Law Commons^™

Coastal Regulation In South Carolina: Will The Rising Sea Change The Nature Of Governing Law, Kim Diana Connolly

Journal Articles

No abstract provided.

A “Real And Substantial” Mess: The Law Of Jurisdiction In Canada, Tanya J. Monestier

Journal Articles

In Morguard Investments Ltd. v. De Savoye, the Supreme Court of Canada established that a court could assert jurisdiction over an out-of-province defendant in cases where there was a "real and substantial connection" between the forum and the action. Years later, the Ontario Court of Appeal in Muscutt v. Courcelles attempted to provide guidance on the content of the real and substantial connection test by enumerating eight factors for a court to consider in deciding whether to assume jurisdiction over an ex juris defendant. Most provincial courts have enthusiastically and uncritically embraced the Muscutt approach to jurisdiction.

The author argues …

New York's Judicial Selection Process Is Fine – It's The Party System That Needs Fixing, James A. Gardner

Journal Articles

New York's system of electing lower court judges has long been notorious for providing the appearance of democracy without any of the substance. Although the people are given an opportunity to vote for judges, the really meaningful choices about who will run, where, and whether judicial elections will even be contested have for years been made by party insiders. Last year, in a case soon to be heard by the U.S. Supreme Court, the Second Circuit invalidated New York's method of electing judges on the ground that it violates the associational rights of party rank and file. In this brief …

Standard Setting In Human Rights: Critique And Prognosis, Makau Mutua

Journal Articles

This article interrogates the processes and politics of standard setting in human rights. It traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. This article looks at how those norms are made, who makes them, and why. It focuses attention on the deficits of the international order, and how that order - which is defined by multiple asymmetries - determines the norms and the purposes they serve. It identifies areas for further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy …

"Balancing Your Strengths Against Your Felonies": Considerations For Military Recruitment Of Ex-Offenders, Michael Boucai

Journal Articles

Existing work on ex-offenders’ access to military employment too narrowly represents both the Armed Forces’ and the public’s interests in the issue. This Article proposes to shift the conversation from ex-offenders’ usefulness to the Armed Forces to the reciprocal responsibilities and benefits involved for these potential recruits, the military, and society at large. Part One reviews the rules, policies, and procedures governing the “moral waivers” that allow thousands of individuals with criminal histories to enlist each year, and it shows that that the waiver system nonetheless often fails to detect the criminal backgrounds of many recruits. Part Two reviews some …

Powers Of Illegality: House Demolitions And Resistance In East Jerusalem, Irus Braverman

Journal Articles

This article examines how techniques of illegality based in planning laws and policy are utilized to dominate the Palestinian population of East Jerusalem. Although the demolition of homes is the most spectacular spatial mechanism of illegality exercised by Israel in East Jerusalem, my focus in the first part of the article is on more mundane techniques of illegality, such as mapping, filing, and arbitrariness. The second part of the article introduces the notion of resistance and explores the illegal building carried out by East Jerusalemite Palestinians as an act of spatial protest. In examining tactics of "everyday" resistance, I suggest …

The Act Requirement As A Basic Concept Of Criminal Law, Francisco Muñoz-Conde, Luis E. Chiesa

Journal Articles

No abstract provided.

Age Discrimination In Employment (Book Review), Lisa Goodman

Journal Articles

No abstract provided.

Can Happy Subjects Have An Enlightened Despot? Customer Satisfaction Among Army Corps Permit Applicants, Kim Diana Connolly

Journal Articles

No abstract provided.

Survey Says: Army Corps No Scalian Despot, Kim Diana Connolly

Journal Articles

Justice Antonin Scalia and others have described the U.S. Army Corps of Engineers ('the Corps') administration of the permitting process as burdensome and inefficient. Empirical data gathered from the Corps, however, do not bear out this assessment. In this Article, Kim Diana Connolly evaluates data collected from Corps Customer Service Surveys as well as the apparent disconnect between applicant experiences and the public's negative perception of the permitting process. She begins the Article with an overview of the Corps' regulatory permitting process, then lays out the history of and context for the Corps' Customer Service Surveys. Next, she summarizes available …

The Ramsar Convention On Wetlands: Assessment Of International Designations Within The United States, Kim Diana Connolly

Journal Articles

The Convention on Wetlands of International Importance Especially as Waterfowl Habitat, more commonly knows as the Ramsar Convention, is one international framework used to protect wetlands. At this time, the United States has designated 22 sites as wetlands of international importance. In this Article, Royal C. Gardner and Kim Diana Connolly analyze survey data collected from each of these 22 sites to determine whether and how Ramsar designation benefits these wetland areas. The authors first provide a brief overview of the Ramsar Convention, including its function within the United States. They then break down the survey data, looking at both …

A Damn Hard Thing To Do, John Henry Schlegel

Journal Articles

No abstract provided.

The Myth Of Copyright's Fair Use Doctrine As A Protector Of Free Speech, Lee Ann Lockridge

Journal Articles

This article debunks the myth that the fair use doctrine exists to protect the freedom of speech within copyright. Using the history of fair use in the courts and in Congress, as well as recent case law, the Article demonstrates that.fair use is not, and never has been, intended or designed to restrain copyright in the face of the First Amendment. The conflict between copyright and free speech could be lessened by reforming the balance of interests within fair use to eliminate the focus on commercial use and to expand the understanding of the broader public-benefit purpose underlying the Supreme …

Rescue The Americans With Disabilities Act From Restrictive Interpretations: Alcoholism As An Illustration, Judith J. Johnson

Journal Articles

The Supreme Court has narrowed the doorway into the protected class for the Americans with Disabilities Act of 1990 (ADA) in virtually every employment case. Taking their cue from the Supreme Court, the lower courts have been concerned principally with who is "disabled" and thus protected by the ADA. The answer today is not many people. The courts generally have been so hostile to ADA plaintiffs that it is difficult now to find a case in which the plaintiff was able to prove that he was disabled. Congress contemplated that some impairments would always be disabling. The Supreme Court, however, …

Distinguishing Certification From Abstention In Diversity Cases: Postponement Versus Abdication Of The Duty To Exercise Jurisdiction, Deborah Challener

Journal Articles

This Article argues that a federal court does not abdicate its duty to exercise its jurisdiction when it certifies a question in a diversity case; instead, the court merely postpones the exercise of its jurisdiction. Thus, federal courts need not limit certification in diversity cases to exceptional circumstances.

Copyright's Empire: Why The Law Matters, Alina Ng

Journal Articles

Previous intellectual property literature demands a balance between incentives to produce for the creator of a work and access to information, knowledge, and content by the users. However, law and economics jurisprudence does not provide compelling arguments to support the notion that the copyright monopoly is the most efficient way to maximize public welfare by promoting the works of authors. The social cost from expansion of private rights is nonexistent because market structures change as technologies develop, providing society with increased accessibility to creative works. Accordingly, copyright laws need to expand as technology develops in order to realize a fair …

Beyond Theocracy And Secularism (Part I): Toward A New Paradigm For Law And Religion, Mark C. Modak-Truran

Journal Articles

As part of a larger project challenging and moving beyond the premodern and modern paradigms, this article focuses on the modern paradigm and its notion of secularization. Section II will discuss the origin of the modern paradigm as a reaction to the religious pluralism and the religious wars in the sixteenth and seventeenth century such as the Thirty Years War in Europe (1618-48) and the English Civil War (1642-51) resulting from the Protestant Reformation. The Reformation divided the Western part of the Christian tradition into separate confessional institutions based on different theological interpretations of Christianity such as Lutheran, Calvinist, and …

Secularization, Legal Indeterminacy, And Habermas's Discourse Theory Of Law, Mark C. Modak-Truran

Journal Articles

This Article focuses on Habermas’s sophisticated awareness of the tension between secularization of law and legal indeterminacy and treats his discourse theory of law as a significant test of the feasibility of reconciling these claims. In an earlier article, I criticized Habermas’s discourse of justification and his claim that it legitimated the law independently of a religious or metaphysical worldview. Even assuming I was misguided in that critique, this Article argues that Habermas’s discourse of application is incoherent and fails to maintain the secularization of the law in the face of legal indeterminacy. Given Habermas’s failure, contemporary legal theory needs …

Symposium Introduction, Mark C. Modak-Truran

Journal Articles

The articles and essays in this Symposium should greatly aid disclosing key presuppositions of religionists and secularists by thinking about the law (rather than through the law) and by employing other disciplinary perspectives and methods to provide a more sophisticated understanding of law and religion. I will provide a brief summary of each article and essay and indicate the methods or disciplinary perspectives employed by them in their analysis.

The Superior Position Of The Creditor In The Community Property Regime: Has The Community Become A Mere Creditor Collection Device?, Andrea B. Carroll

Journal Articles

This article is a first step in an effort to critically examine the continued vitality of the community regime for regulating spousal property. Specifically, the article examines the American community property regimes in light of how they measure up against non-community property states in terms of creditor protection. The results are often surprising. The community regime grants creditors access to a variety of property for all manner of debts. For instance, the entirety of the community property, including the non-debtor spouse's wages, may be seized in some community property states for the other's premarital debts. That the non-debtor spouse has …

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Journal Articles

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

Gonzales V. Oregon And Physician-Assisted Suicide: Ethical And Policy Issues, Ken Levy

Journal Articles

No abstract provided.

The Ugly Truth About Appearance Discrimination And The Beauty Of Our Employment Discrimination Law, William R. Corbett

Journal Articles

No abstract provided.

Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise, Blake Hudson

Journal Articles

Important species are increasingly threatened on private lands and remain largely unregulated by federal and state laws. The gopher tortoise, present within six south-eastern states, is one such species. The tortoise is a keystone species, meaning that upon its existence numerous other species depend. Despite its ecological importance, tortoise populations have declined by 80%, partly due to development pressures, but primarily due to forest management practices which reduced the longleaf pine ecosystem upon which it depends by 96%. This article focuses on legal and policy issues associated with both urban development and forest management of lands containing the gopher tortoise. …

At The Intersection Of Race And History: The Unique Relationship Between The Davis Intent Requirement And The Crack Laws, Christopher J. Tyson

Journal Articles

No abstract provided.

Statutory Interpretation As A Parasitic Endeavor, Stephen F. Ross

Journal Articles

The principal theme of this essay is that statutory interpretation is a project that requires advocates and judges to utilize the insights of three discrete disciplines apart from law: communications and linguistics to understand the way that legislative drafters use words to communicate to others, either in text or in extratextual legislative material; political science to describe the way that legislators behave in enacting statutes; and political theory to provide a normative guide for courts interpreting statutes in a constitutional democracy.

Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis

Journal Articles

As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …

Aesthetic Judgment And Legal Justification, Guyora Binder

Journal Articles

Although criticized as illegitimate, literary elements are necessary features of legal argument. In a modern liberal state, law motivates compliance by justifying controversial prescriptions as products of an appropriate process for representing the will of society. Yet because law constructs the will of individual and collective actors in representing them, its representations are necessarily figurative rather than mimetic. In evaluating law's representation of society, citizens of the liberal state are also shaping their own ends. Such self-expressive choices, subjective but non-instrumental, entail aesthetic judgment. Thus the literary elements of rhetorical figuration and aesthetic appeal are fundamental, rather than merely ornamental, …

Narrative, Disability, And Identity, David M. Engel, Frank W. Munger

Journal Articles

No abstract provided.

Anti-Exclusionary Zoning In Pennsylvania: A Weapon For Developers, A Loss For Low-Income Pennsylvanians, Katrin Rowan

Journal Articles

No abstract provided.