Law Commons^™

Rutherford Holdings: Mutual Nonperformance Of Sales Contract, Roger Bernhardt

Publications

No abstract provided.

A Nation At Waste: The Long-Term Unemployed And Job Discrimination, Hina Shah

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No abstract provided.

The Courage Of Law Students, Rachel A. Van Cleave

Publications

The beginning of a new year is a time for resolutions, resolve and optimism. Thus, it is fitting that the annual meeting of the Association of American Law Schools meets at the beginning of the year. This year, law school deans, faculty and staff gathered to discuss the theme "Looking Forward: Legal Education in the 21st Century." Given the significant challenges facing law schools and the legal profession, many of the sessions focused on how law schools can better support, train and prepare students to ensure that they have fulfilling careers. Many sessions explored at a deeper level how our …

Your Career: Ten Steps To Making A Career Change, Susanne Aronowitz

Publications

Many of us anticipate the beginning of a new year with a sense of optimism. If you have been thinking about a change in your professional life, you may have an earnest but ill-defined New Year's resolution to make it happen in 2014. It's rare for such an opportunity to land in one's lap. Rather than relying on chance, here are some tangible strategies to bring those plans to fruition.

Developing The Law Of The River: The Integration Of Law And Policy Into Hydrologic And Socio-Economic Modeling Efforts In The Willamette River Basin, Adell Louise Amos

Publications

A legal and policy infrastructure -- referred to as a "law of the river" -- exists for every river basin in the U.S. an can be as important as natural processes in terms of managing the future of the resource. Because of the way that water law and policy have evolved in the U.S., this infrastructure involves a matrix of state and federal law that governs the choices that policymakers, end users, and agencies make. This "law of the river" provides the context in which decisions are made and not made. It also draws the boundaries within which decision makers …

Jump In Before It's Too Late: Protecting And Increasing Streamflows In New Mexico, Sharon Wirth

Publications

Freshwater ecosystems need adequate streamflow to supply clean water for humans and maintain healthy habitat for wildlife. Over-appropriation, overuse, climate change, and drought plague New Mexico's rivers, taxing many rivers beyond sustainability. Despite the myriad of problems caused by little or no water in our rivers, policies and procedures to protect and increase streamflows in New Mexico are limited. While most Western states have made demonstrable progress in alleviating various legal and technical barriers to protecting and increasing streamflows, New Mexico has made only limited, recent progress towards solutions for our drying rivers. This article takes a critical look at …

Water Governance Challenges In New Mexico's Middle Rio Grande Valley: A Resilience Assessment, Melina Harm Benson, Dagmar Llewellyn, Ryan Morrison, Mark Stone

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No abstract provided.

Interdisciplinary Research And Environmental Law, Caroline L. Noblet, Dave Owen

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This Article considers the involvement of environmental law researchers in interdisciplinary research. Using a survey and a series of unstructured interviews, we explore environmental law professors’ level of interest in such research; the extent of their engagement in it; and the inducements and barriers they perceive to such research. We conclude that levels of engagement in such research are probably lower than they ought to be, and we therefore recommend steps that individuals and institutions could take to facilitate more and better interdisciplinary work. More generally, we conclude that some common critiques of interdisciplinary legal research rest on assumptions that …

Public Utility And The Low-Carbon Future, William Boyd

Publications

Substantial reductions in global power sector emissions will be needed by midcentury to avoid significant disruption of the climate system. Achieving these reductions will require greatly increased levels of financing, technological innovation, and policy reform. In the United States, the scale and complexity of the overall challenge have raised important questions regarding prevailing regulatory and business models, with much scrutiny directed at the traditional practice of public utility regulation. Recognizing the many valid criticisms leveled against public utility regulation and the important questions raised about the viability of traditional utility business models, particularly in the face of substantial growth in …

Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen

Publications

What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …

Returning To The Basics: Rethinking The Meaning Of “Practice” In Law School, Reichi Lee

Publications

Legal education is in crisis and everyone is talking about it. When the economy took a nosedive, legal jobs were no long-er handed out on a silver platter and law firms began to balk at the expense of training lawyers. You can’t surf the internet without reading yet another blogger’s lament on ‘what law school does not teach you’ or why one ‘should not go to law school.’ Those forces, coupled with the sky-rocketing costs of legal education, have even the United States President (himself a former law professor) suggesting that law school should be shortened to two years. In …

A Salmon Eye Lens On Climate Adaption, Paul S. Kibel

Publications

This Article discusses the current gap in climate adaptation law and policy, emphasizing the potential role that the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and California Environmental Quality Act (CEQA) could play in filling this gap. It focuses on the provisions in these laws that establish that agency planning and decision-making should be based on the best available science, and notes that the best available science now confirms that GHG emission-induced climate change is happening now and will continue to happen during this century. This Article posits that the most appropriate and effective way to factor expected …

Gasprom V Fateh: Abandonment Vs Lifting The Stay, Roger Bernhardt

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No abstract provided.

Hobby Lobby And Social Justice: How The Supreme Court Opened The Door For Socially Conscious Investors, Michele Benedetto Neitz

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In Burwell v. Hobby Lobby, the Supreme Court upended the traditional foundations of corporate law. By allowing corporations to exercise legally recognized religious rights, the Court changed the very nature of a corporate entity. Moreover, the Court defied the conventional doctrine providing that the purpose of a corporation is to make profit for its shareholders. The case is being both praised and denounced by observers, but no one has yet fully analyzed how the Court’s reasoning paved the way for social impact investors to use the corporate form as a vehicle to achieve their objectives.

This Article is the …

Paging Dr. Derrida: A Deconstructionist Approach To Understanding The Affordable Care Act Litigation, Laura A. Cisneros

Publications

Sovereignty federalism and cooperative federalism represent the two dominant federalism narratives among Supreme Court justices and scholars. The Court consistently invokes formal protections to safeguard the states' right to preside over their own empires.' Sovereignty scholars tend to embrace this dualistic vision of federalism that locates federalism's success in the state's ability to exercise supreme policymaking authority within its own sphere of influence without federal interference. By contrast, academics that lean toward cooperative federalism locate the states' power in their position as federal servants, not separate sovereigns. Scholars have commented that even though these academics tend to resist the rigid …

Wto Recourse For Reclamation Irrigation Subsidies: Undermarket Water Prices As Foregone Revenue, Paul Stanton Kibel

Publications

There are competing demands for fresh water. Farms look to it as an irrigation source, cities rely on it for drinking water, and fisheries (and fishermen) depend on it for instream flow. When the United States Bureau of Reclamation (“Reclamation”) subsidizes the costs of providing fresh water for irrigation in agricultural production, such subsidization can result in tiered water pricing. With tiered pricing, farms pay the government less per unit than other water users. This tiered pricing can distort the water marketplace in a manner that encourages wasteful irrigation practices and leaves insufficient water instream for fisheries. The dispute over …

In The Field And In The Stream: California Reasonable Use Law Applied To Water For Agriculture, Paul Stanton Kibel

Publications

When it comes to fresh water consumption in California, going forward we will need to learn to do more with less. There are at least two main reasons why California will need to learn to do more with less water. First, there is a growing population in the state, a population that is increasingly urban which means there will be greater demand for urban municipal domestic water supplies. Second, there are now increasing demands to leave additional amounts of surface fresh water instream.~ The demands for additional instream flow relate in part to the declining condition of California's native fisheries …

The California Offset Game: Who Wins And Who Loses?, Alan Ramo

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California is implementing the most comprehensive global warming regulatory program in the United States. A key part of this program is its cap-and-trade system. Integral to the cap-and-trade requirements are provisions for offsets, whereby companies, to meet their caps, can purchase credits from certain unregulated entities whose activities are deemed to have resulted in real and additional emission reductions. California has attempted to avoid the Kyoto Protocol's project-by-project lengthy and problematic review of offsets with a performance standard approach for domestic offsets and a sector approach for international offsets. Offsets, even if done right. raise serious environmental justice questions as …

U.S. Military Accountability For Extraterritorial Environmental Impacts: An Examination Of Okinawa, Environmental Justice, And Judicial Militarism, Alan Ramo

Publications

Local resistance to the relocation of a U.S. military base to a Bay threatening an endangered sea mammal off the coast of the island of Okinawa raises important issues regarding the extraterritoriality of U.S. environmental laws, the role of the courts in reviewing military operations and ultimately environmental justice. Federal courts continue inconsistently to sort out the extraterritoriality of U.S. laws, including environmental laws. Strong arguments remain that the National Environmental Policy Act and the Endangered Species Act should also apply to the U.S. military’s actions in Okinawa. Although the modern U.S. Supreme Court has reversed earlier cases and given …

Transitioning A Community Away From Fossil-Fuel Generation To A Green Economy: An Approach Using State Utility Commission Authority, Alan Ramo, Deborah N. Behles

Publications

A transition is starting throughout the nation as renewable energy resources are developed and older fossil-fuel facilities retire. The communities that bear the brunt of fossil-fuel pollution will also likely bear this transition’s economic impacts. Yet, there is no guarantee that these communities will share in the transition’s economic benefits—in particular, the building, operation, and ownership of new renewable energy resources. Renewable energy laws generally do not consider these types of impacts when determining where to site new resources.

The California Public Utilities Commission (CPUC), in a case involving Native Americans in Arizona affected by the operations and closure of …

Beyond The Fakultas' Four Walls: Linking Education, Practice, And The Legal Profession, Stephen A. Rosenbaum

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More than fifty years after the first post-colonial Southeast Asian regional conference on legal education, commentators and educators do not necessarily agree on the appropriate curricular balance between theory, doctrine, and practice, or what role the government should play in directing the orientation of legal studies and careers in Indonesia’s law schools. The author argues in favor of legal education that is rich in experiential learning and integrates the involvement of practitioners and doctrinal faculty. This objective may be a relatively new reality in Indonesia, but also one that needs revitalization in other Southeast Asian nations and beyond. This article …

Patents Exhaustion For The Exhausted Defendant: Should Parties Be Able To Contract Around Exhaustion In Settling Patent Litigation?, Samuel F. Ernst

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The first sale doctrine provides that when a patent holder unconditionally authorizes another party to sell a patented item, the patent holder's right to exclude with respect to the patented item is "exhausted. " The licensee can then sell the patented item to a third party - a downstream purchaser - and the patent holder will not be able to sue the third party for patent infringement based on the resale or other use of that item. A principal animating policy behind the exhaustion doctrine is to prevent patent holders from receiving overcompensation for their patented inventions by, for example, …

Owning Oneself In A World Of Others: Towards A Paid-For First Amendment, David Franklyn, Adam Kuhn

Publications

The first Part of this Article charts a brief course through the history of the right of publicity and the First Amendment. The second Part studies the competing economic rights, their philosophical justifications, and their shortcomings. The third Part analyzes several major cases that dealt with the conflict of rights, criticizing the transformative use analysis as a proxy for economic value and explaining the shortfalls of the test. The fourth Part proposes a new theory of add-on value and a paid-for First Amendment.

The issue we identify is that a loosely defined doctrine of concurrent ownership (of the celebrity image) …

Trademarks As Search-Engine Keywords: Who, What, When, David Franklyn, David A. Hyman

Publications

Most Internet searches result in unpaid (organic or algorithmic) results, and paid ads. The specific ads that are displayed are dictated by the user's search terms ("keywords"). In 2004, Google began offering trademarks for use as keywords on an unrestricted basis, followed in due course by other search engines. Once that happened, any entity (including sellers of competing products) could have their ads appear in response to a search for the trademarked product. Trademark owners responded by filing more than 100 lawsuits in the United States and Europe, making the dispute the hottest controversy in the history of trademark law. …

Trademark Surveys: An Undulating Path, David Franklyn, Shari Seidman Diamond

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When a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, the pivotal legal question is: how are consumers likely to perceive the mark or advertising? In the early days of trademark litigation, a parade of consumer witnesses, carefully selected by one of the parties to support a trademark claim, would testify about their reactions to a mark. That approach has given way to systematic survey evidence reflecting the responses of a substantial number of consumers selected according to an explicit sampling plan, asked the same questions, and unaware who sponsored the survey.

Part …

Urban Decay, Austerity, And The Rule Of Law, Brent T. White

Publications

Detroit has failed and its infrastructure is crumbling. But Detroit is not an isolated case. It is a paradigmatic example of increasing urban decay across the United States. While commentators have warned that the declining state of the country's infrastructure threatens U.S. prosperity, there is a bigger issue at stake. Decaying urban environments jeopardize the rule of law, undermining the very foundation of the social contract. This Article shows that the strength of the rule of law in a given country can be predicted by that government's ability (or inability) to provide public services-particularly, a livable urban environment. When urban …

Introductory Remarks, James Anaya

Publications

These remarks were delivered at a Corporate Responsibility and Human Rights panel held on Wednesday, April 9, 2014.

The Administrative State's Passive Virtues, Sharon B. Jacobs

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Fifty years ago, Alexander Bickel famousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

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In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen

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The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.