Law Commons^™

Private Standards Organizations And Public Law, Peter L. Strauss

Faculty Scholarship

Simplified, universal access to law is one of the important transformations worked by the digital age. With the replacement of physical by digital copies, citizens ordinarily need travel only to the nearest computer to find and read the texts that bind them. Lagging behind this development, however, has been computer access to standards developed by private standards development organizations, often under the umbrella of the American National Standards Institute (ANSI), and then converted by agency actions incorporating them by reference into legal obligations. To discover what colors the Occupational Safety and Health Administration (OSHA) requires for use in work-place caution …

Federal Executive Actions To Combat Climate Change, Michael B. Gerrard

Faculty Scholarship

“I urge this Congress to pursue a bipartisan, market-based solution to climate change, like the one John McCain and Joe Lieberman worked on together a few years ago. But if Congress won’t act soon to protect future generations, I will. I will direct my cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy.”
—President Barack Obama State-of-the-Union Message Feb. 12, 2013

In the current partisan atmosphere in Washington, there appears to be …

Gandhi And Copyright Pragmatism, Shyamkrishna Balganesh

Faculty Scholarship

Mahatma Gandhi is revered the world over for his views on freedom and nonviolence – ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly considered to have been a moral idealist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with copyright law – as a writer, editor, and publisher – he routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced understanding of copyright law and its conflicting normative goals, Gandhi’s thinking on copyright law reveals a reasoned, contextual, …

Towards A Legal Theory Of Finance, Katharina Pistor

Faculty Scholarship

This paper develops the building blocks for a legal theory of finance. LTF holds that financial markets are legally constructed and as such occupy an essentially hybrid place between state and market, public and private. At the same time, financial markets exhibit dynamics that frequently put them in direct tension with commitments enshrined in law or contracts. This is the case especially in times of financial crises when the full enforcement of legal commitments would result in the self-destruction of the financial system. This law-finance paradox tends to be resolved by suspending the full force of law where the survival …

Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Joshua Gupta-Kagan

Faculty Scholarship

This Article will address several issues raised by Missouri’s unusual juvenile court structure, arguing that the structure violates the Missouri Constitution’s separation of powers clauses by placing prosecutorial discretion with-in the judicial branch. By granting juvenile officers, who are subject to judges’ supervision, exclusive power to file child abuse and neglect and juvenile delinquency cases, Missouri law concentrates power into the hands of one branch of government. Missouri law thus empowers individual judges to set child welfare and juvenile justice policy by managerial decree. Subordinate judicial branch officials face pressure to file and litigate cases to please their boss, the …

The Legal And Ethical Limits Of Technological Warfare Symposium: Roundtable Discussion Transcript, Amos Guiora, Harry Soyster, David Irvine, Geoffrey S. Corn, James Carofano, Claire Finkelstein, Laurie Blank, Monica Hakimi, George R. Lucas, Trevor Morrison, Frédéric Mégret

Faculty Scholarship

This article is a transcript of a roundtable discussion from the symposium, The Legal and Ethical Limits of Technological Warfare, February 1, 2013, University of Utah, S.J. Quinney College of Law.

Agora: The South China Sea – Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …