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Articles 1 - 30 of 785
Full-Text Articles in Law
Sufficiency Of The Evidence Does Not Meet Daubert Standards: A Critique Of The Green-Sanders Proposal, Aaron Twerski, Lior Sapir
Sufficiency Of The Evidence Does Not Meet Daubert Standards: A Critique Of The Green-Sanders Proposal, Aaron Twerski, Lior Sapir
Faculty Scholarship
No abstract provided.
Guantanamo And The End Of Hostilities, Eric Talbot Jensen
Guantanamo And The End Of Hostilities, Eric Talbot Jensen
Faculty Scholarship
Detainees in the War on Terror have been at Guantanamo Bay for over a decade. The justification for these detentions has been, at least in part, the on-going hostilities in Afghanistan. However, President Obama’s announcement in his 2013 State of the Union address that “By the end of [2014] our war in Afghanistan will be over” may undercut the continuing detention authority for at least some of these Guantanamo detainees. This paper analyzes the legal doctrine of release and repatriation in light of President Obama’s announcement and concludes that the President’s determination that hostilities have concluded between specific Parties to …
The Birth Of The Greenback, Dawinder S. Sidhu
The Birth Of The Greenback, Dawinder S. Sidhu
Faculty Scholarship
No abstract provided.
Future War, Future Law, Eric Talbot Jensen
Future War, Future Law, Eric Talbot Jensen
Faculty Scholarship
Advancing technology will dramatically affect the weapons and tactics of future armed conflict, including the “places” where conflicts are fought, the “actors” by whom they are fought, and the “means and methods” by which they are fought. These changes -- including continuing cyber conflict, increased use of autonomous weapon systems, the development of nanotechnology, and evolving virology capabilities -- will stress even the fundamental principles of the law of armed conflict, or LOAC. While it is likely that the contemporary LOAC will be sufficient to regulate the majority of future conflicts, the international community must be willing to evolve the …
Brief For The American Association On Intellectual And Developmental Disabilities, The Arc Of The United States, The National Disability Rights Network, Disability Rights Florida, And The Bazelon Center For Mental Health Law As Amicus Curiae, April Land, James W. Ellis, Ann M. Delpha, Carol M. Suzuki, Steven K. Homer
Brief For The American Association On Intellectual And Developmental Disabilities, The Arc Of The United States, The National Disability Rights Network, Disability Rights Florida, And The Bazelon Center For Mental Health Law As Amicus Curiae, April Land, James W. Ellis, Ann M. Delpha, Carol M. Suzuki, Steven K. Homer
Faculty Scholarship
Question Presented: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia, 536 U.S. 304 (2002). Summary of Argument: In Atkins, this Court concluded that a national consensus had developed against the execution of persons with mental retardation and that such executions violated the Eighth Amendment. The Court also stated that the national consensus suggests that some characteristics of mental retardation, such as disabilities in the areas of reasoning, judgment, and control of impulses, undermine the procedural protections of our capital punishment jurisprudence and can jeopardize the reliability and fairness of capital proceedings against …
A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth
A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth
Faculty Scholarship
Significant change has been forecast for the Japanese Consumption Tax. Revenue needs are pressing, and the Consumption Tax appears to be underutilized. Should the rate be doubled from 5% to 10%, or more? If so, will rate increases necessitate further structural changes – recasting this annual credit-subtraction levy into a European style credit-invoice VAT? These options have not proven to be politically palatable, but they are directions that have been under active consideration.
On October 1, 2013 the Japanese Cabinet Office announced that the Consumption Tax would rise from 5% to 8% effective April 1, 2014. The rate will increase …
Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts
Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts
Faculty Scholarship
No abstract provided.
Government Nonedorsement, Nelson Tebbe
Parody As Brand, Stacey Dogan, Mark Lemley
Parody As Brand, Stacey Dogan, Mark Lemley
Faculty Scholarship
Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody …
The Value Of Precedent : Appellate Briefs And Judicial Opinions In The U.S. Courts Of Appeals., Laura P. Moyer, Todd A. Collins, Susan B. Haire
The Value Of Precedent : Appellate Briefs And Judicial Opinions In The U.S. Courts Of Appeals., Laura P. Moyer, Todd A. Collins, Susan B. Haire
Faculty Scholarship
This study of appellate advocacy examines factors that affect judicial treatment of precedents identified in litigant briefs. Although we find some attorney and party characteristics influence whether a court addresses precedent cited by a party, legal resources are not as influential in determining whether the court adopts a party’s use of a precedent. At times, ideological congruence between the circuit panel and the litigant can increase the likelihood that the court’s opinion will use a precedent in the same way as presented by the litigants. There is also some support for the importance of attorney experience. Even when their clients …
Sunshine, Stakeholders, And Executive Pay: A Regression-Discontinuity Approach, Brian D. Galle, David I. Walker
Sunshine, Stakeholders, And Executive Pay: A Regression-Discontinuity Approach, Brian D. Galle, David I. Walker
Faculty Scholarship
We evaluate the effect of highly salient disclosure of private college and university president compensation on subsequent donations using a quasi-experimental research design. Using a differences-in-discontinuities approach to compare institutions that are highlighted in the Chronicle of Higher Education’s annual "top 10" list of most highly-compensated presidents against similar others, we find that appearing on a top 10 list is associated with reduced average donations of approximately 4.5 million dollars in the first full fiscal year following disclosure, despite greater fundraising efforts at "top 10" schools. We also find some evidence that top 10 appearances slow the growth of compensation, …
Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh
Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh
Faculty Scholarship
The analysis herein arises from the collision course between the sweeping reforms mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and a single sentence of the U.S. Code, adopted nearly fifteen years earlier and largely forgotten ever since. Few were likely thinking of Section 106 of the National Securities Market Improvement Act when the Dodd-Frank Act was enacted on July 21, 2010. As applied by the D.C. Circuit less than a year later in Business Roundtable v. SEC, however, that provision’s peculiar requirement of cost-benefit analysis could prove the new legislation’s undoing.
To help navigate …
The Case For A Legislative Amendment Against Accessory Copyright For Grey Market Products: What Can The U.S. Learn From Singapore And Australia, Irene Calboli, Mary Lafrance
The Case For A Legislative Amendment Against Accessory Copyright For Grey Market Products: What Can The U.S. Learn From Singapore And Australia, Irene Calboli, Mary Lafrance
Faculty Scholarship
In this article, we suggest that the U.S. Congress could implement a legislative provision prohibiting copyright protection for incidental product features in the context of parallel imports. The U.S. would not be the first country to implement such a provision. In 1994, Singapore pioneered the adoption of a similar provision, which was introduced as an amendment to the SG 1987 Copyright Act. A few years later, in 1998, Australia incorporated a similar amendment to its Aust. Copyright Act 1968. In this article, we analyse in detail the Singapore and Australia provisions and, building upon these provisions, we suggest …
A Solution Hiding In Plain Sight: Special Education And Better Outcomes For Students With Social, Emotional, And Behavioral Challenges, Yael Cannon, Michael J. Gregory, Julie Waterstone
A Solution Hiding In Plain Sight: Special Education And Better Outcomes For Students With Social, Emotional, And Behavioral Challenges, Yael Cannon, Michael J. Gregory, Julie Waterstone
Faculty Scholarship
This Article will contribute to the ongoing dialogue about special education and the IDEA in two ways. First, it will describe patterns that have emerged from our work with individual children and families that shed light on how common IDEA implementation failures increase the risk of poor outcomes for students with social, emotional and behavioral challenges. Critiques of the law and proposals to amend it should be grounded in an understanding of exactly how and why it is falling short of meeting its promise to these children. Our hope is that mapping the common implementation failures we have seen in …
Diversity May Be Justified, Anita Bernstein
Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu
Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu
Faculty Scholarship
Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.
The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the …
The Old Man Of The Internet: Thomas.Gov, Congress.Gov And The Promise Of Online Legislative Research Fulfilled, Kurt Metzmeier
The Old Man Of The Internet: Thomas.Gov, Congress.Gov And The Promise Of Online Legislative Research Fulfilled, Kurt Metzmeier
Faculty Scholarship
The article discusses using U.S. Congressional resources on the Internet, in particular the Library of Congress' Congress.gov website. The paper focuses on how to use these tools to determine the legislative intent behind a statute.
To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman
To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman
Faculty Scholarship
Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …
Causation In Tort Law: A Reconsideration, Keith N. Hylton
Causation In Tort Law: A Reconsideration, Keith N. Hylton
Faculty Scholarship
Causation is a source of confusion in tort theory, as well as a flash point for the debate between consequentialist and deontological legal theorists.1 Consequentialists argue that causation is generally determined by the policy grounds for negligence, not by a technical analysis of the facts.2 Conversely, deontologists reject the view that policy motives determine causation findings.
Causation has also generated different approaches within the consequentialist school. Some take an essentially forward- looking approach to formalizing causation analysis, finding causation analysis to be subsumed within the Hand Formula.4 Another approach within the consequentialist school closely examines the incentive …
Carcieri: Bringing Certainty To Trust Land Acquisitions, Kevin Washburn
Carcieri: Bringing Certainty To Trust Land Acquisitions, Kevin Washburn
Faculty Scholarship
No abstract provided.
The Tobacco Diaries: Lessons Learned And Applied To Regulation Of Dietary Supplements, Joanna K. Sax
The Tobacco Diaries: Lessons Learned And Applied To Regulation Of Dietary Supplements, Joanna K. Sax
Faculty Scholarship
This Article examines the future role of the FDA in the regulation of the dietary supplement industry. To address the role of the FDA in the twenty-first century with respect to the dietary supplement industry, Part I of this Article begins by describing the dietary supplement industry and the role of the FDA in this industry. In Part II, this Article provides a brief exposé of the tactics used by the tobacco industry to evade regulation. The purpose of Part II is to provide insight into the tobacco industry’s ability to manipulate consumers and discount scientific proof of the harmful …
Presumed Guilty, Terrence Cain
Presumed Guilty, Terrence Cain
Faculty Scholarship
It would probably surprise the average American to learn that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately …
Do Npes Matter? Non-Practicing Entities And Patent Litigation Outcomes, Samantha Zyontz, Michael J. Mazzeo, Jonathan H. Ashtor
Do Npes Matter? Non-Practicing Entities And Patent Litigation Outcomes, Samantha Zyontz, Michael J. Mazzeo, Jonathan H. Ashtor
Faculty Scholarship
It is widely argued that so-called “patent trolls” are corrupting the U.S. patent system and endangering technology innovation and commercialization at large. For example, a recent White House report argued that “trolls” hurt firms of all sizes and advocated for specific policies aimed at curtailing practices thought to be particularly harmful. Yet the existence and extent of any systematic effects of so-called “troll-like” behavior, and the implications of modern patent assertion practices by Non-Practicing Entities (“NPEs”), remains unclear. This article develops novel empirical evidence to inform the debate over NPEs on patent litigation. Specifically, we conduct a large-scale empirical analysis …
Reflections On The Cost Of "Low-Cost" Whole Genome Sequencing: Framing The Health Policy Debate, Timothy Caulfield, Jim Evans, Amy Mcguire, Christopher Mccabe, Tania Bubela, Robert Cook-Deegan, Jennifer Fishman, Stuart Hogarth, Fiona A. Miller, Vardit Ravitsky, Barbara Biesecker, Pascal Borry, Mildred K. Cho, June C. Carroll, Holly Etchegary, Yann Joly, Kazuto Kato, Sandra Soo-Jim Lee, Karen H. Rothenberg, Pamela Sankar, Michael J. Szego, Pilar Ossorio, Daryl Pullman, Francois Rousseau, Wendy J. Ungar, Brenda Wilson
Reflections On The Cost Of "Low-Cost" Whole Genome Sequencing: Framing The Health Policy Debate, Timothy Caulfield, Jim Evans, Amy Mcguire, Christopher Mccabe, Tania Bubela, Robert Cook-Deegan, Jennifer Fishman, Stuart Hogarth, Fiona A. Miller, Vardit Ravitsky, Barbara Biesecker, Pascal Borry, Mildred K. Cho, June C. Carroll, Holly Etchegary, Yann Joly, Kazuto Kato, Sandra Soo-Jim Lee, Karen H. Rothenberg, Pamela Sankar, Michael J. Szego, Pilar Ossorio, Daryl Pullman, Francois Rousseau, Wendy J. Ungar, Brenda Wilson
Faculty Scholarship
The cost of whole genome sequencing is dropping rapidly. There has been a great deal of enthusiasm about the potential for this technological advance to transform clinical care. Given the interest and significant investment in genomics, this seems an ideal time to consider what the evidence tells us about potential benefits and harms, particularly in the context of health care policy. The scale and pace of adoption of this powerful new technology should be driven by clinical need, clinical evidence, and a commitment to put patients at the centre of health care policy.
Bill Suter: General, Ambassador, Tulanian, David D. Meyer
Bill Suter: General, Ambassador, Tulanian, David D. Meyer
Faculty Scholarship
No abstract provided.
The New Constitution Of The United States: Do We Need One And How Would We Get One?, Jack M. Beermann
The New Constitution Of The United States: Do We Need One And How Would We Get One?, Jack M. Beermann
Faculty Scholarship
Government in the United States has some serious problems. At the federal level, is the problem of gridlock. The United States Congress seems unable or unwilling to do anything about anything (although it must have done something to run up more than $16 trillion in debts). Forget about addressing problems such as global warming, income inequality, failing schools, economic stimulus or you name it. How bad is it, really? Has the United States become ungovernable, and is the Constitution to blame? In my view, it’s a mixed bag. Some aspects of the United States government work very well, others are …
The Right To Quantitative Privacy, Danielle K. Citron, David Gray
The Right To Quantitative Privacy, Danielle K. Citron, David Gray
Faculty Scholarship
We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of …
How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz
How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz
Faculty Scholarship
This article poses the question: How should parties to litigation finance agreements – third party funding or contingency fees – deal with the inherent difficulty in pricing legal claims? It answers that a practical solution would be to use staged funding. Staged funding side-step the impossibility of accurately pricing litigation ex ante by allowing re-pricing and exit that are pegged to information disclosure. Done right, staging allows all parties to minimize the effects of uncertainty, better price their bargain, optimize the distribution of the proceeds of litigation between its different investors – far beyond practices common today. Staged funding also …
Dynamic Expansion, Nicole Huberfeld
Dynamic Expansion, Nicole Huberfeld
Faculty Scholarship
Nearly one in four Americans will have medical care and costs covered by the Medicaid program when it has been expanded pursuant to the Patient Protection and Affordable Care Act (the ACA). National media outlets have been reporting that only about half of the states are participating in the Medicaid expansion; if the reports were true, millions of Americans would be left without insurance coverage, and many of the nation’s medically fragile citizens would not have access to consistent healthcare. Contrary to these reports, most states will participate in the Medicaid expansion in the near future. This claim is not …
Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann
Falling Behind: Processing And Enforcing Permits For Animal Agriculture Operations In Maryland Is Lagging, Rena I. Steinzor, Anne Havemann
Faculty Scholarship
After decades of failed interstate agreements, the Chesapeake Bay is choking on too many nutrients. The estuary’s last, best chance of recovery is the Environmental Protection Agency's Total Maximum Daily Load (“TMDL”) program, also known as a pollution diet. To meet this deadline, all polluters, including large animal farms, will need to sharply reduce the pollutants they release into the Bay. The Maryland Department of the Environment (MDE) must ensure that each Concentrated Animal Feeding Operation (“CAFO”) has developed a facility-specific permit that details when and where manure is applied to fields and how waste is stored and handled. Then …