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2004

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Full-Text Articles in Law

Prosecuting Members Of The U.S. Military For Wartime Environmental Crimes, Eric Talbot Jensen, James J. Teixeira Jr. Dec 2004

Prosecuting Members Of The U.S. Military For Wartime Environmental Crimes, Eric Talbot Jensen, James J. Teixeira Jr.

Faculty Scholarship

War is inherently damaging to the environment. Though these deleterious actions are often attributed to "states" during times of armed conflict, they are normally the result of military operations conducted by members of the military who are carrying out orders from military superiors. While many have proposed systemic changes that affect how states can or should be held responsible, few have commented on the process of holding individual military personnel or commanders responsible for battlefield acts of environmental damage. This paper argues that there are sufficient laws and regulations in place to hold individuals and commanders in the United States ...


Utah V. Reyes : Brief Of Appellant, Utah Court Of Appeals Dec 2004

Utah V. Reyes : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (1996–2006)

No abstract provided.


The Threat Of Smallpox: Eradicated But Not Erased: A Review Of The Fiscal, Logistical And Legal Obstacles Impacting The Phase I Vaccination Program, Holly L. Myers, Elin Gursky, Georges C. Benjamin, Christopher Gozdor, Michael Greenberger Dec 2004

The Threat Of Smallpox: Eradicated But Not Erased: A Review Of The Fiscal, Logistical And Legal Obstacles Impacting The Phase I Vaccination Program, Holly L. Myers, Elin Gursky, Georges C. Benjamin, Christopher Gozdor, Michael Greenberger

Faculty Scholarship

Fears that terrorists may have the capabilities and intent to disseminate a variety of biologic agents has once again brought smallpox into the American consciousness. On December 13, 2002, recognizing that the global discontinuation of routine smallpox vaccination over two decades ago had left most Americans unprotected and vulnerable to the ravaging effects of the virus, the President announced a precautionary measure to begin vaccinating teams of emergency responders. The program commenced January 24, 2003. In the ensuing months, public health departments scrambled to meet the goal of vaccinating approximately 500,000 first responders, a protected phalanx that could quickly ...


Summary Of In The Matter Of The Estate Of John W. Bowlds, 120 Nev. Adv. Rep. 100, Kristen T. Gallagher Dec 2004

Summary Of In The Matter Of The Estate Of John W. Bowlds, 120 Nev. Adv. Rep. 100, Kristen T. Gallagher

Nevada Supreme Court Summaries

An appeal from both parties regarding a court’s review of fee agreements between an estate and its attorneys.


Summary Of State V. Sutton, 120 Nev. Adv. Rep. 99, Kristen T. Gallagher Dec 2004

Summary Of State V. Sutton, 120 Nev. Adv. Rep. 99, Kristen T. Gallagher

Nevada Supreme Court Summaries

Appeal from a final judgment from a breach of contract and breach of the implied covenant of good faith and fair dealing in an employment law case.


A Stag Hunt Account And Defense Of Transnational Labour Standards---A Preliminary Look At The Problem, Alan Hyde Dec 2004

A Stag Hunt Account And Defense Of Transnational Labour Standards---A Preliminary Look At The Problem, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Transnational labor standards are modeled as cooperative solutions to the class of strategic dilemmas known as Stag Hunts, in which all actors would gain from a cooperative solution, but only if all cooperate. If you think a partner will defect, your best strategy is also to defect. Intuitively, India, Pakistan, and Bangladesh will all be better off if none of their children work and all go to school; however if one defects from this agreement it will capture a stream of foreign investment linked to child labor. Understanding Stag Hunts explains why transnational labor standards are found both in genuinely ...


Who Speaks For The Working Poor?: A Preliminary Look At The Emerging Tetralogy Of Representation Of Low-Wage Service Workers, Alan Hyde Dec 2004

Who Speaks For The Working Poor?: A Preliminary Look At The Emerging Tetralogy Of Representation Of Low-Wage Service Workers, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Recent advocacy campaigns for low-wage service workers in New York City reveal a new pattern of representation by legal avocacy groups (like National Employment Law Project or law school clinics), governmental actors (like the state Attorney General or New York City Council), and immigrant rights groups. Such campaigns have won important economic and legal victories for Mexican workers in Korean greengroceries, West African delivery personnel for supermarkets and drug chains, and domestic workers. They have not, however, institutionalized workplace or political representation for these groups. Unions have either been passive, outmaneuvered, or played negative roles in these campaigns. This pattern ...


Employment Discrimination In A High Velocity Labor Market, Alan Hyde Dec 2004

Employment Discrimination In A High Velocity Labor Market, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Silicon Valley employers employ few African-Americans, Latino/as, or older workers, yet do not fit the usual paradigms of employment discrimination: they exhibit no taste for uniformity and do not employ job tournaments or internal labor markets. A new model of employment discrimination attributes disparate hiring in Silicon Valley to a combination of: demands for specific skill sets at hiring (the opposite of the subjective criteria that have long beguiled scholars of discrimination) and concomitant refusal to train; hiring through networks of personal contacts; and rewards to career paths that alternate employment with self-employment. Overcoming the disparate impact of these ...


The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji Dec 2004

The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji

The Ohio State University Moritz College of Law Working Paper Series

The 2000 election ignited a fierce controversy over the machinery used for voting. Civil rights advocates have called for the replacement of outdated paper-based voting equipment, like the infamous “hanging chad” punch card. Yet the introduction of paperless technology, especially electronic “touchscreen” machines, has induced widespread concern that software might be rigged to alter election results. This article examines the debate over electronic voting, which raises fundamental questions about the democratic values that should guide the administration of elections. It frames the debate by defining four equality norms embodied in federal voting rights laws and the Constitution. Electronic voting has ...


Occupation Failures And The Legality Of Armed Conflict: The Case Of Iraqi Cultural Property, Mary Ellen O'Connell Dec 2004

Occupation Failures And The Legality Of Armed Conflict: The Case Of Iraqi Cultural Property, Mary Ellen O'Connell

The Ohio State University Moritz College of Law Working Paper Series

US Secretary of Defense Donald Rumsfeld dismissed the looting of the Iraqi National Museum in April 2003 by remarking, “stuff happens.” In doing so, he gave an early indication that in planning to invade Iraq, the Bush Administration failed to take seriously the legal obligations of an occupying power. Occupying powers have a variety of binding legal obligations, including obligations to stop looting, protect cultural property, and protect persons in detention. Yet, the Administration sent a wholly inadequate force to fulfill those obligations, and, more seriously, the force received no direct and imperative orders to do so. As a result ...


Justice In The Palestine-Israel Conflict, John B. Quigley Dec 2004

Justice In The Palestine-Israel Conflict, John B. Quigley

The Ohio State University Moritz College of Law Working Paper Series

Military-territorial conflicts are typically addressed by the international community on the basis of considerations of justice, meaning relevant standards accepted by the community of states for conduct among states and peoples. If such standards are followed, resulting agreements stand a greater chance of providing for a lasting peace. In the conflict over historic Palestine, considerations of justice have had to compete with considerations of major-power policy, from early twentieth century to the present. When negotiations re-commence, the international community should ensure that they be conducted with considerations of justice at the forefront. If that approach is taken, in particular regarding ...


The New Canon: Using Or Misusing Foreign Law To Decide Domestic Intellectual Property Claims , Edward S. Lee Dec 2004

The New Canon: Using Or Misusing Foreign Law To Decide Domestic Intellectual Property Claims , Edward S. Lee

The Ohio State University Moritz College of Law Working Paper Series

This Article provides the first in-depth analysis of the use of foreign authorities to resolve issues related to domestic statutes, particularly focusing on intellectual property (IP) statutes. The study of IP statutes provides a fertile area of research because of the increased pressures for international protection of IP. The Article criticizes the current approach U.S. courts have taken to using foreign authorities in this area, which can best be described as ad hoc. The Article then sets forth a framework by which U.S. courts can decide, more systematically, when to rely on foreign authorities in IP cases. The ...


Uk Competition Appeal Tribunal Rules On Oft’S Duty To Refer Mergers For Investigation, Suyong Kim Dec 2004

Uk Competition Appeal Tribunal Rules On Oft’S Duty To Refer Mergers For Investigation, Suyong Kim

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

On 3 December 2003, the Competition Appeal Tribunal in the UK upheld an application by IBA Health Ltd for judicial review against the Office of Fair Trading's decision not to refer the anticipated merger between iSoft Plc and Torex Plc to the Competition Commissionfor detailed investigation. This is the first case under the new merger control provisions in the Enterprise Act 2002 to come before the Tribunal for judicial review under Section 120 of that Act.


Summary Of Young V. State, 120 Nev. Adv. Rep. 98, Kristen T. Gallagher Dec 2004

Summary Of Young V. State, 120 Nev. Adv. Rep. 98, Kristen T. Gallagher

Nevada Supreme Court Summaries

Defendant Young appealed his criminal conviction, specifically the district court’s decision to deny his motion to dismiss and appoint new counsel. Young maintained that the lower court did not properly inquire into the facts surrounding his motion.


Summary Of Bergna V. State, 120 Nev. Adv. Rep. 92, Kristen T. Gallagher Dec 2004

Summary Of Bergna V. State, 120 Nev. Adv. Rep. 92, Kristen T. Gallagher

Nevada Supreme Court Summaries

No abstract provided.


Risk, Rents, And Regressivity: Why The United States Needs Both An Income Tax And A Vat, Reuven S. Avi-Yonah Dec 2004

Risk, Rents, And Regressivity: Why The United States Needs Both An Income Tax And A Vat, Reuven S. Avi-Yonah

Articles

In this article, Prof. Avi-Yonah argues that the legal academic debate about fundamental tax reform from 1974 onward has been skewed by the assumption that a consumption tax must replace the income tax. He addresses three of the major issue in recent writings on the income/consumption tax debate, and shows how none of the arguments in favor of the consumption tax are conclusive. Avi-Yonah also addresses the various consumption tax proposals that have been made and shows that they are all deficient in comparison with a VAT, as well as failing to achieve the goals of an income tax ...


Using Tort Law To Secure Patient Dignity, Robin Fretwell Wilson Dec 2004

Using Tort Law To Secure Patient Dignity, Robin Fretwell Wilson

Faculty Scholarship

The practice of using anesthetized patients to teach pelvic exams on female patients in university hospitals has been well documented for years. A 1992 study showed that 37 percent of U.S. and Canadian medical schools allowed students to use anesthetized women without their consent to learn how to perform pelvic exams. Anecdotal accounts in the U.S. confirm that men are not immune from such indignities. Although patients have been unable, thus, far to enforce their own interests and protect their dignity, the tort system may yet succeed in securing the right of patients to decide who touches their ...


The Social And Economic Costs Of Employee Misclassification In Construction [Massachusetts Report], Françoise Carré, Randall Wilson Dec 2004

The Social And Economic Costs Of Employee Misclassification In Construction [Massachusetts Report], Françoise Carré, Randall Wilson

Center for Social Policy Publications

With this study, a cross disciplinary team of the Center for Construction Policy Research has taken a first and significant step in documenting employee misclassification in the Massachusetts construction industry. This report documents the dimensions of misclassification and its implications for tax collection and worker compensation insurance.

Misclassification occurs when employers treat workers who would otherwise be waged or salaried employees as independent contractors (self employed). Or as one report commissioned by the U.S. Department of Labor put it, misclassification occurs “when workers (who should be) getting W-2 forms for income tax filing instead receive 1099- Miscellaneous Income forms.”


Summary Of Banks V. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, Beth Rosenblum Dec 2004

Summary Of Banks V. Sunrise Hospital, 120 Nev. Adv. Op. No. 89, Beth Rosenblum

Nevada Supreme Court Summaries

No abstract provided.


Defining Dicta, Michael Abramowicz, Maxwell Stearns Dec 2004

Defining Dicta, Michael Abramowicz, Maxwell Stearns

George Mason University School of Law Working Papers Series

In recent decades, legal scholars have devoted substantially greater attention to studying the origin and nature of stare decisis than to defining the distinction between holding and dicta. This appears counter-intuitive when one considers, first, that stare decisis applies only to holdings of announced precedents, and second, that beyond problematic and rudimentary intuitions, the legal system has failed to develop meaningful definitions of these terms. While lawyers, legal scholars, and jurists likely assume that they can identify dicta when they see it, a careful analysis that categorizes the range of judicial assertions in need of proper characterization reveals that defining ...


New Procedures Will Aid Accurate Eyewitnes Identification, Lisa Bruiniers, Craig Ching, Mark Goossens, Dan Taylor Dec 2004

New Procedures Will Aid Accurate Eyewitnes Identification, Lisa Bruiniers, Craig Ching, Mark Goossens, Dan Taylor

Student Publications

No abstract provided.


Redevelopment Tools: Creating And Recreating Urban Centers, John R. Nolon, Jessica A. Bacher Dec 2004

Redevelopment Tools: Creating And Recreating Urban Centers, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

This article describes a number of the agencies, entities, and legal tools and techniques that are used today to redevelop or create urban centers of population and commerce.


Neutrality Agreements And Card Check Recognition: Prospects For Changing Paradigms, James J. Brudney Dec 2004

Neutrality Agreements And Card Check Recognition: Prospects For Changing Paradigms, James J. Brudney

The Ohio State University Moritz College of Law Working Paper Series

This article is the first comprehensive treatment of neutrality agreements, which are themselves the most important development in Labor Law for decades. The labor movement's new approach to organizing displaces NLRB-supervised elections with negotiated agreements that provide (i) for employers to remain neutral during an upcoming union campaign, and (ii), in most instances, for employees to decide if they want to be represented through signing authorization cards rather than through a secret ballot election. The article demonstrates the substantial, perhaps predominant, role played by this new contractually-based approach over the past 5-10 years; it also explains why so many ...


Conceptualizing Blakely, Douglas A. Berman Dec 2004

Conceptualizing Blakely, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed ...


Vol. 27, No. 15 (December 13, 2004) Dec 2004

Vol. 27, No. 15 (December 13, 2004)

Indiana Law Annotated

No abstract provided.


United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp Dec 2004

United States Antitrust Policy In An Age Of Ip Expansion, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The idea that there is a tension between antitrust and the intellectual property laws is readily exaggerated. The tension that exists results mainly from our uncertainty about the optimal amount and scope of IP protection. In general, antitrust draws clearer lines than intellectual property law does, although one should not push the point too far. Antitrust policy as manifested in the courts has achieved a fair amount of consensus today. By contrast, deep uncertainty remains about fundamental questions concerning the socially optimal outcome of IP disputes. In addition, while the antitrust statutes are for the most part public regarding provisions ...


Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney Dec 2004

Foreseeing Greatness? Measurable Performance Criteria And The Selection Of Supreme Court Justices, James J. Brudney

The Ohio State University Moritz College of Law Working Paper Series

This article contributes to an ongoing debate about the feasibility and desireability of measuring the "merit" of appellate judges--and their consequent Supreme Court potential--by using objective performance variables. Relying on the provocative and controversial "tournament criteria" proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the "Supreme Court potential" of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers ...


Az Water Rights Settlement Of 2004, United States 108th Congress Dec 2004

Az Water Rights Settlement Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: San Carlos Apache Tribe Water Rights Settlement (negotiations assistance) Act of 2004, Title IV of AZ Water Settlement of 2004, PL 108-451, 118 Stat. 3478, 3573 (Dec. 10, 2004) Parties: San Carlos Apache Tribe & US. Certain provisions in Titles I-III relate to water for the Tribe if settlement is reached and other matters. This Act provides funding for the San Carlos Apache Tribe Water Rights Settlement negotiations. For three years, the DOI Secretary shall submit an annual report to Congress describing the status of efforts to negotiate an agreement covering the Gila River water rights with Tribe. Provisions ...


Az Water Rights Settlement Of 2004, United States 108th Congress Dec 2004

Az Water Rights Settlement Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: Central AZ Project Settlement of 2004 - (Sec. 103) Parties: Tohono O'Odham Tribe & US Sets forth general permissible uses of the Central AZ Project (CAP), including for domestic, municipal, fish and wildlife, and industrial purposes. The DOI Secretary will reallocate 197,500 acre-feet of agricultural priority water made available pursuant to the AZ Water Settlement for use by AZ Indian tribes, of which: (1) 102,000 acre-feet shall be reallocated to the Gila River Indian Community; (2) 28,200 acre-feet shall be reallocated to the Tohono O'odham Nation (formerly the Papago Tribe); and (3) 67,300 acre-feet shall be reallocated to AZ Indian tribes. Title II addresses the Gila River Indian Community; Title III addresses southern AZ in general, and Title IV concerns funding for the San Carlos Apache water rights negotiations. [Source: http://www.gpo.gov/fdsys/pkg/PLAW-108publ451/pdf/PLAW-108publ451.pdf]


Az Water Rights Settlement Of 2004, United States 108th Congress Dec 2004

Az Water Rights Settlement Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: White Mountain Apache Tribe Water Rights Settlement Assistance Provisions of 2004, Sec. 403 of AZ Water Settlement of 2004, PL 108-451, 118 Stat. 3478, 3573 (Dec. 10, 2004) Parties: San Carlos Apache Tribe & US. WHITE MOUNTAIN APACHE TRIBE.—The Section authorizes an appropriation to assist the White Mountain Apache Tribe in completing comprehensive water resources negotiations leading to a comprehensive water settlement for the Tribe, including soil and water technical analyses, legal, paralegal, and other related efforts, $150,000 for fiscal year 2006. [Source: http://www.gpo.gov/fdsys/pkg/PLAW-108publ451/pdf/PLAW-108publ451.pdf]