Confrontational Contestation And Democratic Compromise: The Sunflower Movement And Its Aftermath, Brian Christopher Jones, Yen-Tu Su
Brian Christopher Jones
This piece describes the two conflicting governmental visions involved in the events surrounding the Taiwan Sunflower Movement, and attempts to justify the Movement from the perspective of democratic theory. In doing so we analyse the justifications Sunflower Movement leaders put forward for their occupation, and present a novel theory of “confrontational contestation”. The theory stems from the belief that the Sunflower Movement events represented a unique type of democratic disobedience, and new understandings regarding disobedience have emerged from these circumstances. The second part of our paper analyses the cases for and against prosecuting Sunflower Movement members. Ultimately, we decide that ...
Public Actors In Private Markets: Toward A Developmental Finance State, 2015 Cornell Law School
Public Actors In Private Markets: Toward A Developmental Finance State, Robert C. Hockett, Saule T. Omarova
Robert C. Hockett
The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of fueling continuous ...
Through The Lens Of Innovation, 2015 University of Alabama School of Law
Through The Lens Of Innovation, Mirit Eyal-Cohen
The legal system constantly follows the footsteps of innovation and attempts to discourage its migration overseas. Yet, present legal rules that inform and explain entrepreneurial circumstances lack a core understanding of the concept of innovation. By its nature, law imposes order. It provides rules, remedies, and classifications that direct behavior in a consistent manner. Innovation turns on the contrary. It entails making creative judgments about the unknown. It involves adapting to disarray. It thrives on deviations as opposed to traditional causation. This Article argues that these differences matter. It demonstrates that current laws lock entrepreneurs into inefficient legal routes. Using ...
Law, Fugitive Capital, And Karl Polanyi's The Great Transformation, 2015 the john marshall law school
Law, Fugitive Capital, And Karl Polanyi's The Great Transformation, Walter J. Kendall Lll
walter j kendall lll
No abstract provided.
Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, 2015 SelectedWorks
Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit
The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of ...
Agencies, Courts, And The Limits Of Balancing, 2015 Berkeley Law
Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber
Daniel A Farber
Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.
This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these ...
The Neomercantilist Fallacy And The Contextual Reality Of The Foreign Corrupt Practices Act, 2015 The Wharton School of the University of Pennsylvania
The Neomercantilist Fallacy And The Contextual Reality Of The Foreign Corrupt Practices Act, Philip M. Nichols
Philip M. Nichols
The Foreign Corrupt Practices Act is domestic legislation and should be analyzed as such. This article addresses a persistent failure in analysis of the Act, by scholars and policymakers alike. Many discussions of the Act approach it from a neomercantilist perspective. This approach contains three flaws. First, whereas neomercantilism envisions manipulation of the market to give advantage to national champion industries, the Foreign Corrupt Practices Act was adopted for the purpose of strengthening and enhancing the integrity of the global market. A neomercantilist perspective is contrary to the purpose of the Act. Second, this article shows that neomercantilism fundamentally misunderstands ...
Protecting Marine Biodiversity In Latin America Through Area-Based Fisheries Regulation, 2015 Duke University
Protecting Marine Biodiversity In Latin America Through Area-Based Fisheries Regulation, Xiao Recio-Blanco
Governments all around the world have addressed the challenge of marine resources management enacting laws and enforcing public policies. To date, most of these initiatives have failed. In Latin America, sophisticated environmental protection statutes are already in place. Unfortunately, these statutes are largely overlooked by sea users and government officials. Lack of compliance has become the most significant hurdle to the sustainable use of Latin America’s marine resources.
Recently, governments and Non-Governmental Organizations in Latin America have showed increased interest in Marine Spatial Planning (MSP). MSP is a process that analyzes the spatial distribution of human activities at sea ...
Democracy Enhancement And The Sixth Amendment Right To Choose, 2015 University of Cincinnati College of Law
Democracy Enhancement And The Sixth Amendment Right To Choose, Janet Moore
A democracy deficit undermines the legitimacy of criminal justice systems. People enmeshed in these systems are disproportionately poor people and people of color with little voice in creating or implementing the governing law. A stark example is the Sixth Amendment right to choose a lawyer. This understudied and undertheorized right is protected for criminal defendants who can afford to hire counsel. Yet according to Supreme Court dicta and rulings by other courts across the country, poor people “have no right to choose” their lawyers. This Article argues that the Sixth Amendment right to choose should apply to the overwhelming majority ...
Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, 2015 Lewis & Clark Law School
Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang
Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”
In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate ...
Ferguson, The Rebellious Law Professor, And The Neoliberal University, 2015 Howard University School of law
Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii
Harold A. McDougall III
Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and ...
Civil Asset Forfeiture: An Economic Analysis Of Ontario And British Columbia, 2015 Western University
Civil Asset Forfeiture: An Economic Analysis Of Ontario And British Columbia, Patrick Daley
Western Journal of Legal Studies
This paper compares and analyzes the incentive structure of Ontario and British Columbia’s civil asset forfeiture regimes. Part one surveys the American civil forfeiture experience to draw out theoretical considerations from American academia and inform a discussion of Canadian law. Part two compares the Ontario and British Columbia civil forfeiture regimes and identifies institutional incentives and barriers embedded in the framework of the forfeiture regimes in each province. Part three uses empirical data to explain how Ontario and British Columbia’s incentive structures affect civil forfeiture’s use. The paper argues there is an optimal allocation of resources towards ...
Permissibility Of Colour And Racial Profiling, 2015 Thompson Rivers University
Permissibility Of Colour And Racial Profiling, James Singh Gill
Western Journal of Legal Studies
Racial profiling in law enforcement is a contentious matter, particularly in light of U.S. police-citizen race tensions. The racial profiling debate has not been settled. Racial profiling proponents view it as a tool to effectively uncover criminal activity among certain racial groups. Critics find that racial profiling perpetuates racial stigmas and is largely inefficient as a policing tool. This article explores the ongoing debate and offers an overview of the Canadian judicial experience with racial profiling. The author proposes a middle-ground solution where racial profiling may be used under certain constraints imposed on law enforcement. The author suggests that ...
Employing Disability: Deconstructing Insufficient Protections For "Non-Mainstream" Disabilities, 2015 Western University
Employing Disability: Deconstructing Insufficient Protections For "Non-Mainstream" Disabilities, Maia Abbas
Western Journal of Legal Studies
This paper surveys leading and recent case law on disability with a specific focus on “non-mainstream” disabilities. Such disabilities are categorized according to the difficulty with which they can be medically diagnosed, their transient nature, and their fluctuations in severity. Jurisprudence on the duty to accommodate has been developed through what law professor Judith Mosoff classifies as “mainstream” disabilities. That is, disabilities that are better understood by employers and medical professionals, and to which the duty to accommodate more easily applies. In contrast, “non-mainstream” disabilities challenge the conventional understanding of the duty to accommodate. Standard accommodation practices do not necessarily ...
Copyright And Good Faith Purchasers, 2015 University of Pennsylvania Law School
Copyright And Good Faith Purchasers, Shyamkrishna Balganesh
Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of ...
Land Use Exactions, Anti-Evasion, And Koontz V. St. Johns River Water Management District, 2015 Campbell University
Land Use Exactions, Anti-Evasion, And Koontz V. St. Johns River Water Management District, Michael B. Kent Jr.
Michael B. Kent Jr.
This article considers the U.S. Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District, which extended the application of the Court’s exactions test (known as Nollan/Dollan). The majority of the Court relied heavily on the unconstitutional conditions doctrine, explaining that this doctrine formed the basis not only for the Nollan/Dolan framework but also for the extension of that framework to Koontz’s new factual setting. Led by Justice Kagan, four members of the Court dissented. Although the dissenting Justices seemingly agreed with several of the majority’s propositions, they vigorously opposed ...
Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, 2015 Texas State University
Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, Paul Kens Dr.
Paul Kens Dr.
In its 2010 decision Citizens United v. Federal Election Commission the Supreme Court overruled a federal statute that limited a corporation’s ability to pay for political advertising out of its general treasury funds. Those limits, it ruled, violated the corporation’s right to freedom of speech. The case has since become notorious for the widely held belief that, in doing so, the Court declared that corporations are “persons,” possessing the same constitutional rights as flesh and blood human beings. Four years later the Court seemed to expand on this conclusion when it ruled in Burwell v. Hobby Lobby that ...
Transnational Area-Based Ocean Management: Finding Avenues For Regulatory Harmonization, 2015 Duke University
Transnational Area-Based Ocean Management: Finding Avenues For Regulatory Harmonization, Xiao Recio-Blanco
In the last few decades, governments have regulated human activities at sea and their environmental impact through piecemeal, use-by-use prescriptive regulation. These domestic laws have been unable to solve basic problems such as overfishing or marine habitat loss.
Some ocean management experts have argued that managing areas of the sea in order to maximize one or a set of objectives might be more effective than the non-spatial approach. Implementing a comprehensive system of area-based management requires planning and zoning. The process of marine spatial planning (MSP) involves assessing ocean resources as well as current and future uses; identifying compatible and ...
Hospital Chargemaster Insanity: Heeling The Healers, 2015 Lehigh University
Hospital Chargemaster Insanity: Heeling The Healers, George A. Nation Iii
George A Nation III
Hospital list prices, contained in something called a chargemaster are insanely high, often running 10 times the amount that hospitals routinely accept as full payment from insurers. Moreover, the relative level of a particular hospital’s chargemaster prices bears no relationship to either the quality of the services the hospital provides or, to the cost of the services provided. The purpose of these fictitious list prices is to serve as a starting point or anchoring point, for negotiations with third-party payers regarding the amount that they will actually pay the hospital for it’s goods and services.
Ironically, there is ...
Proactive Cybersecurity: A Comparative Industry And Regulatory Analysis, 2015 Indiana University - Bloomington
Proactive Cybersecurity: A Comparative Industry And Regulatory Analysis, Scott J. Shackelford, Amanda Craig, Janine Hiller
This Article analyzes recent business realities and regulatory trends shaping the proactive cybersecurity industry. To provide a framework for our discussion, we begin by describing the historical development of the industry and how it has been shaped by the applicable law in the United States and other G8 nations. We then catalogue the proactive cybersecurity practices of more than twenty companies, focusing on four case studies that we consider in the context of polycentric “global security assemblages.” Finally, we assess the emergence of proactive cybersecurity norms, both within industry and international law, and consider the implications of this movement on ...