Law Commons^™

Eastern And Southern Ukraine's Right To Secede And Join The Russian Federation: A Secessionist Manifesto, John Ja Burke

John JA Burke

This article aims to answer a multi-faceted question: do the people occupying the region of Eastern and Southern Ukraine have the right to secede from Ukraine and merge with the Russian Federation? It also evaluates the legal status of the economic sanctions imposed upon the Russian Federation for its alleged interference in the internal affairs of Ukraine.

Public International Law provides no definitive answer to the first question, although “conventional wisdom” denies a right of secession. The denial turns primarily on two United Nations General Assembly Resolutions: (1) the UN General Assembly Declaration on Decolonisation, and (2) the UN General …

On The Public-Law Character Of Competition Law: A Lesson Of Asian Capitalism, Michael Dowdle

Michael Dowdle

This article argues that competition law is best seen as a form of public law – ‘the law that governs the governing of the state – and not as simply a form of private market regulation. It uses the experiences of ‘Asian capitalism’ to show how capitalist economies are in fact much more variegated than the orthodox model of competition law presumes, and that this variegated character demands a form of regulation that is innately political rather than simply technical. Orthodox competition regimes address this complexity by segregating non-standard capitalisms into alternative doctrinal jurisprudences, but this renders conceptually invisible the …

The Price Of Crisis: Eminent Domain, Local Governments, And The Value Of Underwater Mortgages, Raymond H. Brescia, Nicholas Martin

Raymond H Brescia

In response to the lingering fallout from the Financial Crisis of 2008, local governments have begun to explore whether it is wise and legal to use the power of eminent domain to seize distressed home mortgages. This Article attempts to situate this approach to such mortgages within the larger economic, legal and policy context and asks three key questions. First, are local governments appropriate actors to address the lingering problem of underwater mortgages? Second, assuming they are appropriate actors to address this problem, how should localities and, if necessary, courts, value underwater mortgages in the context of condemnation proceedings: i.e., …

Marriage Penalty: How Stacking Income Affects The Secondary Earner’S Decision To Work, Kevin M. Walsh

Kevin M Walsh

Our progressive tax rate structure is aimed at taxing citizens fairly and based on their ability to pay. The rate structure, however, partially loses its purpose when analyzing the income taxation of married individuals. If a married couple decides to file jointly they are sometimes taxed at higher rates than individuals are depending on the incomes of the couple. This has created what we know today as the “marriage penalty,” and it can serve as a deterrent to the secondary earner from working.

There is no simple solution to address how the marriage penalty, in combination with necessary expenses, affects …

Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon

Hon. Mark C. Dillon

Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …

The Tension Between Normativity And Plurality In Religious Dogmas And In Constitutional Principles, Vinicius Pintas Marinho

Vinicius Pintas Marinho

This essay briefly analyzes whether the tension between normativity and plurality in religious dogmas may shed a light in the similar tension also found in the dynamics of constitutional principles. The application of Gadamer’s hermeneutical theory to a transcendental theological framework is placed into conversation with Dworkin’s integrity of the law. This is undertaken through a comparison between the dynamics of conversation for religious dogmas as symbols of a tradition and the function of constitutional principles in the context of Ronald Dworkin’s theory of law as integrity.

Victimology Of Interpersonal Violence: A Comprehensive Outlook Of Legislative Policies In India, Sukdeo Ingale

Sukdeo Ingale

Victimology is future of criminology. Hence, in contemporary era, every crime needs to be relooked through the ‘injured eyes’ of victim. Against this backdrop, this study investigates a largely unexplored area in victimology i.e. the victimization of men in interpersonal violence. The main object of the study is to evaluate the existence of men victimization by misuse of different laws and to describe and analyze how misuse of different laws by women and systematic bias against men increased probability of men victimization. After extensive literature review, the author found that the rate of men victimization throughout glob is increasing day …

Demon At The Back Door: Rise Of The Mexican Drug Cartels, Oliver T. Beatty

Oliver T Beatty

This article addresses the rise of the violent Mexican drug cartels and searches within the legislative and law enforcement toolbox on how to dethrone the epidemic of violence on the border. The Mexican drug cartels rose from the ashes and structural framework of the Colombian cocaine cartels which gave these new criminal empires their routes, connections, and ease at taking over Pablo Escobar’s monopoly on the drug trafficking game. In addressing the origins of the cartels this article explores the trajectory of cocaine from imported medical remedy to criminalized substance. Additionally this article explores how the Italian mafia was dismantled …

Consciousness And Futility: A Proposal For A Legal Redefinition Of Death, Christopher Smith

Christopher R Smith

Recent controversies in Texas (with the Marlise Muñoz case) and in California (with the Jahi McMath case) have highlighted a lamentable flaw in the current legal conception of human death, and the difficulty of defining when death finally occurs. The unworkable notion of “brain-death” remains the law in every state in the union, yet the philosophical and scientific foundations of this notion remain open to attack. This article posits that death is a fundamentally social construct, and that it is society at large (through its laws, public opinions, religious attitudes, etc.) that actually defines death. This essay then argues that …

The Fearon Corollary: Private Property Rights As War, W. C. Bunting

W. C. Bunting

ABSTRACT: This Article models private property rights as a conflict resolution mechanism and shows that for the Coase Theorem to be consistent on its own terms, private property rights must generate the Pareto-optimal allocation of scarce resources among all feasible conflict resolution mechanisms. This conclusion is termed the Fearon Corollary. Equating the imposition of private property rights to conflict/war, the following question is considered: if pre-conflict common ownership is socially-optimal, under what conditions will disputing parties fail to bargain around the conflict? In addition to the explanations identified by Professor Fearon, the present article offers an additional behavioral explanation evidenced …

Montes-Lopez V. Holder: Applying Eldridge To Ensure A Per Se Right To Counsel For Indigent Immigrants In Removal Proceedings, Soulmaz Taghavi

Soulmaz Taghavi

Part I of this Comment reviews the historical and current state of procedural due process and its role in Immigration Law, specifically removal proceedings. Part II extends certain legal arguments in the opinion of Montes-Lopez v. Holder, which held among divided federal Circuit Courts that an immigrant in removal proceedings has a statutory and constitutional right to appointed counsel. Last, Part III demonstrates how a non-citizen in deportation hearing has a per se right to counsel outlined by the Immigration and Nationality Act (INA) and brought to life by the Fifth Amendment’s due process clause.

Labor Rights And Free Trade; Social Development Parallel To Economic Development, Hassan Razavi

Hassan Razavi

The trade-based distributional policies have reinforced the issue of social standards in societies and the encroachment of free trade on other international standards particularly the labor standards has linked this matter with the issue of comparative advantage, thus opening the door for claims which are not made in good faith. This research studies the linkage of free trade and social standards under the WTO umbrella and based on justice theories, develop a framework in which the claims for both the protection of human rights and economic growth could be met by developing the idea of parallelism within the current regime …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Managing The ‘Republic Of Ngos’: Accountability And Legitimation Problems Facing The U.N. Cluster System, J.Benton Heath

J.Benton Heath

This Article identifies and critically assesses the crucial but troubled system for the coordination of international humanitarian assistance (the U.N. “Cluster Approach”). Regardless of whether the Cluster Approach actually helps in disaster response, it exercises substantial power over affected populations by assigning competences and leadership roles. The built-in mechanisms for controlling this power are unworkable, as they ultimately fail to resolve the tension between humanitarian organizations’ autonomy and the need for coordination. This Article identifies the emergence of an alternative model of accountability, based on mutual monitoring and “peer review.” Drawing on theories of network governance and experimentalism, this Article …

Masculinity And Title Ix: Bullying And Sexual Harassment Of Boys In The American Liberal State, Nancy C. Cantalupo

Nancy C Cantalupo

This article examines two recent “hot topics” related to Title IX of the Educational Amendments of 1972 (“Title IX”): sex-segregated schooling and gender-based violence including sexual harassment and bullying. First, in 2006, the Department of Education suspended Title IX’s prohibition of sex-segregated education in K-12 public schools amidst some sex segregation advocates’ claims that a “feminized” educational system causes sex discrimination against boys. Second, over the last decade an increasing number of boys have sued or complained against their schools for sex discrimination in the form of gender-based violence (including same-sex bullying, sexual harassment, hazing, and sexual violence).

This article …

Remedial Discretion In Constitutional Adjudication, John M. Greabe

John M Greabe

Courts frequently withhold remedies for meritorious assertions of constitutional right. The practice is often unobjectionable. Indeed, it is a systemic necessity if constitutional law is to remain vibrant. Without it, judges surely would be less inclined to engage in constitutional innovation. But just as surely, the practice is not available for all types of constitutional claim. For instance, the subject of a criminal indictment is always entitled to dismissal of the charges if the statute authorizing the prosecution is unconstitutional.

The Supreme Court has experimented with various approaches to withholding constitutional remedies. The Warren Court embraced the practice of issuing …

More Market-Oriented Than U.S. And More Socialist Than China: A Comparative Public Property Story Of Singapore, Jianlin Chen, Jiongzhe Cui

Jianlin Chen

Compared to the more illustrious conceptualization of private property, the conceptualiza-tion of public property remains at a surprisingly infantile stage. The very definition of public property is ambiguous. This article utilizes a comparative case study of traffic congestion policies in the United States, China, and Singapore to highlight the conceptual pitfalls posed by the current confusion on public property. This article proposes a refined public property framework that offers greater conceptual clarity on the real issues at stake. In particular, this article argues that “property” in public property should include regulatory permits while “public” in public property should not be …

The Ordinary Remand Rule And The Judicial Toolbox For Agency Dialogue, Christopher J. Walker

Christopher J. Walker

When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Despite that the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation-of-powers values that motivate the rule. This Article is the first to conduct such an investigation—focusing on judicial review of agency immigration adjudications and reviewing the …

Objectives-Based Twin-Peaks Financial Regulation In Hong Kong, Bryane Michael, Say Goo, Dariusz Wojick

Bryane Michael (bryane.michael@stcatz.ox.ac.uk)

Objectives-based legislation – or laws which focus on achieving particular and concrete outcomes – has become a new and important tool that financial sector regulators use to tackle large and varied financial system risks. Yet, objectives-based legislation – and the frequent principles-based regulation underpinned by such legislation – represents a stark departure from traditional ways of legislating. In this paper, we describe the problems and prospects of implementing objectives-based financial regulation in Hong Kong – in the form of a Twin Peaks regulatory structure. A focus on the objectives of achieving financial market stability and proper market conduct would require …

Radbruch On The Origins Of The Criminal Law: Punitive Interventions Before Sovereignty, Mireille Hildebrandt

Mireille Hildebrandt

This chapter is dedicated to Radbruch’s seminal text on ‘The origin of criminal law in the class of serfs’. It contains a number of counter intuitive insights on the relationship between public punishment and private revenge, derived from the domains of legal history and anthropological research in non-state societies. Radbruch’s aim was not to provide a historiography of punitive interventions in tribal Germanic society, but to remind his readers of the constitutive importance of sovereignty for the emergence of criminal law. This relates to Radbruch’s concern for legal certainty, and explains his inquiries into the continuity and discontinuities between the …

Justice Stewart Meets The Press, Keith Bybee

Keith J. Bybee

Among the Supreme Court Justices who have articulated distinctive views of free expression, Justice Potter Stewart alone placed particular emphasis on the First Amendment's protection of a free press. Drawing upon the lessons of history, the plain language of the Constitution, the political events of his day, and his own personal experience, Stewart argued that the organized news media should be considered an essential part of the checks-and-balances competition between the legislative, executive, and judicial branches of the federal government. Stewart’s emphasis on the special structural function of the established press placed him at odds with most of his colleagues …