Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Series

Faculty Scholarship

2013

Discipline
Institution
Keyword

Articles 1 - 30 of 821

Full-Text Articles in Law

Sufficiency Of The Evidence Does Not Meet Daubert Standards: A Critique Of The Green-Sanders Proposal, Aaron Twerski, Lior Sapir Dec 2013

Sufficiency Of The Evidence Does Not Meet Daubert Standards: A Critique Of The Green-Sanders Proposal, Aaron Twerski, Lior Sapir

Faculty Scholarship

No abstract provided.


Future War, Future Law, Eric Talbot Jensen Dec 2013

Future War, Future Law, Eric Talbot Jensen

Faculty Scholarship

Advancing technology will dramatically affect the weapons and tactics of future armed conflict, including the “places” where conflicts are fought, the “actors” by whom they are fought, and the “means and methods” by which they are fought. These changes -- including continuing cyber conflict, increased use of autonomous weapon systems, the development of nanotechnology, and evolving virology capabilities -- will stress even the fundamental principles of the law of armed conflict, or LOAC. While it is likely that the contemporary LOAC will be sufficient to regulate the majority of future conflicts, the international community must be willing to evolve the LOAC in ...


Guantanamo And The End Of Hostilities, Eric Talbot Jensen Dec 2013

Guantanamo And The End Of Hostilities, Eric Talbot Jensen

Faculty Scholarship

Detainees in the War on Terror have been at Guantanamo Bay for over a decade. The justification for these detentions has been, at least in part, the on-going hostilities in Afghanistan. However, President Obama’s announcement in his 2013 State of the Union address that “By the end of [2014] our war in Afghanistan will be over” may undercut the continuing detention authority for at least some of these Guantanamo detainees. This paper analyzes the legal doctrine of release and repatriation in light of President Obama’s announcement and concludes that the President’s determination that hostilities have concluded between ...


The Birth Of The Greenback, Dawinder S. Sidhu Dec 2013

The Birth Of The Greenback, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.


Brief Of Amicus Curiae, The American Association On Intellectual And Developmental Disabilities, The Arc Of The United States, The National Disability Rights Network, Disability Rights Florida, And The Bazelon Center For Mental Health Law In Support Of Petitioner, April Land, James W. Ellis, Ann M. Delpha, Carol M. Suzuki, Steven K. Homer Dec 2013

Brief Of Amicus Curiae, The American Association On Intellectual And Developmental Disabilities, The Arc Of The United States, The National Disability Rights Network, Disability Rights Florida, And The Bazelon Center For Mental Health Law In Support Of Petitioner, April Land, James W. Ellis, Ann M. Delpha, Carol M. Suzuki, Steven K. Homer

Faculty Scholarship

Question Presented: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia, 536 U.S. 304 (2002). Summary of Argument: In Atkins, this Court concluded that a national consensus had developed against the execution of persons with mental retardation and that such executions violated the Eighth Amendment. The Court also stated that the national consensus suggests that some characteristics of mental retardation, such as disabilities in the areas of reasoning, judgment, and control of impulses, undermine the procedural protections of our capital punishment jurisprudence and can jeopardize the reliability and fairness of capital proceedings ...


Solving The Orphan Works Problem For The United States, Pamela Samuelson, Jennifer M. Urban, David R. Hansen, Kathryn Hashimoto, Gwen Hinze Dec 2013

Solving The Orphan Works Problem For The United States, Pamela Samuelson, Jennifer M. Urban, David R. Hansen, Kathryn Hashimoto, Gwen Hinze

Faculty Scholarship

Part I discusses the causes of the orphan works problem, empirical evidence about the size of the problem today, and the effect that orphan works have had on libraries, archives and related organizations that have digitized or wish to digitize their collections. Part II discusses the range of social benefits of enabling greater public access to orphan works. Part III describes various approaches to solving the orphan works problem, canvassing approaches both from the United States and abroad. It argues that fair use and the Copyright Office's remedy limitation approach are better solutions for the United States than alternatives ...


The Value Of Precedent : Appellate Briefs And Judicial Opinions In The U.S. Courts Of Appeals., Laura P. Moyer, Todd A. Collins, Susan B. Haire Dec 2013

The Value Of Precedent : Appellate Briefs And Judicial Opinions In The U.S. Courts Of Appeals., Laura P. Moyer, Todd A. Collins, Susan B. Haire

Faculty Scholarship

This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in determining whether the court adopts a party’s use of a precedent. At times, ideological congruence between the circuit panel and the litigant can increase the likelihood that the court’s opinion will use a precedent in the same way as presented by the litigants. There is also some support for the importance of attorney experience. Even when ...


Diversity May Be Justified, Anita Bernstein Dec 2013

Diversity May Be Justified, Anita Bernstein

Faculty Scholarship

No abstract provided.


Government Nonedorsement, Nelson Tebbe Dec 2013

Government Nonedorsement, Nelson Tebbe

Faculty Scholarship

No abstract provided.


A Solution Hiding In Plain Sight: Special Education And Better Outcomes For Students With Social, Emotional, And Behavioral Challenges, Yael Cannon, Michael J. Gregory, Julie Waterstone Dec 2013

A Solution Hiding In Plain Sight: Special Education And Better Outcomes For Students With Social, Emotional, And Behavioral Challenges, Yael Cannon, Michael J. Gregory, Julie Waterstone

Faculty Scholarship

This Article will contribute to the ongoing dialogue about special education and the IDEA in two ways. First, it will describe patterns that have emerged from our work with individual children and families that shed light on how common IDEA implementation failures increase the risk of poor outcomes for students with social, emotional and behavioral challenges. Critiques of the law and proposals to amend it should be grounded in an understanding of exactly how and why it is falling short of meeting its promise to these children. Our hope is that mapping the common implementation failures we have seen in ...


Essay: Resolving The Public Pension 'Crisis', Jack M. Beermann Dec 2013

Essay: Resolving The Public Pension 'Crisis', Jack M. Beermann

Faculty Scholarship

The high profile bankruptcy filing by the City of Detroit, Michigan, has brought to the fore the relationship between pension underfunding and the financial difficulties faced by an increasing number of municipalities and states in the United States. The problem is likely to continue to grow with more municipalities finding it necessary to explore the bankruptcy option or otherwise attempt to reduce pension and other obligations to employees and retirees. This essay is an effort to provoke discussion of the normative issues surrounding pension reform, mainly concerning how public employees and retirees should be treated in municipal bankruptcy. Should pension ...


Parody As Brand, Stacey Dogan, Mark Lemley Dec 2013

Parody As Brand, Stacey Dogan, Mark Lemley

Faculty Scholarship

Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment ...


Union Made: Labor’S Litigation For Social Change, Charlotte Garden Dec 2013

Union Made: Labor’S Litigation For Social Change, Charlotte Garden

Faculty Scholarship

Unions are key repeat players before the Supreme Court. Their involvement extends beyond what one might expect (labor) and extends to key cases involving federalism, discrimination, affirmative action, the First Amendment, and workplace health and safety, among others. Though scholars have written about how other union activity, like collective bargaining, impacts non-union workers, the role and impact of union participation in non-labor litigation has largely been ignored in the public debate over unions in America and in the academic literature about what unions do. This article focuses on unions’ Supreme Court litigation that arises outside of the context of traditional ...


The Chapter 11 Efficiency Fallacy, Diane Lourdes Dick Dec 2013

The Chapter 11 Efficiency Fallacy, Diane Lourdes Dick

Faculty Scholarship

This article challenges the persistent claim that Chapter 11's increasing utilization of market mechanisms will help facilitate economically efficient resolutions of corporate financial distress. Using two recent case studies, this article shows that, in fact, these mechanisms are used by stakeholders with existing market power to take control of the restructuring process and extract rents at the expense of other constituents: creditors, equity holders, and—in the case of companies that receive governmental bailouts—taxpayers. These distortionary effects are obscured by a dominant, neoclassical legal paradigm that ignores institutional and political dynamics. This article advances a new explanatory model ...


Carcieri: Bringing Certainty To Trust Land Acquisitions, Kevin Washburn Nov 2013

Carcieri: Bringing Certainty To Trust Land Acquisitions, Kevin Washburn

Faculty Scholarship

No abstract provided.


The Tobacco Diaries: Lessons Learned And Applied To Regulation Of Dietary Supplements, Joanna K. Sax Nov 2013

The Tobacco Diaries: Lessons Learned And Applied To Regulation Of Dietary Supplements, Joanna K. Sax

Faculty Scholarship

This Article examines the future role of the FDA in the regulation of the dietary supplement industry. To address the role of the FDA in the twenty-first century with respect to the dietary supplement industry, Part I of this Article begins by describing the dietary supplement industry and the role of the FDA in this industry. In Part II, this Article provides a brief exposé of the tactics used by the tobacco industry to evade regulation. The purpose of Part II is to provide insight into the tobacco industry’s ability to manipulate consumers and discount scientific proof of the ...


Presumed Guilty, Terrence Cain Nov 2013

Presumed Guilty, Terrence Cain

Faculty Scholarship

It would probably surprise the average American to learn that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately ...


Advancing Low-Wage Worker Organizing Through Legal Representation, Sameer M. Ashar, Fernando Flores, Sara Feldman Nov 2013

Advancing Low-Wage Worker Organizing Through Legal Representation, Sameer M. Ashar, Fernando Flores, Sara Feldman

Faculty Scholarship

Eighteen workers at the Hilton Long Beach Hotel and Executive Meeting Center settled denial of meal and rest break claims with the hotel’s owner, HEI Hotels and Resorts LLC (HEI), on November 27, 2012 — the culmination of a multiyear campaign led by the workers and supported by Unite Here Local 11, the Southern California affiliate of the North American hospitality workers union. The workers were represented in the last stages of the agency adjudication by the Immigrant Rights Clinic of the University of California (Irvine) School of Law and the Legal Aid Society-Employment Law Center. In hearings before the ...


Reflections On The Cost Of "Low-Cost" Whole Genome Sequencing: Framing The Health Policy Debate, Timothy Caulfield, Jim Evans, Amy Mcguire, Christopher Mccabe, Tania Bubela, Robert Cook-Deegan, Jennifer Fishman, Stuart Hogarth, Fiona A. Miller, Vardit Ravitsky, Barbara Biesecker, Pascal Borry, Mildred K. Cho, June C. Carroll, Holly Etchegary, Yann Joly, Kazuto Kato, Sandra Soo-Jim Lee, Karen H. Rothenberg, Pamela Sankar, Michael J. Szego, Pilar Ossorio, Daryl Pullman, Francois Rousseau, Wendy J. Ungar, Brenda Wilson Nov 2013

Reflections On The Cost Of "Low-Cost" Whole Genome Sequencing: Framing The Health Policy Debate, Timothy Caulfield, Jim Evans, Amy Mcguire, Christopher Mccabe, Tania Bubela, Robert Cook-Deegan, Jennifer Fishman, Stuart Hogarth, Fiona A. Miller, Vardit Ravitsky, Barbara Biesecker, Pascal Borry, Mildred K. Cho, June C. Carroll, Holly Etchegary, Yann Joly, Kazuto Kato, Sandra Soo-Jim Lee, Karen H. Rothenberg, Pamela Sankar, Michael J. Szego, Pilar Ossorio, Daryl Pullman, Francois Rousseau, Wendy J. Ungar, Brenda Wilson

Faculty Scholarship

The cost of whole genome sequencing is dropping rapidly. There has been a great deal of enthusiasm about the potential for this technological advance to transform clinical care. Given the interest and significant investment in genomics, this seems an ideal time to consider what the evidence tells us about potential benefits and harms, particularly in the context of health care policy. The scale and pace of adoption of this powerful new technology should be driven by clinical need, clinical evidence, and a commitment to put patients at the centre of health care policy.


Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann Nov 2013

Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann

Faculty Scholarship

After decades of failed interstate agreements, the Chesapeake Bay is choking on too many nutrients. The estuary’s last, best chance of recovery is the Environmental Protection Agency's Total Maximum Daily Load (“TMDL”) program, also known as a pollution diet. To meet this deadline, all polluters, including large animal farms, will need to sharply reduce the pollutants they release into the Bay. The Maryland Department of the Environment (MDE) must ensure that each Concentrated Animal Feeding Operation (“CAFO”) has developed a facility-specific permit that details when and where manure is applied to fields and how waste is stored and ...


Is Software Patentable?, Pamela Samuelson Nov 2013

Is Software Patentable?, Pamela Samuelson

Faculty Scholarship

No abstract provided.


The Inclusiveness Of The New Originalism, James Fleming Nov 2013

The Inclusiveness Of The New Originalism, James Fleming

Faculty Scholarship

In tracing the arc of originalism from the old originalism to the new, I observe a shift from an exclusionary outlook to an inclusionary outlook, reflected in new originalists’ proclamations that “we are all originalists now.” As my title suggests, I am going to bring out the inclusiveness of the new originalism and ponder its implications. The new originalists have emphasized two developments: (1) the movement from a focus on “intention of the framers” to “original public meaning” and (2) the articulation of and emphasis on the distinction between interpretation and construction. My main points are two. First, the inclusiveness ...


The Right To Quantitative Privacy, Danielle K. Citron, David Gray Nov 2013

The Right To Quantitative Privacy, Danielle K. Citron, David Gray

Faculty Scholarship

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of ...


The New Constitution Of The United States: Do We Need One And How Would We Get One?, Jack M. Beermann Nov 2013

The New Constitution Of The United States: Do We Need One And How Would We Get One?, Jack M. Beermann

Faculty Scholarship

Government in the United States has some serious problems. At the federal level, is the problem of gridlock. The United States Congress seems unable or unwilling to do anything about anything (although it must have done something to run up more than $16 trillion in debts). Forget about addressing problems such as global warming, income inequality, failing schools, economic stimulus or you name it. How bad is it, really? Has the United States become ungovernable, and is the Constitution to blame? In my view, it’s a mixed bag. Some aspects of the United States government work very well, others ...


The Looming Chapter 9 Battle Over State Protection Of Vested Public Employee Pension Benefits, Mark S, Kaufman, Summer B. Chandler Nov 2013

The Looming Chapter 9 Battle Over State Protection Of Vested Public Employee Pension Benefits, Mark S, Kaufman, Summer B. Chandler

Faculty Scholarship

"For years, observers have warned of the looming threat of unfunded pension liabilities. Some dubbed the danger the “pension tsunami,” and it has hit an increasing number of U.S. cities, including Vallejo, Stockton and San Bernardino in California and the city of Detroit, which have sought chapter 9 relief in bankruptcy court.1 Despite the attention given to these cases, chapter 9 filings are relatively scarce, and many significant issues remain to be resolved by the courts. One unanswered question is whether a municipal debtor in bankruptcy can propose to pay its pension debt2 less than in full ...


Crafting Clear, Correct Sentences, Tenielle Fordyce-Ruff Nov 2013

Crafting Clear, Correct Sentences, Tenielle Fordyce-Ruff

Faculty Scholarship

We writers tend to make fairly predictable errors, so learning a few simple fixes can greatly improve our sentences. Here are six faults you can eliminate to fix your sentences: redundancy, repetition, subject-verb separation, misplaced modifiers, dangling participles, and unparallel phrasings. [excerpt]


Contractually Adopted Fiduciary Duty, D. Gordon Smith Oct 2013

Contractually Adopted Fiduciary Duty, D. Gordon Smith

Faculty Scholarship

The Delaware Supreme Court recently referred to “contractually adopted fiduciary duties.” Although some commentators, including Larry Ribstein, view fiduciary duties as a type of contract term, the notion of contractually adopted fiduciary duties is incoherent. The need to opt in to fiduciary duties would arise in only two circumstances: (1) fiduciary relationships that do not invoke fiduciary duties without contractual authorization, and (2) nonfiduciary relationships in which the parties wish to invoke fiduciary duties that would otherwise be absent. The first category of relationships does not exist, as courts impose fiduciary duties when the structure of a relationship indicates that ...


“Turn On The Lights” -Sustainable Energy Investment And Regulatory Policy: Charting The Hydrokinetic Path For Pakistan, Nadia B. Ahmad Oct 2013

“Turn On The Lights” -Sustainable Energy Investment And Regulatory Policy: Charting The Hydrokinetic Path For Pakistan, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.


The Tropics Exploited: Risk Preparedness And Corporate Social Responsibility In Offshore Energy Development, Nadia B. Ahmad Oct 2013

The Tropics Exploited: Risk Preparedness And Corporate Social Responsibility In Offshore Energy Development, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.


On Duopoly And Compensation Games In The Credit Rating Industry, Robert J. Rhee Oct 2013

On Duopoly And Compensation Games In The Credit Rating Industry, Robert J. Rhee

Faculty Scholarship

Credit rating agencies are important institutions of the global capital markets. If they had performed properly, the financial crisis of 2008–2009 would not have occurred, and the course of world history would have been different. There is a near universal consensus that reform is needed, but none as to the best approach. The problem has not been solved. This Article offers the simplest fix proposed thus far, and it is contrarian. Unlike other reform proposals, this Article accepts the central role of rating agencies in the regulation of bond investments, the realities of a duopoly, and the issuer-pay model ...