Law Commons^™

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

Peculiarities Of The Moroccan Endowments Code Industry, Ridoine Tribak Bakhat Dr.

UAEU Law Journal

field of endowment (waqf), especially by focusing on the endowment code as a model for contemporary endowment legislation. The study concluded that the legislation in the field of endowment (waqf) knows a set of important peculiarities that have been invoked since the thought of the development of the code and continued with its various stations, as well as during the legislative procedure that was approached, and this stems mainly from the privacy and independence of endowment provisions, and their connection to the Islamic legislative system and its sources, that system From which the Emirate of the Faithful derives its roots …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Social Media Harms And The Common Law, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

This article finds fault with the judiciaries' failure to create a set of common law norms for social media wrongs. In cases concerning social media harms, the Supreme Court and lower courts have consistently adhered to traditional pre-social media principles, failing to use the power of the common law to create a kind of Internet Justice.

Part I of this article reviews social media history and explores how judicial decisions created a fertile bed for social media harm to blossom. Part II illustrates social media harms across several doctrinal disciplines and highlights judicial reluctance to embrace the realities of social …

Courts As Auditors Of Legislation?, Daniel Pi, Giampaolo Frezza, Francesco Parisi

Law Faculty Scholarship

Sources of law vary greatly across geography and human history. Some legal systems identify democratic lawmaking with political deliberation, while others rely on judicial process and judgemade law. This Essay argues that the normative problem of determining a hierarchy of legal sources may be usefully understood in terms of mechanism design, and that legislation and judicial precedent operate complementarily. If the ultimate policy objective is to create legal rules that reflect the "will of the people," judge-made law can function as an audit on the rules promulgated by elected legislatures. The two sources of law, working in conjunction, thereby correct …

Cornography: Perverse Incentives And The United States Corn Subsidy, Anthony Kammer

Journal of Food Law & Policy

Among the most important functions we have afforded to the U.S. Congress is the power to reshape social and economic incentive structures through legislation. Proceeding from the enumerated powers under the Constitution and using a complex toolbox of legislative and regulatory innovations, the federal legislature has enormous power to transform the types of behavior that people will perceive as self-interested throughout our economy and thus how those same people are likely to act. Congress can, among other things, create new forms of criminal and civil liability, establish entitlement systems, subsidize industries, encourage behavior through the tax code, regulate interactions among …

Putting A Gag On Farm Whistleblowers: The Right To Lie And The Right To Reamin Silent Confront State Agricultural Protectionism, Rita-Marie Cain Reid, Amber L. Kingery

Journal of Food Law & Policy

Whistleblowers play an important role in filling gaps in government food safety systems. Unfortunately, several dominant food-producing states have pursued legislative initiatives that punish farm whistleblowers and silence investigative tactics. First, this research describes various state legislative initiatives that curb criticism of agriculture. The work analyzes the federal food safety system and how these protections limiting agricultural criticism contravene that food safety net. Further, the research analyzes the free speech concerns in the newest protectionist laws. The analysis recommends strategies and future research to improve agricluture safety and protect free speech in an evolving food safety landscape.

2016 China Food Law Update, Michael T. Roberts, Ching-Fu Lin

Journal of Food Law & Policy

This update of China food law builds on a unique feature for the Journal of Food Law .& Policy that has been provided since the Journal's inception - separate food law updates for both the United States and European Union. "Recognizing the globalness of the modem food system, these updates have served an invaluable role in keeping scholars and practitioners abreast of the world's leading food regulatory systems." China's emergence as a developed, modem food regulatory system with the potential of being a leading food regulatory system makes sense given its position as a world economic powerhouse. China's role in …

Traceability And Labeling Of Genetically Modified Crops, Food, And Feed In The European Union, Margaret Rosso Grossman

Journal of Food Law & Policy

In the last several years, European Union (E.U.) policy has encouraged development of biotechnology, including genetically modified (GM) (that is, bioengineered) agricultural crops. The E.U. developed a strategy for life sciences and biotechnology, directed toward improving the competitiveness of the European biotechnology sector and the general situation for European biotechnology. E.U. documents have acknowledged the potential significance of genetically modified crops-for example, the conclusion in a recent report that "the potential of plant genomics and biotechnology to deliver major advances in our lifestyles and prosperity is enormous. [Biotechnology] can also maintain and enhance the competitiveness of E.U. farmers and food …

Let My Brewers Go! A Look At Home Brewing In The U.S., Hannah Jeppsen

Journal of Food Law & Policy

In mid-August of 2012, a group of Americans stormed the White House, demanding transparency on a subject many Americans may find surprising: beer. More specifically, Americans requested White House home brew recipes, a presidential secret until Barack Obama's administration released them on September 1, 2012. Not only does Obama enjoy a good home brew, he is also the first president to brew in the White House and even take beer on the campaign trail. However, it was the August petition that garnered home brewing national media attention.

The Rules Of Larceny In Islamic Law B Y Dr. Mohammad Jabr Al-Alfi

UAEU Law Journal

The rules of larceny in Islamic jurisprudence were critized on the ground that they were contrary to human rights norms recognized by the Western civilization. This criticism was produced by the practical application of these rules in some Islamic countries. The objection to these rules, perhaps, came as a result of 'the speedy enactment of legislation, which did not take into consideration all the rules and precepts dealt with by the different schools of thought in Islamic jurisprudence. Such practice by such States is incompatible with the legislative policy of Islam and resulted in the narrow conception and application of …

Legislation Regarding Exempting Al-Zakah Payers From Due Taxes (Deducting Al-Zakah From Due Taxes(, Mohammed Naim Yassin

UAEU Law Journal

This paper deals with the subject matter of whether the Muslim who pays Al-Zakah has the right to be exempted from the burdens of due tax. The objective of this research is to deduce the answer of this question from the related principles of Islamic legal policy.

The conclusion of this assessment -according to the researcher- is to distinguish between two cases in dealing with this issue:

First case: When taxes are levied or legislated, Al-Zakah is an essential part of that whereby the country’s needs are met by both Zakah and taxes. In this case, both are to be …

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their clients, high …

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

Caveat Emptor: Real Property Law’S “Get Out Of Jail Free” Card V. The Property Condition Disclosure Act, Alessandra E. Albano

Touro Law Review

No abstract provided.

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter

Seattle Journal for Social Justice

No abstract provided.

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Indiana Law Journal

In a series of recent split decisions interpreting criminal and tort-like legislation, the Supreme Court has purported to give statutory causation requirements their ordinary, plain meaning. Armed with dictionaries, examples from everyday speech, and commonsense intuitions, the Court’s majority has explained that statutory phrases like “because of” and “results from” entail but-for causation as a matter of ordinary usage. There’s just one problem: The Court’s majority (and the many state and federal courts following its lead) is wrong on the facts—specifically, the facts about how people ordinarily interpret, understand, and use causal language.

This Article considers a novel approach to …

Still Living After Fifty Years: A Census Of Judicial Review Under The Pennsylvania Constitution Of 1968, Seth F. Kreimer

All Faculty Scholarship

The year 2018 marked the fiftieth anniversary of the Pennsylvania Constitution of 1968. The time seems ripe, therefore, to explore the Pennsylvania Supreme Court’s exercise of judicial review under the 1968 Pennsylvania Constitution. This Article constitutes the first such comprehensive exploration.

The Article begins with an historical overview of the evolution of the Pennsylvania Constitution, culminating in the Constitution of 1968. It then presents a census of the 372 cases in which the Pennsylvania Supreme Court has vindicated distinctive Pennsylvania Constitutional rights under the Constitution of 1968.

Analysis of these cases leads to three conclusions:

1. Exercise of independent constitutional …

Random If Not Rare: The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

South Carolina Law Review

No abstract provided.

High-Stakes Interpretation, Ryan D. Doerfler

All Faculty Scholarship

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear.’ This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ or ‘unambiguous’ meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to ‘know’ what a text means—and, hence, more difficult to regard …

Dynamic Regulatory Constitutionalism: Taking Legislation Seriously In The Judicial Enforcement Of Economic And Social Rights, Richard Stacey

Notre Dame Journal of Law, Ethics & Public Policy

The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts …

Judges’ Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

Publications

No abstract provided.

Private Law In The Gaps, Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Introduction: Examining White Collar Crime With Trifocals, Ellen S. Podgor

Fordham Urban Law Journal

No abstract provided.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Decisions Rules And Conduct Rules: On Acoustic Separation In Criminal Law, Meir Dan-Cohen

Meir Dan-Cohen

No abstract provided.

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …