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Articles 16531 - 16560 of 25435
Full-Text Articles in Entire DC Network
How Strongly Should We Protect And Enforce International Law?, University Of Chicago Law School Workshop, March 2006, Joost H. B. Pauwelyn
How Strongly Should We Protect And Enforce International Law?, University Of Chicago Law School Workshop, March 2006, Joost H. B. Pauwelyn
Faculty Scholarship
Observers of international law are obsessed with trying to explain and predict why and when states comply with international law. Doing so, they have consistently overlooked a logically preceding, but no less important, question: To what extent should states perform their international commitments? Put differently, how strongly should we protect and enforce international law? Worrying as much about over-enforcement of international law as under-enforcement of international law, this article offers a theory of relative normativity. This theory is driven by efficiency, effectiveness and legitimacy concerns rather than a hierarchy of values. It makes distinctions between how international law allocates entitlements, …
A Pattern Of Parity And Particularity, In Who’S Ahead In Environmental Protection: The United States Or The European Union?, Jonathan B. Wiener
A Pattern Of Parity And Particularity, In Who’S Ahead In Environmental Protection: The United States Or The European Union?, Jonathan B. Wiener
Faculty Scholarship
A debate on the issue of who is ahead in environmental policy with contributions by Michael S. Caplan, Robert Donkers, Meaghan Purvis, Ernie Rosenberg and Jonathan B. Wiener
Agency Law In Cyberspace, Deborah A. Demott
Agency Law In Cyberspace, Deborah A. Demott
Faculty Scholarship
This short article articulates and defends the proposition that basic doctrines within common-law agency apply readily to transactions and other encounters effected through the internet. In cyberspace, as in physical space, common-law agency specifies the circumstances under which an actor's conduct should carry consequences for another person's legal position unless a statute provides otherwise. Recent cases illustrate an easy translation into cyberspace of concepts that are well-developed elsewhere, including the test of whether a particular relationship amounts to one of agency and whether a person acted with actual or apparent authority to bind another.
Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai
Who’S Afraid Of The Apa? What The Patent System Can Learn From Administrative Law, Stuart M. Benjamin, Arti K. Rai
Faculty Scholarship
In recent years, widespread dissatisfaction with the perceived poor quality of issued patents has spurred a diverse range of groups to call for reform of administrative procedures. Strikingly, however, most calls for reform pay little attention to principles of administrative law. Similarly, judges (in particular the judges of the Federal Circuit) have treated patent law as an exception to the Administrative Procedure Act, and to administrative law more generally. In this Article, Professors Benjamin and Rai contend that this treatment is doctrinally incorrect and normatively undesirable. Standard principles of administrative law provide the appropriate approach for judicial review in the …
Novel Criminal Fraud, Samuel W. Buell
Novel Criminal Fraud, Samuel W. Buell
Faculty Scholarship
The crime of fraud has been underdescribed and undertheorized, both as a wrong and as a legal prohibition. These deficits contribute to contention and uncertainty over the practice of punishing white-collar crime. This Article provides a fuller account of criminal fraud, describing fraud law's open-textured, common-law, and adaptive qualities and explaining how fraud law develops along its leading edge while limiting violence to the legality principle. The legal system has a surprising, often overlooked methodology for resolving whether to treat novel commercial behaviors as frauds: Courts and enforcers often conduct an ex post examination of whether an actor's mental state …
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
Faculty Scholarship
The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather …
From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs
From St. Ives To Cyberspace: The Modern Distortion Of The Medieval ‘Law Merchant’, Stephen E. Sachs
Faculty Scholarship
Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or "law merchant. " This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The …
Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher
Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher
Faculty Scholarship
No abstract provided.
Combatant Status Review Tribunals: Flawed Answers To The Wrong Question, Joseph Blocher
Combatant Status Review Tribunals: Flawed Answers To The Wrong Question, Joseph Blocher
Faculty Scholarship
This Comment argues that the Combatant Status Review Tribunals were not competent to deny Prisoner of War status because they were charged only with identifying enemy combatants, a broad category that by its own terms includes many POWs. Given the substantial overlap between the definitions of "enemy combatant" and "POW," a CSRT's affirmative enemy combatant determination actually supports a detainee's POW status. Thus, even after their enemy combatant status has been adjudicated by the CSRTs, Guantánamo detainees should still be treated as presumptive POWs.
When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas
When The State Bar Exam Embraces Indian Law: Teaching Experiences And Observations, Gloria Valencia-Weber, Sherri Nicole Thomas
Faculty Scholarship
In 2002, New Mexico became the first state to place Indian law on the state bar exam. This decision made basic knowledge of Indian law part of the competency expected of all licensed attorneys. This result arose from the University of New Mexico School of Law's (UNM) significant role as the only law school in the state. In combination with the social and political history of the state these elements produced this historic result. This paper outlines the history of Indian law at UNM and discusses the formal process that placed Indian law on the state's bar exam. The discussion …
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale
Faculty Scholarship
No abstract provided.
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
Faculty Scholarship
The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the …
Gendered Subjects Of Transitional Justice, Katherine M. Franke
Gendered Subjects Of Transitional Justice, Katherine M. Franke
Faculty Scholarship
Transitional societies must contend with a range of complex challenges as they seek to come to terms with and move beyond an immediate past saturated with mass murder, rape, torture, exploitation, disappearance, displacement, starvation, and all other manner of human suffering. Questions of justice figure prominently in these transitional moments, and they do so in a dual fashion that is at once backward and forward looking. Successor governments must think creatively about building institutions that bring justice to the past, while at the same time demonstrate a commitment that justice will form a bedrock of governance in the present and …
Foreword: Law, Business, And Economic Development - Current Issues And Age-Old Battles, Eric J. Gouvin
Foreword: Law, Business, And Economic Development - Current Issues And Age-Old Battles, Eric J. Gouvin
Faculty Scholarship
On March 24, 2006, the Western New England College School of Law and School of Business jointly hosted the First Annual Academic Conference sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference capped a year of exciting developments at the Law and Business Center, which is the College's contribution to the entrepreneurship infrastructure in the greater Springfield, Massachusetts area. Economists have understood for some time that small businesses are an important engine of economic development and vitality. Across the United States, 25 million small businesses employ more than half the country's workers, create …
Tribute: An Extraordinary Lawyer, Arthur Leavens
Tribute: An Extraordinary Lawyer, Arthur Leavens
Faculty Scholarship
Charles Ogletree, Jr., is one of those persons who, by virtue of his many and varied achievements, has become almost larger than life. Ogletree is a leader in the struggle for civil rights. The Author pays tribute to this tenured Harvard Law School professor.
Survey Says ... A Critical Analysis Of The New Title Ix Policy And A Proposal For Reform, Erin E. Buzuvis
Survey Says ... A Critical Analysis Of The New Title Ix Policy And A Proposal For Reform, Erin E. Buzuvis
Faculty Scholarship
More than thirty years have passed since Congress enacted Title IX, the statute prohibiting sex discrimination by schools, colleges, and universities that receive federal funding. In that time, Congress has confirmed -and reconfirmed- the statute's application to college athletic programs, and the Supreme Court has strengthened the statute's enforcement by construing a private right of action for both injunctive relief and, in certain cases, money damages. Bolstered by these measures, Title IX is duly credited for increasing the number of athletic opportunities for women and girls. But at the college level, female athletes still have far fewer opportunities to participate …
Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay
Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay
Faculty Scholarship
Almost 30 years ago, in Manson v. Brathwaite--the Supreme Court set out a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police procedures. The Manson Court rejected a per se exclusion rule in favor of a test focusing on whether an identification infected by suggestive procedures is nonetheless reliable when judged in the totality of the circumstances. The purpose of this Article is two-fold: to demonstrate that the Manson rule of decision fails to safeguard due process values, in part because it does not account for the intervening social science research, and to …
Careful What You Wish For — Freedom Of Contract And The Necessity Of Careful Scrivening, Daniel S. Kleinberger
Careful What You Wish For — Freedom Of Contract And The Necessity Of Careful Scrivening, Daniel S. Kleinberger
Faculty Scholarship
No abstract provided.
Engler V. Illinois Farmers Insurance Co. And Negligent Infliction Of Emotional Distress, Michael K. Steenson
Engler V. Illinois Farmers Insurance Co. And Negligent Infliction Of Emotional Distress, Michael K. Steenson
Faculty Scholarship
The rules governing negligent infliction of emotional distress claims differ significantly from state to state. The predominant rule is the bystander recovery rule, which permits recovery by persons who are not physically threatened by the defendant’s negligent conduct but who suffer emotional distress from witnessing injury to a third person. In bystander recovery jurisdictions, the required degree of proximity of the plaintiff to the accident scene, how the plaintiff hears about the accident, the plaintiff’s relationship to the person actually injured in the accident, and the proof required to establish severe emotional distress vary, sometimes significantly, from jurisdiction to jurisdiction. …
Civil Contempt Confinement And The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: An Examination Of Debtor Incarceration In The Modern Age, Jayne S. Ressler
Civil Contempt Confinement And The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: An Examination Of Debtor Incarceration In The Modern Age, Jayne S. Ressler
Faculty Scholarship
No abstract provided.
Nonprofit Takeovers: Regulating The Market For Mission, Dana Brakman Reiser
Nonprofit Takeovers: Regulating The Market For Mission, Dana Brakman Reiser
Faculty Scholarship
No abstract provided.
Learning From Experience: Adding A Practicum To A Doctrinal Course, Elizabeth Fajans
Learning From Experience: Adding A Practicum To A Doctrinal Course, Elizabeth Fajans
Faculty Scholarship
No abstract provided.
The Trial Of Bigger Thomas: Race, Gender, And Trespass, Bennett Capers
The Trial Of Bigger Thomas: Race, Gender, And Trespass, Bennett Capers
Faculty Scholarship
No abstract provided.
First Amendment Cases In The October 2004 Term, Joel Gora
First Amendment Cases In The October 2004 Term, Joel Gora
Faculty Scholarship
No abstract provided.
On Nourishing The Curriculum With A Transnational-Law Lagniappe (From The Association Of American Law Schools' Workshop On Integrating Transnational Legal Perspectives Into The First-Year Curriculum, Annual Meeting, Torts Panel, January 2006), Anita Bernstein
Faculty Scholarship
No abstract provided.
Where Does Blaming Come From?, Lawrence Solan
Where Does Blaming Come From?, Lawrence Solan
Faculty Scholarship
No abstract provided.
A Few Ironies Of Western Water Law, Reed D. Benson
A Few Ironies Of Western Water Law, Reed D. Benson
Faculty Scholarship
We have a truly outstanding panel of speakers this morning to discuss issues and history relating to water resources in the American West. Water, of course, has always been scarce out here. Some nineteenth century maps of the United States had the words "Great American Desert" written broadly across the West, and that characterization reflected how many people viewed the West in that era. The story goes that President Grant sent a cabinet member to the West with orders to report back on "what it is they need out there." The secretary dutifully wrote back saying, "All this place needs …
On Justitia, Race, Gender, And Blindness, Bennett Capers
On Justitia, Race, Gender, And Blindness, Bennett Capers
Faculty Scholarship
No abstract provided.
Ethical Incentives For Employers In Adopting Legal Service Plans To Handle Employment Disputes, Michael Z. Green
Ethical Incentives For Employers In Adopting Legal Service Plans To Handle Employment Disputes, Michael Z. Green
Faculty Scholarship
Given the difficulties for employees in finding a lawyer to handle an employment dispute and with the growth of ADR, this article asserts that employers should adopt legal service plans as an employee benefit. It might seem counterintuitive for employers to provide their employees with a legal service benefit that may be used against them in employment disputes. However, comprehensive dispute resolution systems employ fair mechanisms that allow employees to resolve their disputes as soon as possible. Having sound legal counsel can become a major component of an employer's dispute resolution system because it offers a distinct human resource advantage …
Death Bed, Deborah W. Denno
Death Bed, Deborah W. Denno
Faculty Scholarship
Lethal injection is this country's primary method of execution, adopted for use by all but one of the thirty-seven death penalty states, as well as the federal government. It is predictable, then, that questions would arise the moment such a widely accepted form of punishment becomes especially vulnerable to an Eighth Amendment attack, as recent cases have shown. This article discusses this author's involvement as an expert in one of these cases, Baze v. Rees, which concerned a 2005 challenge to the constitutionality of lethal injection in Kentucky. While the Baze court upheld the constitutionality of Kentucky's lethal injection procedure, …