Law Commons^™

Is The Concept Of The Person Necessary For Human Rights?, Jens David Ohlin

Jens David Ohlin

The concept of the person is widely assumed to be indispensable for making a rights claim. But a survey of the concept's appearance in legal discourse reveals that the concept is stretched to the breaking point. Personhood stands at the center of debates as diverse as the legal status of embryos and animals to the rights and responsibilities of corporations and nations. This Note analyzes the evidence and argues that personhood is a cluster concept with distinct components: the biological concept of the human being, the notion of a rational agent, and unity of consciousness. This suggests that it is …

Toward A Less Adversarial Relationship Between Chevron And Gardner, James D. Ridgway

University of Massachusetts Law Review

Veterans benefits are a creature of statute. As such, nearly every veterans benefits issue presented to the courts for resolution involves the interpretation of a statute, regulation, or sub-regulatory authority. Although veterans law has been subject to judicial review for over twenty-five years, the courts still have yet to develop a coherent doctrine regarding when to resolve ambiguity in favor of the veteran versus when to defer to the interpretations of the Department of Veterans Affairs. This Article explores three possible approaches to developing a coherent vision of how veteran friendliness and agency deference can coexist and provide more predictability …

Passing The Torch But Sailing Too Close To The Wind: Congress’S Role In Authorizing Administrative Branches To Promulgate Regulations That Contemplate Criminal Sanctions, Reem Sadik

Legislation and Policy Brief

The Supreme Court has stated that Congress must simply “lay down by legislative act an intelligible principle” to which the agency must conform. If this is done, a court will find the delegation of broad authority to the agency to be constitutional. There is, however, an open issue regarding whether the “intelligible principle” standard applies to delegations of authority that allow for the promulgation of both civil and criminal penalties. In Touby v. United States, the Supreme Court was asked whether “something more than an ‘intelligible principle’ is required” when Congress authorizes an agency to issue regulations that contemplate …

Shield Law - The Qualified Privilege Of Newscasters & Journalists In Non-Confidential News - Court Of Appeals Of New York - People V. Combest, 828 N.E.2d 583 (N.Y. 2005), Albert V. Messina Jr.

Touro Law Review

No abstract provided.

Work Made For Hire -- Analyzing The Multifactor Balancing Test, Ryan Vacca

Florida State University Law Review

Authorship of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer, not the employee, being the author and initial copyright owner. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, set forth a list of factors to distinguish employees from independent contractors. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. …

The Superior Orders Defense: A Principal-Agent Analysis, Bohrer Ziv

Georgia Journal of International & Comparative Law

No abstract provided.

The Past, Present And Future Of Auer Deference: Mead, Form And Function In Judicial Review Of Agency Interpretations Of Regulations, Michael P. Healy

Law Faculty Scholarly Articles

The law of judicial review of agency legal interpretations has undergone an important reshaping as a consequence of the Supreme Court decision in United States v. Mead Corp. That decision and the important follow-on decision in National Cable & Telecommunications Ass 'n v. Brand X Internet Services have changed the understanding of the Court's landmark 1984 decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Chevron defined a new era of judicial deference to an agency's interpretation of an ambiguous statute, but the Chevron era has itself been transformed.

These legal developments had seemed to have little consequential …

A Home With Dignity: Domestic Violence And Property Rights, Margaret E. Johnson

All Faculty Scholarship

This Article argues that the legal system should do more to address intimate partner violence and each party's need for a home for several reasons. First, domestic violence is a leading cause of individual and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides to continue to live with the person who abused her receives little or no legal support, despite the evidence that this decision could most effectively reduce the violence. The legal system's current failings result from its limited goals-achieving …

Standing In The Shadow Of Tax Exceptionalism: Expanding Access To Judicial Review Of Federal Agency Rules, Lynn D. Lu

Publications and Research

No abstract provided.

Eccentric Positionally As A Precondition For The Criminal Liability For Artificial Life Forms, Mireille Hildebrandt

Mireille Hildebrandt

This contribution explores Plessner’s distinction between animal centricity and human eccentricity as “a difference that makes a difference” for the attribution of criminal liability to artificial life forms (ALFs). Building on the work of Steels and Bourgine & Varela on artificial life and Matura & Varela’s notion of autopoiesis I will reason that even if ALFs are autonomous in the sense even of having the capacity to rewrite their own program, this in itself is not enough to understand them as autonomous in the sense of instantiating an eccentric position that allows for reflection on their actions as their own …

Empowering The Consumer: A Discussion On Minnesota's Dual Agency Statute And A Proposed Solution That Puts The Consumer First, Micheal Fleming

Student Scholarship

Many Americans across this county strive to achieve the dream of home ownership. The obstacles that stand in the way of achieving that dream can be staggering and unique to the persons pursuing home ownership. To a certain extent, it is expected that there be some proverbial hoops of fire to jump through before finally turning that key to a new home. What the consumer does not expect is to find a statutory scheme that creates unnecessary obstacles, such as a broker with a divided loyalty and information barriers, at the expense of the public. This statutory scheme is enshrined …

Deflating Autonomy, Charles R. Mendez

South Carolina Law Review

No abstract provided.

Why Who Does What Matters: Governmental Design, Agency Performance, The Cfpb And Ppaca, William E. Kovacic

GW Law Faculty Publications & Other Works

How should the federal government be organized – and who (i.e., which departments, agencies, bureaus, and commissions) should do what? The issue is not new: President James Madison addressedgovernmental organization in his 1812 State of the Union Address, and in the last century, it is the rare President that does not propose to reorganize some part of the federal government. Indeed, on numerous occasions during the past century, virtually every part of the federal government has been repeatedly reorganized and reconfigured. In previous work, we examined the dynamics that influencethe assignment of regulatory duties to an agency, how those dynamics …

The Future Of General Jurisdiction: The Effects Of Daimler Ag V. Bauman, Stephanie Denker

Fordham Journal of Corporate & Financial Law

The Due Process Clause requires a court to have jurisdiction over a lawsuit before binding the parties to its judgment. However, before 2014, the Supreme Court had not addressed whether a court could impute a subsidiary's contacts to its parent corporation for jurisdictional purposes. Because of this oversight, the Courts of Appeals split over how to impute a subsidiary's contacts. Some courts apply the agency test, while other courts apply variations of the alter ego test. As a result, courts inconsistently asserted jurisdiction over multinational corporations, leading plaintiffs to forum shop and corporations to speculate which forums might assert jurisdiction …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan Carle

Articles in Law Reviews & Other Academic Journals

This essay examines the theory of individual agency that propels the central thesis in Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer (2012)-namely, that an important yet understudied means by which African American civil rights lawyers changed conceptions of race through their work was through their very performance of the professional role of lawyer. Mack shows that this performance was inevitably fraught with tension and contradiction because African American lawyers were called upon to act both as exemplary representatives of their race and as performers of a professional role that traditionally had been reserved for whites …

The Fiduciary Character Of Agency And The Interpretation Of Instructions, Deborah A. Demott

Faculty Scholarship

This chapter in a forthcoming book justifies the conventional characterization of common-law agency as a fiduciary relationship. An agent serves as the principal’s representative in dealings with third parties and facts about the world, situating the agent as an extension of the principal for legally-salient purposes. A principal’s power to furnish instructions to the agent is the fundamental mechanism through which the principal exercises control over the agent, a requisite for an agency relationship. The agent’s fiduciary duty to the principal provides a benchmark for the agent’s interpretation of those instructions. The chapter draws on philosophical literature on the identity …

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

Faculty Scholarship

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue …

A Framework For Judicial Review And Remand In Immigration Law, Collin D. Schueler

Law Faculty Scholarly Articles

This Article breaks new ground at the intersection of administrative law and immigration law. One of the more important questions in both fields is whether a reviewing court should resolve a legal issue in the first instance or remand that issue to the agency. This Article advances the novel claim that courts should use the modem framework for judicial review of agency statutory interpretations to inform their resolution of this remand question. Then, using this framework, the Article identifies when remand is and is not appropriate in immigration cases. This critical analysis, which urges a departure from conventional academic wisdom, …

Conceptions Of Agency In Social Movement Scholarship: Mack On African American Civil Rights Lawyers [Comments], Susan D. Carle

Susan D. Carle