Douglas E. Abrams
Writing In Law Reviews, Bar Association Journals, And Blogs (Part Ii), Douglas E. Abrams
Faculty Publications
Lawyers commonly write as their clients' representatives, but many lawyers also do "extracurricular writing" in non-representational roles. A few years ago in Precedent (The Missouri Bar's former quarterly magazine), I wrote about lawyers who publish newspaper op-ed columns (essays appearing "opposite the editorial pages") and letters to the editor. The present two-part article explores three additional extracurricular writing opportunities open to lawyers. In the Journal's January-February issue, Part 1 discussed writing or co-writing in law reviews. Part 2 now concludes by discussing writing opportunities in bar association journals and on blogs.
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz
Faculty Publications
Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …
The Law Of 180-Day Exclusivity, Erika Lietzan, Julia Post
The Law Of 180-Day Exclusivity, Erika Lietzan, Julia Post
Faculty Publications
In 1984, Congress created a statutory pathway for approval of generic drug applications and included an incentive for generic applicants to challenge the patents claiming the reference drugs on which they based their applications. The first generic applicant to file an ANDA with a patent challenge is eligible for 180 days of generic market exclusivity. This article is the fourth in a series of articles describing the resulting body of law, as interpreted and applied by FDA (in regulations, guidances, citizen petition responses, and individual decisions awarding and denying exclusivity) and the courts. The heart of the article is section …
Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong
Realizing Rationality: An Empirical Assessment Of International Commercial Mediation, S. I. Strong
Faculty Publications
For decades, parties, practitioners and policymakers have believed arbitration to be the best if not only realistic means of resolving cross-border business disputes. However, the hegemony of international commercial and investment arbitration is currently being challenged in light of rising concerns about increasing formalism in arbitration. As a result, the international community has sought to identify other ways of resolving these types of complex commercial matters, with mediation reflecting the most viable option. Numerous public and private entities have launched initiatives to encourage mediation in international commercial and investment disputes, and the United Nations Commission on International Trade Law (UNCITRAL) …
International Intellectual Property Shelters, Sam F. Halabi
International Intellectual Property Shelters, Sam F. Halabi
Faculty Publications
The battle over the reach and strength of international protections for intellectual property rights is one of the critical flashpoints between wealthy and low-income countries: those protections are perceived to obstruct access to essential medicines, thwart regulatory efforts to promote individual and population health, and undermine traditional forms of agriculture and food production. While scholars have thoroughly tracked the bilateral and multilateral trade and investment treaties responsible for the expansion of international intellectual property rights worldwide, they have paid significantly less attention to the strength and form that opposition to international intellectual property expansion has taken. This Article examines the …
Writing In Law Reviews, Bar Association Journals, And Blogs (Part I), Douglas E. Abrams
Writing In Law Reviews, Bar Association Journals, And Blogs (Part I), Douglas E. Abrams
Faculty Publications
Lawyer's commonly write as the client's representative, but this article explores three opportunities for lawyers who wish also to write sometimes in non-representational roles. Part I here discusses writing or co-writing law review articles.
You As A Brand: A Legal History, Lyrissa Lidsky
You As A Brand: A Legal History, Lyrissa Lidsky
Faculty Publications
Dr. Samantha Barbas’ book, Laws of Image: Privacy and Publicity in America, makes an original, important, and engaging contribution to the history of the privacy law in the United States. In the process, the book illuminates how we became a culture obsessed with image management and how the law developed and continues to evolve to protect our rights to become our own personal brands.
Gras-Fed Americans: Sick Of Lax Regulation Of Food Additives, Martha Dragich
Gras-Fed Americans: Sick Of Lax Regulation Of Food Additives, Martha Dragich
Faculty Publications
Americans are “GRAS-fed” because of a “loophole” in the strict regime Congress provided for the regulation of food additives. Additives - and food products containing them - are exempt from this strict regime if they are accorded GRAS (Generally Recognized as Safe) status. The guidelines Congress provided for achieving that status by scientific evidence of safety are no longer observed. Most additives are determined by the producer alone to be GRAS. At the same time, Americans’ consumption of highly processed foods continues to rise, giving rise to long-term health problems that are increasingly tied to diet. The average American’s diet …
The Myths Of Data Exclusivity, Erika Lietzan
The Myths Of Data Exclusivity, Erika Lietzan
Faculty Publications
This article contributes to an ongoing academic and public policy dialogue over whether and on what terms U.S. law should provide “data exclusivity” for new medicines. Five years after a new drug has been approved on the basis of an extensive application that may have cost more than one billion dollars to generate, federal law permits submission of a much smaller application to market a duplicate version of the drug. This second application is a different type of application, and it may cost no more than a few million dollars to prepare. A similar sequence is true for biological medicines: …
Clash Of Cultures: Epistemic Communities, Negotiation Theory, And International Lawmaking, S. I. Strong
Clash Of Cultures: Epistemic Communities, Negotiation Theory, And International Lawmaking, S. I. Strong
Faculty Publications
This Article seeks to illuminate a number of truths about the current deliberations at UNCITRAL by applying the concept of epistemic communities to the UNCITRAL negotiation process. This analysis will help various participants, including state delegates, inter-governmental organizations (IGOs), and non-governmental organizations (NGOs), appreciate the dynamics at issue in the treaty deliberations and thereby improve negotiation techniques and outcomes.' In particular, this Article considers how disparities between different epistemic communities involved in the UNCITRAL process could affect the shape and future of the proposed convention and whether the clash of cultures could prove fatal to the development of a new …
Collective Corporate Knowledge, The Federal False Claims Act, And The Future Of Federal Health Programs, Sam F. Halabi
Collective Corporate Knowledge, The Federal False Claims Act, And The Future Of Federal Health Programs, Sam F. Halabi
Faculty Publications
While recent U.S. Supreme Court decisions have drawn focus to whether what corporations “say” is protected by the First Amendment or what they “believe” is protected by the federal Religious Freedom Restoration Act, the more relevant inquiry for a wide range of statutory and regulatory regimes is what corporations “know.” At the core of that question is what guides information relevant for legal compliance (including product safety, employee welfare, and material risks considered by investors) from its source to any given point in the firm, including decision-makers. This Article analyzes the federal False Claims Act as an underexploited resource in …
The Scope Of Preemption Under The 2009 Family Smoking Prevention And Tobacco Control Act, Sam F. Halabi
The Scope Of Preemption Under The 2009 Family Smoking Prevention And Tobacco Control Act, Sam F. Halabi
Faculty Publications
The 2009 Family Smoking Prevention and Tobacco Control Act endeavored to alter the regulatory regime for tobacco products in the United States by allocating authority to regulate tobacco products to the U.S. Food and Drug Administration (FDA). While the law aims at greater transparency in the constituent components of cigarettes and non-combustible tobacco products, it also includes a provision which will bring FDA’s consumer protection and tobacco control mandates into tension: Section 911’s process for the approval of modified risk tobacco products. That provision allows tobacco manufacturers to submit applications to label products as “reduc[ing] the harm or the risk …
First Principles And Practical Politics: Thoughts On Judge Pryor's Proposal To Revive Presumptive Federal Sentencing Guidelines, Frank O. Bowman Iii
First Principles And Practical Politics: Thoughts On Judge Pryor's Proposal To Revive Presumptive Federal Sentencing Guidelines, Frank O. Bowman Iii
Faculty Publications
In recent remarks to the American Law Institute, Judge William Pryor recommended abandonment of the post- Booker advisory version of the Federal Sentencing Guidelines and adoption of a simplified presumptive federal guidelines system. There was a time when I shared Judge Pryor's optimism that a sensible system of simplified presumptive sentencing guidelines could be enacted and could achieve its beneficent ends for a useful period thereafter. I have not yet surrendered the dream, but I confess to increased skepticism. The remainder of this essay will explain my pessimistic turn.
U.S. Media Law Update, Lyrissa Lidsky, Racheal Jones
U.S. Media Law Update, Lyrissa Lidsky, Racheal Jones
Faculty Publications
In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is content-based …