Law Commons^™

Justice’S Suspension Is Dubious, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Step Down, Justice Melvin, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Securing Sovereign State Standing, Katherine Mims Crocker

Faculty Publications

No abstract provided.

Rethinking Merger Efficiencies, Daniel A. Crane

Articles

The two leading merger systems-those of the United States and the European Union-treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power The implicit asymmetry principle has important systemic effects for merger control. It not only stands in the way of some socially desirable mergers but also may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry, and none of the plausible justifications are normatively supportable. …

Medical Malpractice And Compensation In Global Perspective: How Does The U.S. Do It?, David A. Hyman, Charles Silver

Chicago-Kent Law Review

This article describes the problem of health care error in the United States of America and the various regulatory, liability, and compensation systems that deal with medical mistakes. In terms of frequency, direct costs, and aggregate social costs, the problem of medical errors is staggering. Millions of patients are killed or injured every year. A large percentage of adverse events could be avoided by the use of reasonable care. Regulators have not dealt with these problems effectively. Regulators specifically appointed to police the medical profession are often lax, whether because of capture, or from a sense of "there but for …

Using International Human Rights Law To Combat Racial Discrimination In The U.S. Criminal Justice System., Terrence Rogers

The Scholar: St. Mary's Law Review on Race and Social Justice

Statistics tend to show Black people commit most of the crime in the United States. Those statistics fail to account for unequal treatment of minorities at each stage of the criminal justice system. This unequal treatment may take the form of buy-and-bust operations, racial profiling, street sweeps, and other police activities which target people in low-income communities populated mainly by minorities. The American criminal justice system contains a cyclical, self-perpetuating aspect to the treatment of certain minorities. These perceptions direct a disproportionate amount of law enforcement attention on minorities, which leads to disproportionate arrests of minorities. The result shows racial …

Cloud Computing Providers And Data Security Law: Building Trust With United States Companies, Jared A. Harshbarger Esq.

Jared A. Harshbarger

Cloud computing and software-as-a-service (SaaS) models are revolutionizing the information technology industry. As these services become more prevalent, data security and privacy concerns will also rise among consumers and the companies who consider using them. Cloud computing providers must establish a sufficient level of trust with their potential customers in order to ease initial fears - and ensure certain compliance obligations will be met - at least to the extent that any such inquiring customer will feel comfortable enough to ultimately take the irreversible step of releasing their sensitive data and personal information into the cloud.

Legitimacy, Accountability, And Partnership: A Model For Advocacy On Third World Environmental Issues, David A. Wirth

David A. Wirth

To date, there has been little effort to define the characteristics of responsible environmental reform efforts by private citizens and organizations in the United States on foreign environmental problems, such as the quality of foreign aid. Moreover, there have been virtually no attempts to identify a principled role for American lawyers in Third World environmental issues. This Essay will respond to these lacunae by articulating a new approach to advocacy based on a partnership model. In Part I, this Essay identifies the need for American public interest advocates to establish partnerships with directly affected groups on Third World environmental issues. …

The Us On The Palestinian Statehood Bid: Weighing The Costs, Thomas Pegram

Human Rights & Human Welfare

Reflecting on the controversy surrounding the Palestinian bid for statehood, Richard Falk neatly subverts the opening words of the UN Charter, “we the people,” as having always surrendered to “we the governments,” and, in the modern era of American empire, “we the hegemon.”

This may well be true. The UN Security Council (UNSC), in particular, is viewed in Washington as a vehicle for hegemonic ambitions—to be indulged when it serves its purpose and vetoed and sidelined when it does not. Unfolding events at the UNSC, reportedly due to vote on the Palestinian resolution on November 11 but now postponed perhaps …

A Balancing Act? The Rights Of Donor-Conceived Children To Know Their Origins, Brigitte J. Clark Dr

Brigitte J Clark Dr

Abstract Internationally, donor-conceived children’s rights to know their biological origins have been recognised to some extent by the jurisprudence of the European Court of Human Rights (ECHR). With the drafting of the Article 7 (1) of the United Nations Convention on the Rights of the Child (UNCRC), as supplemented by Article 8, such children’s rights to know their biological origins whist they are children, and not only later as adults, were acknowledged for the first time, though not explicitly. Anonymous sperm donation is now banned in eleven jurisdictions, including Sweden and England and Wales. By contrast, France still does not …

Betting On The U.S. Market A Discussion Of The Legality Of Sports Gaming Businesses, Glenn Light, Karl Rutledge, Quinton Singleton

Occasional Papers

Over time, the US sports gaming industry has progressed dramatically beyond what the US anti-gaming law drafters envisioned. The result is a system of mostly antiquated laws controlling modern industry causing confusion across the board. This discussion, therefore, intends to shed light on the US sports gaming legal framework, including analysis of the preeminent US laws that regulate the sports gaming industry and a brief review of various sports gaming businesses that fall within the US legal rubric.

Regulating Governmental Data Mining In The United States And Germany: Constitutional Courts, The States, And New Technology, Paul M. Schwartz

William & Mary Law Review

No abstract provided.

The Unconstitutionality Of State Regulation Of Immigration Through Criminal Law, Gabriel J. Chin, Marc L. Miller

Duke Law Journal

The mirror-image theory of cooperative state enforcement of federal immigration law is a phenomenon—one of the most wildly successful legal ideas in decades. The mirror-image theory proposes that states can enact and enforce criminal immigration laws that are based on federal statutes. The theory that it is unobjectionable for a state to carry out federal policy is the basis of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act—better known as SB 1070—and similar laws enacted in Alabama, Georgia, Indiana, and Utah. The same theory has provoked the introduction of bills in numerous other states and earlier but more narrowly …

The Mechanics Of Federal Appeals: Uniformity And Case Management In The Circuit Courts, Marin K. Levy

Duke Law Journal

Case-management practices of appellate courts define the judicial review of appeals. The circuit courts constantly make decisions about which cases will receive oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions—decisions that exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts. Despite their importance, there has been no in-depth review of the case-management practices of the different circuit courts in the academic literature.

This Article begins to fill that void. It first documents and analyzes the practices of five …

Can The Extent Of Religious Freedom Be Measured?, Marcel Stuessi

Marcel Stüssi

The purpose of this paper is to develop a method to assess the extent of religious freedom internalized by a country. It represents an effort to provide a framework of possible patterns of the right to individual or collective religious freedom, as well as resulting configurations between religious institutions and the state. With this aim in mind, the paper claims two things. Firstly, that the extent of the constitutionally protected right to religious freedom can be assessed along three dimensions – one measuring the level of state interference with individual religious freedom, another involving the amount of collective religious autonomy …

Alliance Compliance: The Divergence In Us–Eu Airline Alliance Review Policies, Peter J. White Jd

Peter J White

Throughout the late twentieth century and into recent years, the airline industry has been characterized by a vast increase in global airline alliances. However, due to strict ownership restrictions, air carriers cannot take advantage of international mergers or takeovers. As a result, many air carriers enter into alliances with other air carriers in order to create an extensive international network, allowing them to benefit from economies of scope and density. An alliance also may allow an air carrier to operate more efficiently by eliminating duplication of costs, thereby allowing the air carrier to perform a better service for its customers. …

How States Can Affect Federal Deepwater Port Lng Licensing Decisions: A Case Study Involving The Deepwater Port Act And The Coastal Zone Management Act, Linda Krop

Golden Gate University Environmental Law Journal

This Article explores the general role of coastal states in permitting offshore LNG terminals, and the specific role that California played in the licensing process for the proposed Cabrillo Port LNG project. There are many facets of state authority, including the approvals required for the portions of LNG projects located within a coastal state’s jurisdiction (primarily within the first three miles offshore), the application of state laws to proposals to construct offshore LNG facilities under the DWPA, the authority of the governor of the adjacent coastal state to approve or “disapprove” deepwater port projects, and the right of a coastal …

The Cape Wind Offshore Wind Energy Project: A Case Study Of The Difficult Transition To Renewable Energy, Kenneth Kimmell, Dawn Stolfi Stalenhoef

Golden Gate University Environmental Law Journal

This article presents the story of one renewable energy alternative that is available wherever the wind blows strong and steady. If that alone is not sufficient enticement to read further, the authors also promise to present one of the most engaging permitting sagas ever known to this field. Indeed, the Cape Wind Energy project was held captive by the permitting process for nearly a decade – in stark contrast to numerous offshore oil projects – due to the imposition of disproportionally rigorous regulatory scrutiny and the dogged political pressure applied by a few wealthy homeowners with ocean views in the …

Riding The Wave: Confronting Jurisdictional And Regulatory Barriers To Ocean Energy Development, Danielle Murray, Christopher Carr, Jennifer Jeffers, Alejandra Núñez-Luna

Golden Gate University Environmental Law Journal

This Article provides a brief history of wave energy development, examines the status of hydrokinetic projects undertaken at a state and local level, and navigates the overlapping, and often competing, jurisdictional mandates confronting U.S. project developers. It also explores lessons learned from the European Union’s (EU) recent regulatory experience and provides recommendations for short- and long-term steps forward in the United States. Part II discusses early wave energy projects, research and policy developments, and highlights recent advances in technical testing and economic feasibility of wave energy projects. Part III analyzes the status of hydrokinetic energy development at the state and …

Siting Offshore Hydrokinetic Energy Projects: A Comparative Look At Wave Energy Regulation In The Pacific Northwest, Rachael Salcido

Golden Gate University Environmental Law Journal

This Article considers the approaches that Oregon, California, and Washington have taken to address the need for additional renewable energy while also undertaking a shift to comprehensive ocean management. Discussion of offshore federalism, a component of the opportunities and challenges of this nascent industry, is highlighted at various points. The Memoranda of Understanding that these coastal states have entered into with the Federal Energy Regulatory Commission have been central to facilitating hydrokinetic energy development. While each state has taken a slightly different approach to folding wave energy into its alternative energy and marine management agendas, the progress made is encouraging …

The Deepwater Horizon Oil Spill Trust And The Gulf Coast Claims Facility: The “Superfund” Myth And The Law Of Unintended Consequences, Alfred R. Light

Golden Gate University Environmental Law Journal

Two months after the April 2010 Deepwater Horizon explosion, BP and the Obama White House announced the creation of the $20 billion Deepwater Horizon Oil Spill Trust (“the Trust”) to pay individuals and businesses suffering losses arising from the disaster. Although BP initially paid certain claimants, Kenneth R. Feinberg, a Washington lawyer who previously administered the 9/11 Compensation Fund, opened the Gulf Coast Claims Facility (“the Facility” or GCCF) in August to “independently” resolve disaster claims against BP. As publicly advertised, the Facility and the $20 billion Trust, to which it has access to pay claims, are designed to address …

Restructure And Reform: Post-Bp Deepwater Horizon Proposals To Improve Oversight Of Offshore Oil And Gas Activities, Leila Monroe

Golden Gate University Environmental Law Journal

This Article chronicles the multiple reviews that were conducted into the BP oil spill, in an attempt to understand the flaws in government management and oversight that allowed this disaster to occur. It endeavors to distill the key recommendations produced by numerous reviewers related to improving DOI’s management and oversight of offshore oil and gas exploration and development activities. Although they are also critically important topics, each with identified opportunities for improvement, it is not within the scope of this Article to provide an in-depth discussion of industry culture and practice, technological failures, oil spill response, or spill restoration.

Part …

A Regulatory Wake-Up Call: Lessons From Bp’S Deepwater Horizon Disaster, Rebecca M. Bratspies

Golden Gate University Environmental Law Journal

In learning from the BP disaster, there are two levels at which to understand what happened, and two kinds of lessons to draw: straightforward and complex. The straightforward lesson focuses on BP as a distinct entity, emphasizing the company’s culpability for its poor decisions. The complex lesson does not deny BP’s culpability but seeks to situate BP’s private actions within a broader regulatory context in order to identify systemic failures that contributed to the disaster.

This Article delves into both sets of lessons, concentrating more on the “complex” explanation, which involves recognizing gaps in the statutory scheme and conflicts in …

Coal Law From The Old World: A Perspective On Land Use And Environmental Regulation In The Coal Industries Of The United States, Great Britain, And West Germany, Zygmunt J.B. Plater

Zygmunt J.B. Plater

America’s reentry into the Coal Age has been one of the major consequences of the Mideast oil-producing nations’ discovery of their collective marketing power, and in this new emphasis on coal the United States is not alone. Like the United States, many industrialized nations with domestic coal reserves had allowed their coal industries to languish under the influence of low-priced, petroleum based energy economy and are now hastening to strengthen their coal production. Different nations approach the regulation of their resurgent coal industries in varying ways, however, and these differences can be instructive to American observers, particularly as they relate …

Untangling The Web: Exploring Internet Regulation Schemes In Western Democracies, Renee Keen

San Diego International Law Journal

This Comment investigates past censorship schemes proposed and implemented by selected democratic administrations, in order to develop an improved framework and accompanying infrastructure that may accomplish the goals that these policies envisioned, but failed to achieve. The difficulty of this undertaking is in developing the intermediate and legally defensible parameters under which a regulation scheme can endure and gain support in a democratic society. The greater difficulty lies in developing a system that can accomplish these objectives in the burgeoning and ever-changing cyber realm. The challenges posed by Internet activity are novel ones, and the legitimacy of the actions taken …

Divided We Stand: The Haudenosaunee, Their Passport And Legal Implications Of Their Recognition In Canada And The United States, Nicole Terese Capton Marques

San Diego International Law Journal

There are several indigenous nations divided by the international border between the U.S. and Canada (hereinafter, border tribes). Part II will provide historical background on the Haudenosaunee and the Haudenosaunee passport, as well as on the Jay Treaty's free passage right as recognition that the international border was not to affect border tribes. Part III of this comment will examine the trust-like duty both federal governments owe to indigenous populations in general, briefly describe benefits and services offered, and then discuss the legal effects of current legislation and regulations by the American and Canadian governments on Haudenosaunee tribal members living …

Regulating On The Fringe: Reexamining The Link Between Fringe Banking And Financial Distress, Jim Hawkins

Indiana Law Journal

Critics of fringe banking—products like payday loans, pawn loans, and rent-toown leases—frequently argue that these products cause borrowers to experience financial distress. This argument has enormous intuitive appeal: Fringe credit is very costly, and usually the borrowers who use it are already in a serious financial bind. Taking on additional debt and paying high prices for it, the reasoning goes, drive them over the brink. Surprisingly, however, linking financial distress to fringe banking is extremely difficult to do. This Article represents the first attempt to uncover the relationship between fringe banking and financial distress by systematically analyzing the structure of …

Beyond Equality? Against The Universal Turn In Workplace Protection, Jessica A. Clarke

Indiana Law Journal

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of …

Reviled Mothers: Custody Modification Cases Involving Domestic Violence, Megan Shipley

Indiana Law Journal

No abstract provided.

Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett

Indiana Law Journal

No abstract provided.