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Marital Property, Margaret F. Brinig

Book Chapters

The International Survey of Family Law is the International Society of Family Law's annual review of developments in family law across the world.

The 2016 edition covers developments in over 20 countries written by leading academics and family law experts. Each article is accompanied by a French language abstract. The 2016 Survey contains contributions from a diverse selection of countries where there have been important developments in family law, including: Abortion in Chile, Recent Developments in Korean Adult Guardianship Law, Islamic Law Mode of Estate Distribution in South Africa, The Reform of the Swiss Law on Child Support, Marital Property …

Result Inequality In Family Law, Margaret Brinig

Journal Articles

To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the US Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.

This presentation …

Enduring Originalism, Jeffrey Pojanowski, Kevin C. Walsh

Journal Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …

Realising The Promise Of Costs Budgets: An Economic Analysis, Jay Tidmarsh

Journal Articles

The costs-budget system implemented in the Jackson reforms promises to keep litigation costs within socially appropriate bounds. To realise this promise fully however; the goal of this reform must be reoriented. Using real-options analysis, this article demonstrates that costs budgeting in its present form often fails to achieve a reduction of litigation costs to the socially appropriate level–defined to be the point at which the social benefits of litigation exceeds its costs–because parties may have a private incentive to invest socially excessive amounts on litigation. This result is true under both the English ("loser pays") and the American ("bear your …

Modern-Day Monitorships, Veronica Root

Journal Articles

When a sexual abuse scandal rocked Penn State, when Apple engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a Modern-Day Monitorship. Modern-Day Monitorships are utilized in an array of contexts to assist in widely varying remediation efforts. They provide outsiders a unique source of information about the efficacy of the tarnished organization’s efforts to remediate misconduct. Yet despite their use in high-profile and serious matters of organizational wrongdoing, they are not an outgrowth of careful study and deliberate planning. Instead, Modern-Day Monitorships have been employed …

The Future Of Oral Arguments, Jay Tidmarsh

Journal Articles

The civil-justice literature is replete with discussions of two phenomena: case management and the vanishing trial. These two phenomena are not unrelated. One commonly state goal of case management is to find ways, other than trial, to resolve civil disputes that find their way into court. Some observers find the movements toward case management and away from trial to be salutary; others find them disquieting. Regardless of the merits of this debate, the delivery of civil justice is undeniably evolving.

This evolution affects and changes many of the traditional attributes of American-style civil justice. The Essay examines one of these …

Diamond Justice—Teaching Baseball And The Law, Edmund P. Edmonds

Journal Articles

Authors Louis H. Schiff and Robert M. Jarvis set out to fill a void in the vast array of legal teaching materials by creating Baseball and the Law: Cases and Materials, the first casebook to concentrate on “The National Pastime.” Their goal was to create a casebook that would propel the expansion of teaching law and baseball courses in law schools. By pulling together appropriate cases and primary reading material with detailed and carefully crafted notes, the authors have admirably completed this task with over 1000 pages of text to allow faculty and students in the legal academy a resource …

International Legal Protections For Migrants And Refugees: A Response To Father Brennan, Mary Ellen O'Connell

Journal Articles

Father Brennan’s Essay, “Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection,” is a complex legal and ethical analysis of refugee law. This Commentary focuses on one aspect of the international law relevant to the Essay, namely, state obligations to migrants. Father Brennan’s main argument that migrants and refugees may be turned back, so long as the action respects human rights law, is consistent with the human right to life. Justly stopping migrants and refugees requires states to stop them before they enter either international waters or the state’s territorial waters. Further, Father …

Tax Treaties And The Taxation Of Services In The Absence Of Physical Presence, Michael Kirsch

Journal Articles

It is old news that modern technological developments have strained long‐standing international tax policies and principles. Tax treaties have attempted to keep pace by fitting these new developments within the existing framework. This brief article addresses one aspect of technological developments that can directly affect individual taxpayers—the increasing ability to deliver personal services electronically across borders, without the need for the service provider to have a physical presence in the “source” country. In particular, it focuses on recent developments with the U.N. Model, which may allow source‐based taxation of at least some types of services income even in the absence …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

The Need To Refocus The U.S. Government's Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurule

Journal Articles

The Islamic State of Iraq and Syria ("ISIS") is the most deadly and well-funded foreign terrorist organization in the world. There are estimates that ISIS has an annual budget of over $2 billion to finance its goal of establishing a caliphate, or Islamic state, governed by its twisted version of Islamic law.1 Flush with funds, the terror group has acquired and controls large swaths of territory in Syria and Iraq, and the threat it poses extends to Jordan, Saudi Arabia, Egypt, Libya, Yemen, Lebanon, and beyond. 2 While depriving ISIS of funding is a central component of the United States …

The Fair Market Value Of Public Resources, Bruce R. Huber

Journal Articles

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars' worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more dfficult to implement and enforce. This Article analyzes the various forces that bear on public …

The Law On Lethal Force Begins With The Right To Life, Mary Ellen O'Connell

Journal Articles

In August 2015, the UK government intentionally killed a criminal suspect and the bystanders with him using a drone-launched Hellfire missile in Syria. In doing so, the UK violated the right to life of all three men because the UK had no lawful basis for deploying military force in Syria. Even if it did, international humanitarian law, governing the conduct of armed conflict, prohibits assassination – the intentional killing of an individual for reasons other than advancing a legitimate military objective. In any actual cases of ambiguity, the legal presumption in international law is with peace and protection of the …

Without Deference, Jeffrey Pojanowski

Journal Articles

This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …

Faithful Execution And Enforcement Discretion, Patricia L. Bellia

Journal Articles

In November 2014, President Obama announced a significant turn in U.S. immigration policy: that immigration officials would decline to pursue deportation of unlawful immigrants who were parents of U.S. citizens or lawful permanent residents and who met certain other criteria. Although the proposed program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), never took effect, it provides a fascinating lens for exploring what limits, if any, the Constitution imposes on the executive branch’s decision not to enforce the law — on its exercise of administrative “enforcement discretion.”

Article II of Constitution obligates the President to …

Congressional Originalism, Amy Coney Barrett, John Copeland` Nagle

Journal Articles

Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents – are so well baked into government that reversing them would wreak havoc. Originalists have been pressed to either acknowledge that their theory could generate major disruption or identify a principled exception to their insistence that judges are bound to enforce the Constitution’s original public meaning. While the stylized process of adjudication narrows the questions presented to the Court, in Congress the question of a measure’s constitutionality is always on the table. And because framing constraints do not narrow the relevant and permissible grounds of decision …