Law Commons^™

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan S. Fortney

Susan S. Fortney

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on …

The Thoughtful Integration Of Mediation Into Bilateral Investment Treaty Arbitration, Nancy A. Welsh, Andrea Kupfer Schneider

Nancy Welsh

While the current system of investment treaty arbitration has definitely improved upon the “gunboat diplomacy” used at times to address disputes between states and foreign investors, there are signs that reform is needed: states and investors increasingly express concerns regarding the costs associated with the arbitration process, some states refuse to comply with arbitral awards, other states hesitate to sign new bilateral investment treaties, and citizens have begun to engage in popular unrest at the prospect of investment treaty arbitration. As a result, both investors and states are advocating for the use of mediation to supplement investor-state arbitration. This Article …

A Critique Of Rights In Transitional Justice: The African Experience, Makau W. Mutua

Makau Mutua

Published in Rethinking Transitions: Equality and Social Justice in Societies Emerging from Conflict, Gaby Oré Aguilar & Felipe Gómez Isa, eds.

This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were …

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Laurent Sacharoff

Transparency And The Expansion Of The Wto Mandate, Padideh Ala'i

Padideh Ala'i

No abstract provided.

A Wolf In Sheep's Clothing? Transitional Justice And The Effacement Of State Accountability For International Crimes, Laurel E. Fletcher

Laurel E. Fletcher

If international atrocity crimes are acts so egregious that their impunity cannot be legally tolerated, why don’t we punish States that commit them? The rise of international criminal law is celebrated as an achievement of the international rule of law, yet its advance effectively may come at the expense of holding States accountable for their role in mass violence. Transitional justice has emerged as the dominant normative framework for how the international community responds to mass violence. Liberalism strongly influences transitional justice, which has produced individual criminal accountability as the desired form of legal accountability for atrocities. Transitional justice rejects …

Fumigating The Criminal Bug: New Research On The Insulation Of Volkswagen’S Middle Management, J.S. Nelson

J.S. Nelson

The French Case For Requiring Juries To Give Reasons. Safeguarding Defendants Or Guarding The Judges?, Mathilde Cohen

Mathilde Cohen

Table Annexed To Article: Delegate Credentialing At The Continental Congress Sampled At The Opening Of Congress On November 3, 1783, Peter J. Aschenbrenner

Peter J. Aschenbrenner

The Continental Congress opened its sessions in November; Our Constitutional Logic has selected the first opening after the Treaty of Paris (September 3, 1783) which is detailed at 25 Journals of the Continental Congress 795-799 on November 3 1783. Credentials were required to be no less than a year old or if of older vintage, the delegate must have presented them to the convention less than a year earlier. OCL supplies notes and comments to the passages keyed in at the table annexed hereto.

Delegate Credentialing At The Continental Congress Sampled At The Opening Of Congress On November 3, 1783, Peter J. Aschenbrenner

Peter J. Aschenbrenner

The Continental Congress opened its sessions in November; Our Constitutional Logic has selected the first opening after the Treaty of Paris (September 3, 1783) which is detailed at 25 Journals of the Continental Congress 795-799 on November 3 1783. Credentials were required to be no less than a year old or if of older vintage, the delegate must have presented them to the convention less than a year earlier. OCL supplies notes and comments to the passages keyed in at the table annexed hereto.

Law And Public Administration In Ireland, Fiona Donson, Darren O'Donovan

Darren O'Donovan

Extract: It is often said that administrative law is notoriously difficult to study and to teach because its doctrines are abstract and nuanced, moving across a wide array of statutes and aspects of legal practice. This book is an attempt to defend administrative law as an exciting and dynamic subject which is central to meeting the future challenges facing Irish public governance. Law and Public Administration in Ireland inevitably focuses heavily upon judicial review, as the central aspect of the legal regulation of governance, providing a firm backstop against government abuse of power. In our account of the grounds of …

Global Administrative Law And Deliberative Democracy, Benedict Kingsbury, Megan A. Donaldson, Rodrigo Vallejo

Megan A Donaldson

An early framing of ‘global administrative law’ (GAL) provisionally ‘bracket[ed] the question of democracy’ as too ambitious an ideal for global administration. To many, the bracketing of democracy has appeared analytically unpersuasive and normatively dubious. This essay is an initial attempt to open the brackets and bring GAL and democracy into conversation. It addresses two separate observations: first, that democracy currently lacks tools to respond to the globalization and diffusion of political authority; and secondly, that GAL is not presently democratic — it has no room for democratic concerns in its emerging norms. The juxtaposition of democracy and GAL yields …

Breaking The Shackled Silence: Unheard Voices Of Women From Kandhamal, Saumya Uma

Dr. Saumya Uma

Battered And Betrayed: A Report Of Visit To Muzaffarnagar Camps, Saumya Uma, Hasina Khan

Dr. Saumya Uma

Reviewing Charlotte Ku And Harold Jacobson (Eds.), Democratic Accountability And The Use Of Force In International Law, Russell A. Miller

Russell A. Miller

None available.

Guest View: In Defense Of Student Privacy, Richard J. Peltz-Steele

Richard J. Peltz-Steele

Privacy is another American value we rush to sacrifice on the altar of accountability. In Ohio, reporters swarm the yards of liberated kidnapping victims. And in Massachusetts, news trucks besiege the campus at UMass Dartmouth, where I work, and where marathon bombing suspect Dzhokhar Tsarnaev was a student. Media want to know everything about Tsarnaev and his college friends. The university, bound by federal privacy law, has refused access to student academic and financial aid records.

Who’S Who In The Legal Zoo: The Jury, Jodie O'Leary

Jodie O'Leary

Extract: Juries have been portrayed in movies, such as The Juror and the much earlier 12 Angry Men, depicted in books (particularly by John Grisham), such as The Last Juror or Runaway Jury, and featured in television programs like Law and Order. Most of us in the common law world know someone who served on one (or at least got a notice to attend jury duty). But what do you really know about this institution that has been described as ‘the lamp that shows that freedom lives’ or the ‘sacred bulwark’ of liberty?

Restoring A Public Focus To Government-Owned Businesses: Is A Duty To The Public The Answer?, Victoria Baumfield

Victoria Baumfield

Commercialised government business enterprises (GBEs) have proliferated in recent years. In some cases, profitability has been accorded too much prominence, while the public’s concerns are ignored. This paper proposes that the pendulum has swung too far in favour of treating GBEs like regular businesses, with no regard for their public interest functions. Existing accountability measures must be strengthened. The ministerial responsibility model is insufficient to ensure that GBEs are managed in ways that take account of public concerns. Building on the public trust model, new approaches are required to ensure that GBEs do not neglect their duty, as governmental bodies, …

The Implementation Gap: What Causes Laws To Succeed Or Fail?, David Barnhizer

David Barnhizer

It is important to go behind the “paper systems” many countries and private sector actors have created to manufacture the appearance of commitments to responsible economic activity, environmental protection and social justice. This produces the need to penetrate the veils that mask governments’ “apparent compliance” with the terms of sustainable development, and to be honest about the inability of voluntary codes of practice to shape the behavior of business and government. Implementation requires effective systems to carry out the law and policy mandates. Laws and policies are often poorly designed or deliberately sabotaged in their creation, but in many instances …

The Reality Of Business And Governmental Decision-Making In The Context Of Sustainable Development, David Barnhizer

David Barnhizer

It is absolutely rational for economic actors and decision-makers to seek to operate in their own self-interest. The challenge for anyone who wishes to influence or alter the process lies in knowing where that self-interest lies and changing the nature of the self-interest if that is required or possible. That is a far greater challenge than many understand because regardless of what we might like to do in our personal lives, it is the institution within which we work that dictates how we think and what we value in our service to that institution. Given the short time frame within …

New “Architecture” And Revitalizing The Un Global Compact, David Barnhizer

David Barnhizer

Some advocates of sustainable development possess an almost theological faith in what I refer to as “rhetorical” sustainable development as the path to providing for the sound future of human civilizations and critical ecological systems. Simply put, if we try to think “too big” and “bite off too much” then the system we are trying to control or influence consumes us and our resources and we fail miserably. There is real and predictable danger in grandeur. This means we need to think about achieving sustainability in very specific and concrete terms applied to clear goals and an honest understanding of …

Impunity Writ Large: A Study Of Crimes Committed During Anti-Veerappan Operations, Saumya Uma

Dr. Saumya Uma

Integrating Victims' Rights In The Indian Legal Framework, Saumya Uma

Dr. Saumya Uma

Parliamentary Oversight Of The Executive In India, Anirudh Burman

Anirudh Burman

The need for a strong monitoring mechanism of the executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament …

Agricultural Secrecy: Going Dark Down On The Farm: How Legalized Secrecy Gives Agribusiness A Federally Funded Free Ride, Rena I. Steinzor, Yee Huang

Rena I. Steinzor

This briefing paper examines the agricultural secrecy granted by section 1619 of the 2008 Farm Bill, its implications for transparency and oversight, and its impact on other federal agencies such as the U.S. Environmental Protection Agency (EPA). In an era of fiscal responsibility, tight budgets, and increasing pressure on the environment, the public has a right to know whether the U.S. Department of Agriculture (USDA) is making the best decisions about how to allocate public funds. Each year, agricultural producers in the United States receive billions of dollars in federal payments: crop subsidies, crop insurance, conservation payments, disaster payments, loans, …

Drones And Democracy: Missing Out On Accountability?, Benjamin R. Farley

Benjamin R Farley

This article examines whether unmanned aerial vehicles (“drones”) allow the U.S. executive branch to make use-of-force decisions that escape accountability. It identifies three accountability mechanisms that should constrain use-of-force decisions: political accountability; fiscal and supervisory accountability; and legal accountability. It examines the effectiveness of these accountability mechanisms in the abstract and how the unique features of drones interact with these mechanisms. Finally, this article suggests that drones exacerbate preexisting weaknesses in the accountability system governing U.S. use-of-force decisions, potentially leading to unaccountable use-of-force decisions which, in turn, are likely to be riskier and may increase the likelihood of policy failure.

Ensuring Public Trust At The Municipal Level: Inspectors General Enter The Mix, Patricia E. Salkin, Zachary Kansler

Patricia E. Salkin

Although federal, state and local government officials are subject to applicable codes of ethical conduct and are under the jurisdiction of ethics enforcement agencies created pursuant to these laws, ethics oversight agencies are limited in the breadth and scope of covered activities. With an increase in reported allegations of corruption, particularly at the local government level, this article explores the addition of the audit function, through inspectors general, to ensure greater transparency and accountability of public officials. The article begins with a very brief historical overview of the emergence of the inspector general concept in Europe and its adoption in …

Manure In The Bay: A Report On Industrial Animal Agriculture In Maryland And Pennsylvania, Rena I. Steinzor, Yee Huang

Rena I. Steinzor

This report provides a substantive and detailed look at the concentrated animal feeding operations (CAFO) and other animal feeding operations (AFO) programs in Maryland and Pennsylvania, as well as a general overview of the federal CAFO program. The information in this report was gathered through publicly available resources as well as a series of interviews with agency officials and other individuals who work with the animal agricultural sector. This report identifies concrete and practical recommendations for improving how the waste generated by animal industrial agriculture is managed and controlled by EPA, the Maryland Department of Environment (MDE), and the Pennsylvania …

The Benefits Of Capture, Dorit R. Reiss

Dorit R. Reiss

Observers of the administrative state warn against “capture” of administrative agencies and lament its disastrous effects. This article suggests that the term “capture”, applied to a close relationship between industry and regulator, is not useful—by stigmatizing that relationship, judging it as problematic from the start, it hides its potential benefits. The literature on “capture” highlights its negative results—lax enforcement of regulation; weak regulations; illicit benefits going to industry. This picture, however, is incomplete and in substantial tension with another current strand of literature which encourages collaboration between industry and regulator. The collaboration literature draws on the fact that industry input …

The New Guiding Principles On Business And Human Rights’ Contribution In Ending The Divisive Debate Over Human Rights Responsibilities Of Companies: Is It Time For An Icj Advisory Opinion?, Jean-Marie Kamatali

Jean-Marie Kamatali

ABSTRACT: In March 2011, John Ruggie, the UN Secretary General Special Representative on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (“SRSG”) released his final report on Guiding Principles on Business and Human Rights. The new standards proposed by the SRSG are based on three pillars: the state duty to protect, the corporate responsibility to respect and the access to remedy principle. This report was ordered in 2005 by the then UN Commission on Human Rights (now Human Rights Council) in order to “ to move beyond what had been a long-standing and deeply divisive debate …