Law Commons^™

Clean Energy Policy In Delaware: A Small Wonder, Collin O'Mara, Philip Cherry, David R. Hodas

David R. Hodas

No abstract provided.

Will History Be Servitude?: The Nas Report On Forensic Science And The Rule Of The Judiciary, Jane Moriarty

Jane Campbell Moriarty

For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, “individualization evidence”). Not only can they match it, they claim, they can do so often without any error rate. In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack …

Fred Schwartz, Friend, Colleague, Scholar, Teacher, Von Creel

Von R. Creel

No abstract provided.

Freedom Of Thought For The Extended Mind: Cognitive Enhancement And The Constitution, Marc J. Blitz

Marc J. Blitz

No abstract provided.

Legal Interoperability In Support Of Spatially Enabling Society, Harlan J. Onsrud

Harlan J Onsrud

Spatial data is critically important for the wellbeing of society. Yet appropriate spatial data is often very difficult to find and, when found, the legal ability to use it is often in question. Lack of an operational web-wide capability allowing users to legally access and use the geospatial data of others without seeking permission on a case-by-case basis remains as an entrenched major impediment to general spatial enablement for all sectors in society. This chapter presents a legal inter-operability vision for offering, acquiring, and using spatial data and proposes an operational environment for gaining much greater legal clarity and efficiency …

United States Supreme Court Amicus Curiae Brief Filed By Richard A. Leo In Florida V. Powell, 130 S. Ct. 1195, Richard Leo

Richard A. Leo

This amicus brief, filed in Florida v. Powell, 130 S. Ct. 1195 (2010), addresses the question of whether a suspect is adequately informed of his right to the presence of counsel during custodial interrogation when advised only of his "right to talk to a lawyer before answering any of our questions."

Environmental Law As A Legal Field: An Inquiry In Legal Taxonomy, Todd S. Aagaard

Todd S Aagaard

This Article examines the classification of the law into legal fields, first generally and then by specific examination of the field of environmental law. We classify the law into fields to find and to create patterns, which render the law coherent and understandable. A legal field is a group of situations unified by a pattern or set of patterns that is both common and distinctive to the field. We can conceptualize a legal field as the interaction of four underlying constitutive dimensions of the field: (1) a factual context that gives rise to (2) certain policy tradeoffs, which are in …

The Missing Link Of Democracy, Fernando Leila

Fernando Leila

The Missing Link of Democracy: The Federal Reserve Submission to the Democratic Government

“If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, (i.e., the "business cycle") the banks and corporations that will grow up around them will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered.”

Thomas Jefferson

Abstract

This paper examines the shortcomings of the Federal Reserve (the “Fed”) as an institution, its power and policy under a democratic system of government, and the consequences thereof.

America is in …

India's Integrated Energy Policy: A Source Of Economic Nirvana Or Environmental Disaster?, Deepa Badrinarayana

Deepa Badrinarayana

Abstract: India’s rapidly growing economy naturally demands increasing energy needs from the industrial scale down to the personal. Mindful of potential negative impacts of economic development, India is making efforts to encourage growth while preserving and protecting the environment and human rights. India’s Integrated Energy Policy sets out the roadmap for how the country plans to achieve the balance among development, environmental protection, citizens’ rights, energy security, and a host of other priorities and concerns. Though ambitious and broad in scope, the Policy may prove inadequate in mitigating environmental impacts of development, and thus inadequate in balancing India’s needs, particularly …

Affective, Effective Feedback, Paula J. Manning

Paula J Manning

No abstract provided.

Bloodsucking Copyrights, Ann Bartow

Ann Bartow

Some bloodsuckers live off the life-sustaining fluids of involuntary hosts and leave behind diseases or venom. Fleas, ticks, bedbugs, and mosquitoes are all bloodsuckers that are best avoided. Others, like the leech, suck blood in ways that can be very helpful to a host, promoting blood flow and healing. Vampires are fictional, sentient bloodsuckers that have populated various entertainment genres for centuries. Copyrights, too, can suck blood metaphorically in productive and destructive ways, or simply suck, period, when they senselessly impede free-flowing veins of information. And though they are not (yet) immortal, copyrights last a very long time.

In Copyright’s …

Decentralizing Cap-And-Trade? State Controls Within A Federal Greenhouse Gas Cap-And-Trade Program, Alice Kaswan

Alice Kaswan

Cap-and-trade programs for greenhouse gases (GHGs) present central political questions with significant economic and environmental ramifications. This paper addresses a critical structural issue: To what extent should states retain the capacity to develop stricter parameters within a federal cap-and-trade program? This Article argues that, within the confines of a federal trading program, states should retain substantial autonomy to establish their own direct regulatory requirements, impose their own offset policies, and adopt differing trading parameters to maximize a GHG trading program’s co-pollutant and other benefits. State autonomy is justified by benefits to the nation as a whole, since states can provide …

Legislative Histories And The Practice Of Statutory Interpretation In Wyoming, Debora A. Person

Debora A. Person

No abstract provided.

U.S. Immigration Law: Where Antiquated Views On Gender And Sexual Orientation Go To Die, Marisa S. Cianciarulo

Marisa S. Cianciarulo

This Essay examines the paradoxical approaches to gender and sexual orientation bias within the U.S. immigration system. On the one hand, the immigration system has managed to convey benefits to same-sex partners despite federal law prohibiting the recognition of same-sex unions for immigration purposes. Immigration law also provides benefits for victims of crimes disproportionately committed against women, such as human trafficking and domestic violence, although the systems in place for adjudicating these benefits are flawed. On the other hand, immigration law favors antiquated notions of gender roles that disadvantage U.S. citizen men and their children, and has failed to recognize …

Suing The Prosecutor, Jonathan Van Patten

Jonathan Van Patten

No abstract provided.

The Food And Drug Administration And The Pharmacy Profession: Partners To Ensure The Safety And Efficacy Of Pharmacogenomic Therapy, Jennifer E. Spreng

Jennifer E Spreng

No abstract provided.

The Inconvenience Of A “Constitution [That] Follows The Flag ... But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet

Pedro A. Malavet

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes —as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico— is still the dominant interpretation of …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

No abstract provided.

Objections And Responses To The Google Books Settlement: A Report, James Grimmelmann

James Grimmelmann

This report collects information about the objections raised to the proposed settlement in the Authors Guild v. Google litigation. The report breaks the objections down into distinct, categorized issues. Each issue is illustrated with a representative quotation from an objection filed with the court. This is version 2.0 of this report, which incorporates changes made in the amended settlement and the responses provided by the parties in support of the settlement.

The Gender Pay Gap In Europe From A Legal Perspective, Ann Numhauser-Henning

Ann Numhauser-Henning

No abstract provided.

Keeping Men Men And Women Down: Sex Segregation, Anti-Essentialism, And Masculinity, David S. Cohen

David S Cohen

Current-day sex segregation is one of the central ways that law and society define and construct who is a man and what it means to be a man. When law or society tells people that a place or activity is reserved for men alone, or in the converse, that men are excluded from a particular place or activity, two important messages are sent: one, that there are distinct categories of people based on reproductive anatomy and that these anatomical distinctions are a legitimate way of organizing and sorting people; and two, that people with the reproductive anatomy labeled “male” are …

Horizontal Erie And The Presumption Of Forum Law, Michael S. Green

Michael S. Green

According to Erie Railroad v. Tompkins and its progeny, a federal court interpreting state law must decide as the state’s supreme court would. In this Article, I argue that a state court interpreting the law of a sister state is subject to the same obligation. It must decide as the sister state’s supreme court would. Horizontal Erie is such a plausible idea, one might think it is already established law. But the Supreme Court has in fact given state courts significant freedom to misinterpret sister state law. And state courts have taken advantage of this freedom, by routinely presuming that …

One Hundred Years Later: Wrongful Convictions After A Century Of Research, Richard Leo

Richard A. Leo

In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel …

Resolving Cases On The Merits, Jay Tidmarsh

Jay Tidmarsh

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

Newspaper Theft, Self-Preservation And The Dimensions Of Censorship, Erik Ugland, Jennifer Lambe

Erik Ugland

One of the most common yet understudied means of suppressing free expression on college and university campuses is the theft of freely-distributed student publications, particularly newspapers. This study examines news accounts of nearly 300 newspaper theft incidents at colleges and universities between 1995 and 2008 in order to identify the manifestations and consequences of this peculiar form of censorship, and to augment existing research on censorship and tolerance by looking not at what people say about free expression but at what they do when they have the power of censorship in their own hands. Among the key findings is that …

Aking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Jonathan Todres

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention - the ultimate goal - and addressing these problems in a comprehensive and systematic manner. Instead, …

Pleading Disability, Joseph A. Seiner

Joseph A. Seiner

A significant failure. That is how the Americans with Disabilities Act (ADA) has been described by legal scholars and disability advocates alike. The statute, which was widely expected to help prevent disability discrimination in employment, has not fully achieved its intended purpose because of the ADA’s narrow interpretation in the courts. Congress recently sought to restore the employment protections of the ADA by amending the statute. Interpreting the complex and comprehensive amendments to the ADA will be a difficult task for the federal courts, which struggled to consistently apply even the original statutory terms. Complicating matters further, the proper pleading …

The Stubborn Persistence Of Sex Segregation, David S. Cohen

David S Cohen

Almost fifty years ago, Congress began protecting against sex discrimination in federal statutory law. Almost forty years ago, the Supreme Court expanded constitutional law to include protection from discrimination based on sex. Since then, guarantees against sex discrimination have proliferated in federal and state law, and societal norms of sex equality have become entrenched. Yet, in 2010, we still live in a society that is highly segregated by sex.

This article is the first part of a multi-part project that will analyze sex segregation as a systemic issue by exploring the contours of modern American sex segregation and what this …

The Unmasking Option, James Grimmelmann

James Grimmelmann

In the recent "Skanks in NYC" case, the plaintiff dropped her defamation lawsuit once the court had unmasked the John Doe defendant. Although the plaintiff was criticized for her seemingly pretextual use of a lawsuit, the outcome was substantively just. The harasser got almost exactly what she deserved for trying to humiliate her victim: embarrassment of her own.

This brief essay discusses a counterintuitive proposal inspired by the Skanks in NYC case: that the law unmask anonymous online harassers as a substitute for litigation, rather than as an aid to it. Identifying harassers can be an effective way of holding …

Book Reviews, Laurel E. Fletcher, Eric Stover, Alex Braithwaite

Laurel E. Fletcher