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2011

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Full-Text Articles in Law

Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel Dec 2011

Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel

Richard A Grisel

The development of geothermal resources has been greatly hampered by the legal and institutional framework governing geothermal energy resources. This framework has been plagued by conflicting mining and water laws, anachronistic common law systems of property rights, problematic legal classifications of geothermal resources, and jurisdictional variances from state to state and between states and the Federal government. These issues have combined to significantly hinder the development of what will be a vital resource for our nation’s future energy needs.

This thesis concerns one way to address the suboptimal development of geothermal energy resources. Using the Federal acquisition of exclusive ...


Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp Dec 2011

Antitrust's "Jurisdictional" Reach Abroad, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In its Arbaugh decision the Supreme Court insisted that a federal statute’s limitation on reach be regarded as “jurisdictional” only if the legislature was clear that this is what it had in mind. The Foreign Trade Antitrust Improvement Act (FTAIA) presents a puzzle in this regard, because Congress seems to have been quite clear about what it had in mind; it simply failed to use the correct set of buzzwords in the statute itself, and well before Arbaugh assessed this requirement.

Even if the FTAIA is to be regarded as non-jurisdictional, the constitutional extraterritorial reach of the Sherman Act ...


Speaker, “Litigating Religion”, Michael Helfand Dec 2011

Speaker, “Litigating Religion”, Michael Helfand

Michael A Helfand

No abstract provided.


The Importance Of Comparative Law In Legal Education: United States Goals And Methods Of Legal Comparisons, Hugh J. Ault, Mary Ann Glendon Dec 2011

The Importance Of Comparative Law In Legal Education: United States Goals And Methods Of Legal Comparisons, Hugh J. Ault, Mary Ann Glendon

Hugh J. Ault

This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is seriously investigating the social and economic background of legal rules and their consequences through clinical legal education, which attempts to provide a real or ...


Acción Colectiva De Restitución De Cobros Ilícitos A Los Consumidores, Gabriel Martinez Medrano Dec 2011

Acción Colectiva De Restitución De Cobros Ilícitos A Los Consumidores, Gabriel Martinez Medrano

Gabriel Martinez Medrano

Comentario al fallo Unión de Usuarios y Consumidores c/ Banco de la Provincia de Buenos Aires Aires por el cual se ordenó a dicha entidad la restitución a los consumidores de sumas ilegalmente percibidas en concepto de cobro de transferencias de fondos, que se encontraba prohibida por el Decreto 1570/2001.


Medical Malpractice: The Italian Experience, Claudia Dimarzo Dec 2011

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and ...


Medical Malpractice And Compensation In The Uk, Richard Goldberg Dec 2011

Medical Malpractice And Compensation In The Uk, Richard Goldberg

Chicago-Kent Law Review

In the first part of this paper, Dr. Goldberg examines the context in which medical malpractice liability is operating in the UK. The fact that the state-run National Health Service (NHS) is the major healthcare provider in the UK has several implications, since funding for medical malpractice compensation in the NHS comes from the taxpayer. The most recent empirical evidence on the incidence and funding of claims in England and Scotland is assessed, to show a trend of expenditure on clinical negligence increasing, particularly in England. This is followed by an examination of the statutory framework for the empowerment of ...


Appellate Practice And Procedure, Roland F.L. Hall, David R. Cook Jr. Dec 2011

Appellate Practice And Procedure, Roland F.L. Hall, David R. Cook Jr.

Mercer Law Review

This Article surveys decisions addressing appellate law and procedure handed down by the Georgia Supreme Court and the Georgia Court of Appeals between June 1, 2010 and May 31, 2011. The cases discussed fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; and (3) miscellaneous cases of interest.


Trial Practice And Procedure, Kate S. Cook, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson, Mary K. Weeks, Jeb Butler, Samantha A. Dipolito Dec 2011

Trial Practice And Procedure, Kate S. Cook, Brandon L. Peak, John C. Morrison Iii, Tedra C. Hobson, Mary K. Weeks, Jeb Butler, Samantha A. Dipolito

Mercer Law Review

I. INTRODUCTION

This Article addresses significant judicial and legislative developments of interest to the Georgia civil trial practitioner occurring during the survey period of this publication. II. LEGISLATION

Signed by Governor Deal on May 3, 2011, House Bill 242 rewrites and replaces the Georgia Evidence Code' as codified in Title 24 of the Official Code of Georgia Annotated (O.C.G.A.). The Act loosely conforms Title 24 to the Federal Rules of Evidence and makes the changes effective for any motion, hearing, or trial commencing on or after January 1, 2013.


When Does F*** Not Mean F***?: Fcc V. Fox Television Stations And A Call For Protecting Emotive Speech, W. Wat Hopkins Dec 2011

When Does F*** Not Mean F***?: Fcc V. Fox Television Stations And A Call For Protecting Emotive Speech, W. Wat Hopkins

Federal Communications Law Journal

The Supreme Court of the United States does not always deal cogently with nontraditional language. The most recent example is FCC v. Fox Television Stations, in which the Justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan's advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech


The "Strong Medicine" Of The Overbreadth Doctrine: When Statutory Exceptions Are No More Than A Placebo, Christopher A. Pierce Dec 2011

The "Strong Medicine" Of The Overbreadth Doctrine: When Statutory Exceptions Are No More Than A Placebo, Christopher A. Pierce

Federal Communications Law Journal

In United States v. Stevens, the United States Supreme Court invalidated a federal statute criminalizing the interstate sale and distribution of depictions of animal cruelty on First Amendment grounds. While Stevens demonstrates the Court's reluctance to create a new category of speech outside of First Amendment protection, Stevens also stands for the proposition that borrowing the exceptions clause from the Court's obscenity standard will not adequately protect a statute from invalidation as overbroad. This Note discusses the use of the obscenity standard's exceptions clause in nonobscenity statutes and the Court's treatment of the exceptions clause in ...


A Bridge Over Troubled Waters: The Development Of Medical Malpractice Litigation In Brazil, Eduardo Dantas Dec 2011

A Bridge Over Troubled Waters: The Development Of Medical Malpractice Litigation In Brazil, Eduardo Dantas

Chicago-Kent Law Review

This paper aims to demonstrate how medical malpractice litigation is developing in Brazil, and how the Brazilian legal system is dealing with the increase of demands against health care professionals. A brief overlook on the legal structure is provided, highlighting the most important issues being discussed today in Brazilian courts, regarding autonomy, consent, choice, the definition of moral damages, and the influence of the Consumer's Defense Code in litigation regarding health law.


Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant Dec 2011

Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant

Chicago-Kent Law Review

This paper summarises the development of liability for medical malpractice in the People's Republic of China, beginning with the establishment of a formal system of administrative liability in 1987, its refinement in 2002, and the broadly contemporaneous judicial recognition of a concurrent tortious liability under general civil law. All these developments may be said to have furthered the interests of patients. The incorporation of liability for medical malpractice into the Tort Liability Law of 2009, however, arguably marks a step backwards, subordinating the interests of patients in favor of the interests of the medical community, and further reforms in ...


The Law Of Medical Misadventure In Japan, Robert B. Leflar Dec 2011

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Chicago-Kent Law Review

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations' medical law systems. The paper addresses criminal sanctions for Japanese physicians' negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries.

Among the paper's findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events ...


Malpractice In Scandinavia, Vibe Ulfbeck, Mette Hartlev, Mårten Schultz Dec 2011

Malpractice In Scandinavia, Vibe Ulfbeck, Mette Hartlev, Mårten Schultz

Chicago-Kent Law Review

The article describes the special Scandinavian patient insurance system which secures compensation for patients in malpractice cases. For all practical purposes, the insurance based systems have replaced ordinary tort law rules in malpractice cases in Scandinavia. Thus, the basic feature of these systems is that proof of fault is not a requirement for obtaining compensation. Other criteria which are more favourable to the patient are applicable. The article concludes that in general the compensations systems have been successful in making it easier for the patients to obtain compensation. However, the systems also face challenges, some of which stem from the ...


Medical Malpractice And Compensation In Global Perspective: How Does The U.S. Do It?, David A. Hyman, Charles Silver Dec 2011

Medical Malpractice And Compensation In Global Perspective: How Does The U.S. Do It?, David A. Hyman, Charles Silver

Chicago-Kent Law Review

This article describes the problem of health care error in the United States of America and the various regulatory, liability, and compensation systems that deal with medical mistakes. In terms of frequency, direct costs, and aggregate social costs, the problem of medical errors is staggering. Millions of patients are killed or injured every year. A large percentage of adverse events could be avoided by the use of reasonable care. Regulators have not dealt with these problems effectively. Regulators specifically appointed to police the medical profession are often lax, whether because of capture, or from a sense of "there but for ...


Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley Nov 2011

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress ...


Miguel Villoro Toranzo: El Jesuita Tras La Lente Del Jurista. Un Apunte Sobre "Teoría General Del Derecho. Lo Que Es. Su Método", Carlos Alberto Flores Hernández Nov 2011

Miguel Villoro Toranzo: El Jesuita Tras La Lente Del Jurista. Un Apunte Sobre "Teoría General Del Derecho. Lo Que Es. Su Método", Carlos Alberto Flores Hernández

Carlos Alberto Flores Hernández

En este documento se retoma la figura de Miguel Villoro Toranzo, S.J., en tanto filósofo del Derecho, en su obra "Teoría General del Derecho. Lo que es. Su método"


Legitimacy, Accountability, And Partnership: A Model For Advocacy On Third World Environmental Issues, David A. Wirth Nov 2011

Legitimacy, Accountability, And Partnership: A Model For Advocacy On Third World Environmental Issues, David A. Wirth

David A. Wirth

To date, there has been little effort to define the characteristics of responsible environmental reform efforts by private citizens and organizations in the United States on foreign environmental problems, such as the quality of foreign aid. Moreover, there have been virtually no attempts to identify a principled role for American lawyers in Third World environmental issues. This Essay will respond to these lacunae by articulating a new approach to advocacy based on a partnership model. In Part I, this Essay identifies the need for American public interest advocates to establish partnerships with directly affected groups on Third World environmental issues ...


Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay Nov 2011

Professional Ethics In Interdisciplinary Collaboratives: Zeal, Paternalism And Mandated Reporting, Alexis Anderson, Lynn Barenberg, Paul R. Tremblay

Paul R. Tremblay

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns ...


Acting "A Very Moral Type Of God": Triage Among Poor Clients, Paul R. Tremblay Nov 2011

Acting "A Very Moral Type Of God": Triage Among Poor Clients, Paul R. Tremblay

Paul R. Tremblay

No abstract provided.


Toward A Community-Based Ethic For Legal Services Practice, Paul R. Tremblay Nov 2011

Toward A Community-Based Ethic For Legal Services Practice, Paul R. Tremblay

Paul R. Tremblay

This Article is concerned with legal services lawyers and how they ethically might allocate their time and resources among their clients. Part I of this Article describes the institutional terrain of legal services practice and introduces the concept of the lawyer as street-level bureaucrat, operating within a complex, high demand human services bureaucracy. Part II discusses the problems inherent in attempts to ration care within a subsidized law practice. The purpose of Part II is to reveal the practice tensions that establishment professional ethics fail to accommodate, and that form an underlying justification for a discussion of triage principles. Part ...


Responses To The Conference, Impromptu Lawyering And De Facto Guardians, Paul R. Tremblay Nov 2011

Responses To The Conference, Impromptu Lawyering And De Facto Guardians, Paul R. Tremblay

Paul R. Tremblay

No abstract provided.


The Unjustified Absence Of Federal Fraud Protection In The Labor Market, Kent Greenfield Nov 2011

The Unjustified Absence Of Federal Fraud Protection In The Labor Market, Kent Greenfield

Kent Greenfield

Federal law offers significant protection against fraud in the capital market, based on the compelling rationale that accurate information is important in allowing the securities markets to allocate financial capital to real capital. Notwithstanding some recent statutory adjustments, federal securities law remains committed to a central idea: it is wrong for a company or a corporate official knowingly to make a misrepresentation in order to take value from another in a securities transaction. This article argues that rationales analogous to those justifying fraud protection in the capital market also hold true in the labor market. Fraud may in fact be ...


Litigating Bp's Contribution Claims In Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?, Bruce L. Hay, Christopher Rendall-Jackson, David Rosenberg Nov 2011

Litigating Bp's Contribution Claims In Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?, Bruce L. Hay, Christopher Rendall-Jackson, David Rosenberg

Vanderbilt Law Review

In this Article, we focus on an important problem involving mass-accident cases that was highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to shift incurred or expected liability and damages between the business and governmental entities that participated in the activity that gave rise to the mass-accident risk. Participants in such ventures generally have the option to determine by contract beforehand whether to subject themselves to contribution claims and, if so, whether such claims will be resolved by a publicly funded court or by a privately funded process, such as arbitration. Because ...


Moderator, Third Panel On Cost And Implementation At Boston College Law School Symposium On "The Way To Carnegie: Practice", Alexis Anderson Oct 2011

Moderator, Third Panel On Cost And Implementation At Boston College Law School Symposium On "The Way To Carnegie: Practice", Alexis Anderson

Alexis Anderson

No abstract provided.


Noción Y Elementos Existenciales Del Título De Crédito, Bruno L. Costantini García Oct 2011

Noción Y Elementos Existenciales Del Título De Crédito, Bruno L. Costantini García

Bruno L. Costantini García

Discernir la noción y elementos de existencia de los títulos de crédito, considerando la doctrina y la denominación expresada en nuestra Ley General de Títulos y Operaciones de Crédito, conceptualizando el término de los documentos que consignan un derecho crediticio propio de su naturaleza y deslindando de manera dogmatica y exegética los elementos que lo forman y le dan su funcionamiento, mediante una visión de las instituciones jurídicas que les dan su existencia y aplicación dentro del devenir de los actos de comercio.


Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom Oct 2011

Judicial Integrity: A Call For Its Re-Emergence In The Adjudication Of Criminal Cases, Robert M. Bloom

Robert M. Bloom

A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench’s conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court ...


Addiction And Responsibility: Thoughts On The Misuse And Misunderstanding Of Addiction In The Courtroom, David L. Wallace Oct 2011

Addiction And Responsibility: Thoughts On The Misuse And Misunderstanding Of Addiction In The Courtroom, David L. Wallace

David L Wallace

No abstract provided.


Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy Oct 2011

Character And Context: What Virtue Theory Can Teach Us About A Prosecutor's Ethical Duty To "Seek Justice.", R. Michael Cassidy

R. Michael Cassidy

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and ...