Law Commons^™

The Temporal Scope Of Command Responsibility Revisited: Why Commanders Have A Duty To Prevent Crimes Committed After The Cessation Of Effective Control, Joakim Dungel, Shannon Ghadiri

Joakim P Dungel

Must an outgoing commander prevent his troops from criminal activity even if their crimes will be committed after he ceased to have effective control over them? This question has received scant judicial or academic discussion. Yet, the question is not simply a hypothetical one. In the Sesay et al. trial judgment, the accused Morris Kallon incurred command responsibility for his failure to prevent enslavement, which continued until December 1998, even though his effective control over the culpable troops ended in August 1998. While the trial chamber provided little reasoning for its conclusion, this paper endeavours to fill that gap in …

Defining Terrorism Within International Law And Legislation Of The Republic Of Azerbaijan, Rahim Hesenov

rahim hesenov

No abstract provided.

Some Questions About Interpretation, Ecto-Ambiguity, Tradition, And Conflicts Of Law And Fact, Graydon S. Staring

Graydon S. Staring

Questions raised by the interpretation of a conrtract clause with the aid of the following devices: Recognizing a more restrictive "traditional" understanding; Finding contract ambiguity between actual wording and traditional understanding; Resolving its intent by the canon contra proferentem; Accepting the finding of intent as controlling foreign state law

The Boundaries Of Public Nuisance, Richard O. Faulk, John S. Gray

Richard Faulk

Over the past 20 years, government entities have sought to use the vagueness of generic public nuisance statutes to address complex public health issues, including tobacco use, gun violence, childhood lead poisoning, global warming and the fallout from the subprime mortgage meltdown. Because the tort of public nuisance is so amorphous, many of these entities have sought to is so amorphous, many of these entities have sought to blam industry for societal problems even when the actual harm is often caused by third and fourth parties who misuse or abuse industry's products. Some sympathetic judges have issued abatement orders that …

Outfoxed: Pierson V. Post And The Natural Law, Josh Blackman

Josh Blackman

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt. The holding in Pierson v. Post has been …

Boerkaverbod Verdient Grondig Debat, Cécile Mathieu, Paul De Hert, Serge Gutwirth

Serge Gutwirth

Bijna was België het eerste land ter wereld met een algemeen boerkaverbod. De evocatie van het wetsvoorstel door de Senaat en de val van de regering staken daar een stokje voor. Cécile Mathieu, Paul De Hert en Serge Gutwirth van de VUB hekelen het gebrek aan een grondig parlementair debat bij de totstandkoming van de wet, en sommen dan maar zelf een aantal knelpunten op.

Extract From William J. Carney Et Al.'S Delaware Corporate Law: Failing Law, Failing Markets, In The Law And Economics Of Corporate Governance: Changing Perspectives Citing Balotti & Tillman's "Gazing Into The Crystal Ball Of Future Developments In Delaware Law", Seth Barrett Tillman

Seth Barrett Tillman

This will be an extract from William J. Carney et al.'s Delaware Corporate Law: Failing Law, Failing Markets, in The Law and Economics of Corporate Governance: Changing Perspectives 23, 39 n.67 (Alessio M. Pacces ed., Cheltenham, Edward Elgar Publishing Ltd. 2010).

[May 21, 2012]

Assuring Responsible Risk Management In Banking: The Corporate Governance Dimension, Michael E. Murphy

Michael E Murphy

ABSTRACT The corporate governance dimension of risk management in banking concerns the structures needed to assure the power and independence of control centers. Three are clearly relevant: the risk management departments themselves, the audit function and particularly internal audit, and the contingent of independent directors on the board. A fourth, the shareholder base, is problematic. A survey of corporate governance disclosures reveals a need for more progress in assuring the independence of the risk management and internal audit functions by linking them more closely to the board. The board’s own capacity to function as an independent control center relates most …

A Framework To Apply The Article Iii Case Or Controversy Requirement To Motions To Confirm Or Vacate Arbitral Awards Pursuant To The Federal Arbitration Act, Aaron Franklin

Aaron Franklin

Arbitration is an important method of dispute resolution but it requires courts that can confirm or vacate arbitral awards. When parties move to confirm or vacate these awards, federal courts largely ignore the Article III case or controversy requirement’s role as a limit on their power. Applying this requirement is not as simple as it sounds, and courts have little guidance in doing so. This Article therefore provides a framework that resolves two problems. First, motions to confirm or vacate arbitral awards always involve an underlying dispute (the dispute that necessitated arbitration) and a dispute about whether to grant the …

An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter

Thomas F. Cotter

In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation ABSTRACT Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good. In the current environment, the tax bar should take up the call to be public educators with …

The Emergence Of Global Administrative Law And The Evolution Of General Administrative Law, Karl-Heinz Ladeur

Karl-Heinz Ladeur

Abstract: The discussion on the emergence of global administrative law is centered around the question: “Is it law?” and problems of accountability. This is a narrow perspective which ignores the autonomy of the administrative “internal law” generated by administrative agencies themselves. This is shown for the evolution of domestic administrative law in the 19th century and its transformations in the 20th century. Domestic administrative law is only to a much lesser extent a product of courts or legislators than hitherto taken for granted. This is why it should not come as a surprise that the instruments and forms of global …

The Effect Of Religious Affiliation And Church Attendance On State Fiscal Progressivity, Erika Dayle Siu

Erika Dayle Siu

This study finds that with minor exception, neither religious affiliation nor regular church attendance significantly affects state fiscal progressivity. Based on an examination of prevailing theological traditions within major religious groups, a viable hypothesis is that a state’s fiscal progressivity should correlate to its religious demographics to some extent, depending on the social justice beliefs of each religious group. If so, states with a greater percentage of Catholics and Jewish residents would have more fiscal progressivity; states with a greater percentage of Mainline Protestants and Historically Black Church members would also evidence fiscal progressivity but to a lesser extent; and …

A Vaguely Jocular Guide To In Limine Motions, Curtis E.A. Karnow

Curtis E.A. Karnow

A short review of problematic in limine (pre trial) motions

A Lay Word For A Legal Term: How The Popular Definition Of Charity Has Muddled The Perception Of The Charitable Deduction, Paul J. Valentine

Paul J Valentine

In the United States there is a deeply held conviction “that taxpayers who donate to charity should generally not be subject to the same income tax liability as similarly situated taxpayers.” This innate sense about the Internal Revenue Code’s section 170, otherwise known as the charitable deduction, resonates with the Americans’ sense of fairness and creates strong barriers to curtailing its function. This same sense of fairness is tied to the perceived effects of the charitable deduction. Yet, how “charitable” is the charitable deduction and how charitable do we expect it to be? This paper argues that the discrepancy between …

Judicial Independence In Light Of The Basic Principles On The Independence Of The Judiciary: Who Has The Right Idea?, Ubaid Ul-Haq

Ubaid ul-Haq

Judicial independence is a crucial component inherent in the proper and effective administration of any government. Critical to this doctrine is the larger requirement of a separation of powers, which must be established before attempting to affect any concept of judicial independence. Judicial independence essentially represents a judiciary’s ability to render decisions free of improper influences, both internal and external. The United Nations has set forth a minimum standard of judicial independence with which States should seek to comply in order to protect civil liberties and in a greater sense, human rights. Evaluating the jurisdictions of Canada, Jamaica, and the …

Human Trafficking: Iraq - A Case Study, Ali Allawi

Ali Allawi

The accompanying Article explores the issue of human trafficking and sexual exploitation in postwar Iraq. It attempts, in three steps to firstly identify the issue of human trafficking and how it pertains to Iraq, secondly to examine Iraq’s international legal obligations to address the human rights violations and human trafficking issues, and lastly, recommend implementable solutions that the Iraqi government can take to meet its international obligations and remedy the problem at hand. The Article sheds new light on the growing humanitarian crisis in post war Iraq and brings awareness of the monumental challenges that face both the government and …

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall M.D.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

Big But Brittle: Economic Perspectives On The Future Of The Law Firm In The New Economy, Bernard A. Burk, David Mcgowan

Bernard A Burk

This Article addresses the deceptively simple questions why, up to the onset of the recent recession, law firms continued to grow at the rapid rate and in the unusual configuration that they have exhibited for over 40 years; and whether lawyers, clients, law students and law schools should expect familiar trends to reassert themselves as the economy improves. We show that the copious academic theorizing addressing these questions (focusing on such notions as diversification, asset specificity, “tournament” theory, and reputational and agency-cost concerns at the level of the firm as a whole) has proved ineffective at explaining or predicting actual …

Facilitating Friendly Settlements In The Inter-American Human Rights System: A Comparative Analysis With Recommendations, Sean B. Burke, Matthew P. Webster

Sean B Burke

No abstract provided.

Addressing The Special Problems Of Mentally Ill Prisoners: A Small Piece Of The Solution To Our Nation's Prison Crisis, Michael Vitiello

Michael Vitiello

After years of neglect, policymakers must confront a crisis in our prisons created by the increasing number of mentally ill prisoners. Mentally ill prisoners are both vulnerable and troublesome. Apart from their special needs, they are an increasing segment of the prison population. Their numbers have risen roughly in proportion with the release of the mentally ill from mental hospitals and the closing of those institutions. As states look for ways to reduce prison costs, meaningful reform may be in the air. That may allow a reexamination of policies that have led to the increase in mentally ill-prisoners. But if …

Transborder Licensing: New Frontier For Job Creation, Andrea L. Johnson

Andrea L Johnson

Abstract: TRANSBORDER LICENSING: NEW FRONTIER FOR JOB CREATION http://ssrn.com/abstract=1675285 (September, 11 2010). Available at SSRN: http://ssrn.com/abstract=1675286 By Professor Andrea L. Johnson, alj@cwsl.edu California Western School of Law 225 Cedar St. San Diego, CA 92101 (619) 525-1474 This article makes the case that the best opportunities for creating new jobs in the United States will come from transborder licensing. Transborder licensing involves the creation and disposition of intellectual property (IP), such as copyrights, patents, trademarks, and trade secrets, across geographical boundaries. Licensing is a contractual agreement in which the owner of IP, called the licensor, agrees to permit or restrict the …

Protecting Pocahontas's World: The Mattaponi Tribe's Struggle Against Virginia's King William Reservoir Project, Allison M. Dussias

Allison M Dussias

This article examines the efforts of the Mattaponi Tribe of Virginia to combat an environmentally destructive reservoir project that threatened sacred and archaeological sites and implicated tribal treaty rights, including fishing rights. The Tribe opposed the project through both the federal and state administrative approval process and litigation. The dispute over the reservoir highlights the difficulties that tribes have faced historically, and continue to face today, as they try to protect their rights to land, water, and subsistence resources.

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Iqbal's Retro Revolution, Benjamin P. Cooper

Benjamin P Cooper

The U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ascroft v. Iqbal have revolutionized the law on pleading, by shifting from a liberal notice pleading standard to a new heightened “plausibility” regime. The abundant scholarship about these cases consistently posits that Iqbal’s plausibility standard is completely novel with no historical precedent in the modern era. This Article argues that, contrary to this conventional wisdom, although Iqbal is revolutionary (in the sense that it marks a sharp break with what immediately preceded it), the post-Iqbal era is not entirely new. Rather, the current pleading regime bears a sharp …

Voluntary Client Testimony As A Privilege Waiver: Is Ohio's Law Caught In A Time Warp?, David B. Alden, Matthew P. Silversten

David B. Alden

Ohio’s attorney-client privilege statute, Ohio Rev. Code § 2317.02(A), has been interpreted to provide for a broad waiver of the attorney-client privilege whenever the client testifies voluntarily, including when the client’s testimony does not disclose the substance of the otherwise privileged communications. Finding a privilege waiver under these circumstances is virtually unique to Ohio. This article (1) traces the origins of this rule back to Ohio’s first code of civil procedure, which was enacted in 1853, (2) identifies the long-forgotten reasons that prompted its adoption; (3) analyzes decisions that have applied it from the mid-nineteenth century through today; (4) assesses …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

Do Accounting Rules Matter? The Dangerous Allure Of Mark To Market, Todd Henderson, Richard Epstein

Todd Henderson

This paper examines the relative strength of two imperfect accounting rules: historical cost and mark to market. The manifest inaccuracy of historical cost is well known, and, paradoxically one source of its hidden strength. Because private parties know of its evident weaknesses they look elsewhere for information. In contrast, mark to market for hard-to-value assets has many hidden weaknesses. In this paper we show how it creates asset bubbles and exacerbate their negative collateral consequences once they burst. It does the former by allowing banks to adopt generous valuations in up-markets that increase their lending capacity. It does the latter …