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Full-Text Articles in Law

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski Dec 2012

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski

Articles

Civilian drones are scheduled to be permitted in the national airspace as early as 2015. Many think Congress should establish the necessary nationwide regulations to govern both law enforcement and civilian drone use. That thinking, however, is wrong. This Essay suggests drone federalism instead: a state-based approach to privacy regulation that governs drone use by civilians, drawing on states’ experience regulating other forms of civilian-on-civilian surveillance. This approach will allow necessary experimentation in how to best balance privacy concerns against First Amendment rights in the imminent era of drone-use democratization. This Essay closes by providing some guidance to states as ...


The Digital Collections At Colorado Law, Robert M. Linz Jan 2012

The Digital Collections At Colorado Law, Robert M. Linz

Articles

No abstract provided.


Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain Jan 2012

Sovereignty And The Promotion Of Peace In Non-International Armed Conflict, Anna Spain

Articles

No abstract provided.


The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan Jan 2012

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Articles

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion ...


Why We Need A Progressive Account Of Violence, Aya Gruber Jan 2012

Why We Need A Progressive Account Of Violence, Aya Gruber

Articles

No abstract provided.


Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur Jan 2012

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Articles

No abstract provided.


Suing Courts, Frederic Bloom, Christopher Serkin Jan 2012

Suing Courts, Frederic Bloom, Christopher Serkin

Articles

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different--on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why ...


A Shift To Narrativity, Derek H. Kiernan-Johnson Jan 2012

A Shift To Narrativity, Derek H. Kiernan-Johnson

Articles

Slipshod, inconsistent use of core Applied Legal Storytelling terminology muddles its discourse and hampers its growth. Refining the field’s vocabulary is essential, but insufficient, as exclusive focus on the field’s objects of inquiry, such as story and narrative, and the means of creating or conveying them, such as storytelling and narrating, risks losing the “A” in ALS. We need a new focus, one unburdened by the ambiguities and negative associations of existing options that more accurately reflects Applied Legal Storytelling scholars’ unique contributions. A shift to narrativity. Narrativity, as imagined here, is a top-level quality of a legal ...


Tiger Cub Strikes Back: Memoirs Of An Ex-Child Prodigy About Legal Education And Parenting, Peter H. Huang Jan 2012

Tiger Cub Strikes Back: Memoirs Of An Ex-Child Prodigy About Legal Education And Parenting, Peter H. Huang

Articles

I am a Chinese American who at 14 enrolled at Princeton and at 17 began my applied mathematics Ph.D. at Harvard. I was a first-year law student at the University of Chicago before transferring to Stanford, preferring the latter's pedagogical culture. This Article offers a complementary account to Amy Chua's parenting memoir. The Article discusses how mainstream legal education and tiger parenting are similar and how they can be improved by fostering life-long learning about character strengths, emotions, and ethics. I also recount how a senior professor at the University of Pennsylvania law school claimed to have ...


Introductory Remarks: International Energy Governance, Lakshman Guruswamy Jan 2012

Introductory Remarks: International Energy Governance, Lakshman Guruswamy

Articles

No abstract provided.


Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag Jan 2012

Four Conceptualizations Of The Relations Of Law To Economics (Tribulations Of A Positivist Social Science), Pierre Schlag

Articles

This brief essay sketches the ways in which four leading economic thinkers (Knight, Coase, Posner and Sunstein) have dealt with a vexing tension in the relations of economics to law, the state, and the social. The tension arises as microeconomists address (or fail to address) the relations of their theories to “soft factors” such as psychology, politics, social institutions, etc. These soft factors are at once clearly consequential for economic behavior (and thus arguably should be included in the theories). At the same time, these soft factors are not self-evidently subject to determination by any known economic laws (and thus ...


Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff Jan 2012

Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff

Articles

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories "tribe" and "tribal member" are themselves political, and reflect the ways in which tribes and tribal members have been racialized by ...


Internet Governance: The Role Of Multistakeholder Organizations, Joe Waz, Phil Weiser Jan 2012

Internet Governance: The Role Of Multistakeholder Organizations, Joe Waz, Phil Weiser

Articles

With the increasing international focus on the future of the ITU and its role (or lack thereof) in Internet governance, there is greater attention being paid to the fact that much of the 'governance' of the Internet is in fact carried out by so-called 'multistakeholder ('MSH') organizations.' Over the last two decades, these entities have largely established the norms and standards for the global Internet, but they are little known to the general public and even to most regulators and legislators. Indeed, most governments do not understand the essential role of MSH organizations. Consequently, to develop an effective Internet governance ...


Genealogies Of Risk: Searching For Safety, 1930s-1970s, William Boyd Jan 2012

Genealogies Of Risk: Searching For Safety, 1930s-1970s, William Boyd

Articles

Health, safety, and environmental regulation in the United States are saturated with risk thinking. It was not always so, and it may not be so in the future. But today, the formal, quantitative approach to risk provides much of the basis for regulation in these fields, a development that seems quite natural, even necessary. This particular approach, while it drew on conceptual and technical developments that had been underway for decades, achieved prominence during a relatively short timeframe; roughly, between the mid-1970s and the early 1980s--a time of hard looks and regulatory reform. Prior to this time, formal conceptions of ...


Government Speech In Transition, Helen Norton Jan 2012

Government Speech In Transition, Helen Norton

Articles

This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own ...


Planetarian Identity Formation And The Relocalization Of Environmental Law, Sarah Krakoff Jan 2012

Planetarian Identity Formation And The Relocalization Of Environmental Law, Sarah Krakoff

Articles

Local food, local work, local energy production--all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world's global environmental problems. This Article maintains, however, that some forms of localism are actually expressions, appropriate ones, of a planetary environmental consciousness. This Article's centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants, as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for ...


The Role Of Equipoise In Family Law, Deborah Cantrell Jan 2012

The Role Of Equipoise In Family Law, Deborah Cantrell

Articles

Scholars reviewing family law over the last twenty years have described the field as having undergone a revolution. While true, both scholars and front-line family law advocates have failed to invent a satisfying end to the revolution. This Article takes up that challenge and offers a novel way forward, It identifies two translation challenges that have prevented the revolution from reaching its end. The first challenge is translating reform so that its benefits accrue equally across all kinds of participants--rich and poor, those with lawyers and those without. The second challenge is translating theory into on-the-ground practices useful to family ...


The Water Marketing Solution, Mark Squillace Jan 2012

The Water Marketing Solution, Mark Squillace

Articles

No abstract provided.


Experimental Pragmatism In The Third Globalization, Justin Desautels-Stein Jan 2012

Experimental Pragmatism In The Third Globalization, Justin Desautels-Stein

Articles

Pragmatism dominates contemporary legal thought, but knowing this isn’t knowing so much. Legal pragmatism means different things to different people, and as this essay argues, minimalist and experimentalist forms of regulation both share a broadly pragmatic sensibility about law and democracy. As a consequence, we need to tease out the various threads of legal pragmatism in the hope of distinguishing the pragmatisms that work from the ones that don’t, or less pragmatically, the ones that are just from the ones that are not. This knowledge will come from an ongoing assessment of the political stakes immanent in the ...


Regulation Goes Medieval, Andrew A. Schwartz Jan 2012

Regulation Goes Medieval, Andrew A. Schwartz

Articles

Section 301 of the 2009 federal Credit Card Accountability, Responsibility, and Disclosure Act prohibits the issuance of consumer credit cards to young adults ages 18–20 unless the credit contract is cosigned by an older adult who accepts joint liability for the card, or else the young adult proves she has “independent means of repaying” her credit card obligations. This prohibition is at odds with a 50-year trend of extending the rights of adulthood to people ages 18–20. It also blocks an important source of credit for young entrepreneurs, who often use consumer credit to launch their enterprises.


Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux Jan 2012

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Articles

No abstract provided.


Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber Jan 2012

Duncan Kennedy's Third Globalization, Criminal Law, And The Spectacle, Aya Gruber

Articles

No abstract provided.


Remarks, James Anaya Jan 2012

Remarks, James Anaya

Articles

These remarks were delivered at the Closing Plenary--Indigenous Peoples and International Law: A Conversation with UN Special Rapporteur James Anaya and Inter-American Commission Rapporteur Dinah Shelton.


Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski Jan 2012

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Articles

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot ...


"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss Jan 2012

"Other Spaces" In Legal Pedagogy, Lolita Buckner Inniss

Articles

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the "critical program" in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT's position in ...


The Perpetual Corporation, Andrew A. Schwartz Jan 2012

The Perpetual Corporation, Andrew A. Schwartz

Articles

Courts and commentators take for granted that the ultimate objective of a business corporation is long-run profitability, not immediate profits. But a corporation is a creature of statute, so a statutory source for this rule must be found--or it is not really a rule. Yet prior literature has not identified any such legal basis, leaving a gap in corporate theory. This Article fills that gap by showing that the modern corporation is obliged to act with a long-term view because it has "perpetual existence" under the law. This Article then explains that because they must plan for a perpetual future ...


The Judicial Assault On The Clean Water Act, Mark Squillace Jan 2012

The Judicial Assault On The Clean Water Act, Mark Squillace

Articles

No abstract provided.


Tenth Amendment Challenges After Bond V. United States, Scott G. Thompson, Christopher Klimmek Jan 2012

Tenth Amendment Challenges After Bond V. United States, Scott G. Thompson, Christopher Klimmek

Articles

In its recent decision in Bond v. United States, the Supreme Court explained that because the Tenth Amendment "secures the freedom of the individual," private parties who otherwise satisfy Article III's standing requirements and other prudential requirements may challenge federal laws as violating the Tenth Amendment. In so doing, the Court reversed the majority of circuit courts that have addressed the issue and removed a significant categorical bar to individual Tenth Amendment challenges. This Article explains Bond's holding and explores its implications for future Tenth Amendment challenges by private parties.

Although Bond contains some expansive language regarding the ...


Economic Development And The Problem With The Problem-Solving Approach, Justin Desautels-Stein Jan 2012

Economic Development And The Problem With The Problem-Solving Approach, Justin Desautels-Stein

Articles

Scholars and practitioners alike have recently pointed to the idea of a "new moment" in the field of law and economic development, as well as a hope for a fruitful rethinking of political economy. The idea is that we have passed out of the period of high "neoliberalism," associated at one time with Reagan, Thatcher, and the so-called Washington Consensus and now eclipsed by the ascendance of the Obama Administration. The hope attending the new consensus is that, in the wake of neoliberal law and policy, the field of law and development might be on the verge of a new ...


The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks Jan 2012

The Flight From Judgment: Reflections On Benjamin Barton’S An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Jennifer Hendricks

Articles

Discusses J. McIntyre Machinery, Ltd. v. Nicastro as an example of the Supreme Court's failure to rely on practical wisdom, in connection with the historic shift toward increasingly elite credentials for the justices.