Digital Commons Network^™

Preemption And Products Liability: A Positive Theory, Keith N. Hylton

Faculty Scholarship

In a large number of products liability lawsuits, sellers assert that plaintiffs' claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or preempts state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and …

Empirical Health Law Scholarship: The State Of The Field, Michelle M. Mello, Kathryn Zeiler

Faculty Scholarship

The last three decades have seen the blossoming of the fields of health law and empirical legal studies and their intersection - empirical scholarship in health law and policy. Researchers in legal academia and other settings have conducted hundreds of studies using data to estimate the effects of health law on accident rates, health outcomes, health care utilization, and costs, as well as other outcome variables. Yet the emerging field of empirical health law faces significant challenges: practical, methodological, and political. The purpose of this Article is to survey the current state of the field by describing commonly used methods, …

Erisa Preemption And Fair Share Legislation, Sharon Reece

Faculty Scholarship

This paper addresses the issues states face in creating healthcare initiatives for their citizens. The preemption provisions of ERISA have presented a formidable obstacle to the implementation of these laws. The paper offers some alternatives and proposals which could possibly minimize the effect of preemption.

Closing The Border And Opening The Door: Mobility, Adjustment, And The Sequencing Of Reform, Timothy A. Canova

Faculty Scholarship

Since the enactment of the North American Free Trade Agreement (NAFTA), the U.S.-Mexico border has become increasingly open for trade and private investment. But for the movement of people it is a Porous Border. Meanwhile, Open Border proposals are unpopular and unrealistic due to concerns about national security and the economic impact of low-wage immigrant labor. Discussion is now dominated by Closed Border proposals to build a wall and further militarize the 2000-mile border. Each of these paradigms - the Closed Border, Open Border, and today's Porous Border - fails to address the painful dislocations in Mexican society that inevitably …

Testimony On Law Enforcement In Indian Country Before The United States Senate Committee On Indian Affairs, 110th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Public safety and criminal justice on Indian reservations are better served when Indian tribes play a central role in these functions. Most of the successes of law enforcement in Indian country have involved careful cooperation and coordination between law enforcement agencies of different sovereigns. Even informal cooperation can be highly effective in improving public safety. Lack of cooperation undermines public safety.

Ordinary Powers In Extraordinary Times: Common Sense In Times Of Crisis, Gary S. Lawson

Faculty Scholarship

The U.S. Constitution was written, debated, ratified, and implemented in the shadow of crisis. The country was birthed in war. In the aftermath of ratification, opponents of the Constitution could have precipitated a civil war that would have jeopardized the survival of the fledgling national government. I Throughout the founding era, any number of European powers were perceived to pose a serious threat of invasion. 2 Well into the 1800s, especially in certain northeastern states, substantial homegrown support for realignment with England persisted; the possibility of an internal rebellion in those areas was quite real.3 Individuals interested more in power …

Political Advocacy And Taxable Entities: Are They The Next "Loophole"?, Donald B. Tobin

Faculty Scholarship

No abstract provided.

Political Campaigning By Churches And Charities: Hazardous For 501(C)(3)S, Dangerous For Democracy, Donald B. Tobin

Faculty Scholarship

Nonprofit section 501(c)(3) organizations are prohibited from participating or intervening in an election on behalf of a candidate for public office. Despite this prohibition, 501(c)(3) tax-exempt organizations have become increasingly active in political campaigns. Many organizations are either ignoring the political campaign ban or are using "issue discussion" or "lobbying" as a means of promoting candidates and testing the limits of the prohibition. Current scholarship surrounding the political campaign ban argues that the ban is either unconstitutional or inappropriate as a matter of public policy. This article argues that the ban is both meritorious and constitutional. It argues that taxpayer …

Public Safety And Criminal Jurisdiction, Conference Transcript: The New Realism: The Next Generation Of Scholarship In Federal Indian Law, Kevin Washburn

Faculty Scholarship

No abstract provided.

Incitement To Violence Under Israeli Law And The Scope Of Protection Of Political Speech Under Israeli Freedom Of Speech Jurisprudence: A Comparative Analysis And An Alternative Perspective, Michal Buchhandler-Raphael

Faculty Scholarship

No abstract provided.

How A Marriage Discrimination Amendment Would Disrespect Democracy In Minnesota, Anthony S. Winer

Faculty Scholarship

The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly anti-democratic. It is extremely wide-ranging in its scope, it obliterates the opportunity of the LGBT community to legislatively advance its interests in the area, it falsely assumes characteristics of the state judiciary that do not in fact exist, and it is drafted with language that is particularly hostile to LGBT concerns and democracy in general. It was a triumph for reason and democracy that this amendment was defeated in 2006. It should never be introduced again. In the unfortunate event that it is introduced again, it should be resoundingly …

Cooperative Localism: Federal-Local Collaboration In An Era Of State Sovereignty Part Ii: Federalism, Nestor M. Davidson

Faculty Scholarship

Direct relations between the federal government and local governments - what this article calls "cooperative localism" - play a significant and underappreciated role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, immigration, and environmental protection. Despite the ubiquity of this practice, a jurisprudential clash is looming that threatens this important facet of intergovernmental relations. Historically, courts have allowed local governments to invoke federal authority as a source of local autonomy, despite the prevailing view of local governments as powerless instrumentalities of the state. The Supreme Court is increasingly suggesting, however, …

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

I am delighted to be here today.

I am delighted to be at The Ohio State University, which has not only built a truly extraordinary criminal law and procedure faculty, including Professor Joshua Dressler, Alan Michaels, Sharon Davies, and Douglas Berman, but has also accumulated a large number of alumni of my home institution, Columbia Law School, including my former students, Professor Edward Foley and the aforesaid Professors Davies and Michaels, as well as Professor Deborah Jones Merritt, who is quite literally a daughter of Columbia, where her father is a distinguished emeritus member of the faculty, my esteemed senior …

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting -- the Data Retention Directive. Based on a detailed examination of the Directive's legislative …

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the …

Lng Facility Siting And Environmental (In)Justice: Is It Time For A National Siting Scheme?, Eileen Gauna

Faculty Scholarship

This Article examines the distributional and other environmental justice issues arising from the current initiative to rapidly site multiple LNG import facilities in order to increase the supply of natural gas into the continental United States. This Article further examines the necessity of creating a national siting scheme to avoid exacerbating existing racial disparities in risk-producing land use practices.

A Textual And Historical Case Against A Global Constitution, Andrew Kent

Faculty Scholarship

he emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

Cooperative Localism: Federal-Local Collaboration In An Era Of State Sovereignty , Nestor M. Davidson

Faculty Scholarship

Contemporary debates about federalism and localism often proceed with, at best, a glancing reference to each other.' Commentators portray parallel, largely disconnected worlds in which the federal government relates only to the states, and the states, in turn, hermetically encompass local governments. In practice, however, numerous federal regulatory, spending, and enforcement policies actively rely on the participation of local governments independent from the states. Indeed, direct relations between the federal government and local governments-what this Article calls "cooperative localism"-play a significant role in areas of contemporary policy as disparate as homeland security, law enforcement, disaster response, economic development, social services, …

The Empire Of Illness: Competence And Coercion In Health-Care Decision Making, Marsha Garrison

Faculty Scholarship

No abstract provided.

Judge Richard Posner On Civil Liberties: Pragmatic Authoritarian Libertarian, Bernard Harcourt

Faculty Scholarship

How do you reconcile an opinion like Edmond v Goldsmith with the anti-civil-libertarian positions that Richard Posner advocates in his book Not a Suicide Pact: The Constitution in a Time of National Emergency? The book itself is self-consciously directed against a civil libertarian framework. "The sharpest challenge to the approach that I am sketching," Posner knowingly anticipates, "will come from civil libertarians," by which he means those "adherents to the especially capacious view of civil liberties that is often advanced in litigation and lobbying by the American Civil Liberties Union." In his book, Richard Posner argues in defense of the …

The Legacy Of Louis Henkin: Human Rights In The "Age Of Terror" – An Interview With Sarah H. Cleveland, Sarah H. Cleveland

Faculty Scholarship

What effect has Professor Henkin's work had upon your own thoughts or scholarship in the human rights field?

My scholarly work spans the fields of international human rights and U.S. foreign relations law. I am particularly interested in the process by which human rights norms are implemented into domestic legal systems, the role the United States plays in promoting the internalization of human rights norms by other states, and the mechanisms by which the values of the international human rights regime are incorporated into the United States domestic legal system.

To say that Professor Henkin's work has contributed to my …

The Arab Charter On Human Rights 2004, Susan M. Akram

Faculty Scholarship

The Boston University International Law Journal is publishing, for the first time, an English version of the 2004 Arab Charter on Human Rights. A very brief review of how the 2004 Arab Charter came into being introduces this English translation. The drafting history of the Arab Charter on Human Rights begins in 1960. In that year, members of the Union of Arab Lawyers (the oldest NGO in the Arab world) requested the League of Arab States (created in 1945) during their meeting in Damascus to adopt an Arab Convention on Human Rights. Eight years later, participants in the first meeting …

Alternatives To Prescriptive Regulation Of Workplace Health And Safety, Michael S. Baram

Faculty Scholarship

Many promises to advance occupational safety and health have been made by developed nations. Expressed in the “hard law” of legislation are promises to regulate employers and workplaces, and to hold employers accountable when they do not comply. However, problems arise when regulators try to transform the promises into performance.

Protecting Religion Through Statute: The Mixed Case Of The United States, Jay D. Wexler

Faculty Scholarship

Various legislatures of the United States and those of other countries with transitional legal systems have much to learn from U.S. Congress's mixed record of protecting religious freedom through statute. While legal systems and religious culture differ tremendously worldwide, some general lessons transcend these variances. In this context, the successes and failures of the Religious Freedom Restoration Act, or RFRA, (1993) and Title VII of the Civil Rights Act (1964) are analyzed. Five major conclusions are reached, which focus on the danger of ambiguity and the need for clarity and strictness in order to prove a religious protection act effective.

Public Safety And Criminal Justice, Kevin Washburn

Faculty Scholarship

Conference Transcript from The New Realism: The Next Generation of Scholarship in Federal Indian Law

The Logistical And Ethical Difficulties Of Informing Juveniles About The Consequences Of Adjudications, Michael Pinard

Faculty Scholarship

In this article, Professor Michael Pinard observes that the recent attention devoted to the collateral consequences of criminal convictions has overlooked the ways in which these consequences impact juvenile offenders. The article recognizes the emergent arguments for informing adult defendants of these consequences as part of the guilty plea or sentencing process, and argues that juvenile defendants should also be informed of the collateral consequences that attach to their adjudications. However, the article asserts that there are ethical and logistical questions unique to the juvenile justice process that would pose difficulties in conveying this information to juveniles. These issues (or …

The Constitutional Right Not To Cooperate - Local Sovereignty And The Federal Immigration Power, Huyen Pham

Faculty Scholarship

This article examines an important but up to now, still unexplored area in the federalism debate: May the federal government require local governments to cooperate with the enforcement of immigration law or other federal scheme? Or may local governments constitutionally refuse to provide that cooperation?

I use immigration law enforcement as a case study to argue that the current legal framework, which allows the federal government to mandate local cooperation, ignores the significant federalism harms that federal cooperation laws impose. And these federalism harms are not simply limited to the immigration field. In other areas where federal and local governments …

A History Of Miranda And Why It Remains Vital Today, Roscoe C. Howard Jr, Lisa A. Rich

Faculty Scholarship

Custodial interrogations and how they are conducted in light of Miranda and its progeny are an integral part of the American criminal justice process and a necessary tool for criminal law enforcement, not merely a source of catchy phrases for today's popular television shows, for a very simple reason: The warnings set the ground rules for custodial interrogations and ensure that the interrogator and suspect are on a level playing field. A review of the case law surrounding the Miranda decision reveals that Miranda is a case that has encapsulated the nation's beliefs and, while subject to the ebbs and …

Rethinking Rational Discrimination Against Ex-Offenders, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard

Faculty Scholarship

This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …