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A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo Dec 2016

A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo

Faculty Scholarship

This article conducts a comparative analysis of U.S. and European counter-terrorism law and policy. Recent attacks vy ISIS in the U.S., France, and Germany have revealed important differences between American and European approaches. Before September 11, 2001, the United States responded to terrorism primarily with existing law enforcement authorities, though in isolated cases it pursued military measures abroad. In this respect, it lagged behind the approach of European nations, which had confronted internal terrorism inspired vy leftwing ideology or separatist goals. But after the 9-11 attacks, the United States adopted a preventive posture that aimed to pre-empt terrorist ...


President Obama And The Framers' Presidency, John Yoo Jan 2013

President Obama And The Framers' Presidency, John Yoo

Faculty Scholarship

An essay is presented on U.S. President Barack Obama, American constitutional law, and the beliefs of the Framers of the U.S. Constitution in regards to the powers of the executive branch as of January 2013. Obama's apparent focus on domestic policy during his first term in office is addressed, including his administration's work in delaying the construction of aerospace company Boeing Co.'s plant in a right-to-work state, as well as the construction of the Keystone XL pipeline.


Priority And Novelty Under The Aia, Robert P. Merges Oct 2012

Priority And Novelty Under The Aia, Robert P. Merges

Faculty Scholarship

The article presents information on the patent system of the U.S. and the transformation in the basic rules due to the enactment of Leahy-Smith America Invents Act. The issues related to critical date for filing patent application, the prior art and the priority contests are discussed. The novelty provisions, statutory issues related to disclosure and creation of grace period and continuity in patent system are also discussed.


Dissolving Cities, Michelle Wilde Anderson Apr 2012

Dissolving Cities, Michelle Wilde Anderson

Faculty Scholarship

During the twentieth century, thousands of new cities took shape across America. Stucco subdivisions sprawled and law followed, enabling suburbs to adopt independent governments. That story is familiar. But meanwhile, something else was also happening. A smaller but sizable number of cities were dying, closing down their municipal governments and returning to dependence on counties. Some were ghost towns, emptied of population. In those places, jobs were lost and families struggled; crops died off and industries moved on. Other dead cities were humming with civic life: places with people but no longer with separate governments. In these cities, citizens from ...


The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber Apr 2012

The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber

Faculty Scholarship

The article presents information on the secession of Virginia from the U.S. Union Army. According to historical study of the constitutional evolution of citizenship, the Civil War signified a struggle over the nature of the community created in 1789. It informs that the Civil War itself and the Fourteenth Amendment to the U.S. constitution, helped to resolve the previously contested issue of the relative priority of state and national allegiance.


Pollution Markets And Social Equity: Analyzing The Fairness Of Cap And Trade, Daniel A. Farber Feb 2012

Pollution Markets And Social Equity: Analyzing The Fairness Of Cap And Trade, Daniel A. Farber

Faculty Scholarship

This Article considers three fairness issues relating to a cap-and-trade system: fairness to industry, fairness to communities disproportionately impacted by pollution, and fairness to low-income energy consumers. First, assuming any compensation of industry is warranted, free allowances would overcompensate firms for the cost of achieving emission reductions; industry should not receive effective ownership of the atmosphere at the public's expense. Second, environmental justice advocates argue that cap-and-trade systems generate pollution hot spots and encourage dirtier plants to continue operating to the detriment of certain disadvantaged communities. However, cap and trade has no intrinsic tendency to produce increased emissions in ...


The Penguin And The Cartel: Rethinking Antitrust And Innovation Policy For The Age Of Commercial Open Source, Stephen M. Maurer Feb 2012

The Penguin And The Cartel: Rethinking Antitrust And Innovation Policy For The Age Of Commercial Open Source, Stephen M. Maurer

Faculty Scholarship

This Article untangles the paradox of OS sharing and asks what judges and policymakers can do to help OS reach its full potential. Part II sets the stage by describing the rise of commercial OS over the past ten years. It also profiles a leading commercial OS collaboration (The Eclipse Foundation) and describes the various design issues that face such organizations. Part III examines how companies make investment decisions in OS, closed source (“CS”), and mixed OS/CS markets. Part IV uses these ideas to analyze when OS collaborations should and should not be permitted under ...


Sprawl's Shepherd: The Rural County, Michelle Wilde Anderson Jan 2012

Sprawl's Shepherd: The Rural County, Michelle Wilde Anderson

Faculty Scholarship

On the far side of World War II, America commenced a revolution in land use. Between 1945 and 1960, something in the order of ten million single-family homes were constructed in suburban subdivisions on land at the urban fringe and in rural areas that was unincorporated prior to, if not after, its development. If counties had exercised stronger land use control over these areas, might our development patterns have turned out differently? What do we know of land use planning by counties, and what role did that legal development play in twentieth-century urban sprawl? Our information about county land use ...


Reserved Public Rights In Water, Joseph L. Sax Jan 2012

Reserved Public Rights In Water, Joseph L. Sax

Faculty Scholarship

The article focuses on reserved public rights in water and discusses the water history of the U.S. It describes basic ideas dominating the thinking about water in the western states of the U.S. and reflects on the ideas that water belongs to the people of the state and only use rights could be obtained in water, and that water law must enforce public-interest restrictions on those use rights of water. It discusses California water laws and its eminent domain provisions.


Constitutionalism And The Extreme Poor: New-Dred Scott And The Contemporary "Discrete And Insular Minorities", John A. Powell Jan 2012

Constitutionalism And The Extreme Poor: New-Dred Scott And The Contemporary "Discrete And Insular Minorities", John A. Powell

Faculty Scholarship

This symposium issue addresses a range of questions concerning the Constitution and the poor. In this Essay, I will share some initial thoughts responsive to what has already been presented in this issue of the Drake Law Review and what was discussed during the symposium, and then I will turn to the question at hand and attempt to introduce a few new ideas into the discussion. First, I will address an issue raised by Mr. Shapiro. When I posed the question to him regarding which period, in his view, best represented an appropriate constitutional interpretation and understanding, he answered with ...


Fiat Flux: Evolving Purposes And Ideals Of The Great American Public Law School, Christopher Edley Jr Jan 2012

Fiat Flux: Evolving Purposes And Ideals Of The Great American Public Law School, Christopher Edley Jr

Faculty Scholarship

This Essay describes the changing role of American law schools throughout the twentieth century and proposes a vision for the future's Great American Law School. Since the founding of Berkeley Law, the definition of the legal profession has progressed from an interior orientation, which focused predominately on trial courts and appellate advocacy, to an exterior orientation with wide consideration of other forms of lawyering. Along a second axis, legal pedagogy has progressed from a careerist orientation, which focused on case analysis and advocacy skills, to a more academic orientation that integrates questions of theory and methodology. Analyzing these trends ...


Is The Post In Post-Racial The Blind In Colorblind, Ian F. Haney-Lopez Jan 2011

Is The Post In Post-Racial The Blind In Colorblind, Ian F. Haney-Lopez

Faculty Scholarship

An essay is presented on post-racialism of U.S. President Barack Obama. It argues that his post-racialism operates as a political or perhaps even an ideological approach toward the continuing astringent of race. It offers an overview of contemporary colorblindness and evaluates this racial stance against the rise of racialized mass incarceration.


Big Law's Sixth Amendment: The Rise Of Corporate White-Collar Practices In Large U.S. Law Firms, Charles D. Weisselberg, Su Li Jan 2011

Big Law's Sixth Amendment: The Rise Of Corporate White-Collar Practices In Large U.S. Law Firms, Charles D. Weisselberg, Su Li

Faculty Scholarship

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation's largest law firms. It was not always this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male ...


Agency Rulemaking And Political Transitions, Anne Joseph O'Connell Jan 2011

Agency Rulemaking And Political Transitions, Anne Joseph O'Connell

Faculty Scholarship

The article discusses the role of agency rulemaking in presidential, judicial, and congressional transitions in the U.S. government. Topics include the rulemaking process, statistics regarding midnight regulations before political transitions, and withdrawals of rulemaking in presidential transitions of presidents such as George W. Bush, Bill Clinton, and Ronald Reagan as well as members of Congress and the Judiciary. It is suggested that political transitions are used to make public policy.


Corporate Prerogative, Race, And Identity Under The Fourteenth Amendment, John A. Powell, Caitlin Watt Jan 2010

Corporate Prerogative, Race, And Identity Under The Fourteenth Amendment, John A. Powell, Caitlin Watt

Faculty Scholarship

The article describes an observation made by Justice Hugo Black in the case Connecticut General Life Insurance v. Johnson in 1937. According to Black, less than one-half of 1% of the cases reaching the U.S. Supreme Court under the Fourteenth Amendment had anything to do with blacks or freed slaves, while more than 50% of cases reaching the Court were about corporations. It recounts the early civil rights under the Fourteenth Amendment and the scholarly work on civil rights and corporate history before and after reconstruction.


Congress And The Supreme Court's Conflict Over Antidiscrimination Law, David B. Oppenheimer Jan 2010

Congress And The Supreme Court's Conflict Over Antidiscrimination Law, David B. Oppenheimer

Faculty Scholarship

In 1968, in the days following King's assassination, Congress passed the Fair Housing Act, prohibiting most housing discrimination based on race, color, religion, or national origin. [...] later that same year, the Supreme Court found that the long-dormant 1866 and 1867 Civil Rights Acts, prohibiting private racial discrimination, which had been ignored since the end of Reconstruction, remained valid. Since 1968, Congress has passed several laws intended to broaden federal civil rights, either to include more groups or, with increasing frequency, simply to reverse Supreme Court decisions.\n (California's statute applies to employers of five or more employees and ...


The Scale Of Imprisonment In The United States: Twentieth Century Patterns And Twenty-First Century Prospects, Franklin E. Zimring Jan 2010

The Scale Of Imprisonment In The United States: Twentieth Century Patterns And Twenty-First Century Prospects, Franklin E. Zimring

Faculty Scholarship

The article examines imprisonment within the U.S. during the 20th century and discusses what these trends portend for imprisonment during the 21st century. The author creates a scale by which imprisonment rates and criminal statistics are evaluated. Charts and graphs are used to illustrate the growth in incarceration rates that occurred progressively throughout the 20th century. Elements such as penal law, prisons being viewed as sources of capital, and more stringent criminal justice procedures are referenced as factors that have contributed to imprisonment. Empirical methods are used to examine how prison populations will change in the 21st century.


Pamela Samuelson's Letters To The Court: Concerns On The Proposed Google Book Settlement, Pamela Samuelson Jan 2009

Pamela Samuelson's Letters To The Court: Concerns On The Proposed Google Book Settlement, Pamela Samuelson

Faculty Scholarship

An essay is presented on letters from professor Pamela Samuelson to the court in the U.S. regarding concerns on copyright issues surrounding the proposed Google Book Settlement. In the April 2009 letter, Samuelson criticized a settlement agreement in a suit filed by the Association of American Publishers (AAP) to Google Inc. for copyright infringement on the Google Book Search. However, in the September 2009 letter, her concerns and thoughts on the future of copyright are emphasized.


Forming Families By Law - Adoption In America Today, Joan Heifetz Hollinger, Naomi Cahn Jan 2009

Forming Families By Law - Adoption In America Today, Joan Heifetz Hollinger, Naomi Cahn

Faculty Scholarship

The article focuses on the laws related to adoption in the U.S. It is stated that there is a long history in the U.S. of some children being raised by adults other than their biological parents, but legal recognition of these families was not generally available until states began enacting formal adoption laws in the mid-nineteenth century. By legitimizing a parent-child relationship between biogenetic strangers, adoption strikes some skeptics.


The Myth Of International Delegation, Andrew T. Guzman, Jennifer Landsidle Dec 2008

The Myth Of International Delegation, Andrew T. Guzman, Jennifer Landsidle

Faculty Scholarship

There is a growing and misinformed sense in some quarters that the United States and other countries have engaged (and continue to engage) in delegations to international institution that involve a significant threat to domestic sovereignty. Concerns about such delegations come from academics (John Yoo: "Novel forms of international cooperation increasingly call for the transfer of rulemaking authority to international organizations"), prominent politicians (Bob Barr: "Nary a thought is given when international organizations, like the UN, attempt to enforce their myopic vision of a one-world government upon America, while trumping our Constitution in the process. Moreover, many in our own ...


Anti-Inquisitorialism, David Alan Sklansky Jan 2008

Anti-Inquisitorialism, David Alan Sklansky

Faculty Scholarship

A broad and enduring theme of Atherican jurisprudence treats the Continental, inquisitorial system of criminal procedure as epitomizing what our system is not; avoiding inquisitorialism has long been thought a core commitment of our legal heritage. This Article examines the various roles that anti-inquisitorialism has played and continues to play in shaping our criminal process, and then it assesses the attractiveness of anti-inquisitorialism as a guiding principle of American law. The Article begins by describing four particularly striking examples of anti-inquisitorialism at work: the Supreme Court's recent reinterpretation of the Confrontation Clause; the Court's invalidation of mandatory sentencing ...


When War Is Work: The G.I. Bill, Citizenship, And The Civic Generation, Melissa Murray Jan 2008

When War Is Work: The G.I. Bill, Citizenship, And The Civic Generation, Melissa Murray

Faculty Scholarship

The article discusses the impact of the G.I. Bill towards its beneficiaries and after the World War II in the U.S. The bill offers education, training and loans for returning veterans for home ownership and start a business. The author expresses that the bill has created opportunities for civic reinvigoration and reengagement in the postwar period. G.I is characterized as the law which modernized the country because it fosters social mobility, democratization of elite institutions and active and engaged citizenry.


Reflections On The Past, Looking To The Future: The Fair Housing Act At 40, John A. Powell Jan 2008

Reflections On The Past, Looking To The Future: The Fair Housing Act At 40, John A. Powell

Faculty Scholarship

A summary is presented of the Fair Housing Act that was introduced in the U.S. 40 years ago to address the housing challenges.


Preliminary Thoughts On Copyright Reform, Pamela Samuelson Jan 2007

Preliminary Thoughts On Copyright Reform, Pamela Samuelson

Faculty Scholarship

The article discusses the relevance of revising the U.S. Copyright Act of 1976. According to the author, the Copyright Act of 1976 has already undergone more than 20 amendments since it was ratified into law which compromises its regulations because of the diverse inter and intra industrial negotiations as well as increases controversial issues on law and policymaking. Moreover, the author stresses that revision of the legislation is necessary because it contains lapses and insufficient policies in addressing advanced technological innovations and digital applications. It also cites the codification development model of copyright law and the guidelines to consider ...


Parents Involved: The Mantle Of Brown, The Shadow Of Plessy, John A. Powell, Stephen Menendian Jan 2007

Parents Involved: The Mantle Of Brown, The Shadow Of Plessy, John A. Powell, Stephen Menendian

Faculty Scholarship

The article explores the historical interpretations of the Fourteenth Amendment and the Supreme Court's ruling in the Parents Involved case. It argues that the Court's anticlassification principle is not supported by the central meaning and legacy of Brown. It states that the decision has changed the meaning of Brown via adopting formal equality as a normative constitutional principle. It adds that the court dismisses the harm of segregation and stresses the harm of racial classification.


Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, Jesse Choper, John Yoo Jan 2007

Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, Jesse Choper, John Yoo

Faculty Scholarship

The article presents the authors' dialogue that seeks to clarify the issues at stake in the U.S. Congress' enactment of the Military Commission Act of 2006 (MCA), an act that raised several complicated constitutional issues. They note that limiting the habeas corpus jurisdiction of the federal courts for aliens held at Guantanamo Bay in Cuba may present error correction, but it also debunks the MCA to attack as unconstitutional jurisdiction stripping or an illegal suspension of the writ of habeas corpus. Their dialogue identifies and articulates the conflict between two long-standing constitutional principles: one which lies congressional control over ...


The Supreme Court, The Law Of Nations, And Citations Of Foreign Law: The Lessons Of History, Daniel A. Farber Jan 2007

The Supreme Court, The Law Of Nations, And Citations Of Foreign Law: The Lessons Of History, Daniel A. Farber

Faculty Scholarship

The article attempts to examine the U.S. Supreme Court's (SC) reliance on foreign law in light of historic American attitudes toward the law of nations and other forms of foreign authority. First, it provides additional background on the current SC's reliance on foreign law. Second, it looks at the historical record, explaining how foreign law influenced the thinking of the framers of the Constitution and of the anti-slavery Republicans. Third, it surveys the history of SC's use of foreign law in constitutional decisions. Fourth, it assesses some of the arguments against SC use of foreign law ...


Positively Punitive: How The Inventor Of Scientific Criminology Who Died At The Beginning Of The Twentieth Century Continues To Haunt American Crime Control At The Beginning Of The Twenty-First, Jonathan Simon Jun 2006

Positively Punitive: How The Inventor Of Scientific Criminology Who Died At The Beginning Of The Twentieth Century Continues To Haunt American Crime Control At The Beginning Of The Twenty-First, Jonathan Simon

Faculty Scholarship

The article presents a historical interpretation of changes in the penal system of the U.S. Penology is linked with incarceration rate outcomes. Rhetoric is considered in consistency with penalty themes and rehabilitation. The practice of positivist criminology is reflected when proponents viewed themselves as opposition to legal officials' crime control policy ideas.


Executive Power V. International Law, Robert J. Delahunty, John Yoo Jan 2006

Executive Power V. International Law, Robert J. Delahunty, John Yoo

Faculty Scholarship

The article explores the relationship between executive power and international law in the U.S. It notes that such a law was violated by presidents at significant moments where national security and foreign policy goals were at stake. It says that the precedence of the president's constitutional authority over international law is demonstrated by analyzing important events in military and diplomatic history of the country.


Is Suspension A Political Question, Amanda L. Tyler Jan 2006

Is Suspension A Political Question, Amanda L. Tyler

Faculty Scholarship

The article focuses on the Suspension Clause of the U.S. Constitution being a political issue. It says that once suspension is viewed as a nonjusticiable political question, it would turn as a subject on which most of the restraints imposed by the Constitution would not be subjected to judicial enforcement. It is claimed that such thought should be denied because it is at odds of writ of habeas corpus heritage and would only complicate the separation of powers and the institution of judicial reviews.