Law Commons^™

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

Utah Court of Appeals Briefs (1996–2006)

No abstract provided.

Publications Calling Article I, Section 7, Clause 3 The Orders, Resolutions, And Votes Clause, Seth Barrett Tillman

Seth Barrett Tillman

The following publications call Article I, Section 7, Clause 3 the Orders, Resolutions, and Votes Clause.

[September 28, 2014]

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 and …

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

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

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

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

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 employment …

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

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, …

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

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.

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

A Comparative Assessment Of Eu, Uk, French, Australian And Japanese Responses To Auditor Independence: The Case Of Non-Audit Tax Services, Richard Thompson Ainsworth

Faculty Scholarship

Auditor independence was a global concern of financial regulators in the 1990's. Some observers saw this in a positive light, a natural development. Adjusting auditor independence rules was a manifestation of global convergence in corporate governance structures. New rules, especially rules leaning toward a harmonized system were welcome.

There was a more sobering view. This view held that global regulators were less concerned with convergence than they were with a sense of impending disaster. Things had gone too far. Significant, maybe even radical change was needed. The independence of corporate auditors had eroded; trust had been fundamentally compromised in the …

Canning Spam: Consumer Protection Or A Lid On Free Speech?, Grant C. Yang

Duke Law & Technology Review

The United States Congress recently passed the first federal legislation to curb the influx of spam. However, the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") left some measures to be enacted by the Federal Trade Commission ("FTC"), and some consumers are calling for the Act to have a broader reach and for the creation of a Do-Not-E-Mail registry. Conversely, the FTC decided to delay the creation of a registry and opted to assist in the development of a new technological authentication system. This iBrief looks at the current state of spam and explains that it is …

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

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. Finally, …

The Quandary Of Serving Multiple Masters: An Institutional Exploratory Analysis Of Publishing In Business Law, Robert S. Rubin, John R. Olson, Laura Hartman, James A. Belohlav

ExpressO

Notwithstanding published articles on the nature and quality of research and scholarship in practically every other business discipline, to date there has been little systematic evaluation of relevant journals in the business law discipline. This deficiency is due, in part, to the fact that business law may still be described as a developing discipline. Thus, the focus of this article is on delineating the nature of research and scholarship within the business law discipline. Specifically, the publishing practices of business law faculty from academic institutions that were members of the Association to Advance Collegiate Schools of Business (AACSB International), the …

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 bodies and …

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

Nevada Supreme Court Summaries

No abstract provided.

Conversations In Legal Education: Carl A. Auerbach, December 16, 2004, Carl A. Auerbach

Conversations in Legal Education

No abstract provided.

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 …

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

Elisabeth Haub School of 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.

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

Student Publications

No abstract provided.

The Best Interest Standard: How Broad Judicial Discretion And Influences Of Social And Political Suggestion Have Led To An Abandonment Of The Rule’S Primary Purpose In Child Custody Decisions, Lakeisha J. Johnson

ExpressO

The vital questions in child custody disputes all concern that which is in the best interest of the child. Historically, interpretations of the “best interest” standard have been founded upon presumptions steeped in the notion of natural rights and duties based largely upon a mix of scientific and subjective conclusions regarding gender-based parenting roles and the need to sustain them. My research demonstrates that, as courts attempt to avoid the decisions of the past and submit to the societal will of the present, the modern application of the “best interest of the child” standard has led unexpectedly to an abandonment …

Conversations In Legal Education: Carl A. Auerbach, December 14, 2004, Carl A. Auerbach

Conversations in Legal Education

No abstract provided.

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 employers …

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 confusion …