Digital Commons Network^™

Defining Torture And Cruel, Inhuman, And Degrading Treatment, David Weissbrodt, Cheryl Heilman

Articles

Declaring a “war against terror,” the United States has detained foreign nationals suspected of terrorist activities and has interrogated them at various locations outside the United States. As the United States seeks to bring charges against the detainees, serious questions have arisen regarding the interrogation methods used to obtain evidence. Federal laws enacted to meet the United States' obligations under treaties prohibit the use of evidence obtained through torture or through cruel, inhuman, or degrading treatment. What legal standards should be applied to determine whether interrogation methods or conditions of confinement constitute torture or cruel, inhuman, or degrading treatment? Is …

Of The Conditional Fee As A Response To Lawyers, Claire Hill, Richard W. Painter

Articles

There are radically differing views as to whether Dodd-Frank took the right approach, and whether it will be successful or even beneficial. But even the most optimistic scenario leaves a significant problem unaddressed. One important cause of the crisis was that some banks and their lawyers had been looking for-and finding-clever ways to honor the letter of the law while violating its spirit, including by "pushing the envelope" as far as it will go (and in some cases, further). The legal opinion rendered in Lehman Brothers' Repo 105 transaction, discussed more fully below, is but one example of the type …

Optimal Remedies For Bilateral Contracts, Francesco Parisi, Barbara Luppi, Vincy Fon

Articles

No abstract provided.

Owning Hazard, A Tragedy, Barbara Welke

Articles

No abstract provided.

The Antecedents Of Disputes: Complaining And Claiming, Herbert M. Kritzer

Articles

This paper focuses on the earliest stages of the problem resolution function of law and legal institutions: the emergence of grievances and their communication to a responsible party as complaints and claims. While the literature on this subject is broad, both in terms of methods and in terms of the fairly large number of countries where empirical research on this subject has been conducted, it seems appropriate to ask the question, what do we know and not know about this subject? This paper seeks to answer this question and to suggest fruitful avenues of future inquiry. I first discuss the …

Legal Mechanic: Where Are We Going? The Generalist Vs. Specialist Challenge, Herbert M. Kritzer

Articles

This is a review essay considering two books: 'The Death of the American Trial' by Robert P. Burns and 'Specializing the Courts' by Lawrence Baum. The organizing theme of the essay is the lay jurors represent one end of the spectrum of potential adjudicators with specialized courts and tribunals represent the other end of the spectrum. While Burns does not develop his argument in terms of specialization, a significant aspect of his argument is that there is value to relying on nonspecialist, lay adjudicators. Burns is an advocate for the trials, particularly jury trials; as such, he glosses over evidence …

Women, Vulnerability, And Humanitarian Emergencies, Fionnuala Ní Aoláin

Articles

The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is greater appreciation for the social, economic and political effects that follow in the short to long term from such catastrophes whatsoever their causes. Rhetorically too, there is some recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts. It is generally acknowledged that women are more visible in the refugee and internally displaced communities that typically result from many humanitarian crises. Women, because of their acute care responsibilities in most societies, also disproportionately bear the brunt of familial …

Unilateral Alteration Of Public Sector Collective Bargaining Agreements And The Contract Clause, Stephen F. Befort

Articles

As public sector budgets have waxed and waned in response to changes in the economic cycle over the past 30 years, public sector employers increasingly have sought to control personnel costs by resorting to measures such as wage freezes and furloughs. Not infrequently, those measures have pitted the viability of collective bargaining agreements against the ability of government to protect its coffers. This article examines those court decisions that have considered the reach of the contract clause in this setting over the past thirty years. Most of these courts properly have applied the principles established by the Supreme Court in …

Radbruch's Formula And Conceptual Analysis, Brian Bix

Articles

Gustav Radbruch, in well-known work that appeared just after World War II, put forward a formula that stated that state-promulgated rules that are sufficiently unjust lose their status as valid law. Radbruch’s Formula has generally been understood as a claim about the nature of law, and recent variations of Radbruch’s Formula, like Robert Alexy’s “claim to correctness,” have similarly been characterized as offering a truth about the nature of law. Additionally, both Radbruch’s and Alexy’s theories have been presented as criticisms of, and alternatives to, legal positivism. An alternative understanding of the Formula (and its modern variations) is as (mere) …

Speaking For The Dead: Voice In Last Wills And Testaments, Karen J. Sneddon

Articles

I do now hereby give, bequeath, and devise all items of tangible personal property that I own or may own a right thereonto, which includes, but is not limited to, objet d'art, furnishings, automobiles, and silver, to my surviving issue per stirpes.

A will is arguably the most important and personal legal document an individual ever executes. As the language above illustrates, much of the typical language in a will removes all traces of the individual. This personal legal document is ostensibly the individual's-the testator's-document. For a testator, contemplating the creation and execution of a will is the contemplation of …

Unveiling The Mystery, History, And Problems Associated With The Jurisdictional Limitations Of Bankruptcy Courts Over Personal Injury Tort And Wrongful Death Claims, Ishaq Kundawala

Articles

The current jurisdictional structure of bankruptcy courts in the United States is nothing short of a mystery. Scholars, judges, and practitioners have long struggled with finding their way through the confusing labyrinth of jurisdictional rules, exceptions, and exclusions in our current bankruptcy system. Courts spend countless hours each year considering all kinds of jurisdictional issues that arise in bankruptcy cases. This results in a diversion of judicial resources from substantive matters. Adding to this quandary is the limited scope of bankruptcy courts' jurisdiction over a small but very significant subset of claims-personal injury tort and wrongful death claims-which weaves yet …

Transparency Is The New Opacity: Constructing Final Regulation After The Crisis, Caroline Bradley

Articles

No abstract provided.

Child Pornography And Community Notification: How An Attempt To Reduce Crime Can Achieve The Opposite, J. J. Prescott

Articles

Community notification laws, designed to reduce the frequency of sex offenses by alerting potential victims to nearby threats and by encouraging citizen monitoring of potential recidivists, may make sense in the context of traditional sex offenses and sex offenders. But child pornography crimes and the individuals who commit them are different, and they differ from archetypal sex crimes and criminals in ways that may unintentionally cause community notification laws to facilitate crime rather than inhibit it. Child porn offenses typically involve money or trade, and their commission hinges on successfully conspiring with others. Markets and information are necessary building blocks …

E.U. Accountability To International Law: The Case Of Asylum, James C. Hathaway

Articles

In one of his later published works, Eric Stein wrote that "[a]s modern administrative state, transparency in the Union is essential not only to inform member state parliaments and electorates, but also to help form an all-European debate and public opinion that are required to sustain advanced integration."' In his usual prescient way, Professor Stein captured the dilemma of the European Union as it has shifted from an amalgam of states seeking consensus in a largely behind-closed-doors way to what many would see as an emerging federal state. With its undoubted ability to project power, will the European Union effectively …

Examining The Reality Of Foreign National Child Victims Of Human Trafficking In The United States, Bridgette A. Carr

Articles

Human traffickers prey on the vulnerabilities of other people. Poverty, lack of education, and language barriers are keys that human traffickers use to successfully exploit others. For foreign national children who have been trafficked in the United States, these same vulnerabilities are often ignored by the immigration system. From its inception, the Trafficking Victims Protection Act (TVPA) has been touted as a tool to combat grave human rights violations that affect children. In fact, the TVPA's legislative history is rife with stories, statistics, and anecdotes involving children-often young girls. The TVPA has always recognized the failure of a one-size-fits-all approach …

Paper Thin: Freedom And Re-Enslavement In The Diaspora Of The Haitian Revolution, Rebecca J. Scott

Articles

In the summer of 1809 a flotilla of boats arrived in New Orleans carrying more than 9,000 Saint-Domingue refugees recently expelled from the Spanish colony of Cuba. These migrants nearly doubled the population of New Orleans, renewing its Francophone character and populating the neighborhoods of the Vieux Carre and Faubourg Marigny. At the heart of the story of their disembarkation, however, is a legal puzzle. Historians generally tell us that the arriving refugees numbered 2,731 whites, 3,102 free people of color, and 3,226 slaves. But slavery had been abolished in Saint-Domingue by decree in 1793, and abolition had been ratified …

Ability To Pay, John A. E. Pottow

Articles

The landmark Dodd-Frank Act of 2010 ("Dodd-Frank") transforms the regulation of consumer credit in the United States. Many of its changes have been high-profile, attracting considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau ("CFPB"). Even specific consumer reforms, such as a so-called "plain vanilla" proposal, drew hot debate and lobbying firepower. But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as plain vanilla or the CFPB did get into the law: imposing upon lenders a duty to assure a borrower's ability to repay. Ensuring a borrower's …

A New Role For Secondary Proceedings In International Bankruptcies, John A. E. Pottow

Articles

Secondary proceedings-the ugly stepsisters to main proceedings-get short shrift in international bankruptcy scholarship. This article seeks to remedy that deficiency. First, it describes what it argues are the traditional conceptions-both stated and implicit-of secondary proceedings in international bankruptcies. Second, it offers a revised way of thinking about secondary proceedings, proposing to restrict their scope through the use of "synthetic" hearings. Third, it addresses some problems with the proposed new role of secondary proceedings and sketches a possible solution involving the creation of an international priorities registry.

Enabling Refugee And Idp Law And Policy: Implications Of The U.N. Convention On The Rights Of Persons With Disabilities, Professor Michael Stein, Janet E. Lord

Articles

No abstract provided.

On The (Non)-Integrability Of Kdv Hierarchy With Self-Consistent Sources, Vladimir Gerdjikov, Georgi Grahovski, Rossen Ivanov

Articles

Nonholonomic deformations of integrable equations of the KdV hierarchy are studied by using the expansions over the so-called “squared solutions” (squared eigenfunctions). Such deformations are equivalent to a perturbed model with external (self-consistent) sources. In this regard, the KdV6 equation is viewed as a special perturbation of KdV. Applying expansions over the symplectic basis of squared eigenfunctions, the integrability properties of the KdV6 equation are analysed. This allows for a formulation of conditions on the perturbation terms that preserve its integrability. The perturbation corrections to the scattering data and to the corresponding action-angle (canonical) variables are studied. The analysis shows …

Resolving The Disjunction Between Cultural Property Policy And Law: A Call For Reform, Andrew L. Adler, Stephen K. Urice

Articles

Cultural property policy in the United States has become increasingly lawless, for lack of a better term. In recent years, the executive branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. The result is a troubling disjunction between the executive branch's (the "Executive") current cultural property policies and the existing legal framework established by Congress and the Judiciary. We document that disjunction in this Article.

We explain, for example, how the executive branch has recently repatriated an Egyptian sarcophagus and an antique French automobile …

Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack

Articles

No abstract provided.

Financial Literacy Or Financial Castigation?, John A. E. Pottow

Articles

This year, the Canadians- through their government-convened Task Force on Financial Literacy - have proudly produced, "Canadians and their Money: Building a Brighter Financial Future." Armed with 30 recommendations, its most dramatic innovation is to recommend the creation of a Financial Literacy Leader. I have been asked to provide an American perspective on this report specifically and the broader agenda of "financial literacy" more generally as a consumer welfare intervention. Let me start by acknowledging the critiques of the Canadian Task Force. For example, my Canadian colleague, Saul Schwartz, has already drafted a compelling analysis of the political economy behind …

Losing It, William I. Miller

Articles

You are in your sixties, even fifties, and you are walking by a shop window, or in some area in which a security monitor shows a scan of the line you are in. You sneak a look. You see someone in the space where you should be but you do not recognize the interloper. Then, after an unseemly lag of a second or two you are forced to remake your own acquaintance; it seems you no longer know yourself at first sight. The you behind your eyes believes you look like you did twenty years ago, and it assumes that …

Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Articles

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then …

The Supreme Court And The Push For Transparency In Lower Court Appointments In Japan, Daniel H. Foote

Articles

The theme of this symposium issue is ―Decision Making on the Japanese Supreme Court.‖ From that title, readers understandably might assume the focus is squarely on decisions in judicial cases. Yet, as Lawrence Repeta observes in his Article for this issue, the Japanese Supreme Court bears responsibility for another major category of decision making: judicial administration.1 One vitally important aspect of judicial administration for which the Supreme Court bears primary responsibility is the selection of lower court judges, together with personnel management of judges (including decisions on promotions and transfers, which are a standard element of Japan’s career judiciary).2 The …

Fame Law: Requiring Proof Of National Fame In Trademark Law, Xuan-Thao Nguyen

Articles

The public has always been infatuated with fame. Trademark law likewise has a long history of infatuation with fame. Protecting the fame embodied in a trademark against dilutive use by others has not been easy. The difficulty stems from the wording of the statute and judicial failure to understand the “fame” requirement. The fundamental question centers on what level of fame is required for the property-like protection against subsequent uses that dilute the famous trademark. This Article argues for national fame to be the requisite requirement for property-like anti-dilution protection under trademark law. The Article recommends that the proof of …

The China We Hardly Know: Revealing The New China’S Intellectual Property Regime, Xuan-Thao Nguyen

Articles

The long-held and virtually unquestioned view about China from the United States and other Western nations is that China has a total disregard for intellectual property rights. Recent empirical data and translated Chinese judicial decisions, however, offer a startling new picture of China that directly contradicts the dominant negative view of China’s approach to intellectual property rights. Specifically, quantitative studies of recent Chinese patent, copyright, and trademark infringements cases reveal that China has become a litigious society and that there are more intellectual property litigation cases in China than in the United States. Chinese intellectual property owners are not hesitant …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Articles

In this Article, I explore the division in the courts over the question of whether same-sex sexual conduct constitutes adultery in four contexts: (1) criminal adultery prosecutions, (2) fault-based divorce actions, (3) civil tort actions for interference with the marital relationship, and (4) murder cases raising a provocation defense based on a spouse's act of adultery.

In so doing, I arrive at the following conclusions. First, as illustrated in Part I, there is a significant overlap between states that recognize same-sex marriage and states where adulterous conduct is legally relevant, making this more than an interesting theoretical exercise. Second, Part …

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

Articles

This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.