Law Commons^™

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Clitoridectomy And The Economics Of Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel

David F Babbel

The primary purpose of this article is to provide courts with an important new tool for applying the correct probability distribution to a given legal question. This tool is path-breaking and will have an extensive impact on how a wide variety of cases are decided. In areas as diverse as criminal prosecutions and civil lawsuits alleging securities fraud, courts must assess the relevance and reliability of statistical data and the inferences drawn therefrom. But, courts and expert witnesses often make mistaken assumptions about what probability distributions are appropriate for their analyses. Using the wrong probability distribution can lead to invalid …

Copyright Infringement In The Internet Age - Primetime For Harmonized Conflict-Of-Laws Rules?, Anita B. Frohlich

Anita B Frohlich

The traditionally national nature of law endangers its very raison d’être in today’s interconnected and borderless world. Conflict-of-laws methodology may prove to represent an adequate means to maintain relevance of national legal tradition in presence of the increasingly international nature of legal disputes. Here, I propose that only a harmonized conflict-of-laws framework can achieve this goal. Specifically, I focus on international copyright law since (1) the current national jurisprudence in this field is unsatisfactory and disparate, (2) international intellectual property law has so far mostly failed to cross-fertilize with the field of conflict of laws, and (3) there have been …

Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow

Rebecca E Zietlow

ABSTRACT: Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, …

Why Should Lawyers Care About Institutional Data On Courts?, Maxwell L. Stearns

Maxwell L. Stearns

In the “U.S. Supreme Court Judicial Data Base: providing new insights into the Courts,” Professors Harold Spaeth and Jeffrey Segal provide a brief and valuable overview of the two Supreme Court databases, with a particular focus on how those databases might be of use to those with professional legal training, namely law professors, lawyers, and perhaps also judges. In this comment, I will describe what I consider to be the limitations, and uses, of such data for those of us trained in law, and who most likely will lack the rigorous social science background familiar to most present users of …

Book Review, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Book Review: Randall Baldwin Clark, "The Law Most Beautiful and Best: Medical Argument and Magical Rhetoric in Plato’s Laws", Lexington Books, 2004 (pp. 178 + xiv) Randall Clark has distinguished himself among a growing number of scholars taking a new look at theories of law in ancient Greek texts. The review examines a number of original features of Clark’s approach, and shows how the book sheds new light on important themes in Plato’s Republic and Laws.

Oy Vey! The Bernstein Exception: Rethinking The Doctrine In The Wake Of Constitutional Abuses, Corporate Malfeasance And The “War On Terror”, Breana Frankel

Breana Frankel

Abstract OY VEY! THE BERNSTEIN EXCEPTION: RETHINKING THE DOCTRINE IN THE WAKE OF CONSTITUTIONAL ABUSES, CORPORATE MALFEASANCE AND THE “WAR ON TERROR” Breana Frankel, Assistant Professor, Chapman University School of Law The “Bernstein doctrine” is a classic example of the exception swallowing the rule. The Bernstein exception allows the Executive to intercede in act of state cases when it determines that adjudication would not harm U.S.-foreign relations. The Exception was initially intended solely to permit victims of Nazi war crimes to recover in United States courts. However, in the more than 50 years since its inception, the Bernstein doctrine has …

Law's Misguided Love Affair With Science, Robin Feldman

Robin C Feldman

The allure of science has always captivated members of the legal profession. Its siren’s song has followed us throughout much of American legal history. We look to science to rescue us from the experience of uncertainty and the discomfort of difficult legal decisions, and we are constantly disappointed.

The notion of what constitutes science and what it would take to make law more scientific varies across time. What does not vary is our constant return to the well. We are constantly seduced into believing that some new science will provide answers to law’s dilemmas, and we are constantly disappointed.

This …

The Chicago School Virus, Spencer Weber Waller

Spencer Weber Waller

The Chicago School of Law and Economics is a leading example of a highly successful legal ideology. As one recent commentator has noted: "[T]he basic characteristic of the Chicago School is the belief that free markets and the price mechanism are the most effective and desirable ways for a society to organize production and economic life in general." The Chicago School of Law and Economics applies these insights to legal questions and views the creation and enforcement of legal rules primarily in terms of how legal rules and institutions promote allocative efficiency and wealth maximization.

While much ink has been …

The Disaggregation Of Race And Class In United States Civil Rights Law, Rebecca Zietlow

Rebecca E Zietlow

Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …

California's Dueling Harmless Error Standards: Approaches To Federal Constitutional Error In Civil Trials And Establishing The Proper Test For Dependency, Meehan Rasch

Meehan Rasch

For forty years, California appellate courts generally have applied one discrete harmless error test for federal constitutional error in criminal cases and another for civil proceedings. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond any reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the …

The Cross-Border Insolvency Regulations 2006: An Emerging Jurisprudence, Adrian Walters, S. Shivji, A. Smith

Adrian J Walters

No abstract provided.

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophony Of Concurrences, And Re-Percolation After Rapanos, Matthew J. Parlow, Donald J. Kochan

Matthew Parlow

Liability For Possible Wrongs: Causation, Statistical Probability And The Burden Of Proof, In Symposium, The Frontiers Of Tort Law, Richard W. Wright

Richard W. Wright

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if …

The Cy Pres Problem And The Role Of Damages In Tort Law, Goutam U. Jois

Goutam U Jois

Class action litigation presents a common problem that has received little discussion in the academic literature. In almost every case, the plaintiff class’s recovery is not fully distributed. For example, all possible plaintiffs may not come forward with their claims, the plaintiffs may not be ascertainable, or claims may not be timely submitted. Administrators are regularly posed with the problem of what to do with these residual funds. Currently, courts are free to do virtually anything with such funds. The system is ad hoc, unpredictable, and unguided by any normative principle. In these cases, I propose that the funds should …