Digital Commons Network^™

“Encroachments And Oppressions”: The Corporatization Of Procedure And The Decline Of Rule Of Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at "procedural reform" by corporate …

The Politics Of Access: Examining Concerted State/Private Enforcement Solutions To Class Action Bans, Myriam E. Gilles

Articles

Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in …

The Middle-Class Constitution: A Response, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

I am very grateful to the Boston University Law Review for bringing together such a terrific group of scholars to engage with my book, The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic. It is a testament to the work and excellence of the Boston University Law Review that they pulled together such an intellectually engaging group of commentators. My deepest thanks also to Professors Markovits, Rahman, Lyons, Epstein, and Somin for taking the time to read the book and comment on it.

Be Careful What You Wish For? Reducing Inequality In The Twenty-First Century, Reuven S. Avi-Yonah, Orli K. Avi-Yonah

Michigan Law Review

A review of Walter Scheidel, The Great Leveler: Violence and the History of Inequality from the Stone Age to the Twenty-First Century.

Breach Of Faith: A Lack Of Policy For Responding To Data Breaches And What The Government Should Do About It, Jared Burns

Florida Law Review

One data breach in the summer of 2015 against the United States government cost taxpayers more than $350 million. Since 2005, the U.S. government has lost more than 183 million personnel records and countless files containing sensitive information. Despite all of this, the government has failed to create a policy for responding to data breaches. As proof of a lack of any clear policy, this Note analyzes two recent breaches against the government and explains how the responses, or lack thereof, are at opposite ends of the response continuum.

This Note creates a policy for government response to data breaches. …

Faith, Reason, And Liberal Legal Neutrality, Jason E. Whitehead

Tulsa Law Review

Reviewing: Francis J. Beckwith, Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith (Cambridge University Press 2015); Jean L. Cohen & Cécile Laborde eds., Religion, Secularism, and Constitutional Democracy (Columbia University Press 2015).

Another Day At The Breach: Cyber Intrusion: A Conference Of Experts, William & Mary Law School

One-Time Conferences: Programs

Held on March 16-17, 2018 at William & Mary Law School and Raymond A. Mason School of Business.

Qualitative Approach To Understanding Guardian Models Of Policing, Jacqueline B. Helfgott, Beck M. Strah, Joycelyn Pollock, Loren T. Atherley, John Vinson

Qualitative Criminology (QC)

Since 2015, there has been a growing interest and controversy regarding the “warrior” versus “guardian” models of policing. This article discusses the concept of guardian policing and uses qualitative data from an evaluation of guardian-based training in a police academy to highlight guardian concepts as understood by the trainers. Results suggest that trainers generally exhibit a widespread level of support and commitment towards the guardian model and the priorities of guardian training, view the model as consistent with what has traditionally been considered “good policing,” and believe that critics do not understand the basic elements of the model itself, …

Some Form Of Punishment: Penalizing Women For Abortion, Mary Ziegler

William & Mary Bill of Rights Journal

In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.

But in spite of the furor created by Trump’s comment and Patel’s conviction, the history …

The 2016 Voting Wars: From Bad To Worse, Richard L. Hasen

William & Mary Bill of Rights Journal

No abstract provided.

Sound Recordings And Dignity Takings: Reflections On The Racialization Of Migrants In Contemporary Italy, Gianpaolo Chiriacò

Chicago-Kent Law Review

In the field of ethnomusicology, it is possible to consider musical collaborations—such as traditional fieldwork or joint musical projects between artists of different background—as spaces where different individuals and subjectivities share their own artistic practices and products, as well as the musical cultures of which they are representative or bearers. Such collaborations raise an array of methodological questions with implications to social justice and power relations. The aim of this contribution is to use the notion of dignity takings and dignity restoration to tackle some of these questions. While relying strongly on my own fieldwork in Rome and Chicago, I …

Book Reviews, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

Drought And Public Necessity: Can A Common-Law “Stick” Increase Flexibility In Western Water Law?, Robin Kundis Craig

Utah Law Faculty Scholarship

Drought is a recurring—and likely increasing—challenge to water rights administration in western states under the prior appropriation doctrine, where “first in time” senior rights are often allocated to non-survival uses such as commercial agriculture rather than to drinking water supply for cities. While states and localities facing severe drought have used a variety of voluntary programs to re-allocate water, these programs by their very nature cannot guarantee that water will in fact be redistributed to the uses that best promote public health and community survival.

Using the example of the Brazos River drought of 2010 to 2013, this Article explores …

Constitutionalism And The American Imperial Imagination, Aziz Rana

University of Chicago Law Review

Constitutionalism as a legal technology for structuring state power has spread around the world over the last century, as a practice and also as an ideal often linking the institutions of the state to commitments relating to political liberalism and free markets. Yet there is growing evidence that illiberal forms of constitutionalism may now be on the rise internationally. Some of the countervailing forces (economic crisis, national security threats, populism) that may limit the appeal and spread of liberal constitutionalism have been identified in the comparative-law literature as key drivers of this phenomenon. This Essay turns to a different explanation: …

Countering Russian Meddling In Us Political Processes, James P. Farwell

The US Army War College Quarterly: Parameters

No abstract provided.

Countering Russian Disinformation, Timothy P. Mcgeehan

The US Army War College Quarterly: Parameters

No abstract provided.

Victory Without Casualties: Russia's Information Operations, T. S. Allen, A. J. Moore

The US Army War College Quarterly: Parameters

No abstract provided.

Commentary And Reply, Usawc Press

The US Army War College Quarterly: Parameters

No abstract provided.

International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof

Cornell Law Review

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations (possibly to avoid creating precedent restricting their own activities). Absent an appropriate label, victim states have few effective and nonescalatory responsive options, and the harms associated with these incidents lie where they fall.

This Article draws on tort law and international law principles to construct …

Revolution V. Evolution In Class Action Reform, Richard Marcus

North Carolina Law Review

No abstract provided.

Sailing Under False Colors: The Continuing Presence Of Negligence Principles In "Strict" Products Liability Law, Richard C. Ausness

University of Dayton Law Review

No abstract provided.

The "Double Standard" Of Nonproliferation: Regime Type And The U.S. Response To Nuclear Weapons Program, Alina Shymanska

International Journal of Nuclear Security

There is no doubt that the NPT regime is far from being equal for all states involved. As the predominant hegemonic power since WWII, the United States plays a major role in deciding the fates of non-great power proliferators. This article tries to find the logical explanation of the phenomenon whereby some nuclear proliferators are absolved regardless of their active accumulation of nuclear arsenals while others are labeled as “rogue states” and ordered to disarm. The article suggests that a particular proliferator’s political regime could affect the way in which its state is approached by the U.S., known for its …

All Your Works Are Belong To Us: New Frontiers For The Derivative Work Right In Video Games, J. Remy Green

Faculty Scholarship

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American …

From The Editor, Antulio J. Echevarria Ii

The US Army War College Quarterly: Parameters

No abstract provided.

Avoiding Nation-Building: From Nixon To Trump, Dominic Tierney

The US Army War College Quarterly: Parameters

No abstract provided.

Getting To The Root Of The Problem: Written Representations To The Select Committee On Deliberate Online Falsehoods, Yi Siong Sui, Aaron Yoong, Hao Ren Lyndon Choo, Lixin Chen

Research Collection Yong Pung How School Of Law

The phenomenon of the spread of deliberate falsehoods has been exacerbated in the current day and age with the usage of technology. An examination of this issue shows that that the motivations and reasons for spreading such falsehoods have not changed. Instead, the primary mischief lies in the near instantaneous dissemination and ease of access via internet intermediaries.Despite this, there is a gap in the regulatory tools available to deal with this mischief. The solution hence should lie in imposing some sort of liability on internet intermediaries to remove deliberate falsehoods. Nevertheless, it is crucial that such intermediary liability must …

Double-Tap Warfare: Should President Obama Be Investigated For War Crimes?, Samuel Alexander

Florida Law Review

A “double-tap” drone strike involves bombing a target, waiting a period of five to twenty minutes, often during which first responders arrive, and then bombing the target a second or even third time. This Note argues that such attacks, by virtue of their indiscriminate nature, are likely serious violations of Common Article 3 of the Geneva Conventions of 1949, which prohibits targeting civilians, the wounded, or those placed hors de combat. Thus, such attacks are likely war crimes under international law and under the War Crimes Act of 1996, a U.S. law that criminalizes carrying out, or ordering to be …

An Intelligence Dictionary Offering "Success Before Work," Review, Intelligence And Information Policy For National Security, Gary T. Marx

Secrecy and Society

No abstract provided.

United To Deter: Dealing With New Means Of Supporting Terror, Frank A. Florio

University of Miami International and Comparative Law Review

No abstract provided.

The Politics Of Legal Arrangements: The "Duty Of Care," Justifying, Extending, And Perpetuating The Public-In-The-Private Forms Of Protection, Anna Leander

Indiana Journal of Global Legal Studies

This article explores the place of formal legal arrangements in the politics surrounding the hybrid, enmeshed public-in-the-private forms of authority this special issue focuses on. It does so by analyzing the significance of one specific legal arrangement, the Duty of Care, for the politics surrounding public-in-the-private forms of protection. I show that the Duty of Care does considerable political work. It contributes to decentering, commercializing, and depoliticizing protection. In so doing, the Duty of Care is justifying this specific form of protection, defining and extending its scope, and perpetuating it. The article makes this argument by drawing both on the …