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The U.N. Security Council's Duty To Decide, Anna Spain Jan 2013

The U.N. Security Council's Duty To Decide, Anna Spain

Articles

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC's own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its ...


The Tragic Story Of The Federal Coal Leasing Program, Mark Squillace Jan 2013

The Tragic Story Of The Federal Coal Leasing Program, Mark Squillace

Articles

No abstract provided.


The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey Jan 2013

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Articles

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often ...


Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart Jan 2013

Considering Class: College Access And Diversity, Matthew N. Gaertner, Melissa Hart

Articles

Each time that the continued legality of race-conscious affirmative action is threatened, colleges and universities must confront the possibility of dramatically changing their admissions policies. Fisher v. University of Texas, which the Supreme Court will hear this year, presents just such a moment. In previous years when affirmative action has been outlawed by ballot initiative in specific states or when the Court has seemed poised to reject it entirely, there have been calls for replacing race-conscious admissions with class-based affirmative action. Supporters of race-conscious affirmative action have typically criticized the class-based alternative as ineffective at maintaining racial diversity. This article ...


Leniency As A Miscarriage Of Race And Gender Justice, Aya Gruber Jan 2013

Leniency As A Miscarriage Of Race And Gender Justice, Aya Gruber

Articles

No abstract provided.


Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy Jan 2013

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Articles

No abstract provided.


The Corporate Preference For Trade Secret, Andrew A. Schwartz Jan 2013

The Corporate Preference For Trade Secret, Andrew A. Schwartz

Articles

Many inventions can be legally protected either by patent or by trade secrecy, and a conventional wisdom exists on how to select between them. This Article adds to that literature by showing that corporations should have an inherent preference for trade secret over patent for reasons relating to their legal form. Among them is the idea that corporations are perpetual entities and therefore perfectly suited to reap the perpetual returns that only a trade secret can offer. The Article also addresses the potential for a conflict between the inherent corporate preference for trade secret and the preferences of corporate managers ...


The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux Jan 2013

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

Articles

No abstract provided.


Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser Jan 2013

Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser

Articles

No abstract provided.


Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins Jan 2013

Never Construed To Their Prejudice: In Honor Of David Getches, Richard B. Collins

Articles

This article reviews and analyzes the judicial canons of construction for Native American treaties and statutes. It discusses their theoretical justifications and practical applications. It concludes that the treaty canon has ready support in contract law and the law of treaty interpretation. Justification of the statutory canon is more challenging and could be strengthened by attention to the democratic deficit when Congress imposes laws on Indian country. Applications of the canons have mattered in disputes between Indian nations and private or state interests. They have made much less difference, and have suffered major failings, in disputes with the federal government ...


A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein Jan 2013

A Structuralist Approach To The Two State Action Doctrines, Justin Desautels-Stein

Articles

By all accounts, the constitutional and antitrust state-action doctrines are strangers. Courts and scholars see the constitutional state-action doctrine as about the applicability of constitutional rights in private disputes, and the antitrust state-action doctrine as a judicial negotiation between the scope of the Sherman Act and the demands of federalism. In this conventional view, the only thing the doctrines share in common is that they are both an awful mess. This Article challenges the conventional wisdom and argues that the two state-action doctrines are fundamentally connected, and when viewed in a certain light, not even that messy. It is not ...


American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin Jan 2013

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Articles

In an effort to reexamine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue nonstate actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth-century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities and ...


Private Copyright Reform, Kristelia A. García Jan 2013

Private Copyright Reform, Kristelia A. García

Articles

The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed "private copyright reform," presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can ...


Professionalism And The New Normal, Philip J. Weiser Jan 2013

Professionalism And The New Normal, Philip J. Weiser

Articles

No abstract provided.


Hero For The People, Hero For The Land And Water: Reflections On The Enduring Contributions Of David Getches, Charles Wilkinson Jan 2013

Hero For The People, Hero For The Land And Water: Reflections On The Enduring Contributions Of David Getches, Charles Wilkinson

Articles

No abstract provided.


The Case For Curation: The Relevance Of Digest And Citator Results In Westlaw And Lexis, Susan Nevelow Mart Jan 2013

The Case For Curation: The Relevance Of Digest And Citator Results In Westlaw And Lexis, Susan Nevelow Mart

Articles

Humans and machines are both involved in the creation of legal research resources. For legal information retrieval systems, the human-curated finding aid is being overtaken by the computer algorithm. But human-curated finding aids still exist. One of them is the West Key Number system. The Key Number system’s headnote classification of case law, started back in the nineteenth century, was and is the creation of humans. The retrospective headnote classification of the cases in Lexis’s case databases, started in 1999, was created primarily - although not exclusively - with computer algorithms. So how do these two very different systems deal ...


Development And Dissemination Of Clean Cookstoves: A Model Law For Developing Countries, Lakshman Guruswamy Jan 2013

Development And Dissemination Of Clean Cookstoves: A Model Law For Developing Countries, Lakshman Guruswamy

Articles

No abstract provided.


(In)Competence In Appellate And District Court Brief Writing On Rule 12 And 56 Motions, Scott A. Moss Jan 2013

(In)Competence In Appellate And District Court Brief Writing On Rule 12 And 56 Motions, Scott A. Moss

Articles

No abstract provided.


Undue Burdens In Texas, Jennifer S. Hendricks Jan 2013

Undue Burdens In Texas, Jennifer S. Hendricks

Articles

No abstract provided.


Tribal Rights, Human Rights, Kristen A. Carpenter, Angela R. Riley Jan 2013

Tribal Rights, Human Rights, Kristen A. Carpenter, Angela R. Riley

Articles

No abstract provided.


Neofeminism, Aya Gruber Jan 2013

Neofeminism, Aya Gruber

Articles

Today it is prosaic to say that "feminism is dead." Far from being moribund, feminist legal theory is breaking from its somewhat dogmatic past and forging ahead with new vigor. Many modern feminist legal scholars seek innovative ways to better the legal, social, and economic status of women while simultaneously questioning some of the more troubling moves of second-wave feminism, such as the tendency to essentialize the woman's experience, the turn to authoritarian state policies, and the characterization of women as pure objects or agents. These "neofeminists" prioritize women's issues but maintain a strong commitment to distributive justice ...


Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks Jan 2013

Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks

Articles

Food safety is a hotly debated issue. While food nourishes, sustains, and enriches our lives, it can also kill us. At any given meal, our menu comes from a dozen different sources. Without proper incentives to encourage food safety, microbial pathogens can, and do enter the food source--so much so that according to the Centers for Disease Control and Prevention (CDC), each year roughly one in six Americans (or forty-eight million people) gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. What is the optimal way to prevent unsafe foods from entering the marketplace?

Safety in ...


Benefit Corporations: A Challenge In Corporate Governance, Mark J. Loewenstein Jan 2013

Benefit Corporations: A Challenge In Corporate Governance, Mark J. Loewenstein

Articles

Benefit corporations are a new form of business entity that is rapidly being adopted around the country. Though the legislation varies from jurisdiction to jurisdiction, most statutes are based on a model proposed and promoted by B Lab, itself a nonprofit corporation. The essence of these statutes is that, in making business judgments, the directors of a benefit corporation must consider the impact of their decisions on the environment and society. The model legislation, though, may create serious governance issues for the directors of benefit corporations that operate under these laws. This article analyzes the model legislation and identifies its ...


Rationalizing Entity Law: Corporate Law And Alternative Entities (Part I), Mark J. Loewenstein Jan 2013

Rationalizing Entity Law: Corporate Law And Alternative Entities (Part I), Mark J. Loewenstein

Articles

In this article, I consider how corporate law and limited liability company law treat five different areas: agency authority, derivative actions, formation issues, veil piercing, and oppression of minority owners. For each such area, I consider whether the law varies depending on the kind of entity involved, why that might be the case, and whether the law should be rationalized; that is, whether legislatures or the courts should seek to harmonize the law across entities. While this short article focuses primarily on corporations and limited liability companies, the issues considered here apply as well to partnerships and, where appropriate, reference ...


Rural Crowdfunding, Andrew A. Schwartz Jan 2013

Rural Crowdfunding, Andrew A. Schwartz

Articles

One reason that economic development in rural America lags behind its urban counterpart is the persistent lack of venture capital for rural entrepreneurs. Geography deserves much of the blame, as angel investors and venture capitalists tend to live and work in metropolitan areas on the coasts, in places like Silicon Valley and Boston. Many rural areas are literally thousands of miles away, with the result that venture capital has rarely found its way to rural regions.

Recent federal legislation, however, has the potential to change this dynamic. The JOBS Act authorizes the sale of securities over the Internet to large ...


Crowdfunding Securities, Andrew A. Schwartz Jan 2013

Crowdfunding Securities, Andrew A. Schwartz

Articles

A new federal statute authorizes the online "crowdfunding" of securities, a new idea based on the concept of "reward" crowdfunding practiced on Kickstarter and other websites. This method of selling securities had previously been banned by federal securities law but the new CROWDFUND Act overturns that prohibition.

This Article introduces the CROWDFUND Act and explains that it can be expected to have two primary effects on securities law and capital markets. First, it will liberate startup companies to use peer networks and the Internet to obtain modest amounts of capital at low cost. Second, it will help democratize the market ...


Title Ix’S Protections For Transgender Student Athletes, Scott Skinner-Thompson, Ilona M. Turner Jan 2013

Title Ix’S Protections For Transgender Student Athletes, Scott Skinner-Thompson, Ilona M. Turner

Articles

This article examines legal authority and policy to determine whether transgender students in K-12 schools must be permitted to participate in athletics according to their gender identity, and without any requirement for medical intervention. The articles concludes that such a policy is consistent with legal authority under Title IX and Title VII and, more importantly, best advances the well-being of already vulnerable transgender youth by helping to incorporate and include such students in activities that are critical to physical, social, mental, emotional development, and health.

Part II of this article briefly details the history of Title IX with respect to ...


Settler Colonialism And Reclamation: Where American Indian Law And Natural Resources Law Meet, Sarah Krakoff Jan 2013

Settler Colonialism And Reclamation: Where American Indian Law And Natural Resources Law Meet, Sarah Krakoff

Articles

Three hours west of Phoenix, Arizona, the Colorado River Indian Tribes (“CRIT”), a federally recognized tribe that includes over 3,700 enrolled members of Mohave, Chemehuevi, Navajo, and Hopi descent, occupies a reservation nearly 300,000 acres in size. The CRIT was one of five tribes to have its water rights confirmed in the landmark case of Arizona v. California, and therefore has senior rights to 719,248 acre-feet of Colorado River water, nearly one-third of Arizona’s allocation. How the CRIT came to be a single federally recognized tribe composed of members from four indigenous peoples located on lands ...


Technological Cost As Law In Intellectual Property, Harry Surden Jan 2013

Technological Cost As Law In Intellectual Property, Harry Surden

Articles

Changes in the scope of IP legal rights are generally thought to be linked to changes in positive law. This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. Diminishing technological constraint is an under-acknowledged factor driving changes in substantive IP law.

More specifically, there are certain activities that are core to IP law. Such activities include, for example, the copying of creative works in copyright (e.g. duplicating books or music), or the manufacturing of products in patent law. Traditionally, IP legal theory ...


Water Transfers For A Changing Climate, Mark Squillace Jan 2013

Water Transfers For A Changing Climate, Mark Squillace

Articles

The prior appropriation doctrine that dominates the water laws of the Western United States was perhaps the inevitable consequence of the need to manage water resources in a region where the demand for water often exceeds the supply. This doctrine has proved surprisingly clumsy at accommodating changing water needs during times of shortage. Economists have long viewed water markets as an attractive solution for reallocating water to meet the demands of an evolving community of water users. But most western states have been skeptical--sometimes even hostile--to proposed changes in historic water use patterns. This reluctance to encourage the transfer of ...