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2019

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Articles 2071 - 2093 of 2093

Full-Text Articles in Law

‘I Was So Much Older Then/I’M Younger Than That Now’: Valedictory Notes And Collage, Frank Pommersheim Dec 2018

‘I Was So Much Older Then/I’M Younger Than That Now’: Valedictory Notes And Collage, Frank Pommersheim

Frank Pommersheim

No abstract provided.

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United States V. Gillette: A Tiny Prairie Case Note Opening A Window On The Enveloping Fog Obscuring The Indian Civil Rights Act Of 1968, Frank Pommersheim Dec 2018

United States V. Gillette: A Tiny Prairie Case Note Opening A Window On The Enveloping Fog Obscuring The Indian Civil Rights Act Of 1968, Frank Pommersheim

Frank Pommersheim

United States v. Gillette is one of the first reported cases on the new post-United States v. Bryant road. As of yet, there is no reliable (legal) GPS to point the way. This "tiny prairie" casenote is not meant to focus on the answers, but rather to clarify the questions and to widen the discussion as the journey continues.

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Improper Appropriation, Daniel Gervais Dec 2018

Improper Appropriation, Daniel Gervais

Daniel J Gervais

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has …

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Blending Surnames At Marriage, Hannah Haksgaard Dec 2018

Blending Surnames At Marriage, Hannah Haksgaard

Hannah Haksgaard

In most states, marrying couples are severely limited in their surname choices at the time of marriage. While recent scholarship has focused on men’s limited surname choices, other important problems with the marital surname process exist. For example, the increasingly popular decision to blend surnames—taking parts of both current surnames to create an entirely new surname—is generally not allowed. Four states explicitly allow for surname blending on the marriage license, and three more allow for any surname to be adopted. This article argues the remaining states should follow suit by allowing surname blending and other surname options. In addition to …

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Rural Practice As Public Interest Work, Hannah Haksgaard Dec 2018

Rural Practice As Public Interest Work, Hannah Haksgaard

Hannah Haksgaard

As the rural lawyer shortage continues to grow, rural states and communities must find new ways of attracting law students and graduates to rural practice. This Article explores incentives based on conceptualizing rural private practice as public interest work. Rural lawyers provide public interest lawyering through pro bono cases, mixed practices, community service, and even through providing fee-paid services in rural communities. The Article asserts that law schools and rural communities can capitalize on this view to recruit new lawyers and argues that federal loan forgiveness programs should be expanded to cover rural lawyers. 

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Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement,, Daniel Gervais Dec 2018

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement,, Daniel Gervais

Daniel J Gervais

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the …

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Climate Change Limitations Of The Legal System In Addressing The Threats, Iafor International Conference On Sustainability, Energy & The Environment 2019, Celeste M. Hammond Dec 2018

Climate Change Limitations Of The Legal System In Addressing The Threats, Iafor International Conference On Sustainability, Energy & The Environment 2019, Celeste M. Hammond

Celeste M. Hammond

From clean air regulations that affect cars and the transportation industry to government subsidies/incentives for renewable energy (solar & wind) to protecting the first amendment rights of scientists and journalists who maintain that climate change really exists and is caused by human activity, the American legal system is an integral part of the response to climate change and the public policy of sustainability and resilience.

The importance of legal rules to deal with the threats posed by Climate Change cannot be overstated. At the federal, state and local levels of government regulations reducing air pollution and controlling energy that increases …

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Solidarity Economy Lawyering, Renee Hatcher Dec 2018

Solidarity Economy Lawyering, Renee Hatcher

Renee Hatcher

This Essay explores lawyering in the solidarity economy movement as an emergent approach to progressive transactional lawyering. Solidarity economy is a set of value-driven theories and practices that seeks to transform the global economy into a just economy that centers the needs of people and the planet. While the solidarity economy movement in other parts of the world has been established for several decades, the solidarity economy movement in the United States emerged in 2007. Over the last decade the movement has grown and gained significant momentum, with the rise of solidarity economy organizations and initiatives, as well as the …

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Trust, Autonomy, And The Fiduciary Relationship, Carolyn Mcleod, Emma Ryman Dec 2018

Trust, Autonomy, And The Fiduciary Relationship, Carolyn Mcleod, Emma Ryman

Carolyn McLeod

Some accounts of the fiduciary relationship place trust and autonomy at odds with one another, so that trusting a fiduciary to act on one’s behalf reduces one’s ability to be autonomous. In this chapter, we critique this view of the fiduciary relationship (particularly bilateral instances of this relationship) using contemporary work on autonomy and ‘relational autonomy’. Theories of relational autonomy emphasize the role that interpersonal trust and social relationships play in supporting or hampering one’s ability to act autonomously. We argue that fiduciary relationships, understood through the lens of relational autonomy, can provide a means of enhancing, rather than diminishing, …

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The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo Garcia Sanchez Dec 2018

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo Garcia Sanchez

Guillermo J. Garcia Sanchez

Chinese offshore investments in the oil and gas sector around the world are on the rise. Like dragons roaming the seas trying to dominate the tides, Chinese state-owned companies are particularly eager to bid for oil fields in maritime borderlines. The article tells the story of how Chinese state-owned companies are over paying for oil on the US-Mexico boundary to gather experience on how China’s global competitors handle resource development conflicts. My argument is that Chinese participation in transboundary field development fits within a long-term strategy to master international legal regimes. The presence of these petro-dragons in borderlines is an …

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The Gender Of Trafficking, Kerwin A. Kaye Dec 2018

The Gender Of Trafficking, Kerwin A. Kaye

Kerwin Kaye

The exclusion of male victims from discussions of sex trafficking is pervasive. Here I detail the discursive dichotomisation of this framework, examining not only why men and boys have historically been excluded as victims of sexual trafficking, but also how this discourse acts as a gendered and gendering formation more generally. Following this I critically examine the recent turn toward the inclusion of boys as victims of DMST ("Domestic Minor Sex Trafficking"), arguing that the ‘sex trafficking’ frame is less useful – and more harmful – than it may appear.

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Fraudulent Joinder, Federalism. And The Twombly/Iqbal Problem, Charles Oldfield Dec 2018

Fraudulent Joinder, Federalism. And The Twombly/Iqbal Problem, Charles Oldfield

Charles W. Oldfield

Fraudulent joinder exists when a plaintiff joins a non-diverse defendant to defeat removal to federal court based on diversity jurisdiction. The Supreme Court has held that federal courts can disregard the citizenship of fraudulently joined defendants when determining whether diversity jurisdiction exists.

The federal courts have not adopted a uniform test for fraudulent joinder, but all analogize it to the test used to decide a motion to dismiss for failure to state a claim upon which relief can be granted. Twombly and Iqbal arguably imposed a heightened pleading standard in federal court but many states continue to apply a notice …

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Eyes On The Prize: Procedures And Strategies For Collecting Money Judgments And Shielding Assets, Carolina Academic Press Dec 2018

Eyes On The Prize: Procedures And Strategies For Collecting Money Judgments And Shielding Assets, Carolina Academic Press

Jason Kilborn

A guidebook survey of the mechanics and strategies for every step of the process of collecting (or defending against collection) on a money judgment, including domestication and discovery, seizure and turnover, liens and priority battles, exemptions and asset protection, fraudulent conveyance recovery and bankruptcy.  Detailed analysis of common, modern asset classes—bank accounts, wages, business investments and securities, and intellectual property—and governing federal and state law in three representative states: New York (traditional), California (innovative), and Illinois (aggressively modernized), with comments on selected highlights in other states (Texas, Florida, Pennsylvania, Iowa). An accessible, hands-on resource for reviving the study of post-judgment …

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Asean Law In The New Regional Economic Order: An Introductory Roadmap To The Asean Economic Community, Pasha L. Hsieh Dec 2018

Asean Law In The New Regional Economic Order: An Introductory Roadmap To The Asean Economic Community, Pasha L. Hsieh

Pasha L. HSIEH

No abstract provided.

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Do You Believe In Ghost Apartments?, Michael Lewyn Dec 2018

Do You Believe In Ghost Apartments?, Michael Lewyn

Michael E Lewyn

According to the popular press, expensive cities are being overrun by "ghost apartments"- condominiums owned by wealthy foreigners, but used as investments rather than being rented out to local residents. This article points out that such apartments are in fact a very small percentage of housing supply, even in some cities that are supposedly overran with such condos.

More importantly, the existence of new “ghost apartments” does not justify exclusionary zoning policies. If a city popular with foreign investors discourages construction of new housing, investors are likely to purchase older housing units, outbidding local residents for those units. In this …

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The Global Clinical Revolution In Law.Pdf, Richard Wilson Dec 2018

The Global Clinical Revolution In Law.Pdf, Richard Wilson

Richard J. Wilson

This book documents both the historical origins of clinical experiments in the earliest days of US university legal education, and the now-global reach of clinical pedagogy as a proven tool for effective training of legal professionals. Clinical legal education provides an alternative to traditional pedagogies used in law schools all over the world, which largely continue to rely on lecture or case methods. It is more than just another pedagogical method. It provides a way for students to experience their emerging professional selves, while providing services or projects with poor and underrepresented clients.

The book is organized into two very …

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Victims Under Attack: North Carolina's Flawed Rule 609, Daniel R. Tilly Dec 2018

Victims Under Attack: North Carolina's Flawed Rule 609, Daniel R. Tilly

Daniel R. Tilly

Evidence law in North Carolina senselessly punishes victims of domestic and sexual violence by broadly sanctioning witness impeachment with prior convictions – no matter the implicit prejudice to the witness or how little the conviction bears on credibility. The North Carolina approach is an outlier. Under Rule 609 of the Federal Rules of Evidence, the use of conviction evidence for impeaching witness credibility is confined to felonies and crimes involving dishonest acts or false statements. Their use must also satisfy judicial balancing tests aimed at protecting against unfair prejudice to the witness. The majority of states take a similar or …

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Rethinking The Rcep In The Third Regionalism: Paradigm Shifts In World Trade Law?, Pasha L. Hsieh Dec 2018

Rethinking The Rcep In The Third Regionalism: Paradigm Shifts In World Trade Law?, Pasha L. Hsieh

Pasha L. HSIEH

No abstract provided.

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Should Robots Prosecute And Defend?, Stephen E. Henderson Dec 2018

Should Robots Prosecute And Defend?, Stephen E. Henderson

Stephen E Henderson

Even when we achieve the ‘holy grail’ of artificial intelligence—machine intelligence that is at least as smart as a human being in every area of thought—there may be classes of decisions for which it is intrinsically important to retain a human in the loop. On the common account of American criminal adjudication, the role of prosecutor seems to include such decisions given the largely unreviewable declination authority, whereas the role of defense counsel would seem fully susceptible of automation. And even for the prosecutor, the benefits of automation might outweigh the intrinsic decision-making loss, given that the ultimate decision—by judge …

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Rights Disappear When Us Policy Engages Children As Weapons Of Deterrence, Craig B. Mousin Dec 2018

Rights Disappear When Us Policy Engages Children As Weapons Of Deterrence, Craig B. Mousin

Craig B. Mousin

Although the United States provided significant guidance in drafting the Convention on the Rights of the Child (CRC) it has never ratified the convention. The failure to ratify has taken on critical significance in light of new federal policies that have detained over 15,000 children in 2018, separated families, accelerated removal of asylum seekers, and emphasized deterring families from seeking asylum.

This article raises ethical and health implications of these refugee policies in light of the United States’ failure to ratify the CRC. It first examines the development of the CRC and international refugee law. It next lists some of …

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Bradford-Clarence-Cv-Pdf.Pdf, Clarence O. Bradford Dec 2018

Bradford-Clarence-Cv-Pdf.Pdf, Clarence O. Bradford

Clarence Bradford

No abstract provided.

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Common Law Tort Of Negligence As A Tool For Deconstructing Positive Obligations Under The European Convention On Human Rights, Vladislava Stoyanova Dec 2018

Common Law Tort Of Negligence As A Tool For Deconstructing Positive Obligations Under The European Convention On Human Rights, Vladislava Stoyanova

Vladislava Stoyanova

This article examines how the common law tort of negligence as developed in the United Kingdom can provide a helpful guidance for deconstructing and elucidating some of the disparate analytical issues that are subsumed under the umbrella of positive obligations under the European Convention on Human Rights (ECHR). Both frameworks, the common law and ECHR, aim to delimit the circumstances where responsibility for omissions can be found and have similar conceptual basis of protection in that they protect fundamental interests. However, in the context of the common law certain analytical elements have been more thoroughly considered and more clearly articulated. …

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Professionalism For Law Teachers: Lessons I Learned From John Makdisi, Daniel B. Bogart Dec 2018

Professionalism For Law Teachers: Lessons I Learned From John Makdisi, Daniel B. Bogart

Daniel B. Bogart

No abstract provided.

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