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2010

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Full-Text Articles in Law

Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan Apr 2010

Citizenship Perception Strain In Cases Of Crime And War: On Law And Intuition, Mary De Ming Fan

Articles

The jurisprudence on crime and war has repeatedly indicated that citizenship matters in determining the scope and applicability of constitutional protections. Just how citizenship matters and what vision of the citizen controls have been murky, however. A rich literature has developed deploring how the nation and the jurisprudence have appeared to slip beneath the baseline of protections when faced with formal citizens who challenge our popular notions about what citizens look like, feel like, and do. What warrants further examination is why this may be so. Understanding the processes that may blur the doctrine and lead to slippage in citizenship ...


'Have We All Gone Bats?' - The Strict Protection Of Wildlife Under The Habitats Directive And Tourism Development: Some Lessons From Ireland, Marc Mcdonald Jan 2010

'Have We All Gone Bats?' - The Strict Protection Of Wildlife Under The Habitats Directive And Tourism Development: Some Lessons From Ireland, Marc Mcdonald

Articles

This article explores the impact of the legal protection of bats under EU wildilfe legislation on tourism development in Ireland.


The Montreal Convention And The Preemption Of Air Passenger Harm Claims, Marc Mcdonald Jan 2010

The Montreal Convention And The Preemption Of Air Passenger Harm Claims, Marc Mcdonald

Articles

The article examines the evolution and present state of the law governing the preemption of passenger claims for compensation for harm arising from international air travel under the Montreal and Warsaw Conventions


Applying Geographic Information Systems To Support Strategic Environmental Assessment: Opportunities And Limitations In The Context Of Irish Land-Use Plans, Ainhoa Gonzalez, Alan Gilmer, Ronan Foley, John Sweeney, John Fry Jan 2010

Applying Geographic Information Systems To Support Strategic Environmental Assessment: Opportunities And Limitations In The Context Of Irish Land-Use Plans, Ainhoa Gonzalez, Alan Gilmer, Ronan Foley, John Sweeney, John Fry

Articles

The strengthening of spatial database infrastructures, further promoted by the INSPIRE Directive adopted in 2007, has led to an increased use of spatial data in planning and decision-making. Given that land-use plans are intrinsically spatial, such evidence and approaches can significantly benefit plan-making. A spatial framework could especially support the specific Strategic Environmental Assessment (SEA) aspects of the plan-making process. Spatial tools such as Geographic Information Systems (GIS) are particularly well-placed to support the environmental integration sought in SEA by providing evidence through the spatial assessment of multiple environmental datasets. Moreover, GIS bring the opportunity to augment conventional assessment techniques ...


Moving Beyond The Clamor For "Hedge Fund Regulation": A Reconsideration Of "Client" Under The Investment Advisers Act Of 1940, Anita K. Krug Jan 2010

Moving Beyond The Clamor For "Hedge Fund Regulation": A Reconsideration Of "Client" Under The Investment Advisers Act Of 1940, Anita K. Krug

Articles

This Article argues that, from both theoretical and pragmatic perspectives, a better approach would be for law to regard private fund investors as clients of the managers of those funds for all purposes under the investment advisory regulatory regime. In making these arguments, it dissects the doctrinal and historical underpinnings and sources of the current doctrine--legislative history and case law, in particular, but also SEC interpretations and rule changes. In light of the policy considerations-- including investor protection--that gave rise to the Advisers Act, the growth of the investment advisory industry and private funds' role in it, and lessons learned ...


People Can Be So Fake: A New Dimension To Privacy And Technology Scholarship, M. Ryan Calo Jan 2010

People Can Be So Fake: A New Dimension To Privacy And Technology Scholarship, M. Ryan Calo

Articles

This article updates the traditional discussion of privacy and technology, focused since the days of Warren and Brandeis on the capacity of technology to manipulate information. It proposes a novel dimension to the impact of anthropomorphic or social design on privacy.

Technologies designed to imitate people-through voice, animation, and natural language-are increasingly commonplace, showing up in our cars, computers, phones, and homes. A rich literature in communications and psychology suggests that we are hardwired to react to such technology as though a person were actually present.

Social interfaces accordingly capture our attention, improve interactivity, and can free up our hands ...


Taking Narrow Channel Collision Prevention Seriously To More Effectively Manage Marine Transportation System Risk, Craig H. Allen Jan 2010

Taking Narrow Channel Collision Prevention Seriously To More Effectively Manage Marine Transportation System Risk, Craig H. Allen

Articles

This Article locates the narrow channel rule in the larger context of risk management in confined waters. It begins by examining the risks posed by vessel navigation in narrow channels and fairways in the United States and the risk management measures employed to eliminate or reduce those risks, including the narrow channel rule in the applicable rules of the road. The Article then identifies problems with the existing rule and examines several alternatives to address the problems. The Article concludes that mariners deserve clearer guidance on how to identify the waters where Rule 9 applies than they have so far ...


The American Inquisition: Sentencing After The Federal Guidelines, Ricardo J. Bascuas Jan 2010

The American Inquisition: Sentencing After The Federal Guidelines, Ricardo J. Bascuas

Articles

No abstract provided.


A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi Jan 2010

A "Pay Or Play" Experiment To Improve Children's Educational Television, Lili Levi

Articles

No abstract provided.


Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless Jan 2010

Fitting The Formula For Judicial Review: The Law-Fact Distinction In Immigration Law, Rebecca Sharpless

Articles

No abstract provided.


Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin Jan 2010

Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin

Articles

No abstract provided.


Ceremonial Deism And The Reasonable Religious Outsider, Caroline Mala Corbin Jan 2010

Ceremonial Deism And The Reasonable Religious Outsider, Caroline Mala Corbin

Articles

State invocations of God are common in the United States; indeed, the national motto is "In God We Trust." Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the "reasonable person" at the ...


The Human Rights Of Non-Citizens. By David Weissbrodt. (Book Review), Caroline Bettinger-López, Bassina Farbenblum Jan 2010

The Human Rights Of Non-Citizens. By David Weissbrodt. (Book Review), Caroline Bettinger-López, Bassina Farbenblum

Articles

No abstract provided.


University Endowments: A (Surprisingly) Elusive Concept, Frances R. Hill Jan 2010

University Endowments: A (Surprisingly) Elusive Concept, Frances R. Hill

Articles

Even as certain policy makers press for mandatory payouts from endowments, the concept of an endowment remains surprisingly elusive. In the absence of either operational concepts of endowments or well-established metrics for identifying and measuring endowments, public policy discussions proceed with an implicit model of an endowment as "money in waiting" that is not currently in use for exempt educational purposes. This Article suggests that endowments, however conceptualized or measured, are better understood as "money in use" even though it is not being distributed. It argues that most endowment money is currently in use for at least two purposes. The ...


The Fcc's Affirmative Speech Obligations Promoting Child Welfare, Lili Levi Jan 2010

The Fcc's Affirmative Speech Obligations Promoting Child Welfare, Lili Levi

Articles

No abstract provided.


Indivisibility And Linkage Arguments: A Reply To Gilabert, James W. Nickel Jan 2010

Indivisibility And Linkage Arguments: A Reply To Gilabert, James W. Nickel

Articles

This reply discusses Pablo Gilabert's response to my article, "Rethinking Indivisibility." It welcomes his distinction between conceptual, normative, epistemic, and causal forms of support from one right to another. It denies, however, that "Rethinking Indivisibility" downplayed linkage arguments for human rights (although it did call for careful evaluation of such arguments), and rejects Gilabert's suggestion that we understand the indivisibility of two rights as two rights being highly useful to each other (interdependence) rather than as mutual indispensability. In the final section, I offer two new worries about the system-wide indivisibility of human rights.


Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack Jan 2010

Federal Philosophy Of Science: A Deconstruction- And A Reconstruction, Susan Haack

Articles

No abstract provided.


Between Rocks And Hard Places: Unprovenanced Antiquities And The National Stolen Property Act, Stephen K. Urice Jan 2010

Between Rocks And Hard Places: Unprovenanced Antiquities And The National Stolen Property Act, Stephen K. Urice

Articles

No abstract provided.


From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts Jan 2010

From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts

Articles

During the past three decades, one Supreme Court justice— John Paul Stevens—has authored two of the most significant administrative law decisions that speak to the judiciary’s role in checking agency interpretations of the statutes that they administer. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Justice Stevens’s landmark 1984 decision unanimously upheld the EPA’s construction of a term found in the Clean Air Act. Subsequently, in Massachusetts v. EPA, Justice Stevens’s 2007 opinion for a five-justice majority handed a major win to global environmental security by ordering the EPA to reconsider ...


No Witch Is A Bad Witch: A Commentary On The Erasure Of Matilda Joslyn Gage, Zanita E. Fenton Jan 2010

No Witch Is A Bad Witch: A Commentary On The Erasure Of Matilda Joslyn Gage, Zanita E. Fenton

Articles

No abstract provided.


The Last Best Hope For Progressivity In Tax, James R. Hines Jr., E. J. Mccaffery Jan 2010

The Last Best Hope For Progressivity In Tax, James R. Hines Jr., E. J. Mccaffery

Articles

We argue that a spending tax, as opposed to an income or wage tax, is the “last best hope” for a return to significantly more progressive marginal tax rates than obtain today. The simple explanation for this central claim looks to incentive effects, especially for “rich people,” as both economists and commentators are inclined to focus. High marginal tax rates under an income tax fall on and hence deter the socially productive activities of work and savings. High marginal rates under a wage tax fall on and hence deter the socially productive activity of work alone. But high marginal rates ...


Treasure Islands, James R. Hines Jr. Jan 2010

Treasure Islands, James R. Hines Jr.

Articles

In movies and novels, tax havens are often settings for shady international deals; in practice, they are rather less flashy. Tax havens are countries and territories that offer low tax rates and favorable regulatory policies to foreign investors. For example, tax havens typically tax inbound investment at zero or very low rates and further encourage investment with telecommunications and transportation facilities, other business infrastructure, favorable legal environments, and limited bureaucratic hurdles to starting new firms. Tax havens are small: most are islands; all but a few have populations below one million; and they have above-average incomes. Tax havens are also ...


Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner Jan 2010

Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner

Articles

The federal estate tax is in abeyance this year. The popular press has picked up on the possibility that the estates of billionaires such as the late George Steinbrenner, who owned the New York Yankees, will escape the tax. The House Ways and Means Committee, chaired by Representative Sander Levin of Michigan, and the Senate Finance Committee, chaired by Senator Max Baucus of Montana, are now considering two questions: what the maximum rate and exemption will be when the estate tax returns and whether the tax will be reinstated for this year. Lurking behind the headlines but equally important is ...


Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, James J. White Jan 2010

Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, James J. White

Articles

For the first time in American practice, we propose to implement a convention by a federal adoption of law previously enacted by the states – from Wyoming to New York – to implement the Convention on Independent Guarantees and Standby Letters of Credit (“Convention”).1


The Gulf Spill Context: Peak Oil, Risky Oil, And Energy Strategy, Edward A. Parson Jan 2010

The Gulf Spill Context: Peak Oil, Risky Oil, And Energy Strategy, Edward A. Parson

Articles

As shocking as the situation in the Gulf of Mexico may be, in this broader context it must be regarded as a normal event. That’s not to say that it’s normal in relation to past experience. Rather, the Gulf spill is “the new normal,” in the sense that our current energy strategy—or lack thereof—will make such events increasingly likely, even if we assume conditions of effective regulation and responsible compliance that evidently were not present on the Deepwater Horizon.


Crimes On The Gulf, David M. Uhlmann Jan 2010

Crimes On The Gulf, David M. Uhlmann

Articles

The explosion that rocked the Deepwater Horizon oil rig on April 20, 2010, killed 11 workers and triggered the worst environmental disaster in U.S. history. After six weeks of failed efforts to stop the gushing oil and protect the fragile ecosystem of the Gulf of Mexico and the communities along its shores, President Obama pledged on June 1 that “if our laws were broken . . . we will bring those responsible to justice.”


The Copyright Principles Project: Directions For Reform, Jessica D. Litman, Pamela Samuelson, The Copyright Principles Project Jan 2010

The Copyright Principles Project: Directions For Reform, Jessica D. Litman, Pamela Samuelson, The Copyright Principles Project

Articles

Copyright law performs a number of important functions. It facilitates public access to knowledge and a wide range of uses of creative works of authorship, and, in so doing, it helps educate our populace, enrich our culture, and promote free speech, free expression, and democratic values. It provides opportunities for rights holders to recoup investments in creating and disseminating their works and to enjoy the fruits of whatever success arises from the public's uses of their works. In the process, copyright also plays a role in regulating new technologies and services through which creative works may be accessed. A ...


Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane Jan 2010

Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane

Articles

During both economic crises and wars, times of severe national anxiety, antitrust has taken a back seat to other political and regulatory objectives. Antitrust enforcement has often been a political luxury good, consumed only during periods of relative peace and prosperity. In 1890, the Sherman Act's adoption kicked off the era of national antitrust enforcement. Barely three years later, the panic of 1893 provided the first major test to the national appetite for antitrust enforcement. Perhaps 1893 should not be included in the story: antitrust was still young, and it was not even clear that the Sherman Act applied ...


State Bystander Responsibility, Monica Hakimi Jan 2010

State Bystander Responsibility, Monica Hakimi

Articles

International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That ...


Coordinating Sanctions In Torts, Kyle D. Logue Jan 2010

Coordinating Sanctions In Torts, Kyle D. Logue

Articles

This Article begins with the standard Law and Economics account of tort law as a regulatory tool or system of deterrence, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this fairly standard (albeit not universally accepted) picture of tort law, the Article asks the question how tort law should adjust, if at all, to coordinate with already existing non-tort systems of regulation. Thus, if a particular activity is already subject to extensive agency-based regulation (whether in the form of command-and-control requirements or in the form of ...