Digital Commons Network^™

Prosecutor V. Perišić, Case No. It-04-81-A, International Criminal Tribunal For The Former Yugoslavia, Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a controversial ICTY decision which attempted to clarify the requisite elements required to convict the former head of the Army of Yugoslavia with aiding and abetting war crimes committed by other organizations in Bosnia-Herzegovina and Croatia. The Perišić judgment serves as a reminder of the still unsettled nature of international criminal law on even threshold issues like the elements for a mode of liability. Given that the Special Court for Sierra Leone has already affirmatively rejected the Perišić formulation the case may, sadly, signal the fragmentation of international criminal law.

Strange Bedfellows: How Expanding The Public Safety Exception To Miranda Benefits Counterterrorism Suspects, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an …

Introductory Note To Prosecutor V. Perišić, International Criminal Tribunal For The Former Yugoslavia (Icty), Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a controversial ICTY decision which attempted to clarify the requisite elements required to convict the former head of the Army of Yugoslavia with aiding and abetting war crimes committed by other organizations in Bosnia-Herzegovina and Croatia. The Perišić judgment serves as a reminder of the still unsettled nature of international criminal law on even threshold issues like the elements for a mode of liability. Given that the Special Court for Sierra Leone has already affirmatively rejected the Perišić formulation the case may, sadly, signal the fragmentation of international criminal law.

Unprotected Sex: The Pregnancy Discrimination Act At 35, Deborah L. Brake, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

Thirty-five years ago, Congress passed the Pregnancy Discrimination Act to overturn a Supreme Court decision refusing to recognize pregnancy discrimination as a form of discrimination based on sex. Now, three and a half decades later, women whose work lives are impacted by pregnancy are again finding themselves unprotected from discrimination. Lower court rulings have eviscerated the Act’s protections at the same time that an expansion of worker rights under the Americans with Disabilities Act should redound to the benefit of pregnant women by expanding the pool of comparators who receive accommodations. By following trends in discrimination law generally - equating …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifo, Camille Cameron

Faculty Journal Articles and Book Chapters

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree — and in which procedure is recognized as a legitimate academic subject — have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of …

Grandma In The White House: Legal Support For Intergenerational Caregiving, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Marian Robinson’s status as the live-in First Grandmother is an example of a growing trend in the United States - the multigenerational family. The 2010 United States Census Data reflects that the number of households with multiple generations living under one roof has increased by 25% this decade. Mrs. Robinson also reflects another new development in American families: grandparents helping their adult children with caregiving. More than 70% of grandparents are taking care of their grandkids on a regular basis, and 13% are primary caretakers. Many grandparents treat their role as caregiver like a profession, and they sacrifice jobs, residences, …

Organic Farming In Nazi Germany: The Politics Of Biodynamic Agriculture, 1933-1945, Peter Staudenmaier

History Faculty Research and Publications

The controversy over the nature and extent of official support for organic agriculture in Nazi Germany has generally focused on the minister of agriculture, R. W. Darré, and his putative endorsement of biodynamic farming. By shifting focus from the figure of Darré to other sectors of the Nazi hierarchy, this article reexamines a contested chapter in the environmental history of the Third Reich. Using previously neglected sources, I trace several important bases of institutional support for biodynamic agriculture spanning much of the Nazi period. Both the biodynamic movement and the Nazi Party were internally heterogeneous, with different factions pursuing different …

The Concept Of "Harm" In Copyright, Wendy J. Gordon

Faculty Scholarship

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

Review Of Face Value: The Entwined Histories Of Money And Race In America By Michael O'Malley, Andrew W. Kahrl

History Faculty Research and Publications

No abstract provided.

A Private Underworld: The Naked Body In Law And Society, Lawrence M. Friedman, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

In general, the literature on privacy stresses, quite naturally, our right to keep things private, or to make our own decisions. The individual, the citizen, is the center of gravity. There is a great deal of material on the limits of privacy, on threats to privacy, and the like. In this Article, the authors want to discuss what one might call mandatory privacy: those aspects of life that we are required to keep secret, hidden, or private, the things that we must keep private, whether we want to or not. This is a subject that has been mostly, though not …

The U.S. Women's Jury Movements And Strategic Adoption: A More Just Verdict, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

Do Graphic Tobacco Warnings Violate The First Amendment?, Nathan Cortez

Faculty Journal Articles and Book Chapters

When Congress passed the nation’s first comprehensive tobacco bill in 2009, it replaced the familiar Surgeon General’s warnings, last updated in 1984, with nine blunter warnings. The law also directed the U.S. Food and Drug Administration ('FDA') to require color graphics to accompany the textual warnings. By law, the warnings would cover the top fifty percent of the front and back of tobacco packaging and the top twenty percent of print advertisements, bringing the United States closer to many peer countries that now require graphic warnings. Tobacco companies challenged the requirement on First Amendment grounds, arguing that the compelled disclosures …

New Negroes At The Beach: At Work And Play Outside The Black Metropolis, Andrew W. Kahrl

History Faculty Research and Publications

No abstract provided.

Reaching Beyond The Manga: A Samurai To The Ends Of The World And The Formation Of National Identity, Michael Wert

History Faculty Research and Publications

No abstract provided.

Spatial Legality, Due Process, And Choice Of Law In Human Rights Litigation Under U.S. State Law, Anthony J. Colangelo, Kristina Kiik

Faculty Journal Articles and Book Chapters

Framing the topic of this symposium as “Human Rights Litigation in State Courts and Under State Law” effectively orients the discussion around the rights of plaintiffs from the outset, the central question being whether they have enforceable rights in U.S. state courts under state law. Standing in the way are various legal doctrines. In broad strokes, the relevant questions become: Which doctrines do, or should, either facilitate or obstruct human rights litigation in U.S. state courts and under state law? How are courts applying these doctrines? How should courts apply these doctrines?

Many of the doctrines that potentially stand in …

Kiobel: Muddling The Distinction Between Prescriptive And Adjudicative Jurisdiction, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This brief symposium Essay addresses whether and in what ways the Alien Tort Statute (ATS) constitutes an exercise of prescriptive jurisdiction by the United States to regulate conduct or an exercise of adjudicative jurisdiction by U.S. courts to entertain suit, as well as the implications of that classification. The Essay begins with a central and hotly contested focal point in ATS suits — most prominently, in Kiobel v. Royal Dutch Petroleum recently decided by the Supreme Court. Namely: how to conceptualize the applicable law in ATS suits and, more specifically, whether courts apply international law directly or some form of …

The Alien Tort Statute And The Law Of Nations In Kiobel And Beyond, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

In Kiobel v. Royal Dutch Petroleum the U.S. Supreme Court wrongly applied a presumption against extraterritoriality to claims authorized by the Alien Tort Statute (ATS). Even assuming such a presumption properly could extend to the ATS and claims authorized thereunder, the presumption is easily overcome by Congress’s unambiguous instruction that the statute encompasses violations of “the law of nations,” which includes both substantive and jurisdictional components — including principles of extraterritorial jurisdiction. Early 19th Century case law and congressional reaction thereto clearly demonstrate that Congress expressly invoked “the law of nations” to overturn the Court’s imposition of a limiting presumption …

Jurisdiction, Immunity, Legality, And Jus Cogens, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

Immunities in international law expose multifaceted tensions between goals of international stability and legal accountability. This Article seeks to clarify the law in this area by providing conceptual and doctrinal coherence to relationships between immunity and jurisdiction. It first explains that foreign sovereign immunity and official status-based immunity are jurisdictional in that they block the exercise of adjudicative jurisdiction by foreign states’ courts. The Article then explains that these immunities do not block the prescriptive jurisdiction of foreign states’ laws to regulate conduct, even conduct inside other states, if a basis of prescriptive jurisdiction exists in international law.

The Article …

Patent Misjoinder, David O. Taylor

Faculty Journal Articles and Book Chapters

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation, contradicting two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure: the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties. Remarkably, the new statutory section does so despite the absence of any detailed scholarly …

Transnational Dealings - Morrison Continues To Make Waves, Marc I. Steinberg, Kelly Flanagan

Faculty Journal Articles and Book Chapters

Morrison v. National Australia Bank Ltd. drastically altered the landscape for transnational securities litigation and the way that courts determine proper application of a statute concerning a transnational claim. The Supreme Court’s characterization of extraterritoriality under the Securities Exchange Act as a merits-based inquiry has led to a reexamination of limitations under other federal statutes that were previously thought to be jurisdictional issues. Significantly, Morrison created a road map for courts to follow when the extraterritoriality of a statute is brought into question. The key to proper application of a statute is to decipher the minimum U.S. contacts required to …

"Simple" Takes On The Supreme Court, Robert L. Tsai

Faculty Scholarship

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

Guidance From Vaccination Jurisprudence, Michael Ulrich

Faculty Scholarship

The lengthy history of case law covering compulsory vaccination policies state consistently that conscientious exemptions and evaluating their validity can be difficult, administratively cumbersome, and potentially unconstitutional.

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Faculty Scholarship

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Faculty Scholarship

The anticipated growth of Medicaid under the ACA will likely aggravate an ongoing dispute surrounding private enforcement of the Medicaid Act. The Medicaid Act does not provide a private right of action except when a person who is eligible for Medicaid is denied entry into the program. Nevertheless, historically, both Medicaid providers and beneficiaries have been able to protect their rights through 42 U.S.C. § 1983, which allows individuals to seek redress against states in federal court for violations of statutory or constitutional rights, or through the Supremacy Clause, which prevents states from enacting laws that violate superseding federal laws. …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza

Faculty Scholarship

This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, the …

The Case For Public Pension Reform: Early Evidence From Kentucky, Maria O'Brien

Faculty Scholarship

Kentucky has managed to effect major changes to some of its pension plans in the face of poor funding ratios that threatened to swamp other budget priorities. At this point it is unclear whether the reforms are deep enough to bring the plans funding levels in line with those of “healthy” states like Wisconsin. It is also unclear whether there is the political will in other jurisdictions to curb costs by moving to defined contribution or hybrid cash balance vehicles. Transparency combined with a fear that pension obligations would soon swamp all other state budget priorities appears to have been …

Federal Family Policy And Family Values From Clinton To Obama, 1992-2012 And Beyond, Linda C. Mcclain

Faculty Scholarship

This Article traces the evolution of federal family law and policy from 1992-2012 and beyond by considering the legacy of Clintonism, the “Third Way” political philosophy developed by William Jefferson Clinton and the Democratic Leadership Council. Present day economic inequality is spurring reflection on the role of government and on the meaning and form of progressive politics. Clintonism’s centrist, progressive approach linked governmental provision of opportunity to personal responsibility (“working hard and playing by the rules”) and appealed to values of family, community, faith, liberty, and inclusion. By linking family values to family policies, Clintonism’s New Covenant successfully challenged the …

What Is Parenthood?: Contemporary Debates About The Family Introduction, Linda C. Mcclain, Daniel Cere

Faculty Scholarship

Extraordinary changes in patterns of family life – and family law – have dramatically altered the boundaries of parenthood and opened up numerous questions about debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Despite this uncertainty, the intense focus on the definition and future of marriage diverts attention from parenthood. Demographic reports suggesting a shift away from marriage and toward alternative family forms also keep marriage in constant public view, obscuring the fact that disagreements about marriage are often grounded in deeper, conflicting convictions about parenthood. This book (as the posted …

Did Legal Education Fail Health Reform? And How Health Law Can Help, Wendy K. Mariner

Faculty Scholarship

Arguments over the constitutionality of the Affordable Care Act illustrate the pervasiveness of health law issues in society. In court, arguments on both sides also demonstrated insufficient knowledge of the health care system and health insurance to identify and present useful arguments. Too many lawyers remained wedded to theories of constitutional law that have become disconnected from twenty-first century realities. Legal education may have something to answer for in this respect. This essay examines how legal education in health law may offer some valuable responses to ongoing critiques of legal education in general. The more law moves away from strict …