Emerging Patterns Of Global Constitutionalization: Toward A Conceptual Framework, 2014 Maurer School of Law: Indiana University
Emerging Patterns Of Global Constitutionalization: Toward A Conceptual Framework, Karolina Milewicz
Indiana Journal of Global Legal Studies
Global constitutionalization is a recent phenomenon that is decisively changing the character of the international order. This argument was put forward recently by scholars of international law and has gained significance in the institutional school of thought. However, the notion of "global constitutionalization" is often used imprecisely and has so far been largely neglected in the field of international relations. It still lacks a consistent and operational definition, which would enable political scientists and international relations scholars to conduct empirical research. This article explores a preliminary framework for the concept of global constitutionalization.
Global Constitutionalism – Process and Substance, Symposium. Kandersteg ...
The Governance Ecology Of Electronic Food Stamp Delivery: Is It Time For A New Praxis?, 2014 Lincoln Memorial University - Duncan School of Law
The Governance Ecology Of Electronic Food Stamp Delivery: Is It Time For A New Praxis?, Stephen C. Wilks
No abstract provided.
The Reentry Of Young Offenders: A Look At Successful Reintegration, 2014 McMaster University
The Reentry Of Young Offenders: A Look At Successful Reintegration, Samantha Bellmore
Open Access Dissertations and Theses
This qualitative study looks at the experiences of youth reentering their communities after serving a custodial sentence. Interviews were conducted from the perspectives of five key informants, including youth counselors and probation officers. Based on these conversations, the nuances of youth reentry were explored in-depth. These pages contain personal stories regarding the successes and challenges that come with reentry and reentry programming. Based on the findings and relevant literature, recommendations and suggestions on how to improve reentry are made. Further, in contrast to dominant recidivism-based understandings of success, this study promotes a more holistic understanding of successful reentry outcomes.
Hosanna-Tabor In The Religious Freedom Panopticon, 2014 University of Maryland Francis King Carey School of Law
Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin
No abstract provided.
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, 2014 The University of Akron School of Law
Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca
Ryan G. Vacca
For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1 ...
Finding Fault?: Exploring Legal Duties To Return Incidental Findings In Genomic Research, 2014 University of Maryland Francis King Carey School of Law
Finding Fault?: Exploring Legal Duties To Return Incidental Findings In Genomic Research, Elizabeth R. Pike, Karen H. Rothenberg, Benjamin E. Berkman
The use of whole genome sequencing in biomedical research is expected to produce dramatic advances in human health. The increasing use of this powerful, data-rich new technology in research, however, will inevitably give rise to incidental findings (IFs), findings with individual health or reproductive significance that are beyond the aims of the particular research, and the related questions of whether and to what extent researchers have an ethical obligation to return IFs. Many have concluded that researchers have an ethical obligation to return some findings in some circumstances, but have provided vague or context-dependent approaches to determining which IFs must ...
Emerging Technologies And Dwindling Speech, 2014 Charleston School of Law
Emerging Technologies And Dwindling Speech, Jorge R. Roig
Jorge R Roig
Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context ...
For-Profit Public Enforcement, 2014 Duke Law
For-Profit Public Enforcement, Margaret H. Lemos, Max Minzner
This Article investigates an important yet undertheorized phenomenon: financial incentives in public enforcement. Each year, public enforcers assess billions of dollars in penalties and other financial sanctions for violations of state and federal law. Why? If the awards in question were the result of private lawsuits, the answer would be obvious. We expect that private enforcers—the victims of law violations and their fee-seeking attorneys—will attempt to maximize financial recoveries. Record recoveries come as no surprise in private class actions, for example. But dollar signs are harder to explain in the context of public enforcement. Unlike private attorneys, public ...
The Professor And The Judge: Introducing First Year Students To The Law In Context, 2014 Pace University
The Professor And The Judge: Introducing First Year Students To The Law In Context, Michael B. Mushlin, Lisa Margaret Smith
Pace Law Faculty Publications
For the past five years the authors, one a law professor, and the other a federal judge, have joined forces to teach introductory civil procedure to first semester first year students. Our approach is contrary to the traditional theory of legal instruction which holds that students learn first by a rigid diet of Socratic teaching of the fundamentals of legal analysis without any exposure to the real world or even a simulation of it. The central idea behind our experiment is that at the beginning of law school it is essential to provide a contextual introduction to the work of ...
The Depth Of The Trade In Services Agreement, 2014 American University Washington College of Law
The Depth Of The Trade In Services Agreement, Harold Godsoe
The setting against which plurilateral negotiations toward a new Trade in Services Agreement (TISA) are taking place is frustration. Service liberalization from GATS to bilateral PTAs to the Doha round have proven difficult and/or ineffective. The glaring and unexamined question is: why? This paper examines the current trade literature for what is known about TISA to date and subjects that information to a feasibility analysis for trade in service agreements. My goal is to understand what went wrong in previous attempts to liberalize services and/or trade and, consequently, what might being going wrong in TISA, and how it ...
Rollover Risk: Ideating A U.S. Debt Default, 2014 Duke Law
Rollover Risk: Ideating A U.S. Debt Default, Steven L. Schwarcz
This article examines how a U.S. debt default might occur, how it could be avoided, its potential consequences if not avoided, and how those consequences could be mitigated. To that end, the article differentiates defaults caused by insolvency from defaults caused by illiquidity. The latter, which are potentiated by rollover risk (the risk that the government will be temporarily unable to borrow sufficient funds to repay its maturing debt), are not only plausible but have occurred in the past. Moreover, the ongoing controversy over the federal debt ceiling and the rise of the shadow-banking system make these types of ...
Are Mothers Hazardous To Their Children’S Health?: Law, Culture, And The Framing Of Risk, 2014 Pace University
Are Mothers Hazardous To Their Children’S Health?: Law, Culture, And The Framing Of Risk, Linda C. Fentiman
Pace Law Faculty Publications
This article will proceed in four parts. Part I will elucidate the current myopic focus on mothers as the source of risk to children’s health and contrast common perceptions about the health of America’s children to reality. Part II will discuss how and why this distortion has arisen, exploring the social science research on risk perception. Part III will examine the history, and nature of, American law, and demonstrate how that law both reflects and reinforces existing sociocultural norms. Part IV will comment on the implications of Parts II and III and suggest how the risks to children ...
Sex, Science, And The Age Of Anxiety, 2014 Pace University
Sex, Science, And The Age Of Anxiety, Linda C. Fentiman
Pace Law Faculty Publications
This article examines the question of whether the HPV vaccine should be mandated (for girls and/or boys) in the context of declining rates of childhood immunization, and the potential threat to public health that this decline poses. The article addresses two interconnected legal issues: first, is mandating vaccines to prevent the spread of disease constitutional under substantive due process and equal protection principles, and second, should parents be permitted to “opt out” of mandatory vaccination on their children’s behalf, either for all vaccines or those which prevent particular diseases. The article addresses these issues in the context of ...
A People’S History Of Collective Action Clauses, 2014 Duke Law
A People’S History Of Collective Action Clauses, Mark C. Weidemaier, Mitu Gulati
For two decades, collective action clauses (CACs) have been part of the official-sector response to sovereign debt crisis, justified by claims that these clauses can help prevent bailouts and shift the burden of restructuring onto the private sector. Reform efforts in the 1990s and 2000s focused on CACs. So do efforts in the Eurozone today. CACs have even been suggested as the cure for the US municipal bond market. But bonds without CACs are still issued in major markets, so reformers feel obliged to explain why they know better. Over time, a narrative has emerged to justify pro-CAC reforms. It ...
Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, 2014 American University Washington College of Law
Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as to their appropriate ...
A More Realistic Approach To Directors' Duties, 2014 University of Maryland Francis King Carey School of Law
A More Realistic Approach To Directors' Duties, Michelle M. Harner
Expectations for what fiduciary duties can achieve in the corporate context are unrealistic. This segment of the law—and the alleged deficiencies therein—are blamed for corporate scandals, securities fraud, failed business plans, and even a company's insolvency. Risk is, however, inherent in business, and human beings are flawed. Fiduciary duty law cannot change these basic facts. To the extent we think it can, we will continue to be disappointed and frustrated. This essay considers recasting (and to a greater extent codifying) directors’ duties in a positive frame to help foster better director oversight. It does not suggest that ...
Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, 2014 Loyola University Chicago
Poverty Knowledge, Coercion, And Social Rights: A Discourse Ethical Contribution To Social Epistemology, David Ingram
Philosophy: Faculty Publications and Other Works
In today’s America the persistence of crushing poverty in the midst of staggering affluence no longer incites the righteous jeremiads it once did. Resigned acceptance of this paradox is fueled by a sense that poverty lies beyond the moral and technical scope of government remediation. The failure of experts to reach agreement on the causes of poverty merely exacerbates our despair. Are the causes internal to the poor – reflecting their more or less voluntary choices? Or do they emanate from structures beyond their control (but perhaps amenable to government remediation)? If both of these explanations are true (as I ...
When Enough Is Enough: Location Tracking, Mosaic Theory, And Machine Learning, 2014 University of Maryland Francis King Carey School of Law
When Enough Is Enough: Location Tracking, Mosaic Theory, And Machine Learning, Steven M. Bellovin, Renée M. Hutchins, Tony Jebara, Sebastian Zimmeck
Since 1967, when it decided Katz v. United States, the Supreme Court has tied the right to be free of unwanted government scrutiny to the concept of reasonable xpectations of privacy. An evaluation of reasonable expectations depends, among other factors, upon an assessment of the intrusiveness of government action. When making such assessment historically the Court has considered police conduct with clear temporal, geographic, or substantive limits. However, in an era where new technologies permit the storage and compilation of vast amounts of personal data, things are becoming more complicated. A school of thought known as “mosaic theory” has ...
How Congress Should Fix Personal Jurisdiction, 2014 Duke Law
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.
Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties ...
The Fiduciary Character Of Agency And The Interpretation Of Instructions, Deborah A. Demott
This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal’s representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal’s power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent’s fiduciary duty to the principal provides a benchmark for the agent’s interpretation of those instructions. The chapter draws on philosophical ...