Law Commons^™

The Incompatible Treatment Of Majorities In Election Law And Deliberative Democracy, James A. Gardner

Journal Articles

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now …

From Privacy To Publicity: The Tort Of Appropriation In The Age Of Mass Consumption, Samantha Barbas

Journal Articles

No abstract provided.

Recent Developments In Hydraulic Fracturing Regulation And Litigation, Keith B. Hall

Journal Articles

No abstract provided.

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Journal Articles

The article focuses on limited use of reproductive technologies in defense of discriminating against unmarried intended parents. It emphasizes to eliminate unconstitutional treatment of prospective parents involved in the surrogacy process. It informs that State laws related to surrogacy create discrimination which is based on marital status. It suggests that surrogacy should be included as a permissible reproductive avenue for right to married and unmarried intended parents in the U.S.

Trademark Morality, Mark Bartholomew

Journal Articles

This Article challenges the modern rationale for trademark rights. According to both judges and legal scholars, what matters in adjudicating trademark cases are the economic consequences, particularly for consumers, of a defendant’s use of a mark, not the use’s morality. Nevertheless, under this utilitarian facade, there are also at work judicial assessments of highly charged questions of right and wrong. Recent findings in the field of moral psychology demonstrate the influence of particular moral triggers in all areas of human decisionmaking, often operating without conscious awareness. These triggers influence judges deciding trademark disputes. A desire to punish bad actors, particularly …

The Tpp And The Rcep (Asean+6) As Potential Paths Toward Deeper Asian Economic Integration, Meredith Kolsky Lewis

Journal Articles

Facing the trend of globalization, voices within Asia have been calling for deeper Asian integration. In the international economic context, numerous competing visions have been proffered over the years as to what form that integration should take, and which country or countries should lead that process. Amongst these various possible forms of integration, the Trans-Pacific Partnership has emerged as a contender to expand into a Free Trade Agreement of the Asia-Pacific. Unlike any models proposed previously, the TPP includes the United States, but at present does not include China. In turn, the momentum of the TPP appears to have spurred …

Lock-Up Creep, Christina M. Sautter, Steven M. Davidoff

Journal Articles

The article discusses a reported increase in the number of merger agreement lock-ups that have occurred as of June 2013, focusing on the causes of lock-up creep and its potential impact on the takeover market. It states that lock-up creep is a phrase that is used to describe a rise in the number and type of merger agreement contractual devices that buyers and sellers negotiate in an acquisition agreement. Attorney negotiations, bidders, and various legal cases are examined.

From Citizen Suits To Conservation Easements: The Increasing Private Role In Public Permit Enforcement, Jessica Owley

Journal Articles

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold the exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the …

Constitutional Privileging, Michael Coenen

Journal Articles

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment — in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more …

The Priority Of Persons Revisited, John Finnis

Journal Articles

This essay, in the context of a conference on justice, reviews and reaffirms the main theses of “The Priority of Persons” (2000), and supplements them with the benefit of hindsight in six theses. The wrongness of Roe v. Wade goes wider than was indicated. The secularist scientistic or naturalist dimension of the reigning contemporary ideology is inconsistent with the spiritual reality manifested in every word or gesture of its proponents. The temporal continuity of the existence of human persons and their communities is highly significant for the common good, which is the point and measure of social justice, properly understood. …

How Long Is Forever This Time? The Broken Promise Of Bankruptcy Trusts, S. Todd Brown

Journal Articles

Bankruptcy trusts consistently fail to protect the interests of future claimants as contemplated by Section 524(g) of the Bankruptcy Code. Although this reality is generally understood, the extent of this failure has not been examined. And, as demonstrated in this study, the degree to which trusts are failing future victims is greater than commonly realized. More than two-thirds of the trusts that have completed their initial claims processing are paying new asbestos personal injury victims at or near historically low rates, and several others appear to be defunct or inactive. Nearly two-thirds of the trusts that remain active have reduced …

Rethinking Sustainability To Meet The Climate Change Challenge, Michael Burger, Elizabeth Burleson, Rebecca M. Bratspies, Robin Kundis Craig, Alexandra R. Harrington, David M. Driesen, Keith H. Hirokawa, Sarah Krakoff, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon M. Roesler, Jona M. Roesler

Journal Articles

This article presents a preliminary effort to capture the dialogue at the Environmental Law Collaborative’s inaugural Workshop. Attendees engaged in the re-conceptualization of sustainability in the age of climate change, premised on evidence that climate change is forcing changes in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. …

The Spirit And Task Of Democratic Cosmopolitanism: European Political Identity At The Limits Of Transnational Law, Paul Linden-Retek

Journal Articles

The problem motivating this essay is the continuing, yet difficult hope for a Europe of democratic cosmopolitanism, for a Europe in which cosmopolitics works to continually question the terms of lingering exclusion while preserving our ideals of self-legislation and democratic authorship. In what follows, I expand the familiar criticism of Europe’s democratic legitimacy gap, its democratic deficit, as a lens through which to analyse the possibility of a supranational participatory identity within the European political space. First, I describe the contemporary juridification of European politics, specifically concerning the legal formalism of the European Court of Justice, and the dangers such …

The States Of Immigration, Rick Su

Journal Articles

Immigration is a national issue and a federal responsibility — so why are states so actively involved? Their legal authority over immigration is questionable. Their institutional capacity to regulate it is limited. Even the legal actions that states take sometimes seem pointless from a regulatory perspective. Why do they enact legislation that essentially copies existing federal law? Why do they pursue regulations that are likely to be enjoined or struck down by courts? Why do they give so little priority to the immigration laws that do survive?

This Article sheds light on this seemingly irrational behavior. It argues that state …

Statutes In Common Law Courts, Jeffrey Pojanowski

Journal Articles

The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal law scholars is whether and how a court’s common law powers affect its treatment of statutes. Textualists point to federal courts’ lack of common law powers to reject purposivist statutory interpretation. Critics of textualism challenge this characterization of federal courts’ powers, leveraging a more robust notion of the judicial power to support purposivist or dynamic interpretation. This disagreement has become more important in recent years with the emergence of a refreshing movement in …

Carolene Products And Constitutional Structure, Barry Cushman

Journal Articles

Justice Harlan Fiske Stone's majority opinion in United States v. Carolene Products Co. is well-known for its statement of two principles. The first is that regulatory legislation affecting ordinary commercial transactions is to be afforded a strong presumption of constitutionality. The second principle, articulated in the famous Footnote Four, qualifies the first: such a strong presumption of constitutionality is not warranted when legislation appears on its face to violate a provision of the Bill of Rights, or restricts ordinary political processes, or is directed at discrete and insular minorities. At the time the decision was announced, however, the decision in …

Promises Made To Be Broken? Standstill Agreements In Change Of Control Transactions, Christina M. Sautter

Journal Articles

Many promises are made in the negotiation of a merger but not all promises are necessarily enforceable or consistent with a board of directors’ fiduciary duties. This article explores the enforceability of one such promise: the buyer’s standstill agreement. When a publicly traded company explores a sale, that company, the target, customarily requires each potential buyer to execute a standstill agreement. A typical standstill prevents potential buyers from publicly making or announcing a bid for the target during the sale process without the target’s prior consent and for a period of approximately twelve to eighteen months from the conclusion of …

The Bp B1 Bundle Ruling: Federal Statutory Displacement Of General Maritime Law, John Costonis

Journal Articles

Among the many unresolved legal questions posed by BP’s Gulf well blowout are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990 (OPA or OPA 90). OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the United States District Court for the Eastern District of Louisiana’s decision in In re Oil Spill by the Oil Rig “Deepwater Horizon” (hereinafter B1 Bundle) insists that general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by …

Uncommon Approaches To Commons Problems: Nested Governance Commons And Climate Change, Blake Hudson, Jonathan Rosenbloom

Journal Articles

Natural capital resources crucial to combatting climate change are potentially subject to tragic overconsumption absent a requisite degree of vertical government regulation of resource appropriators and/or horizontal collective action among resource appropriators. In federal systems, these vertical and horizontal approaches may (or may not) take place in any one of four scales — local, state, national, and global — “nested” one within another. Prior research has described how natural capital in federal systems of government, though privatized and/or subject to government regulation, may nonetheless remain in a tragic plight due to the allocation of governance authority in federal systems — …

Perception And Decision At The Threshold Of Tort Law: Explaining The Infrequency Of Claims, David M. Engel

Journal Articles

Although numerous studies have confirmed that tort victims rarely litigate and that most simply "lump" their losses, we lack an understanding of why this should be so. Why do the vast majority of injured persons choose inaction over action? Explanations relying on rational actor theories on the one hand or cultural determinism on the other have been sharply challenged by recent studies of mind, culture, and cognition, particularly with respect to individual responses to physical trauma and disablement. This article, drawing on a broad interdisciplinary literature dealing with injury victims, proposes a new model of perception and decision by persons …

Neofeudalism, Paraethnography And The Custodial Regulation Of Financial Institutions, David A. Westbrook

Journal Articles

No abstract provided.

Striking A Balance Between Privacy And Online Commerce, Mark Bartholomew

Journal Articles

It is becoming commonplace to note that privacy and online commerce are on a collision course. Corporate entities archive and monetize more and more personal information. Citizens increasingly resent the intrusive nature of such data collection and use. Just noticing this conflict, however, tells us little. In "Informing and Reforming the Marketplace of Ideas: The Public-Private Model for Data Production and the First Amendment" Professor Shubha Ghosh not only notes the tension between the costs and benefits of data commercialization, but suggests three normative perspectives for balancing privacy and commercial speech. This is valuable because without a rich theoretical framework …

Collaborative Departmentalism, Matthew Steilen

Journal Articles

This article examines the effect of departmentalism on presidential compliance with constitutional law. Most commentators agree that departmentalism weakens the influence of courts in the determination of constitutional meaning and the control of non-judicial actors. The article takes a different view. It defines “moderate departmentalism” as the authority of the President to refuse to adopt a constitutional interpretation announced by the Supreme Court. Drawing on ideas developed in the literature on “new governance” and administrative law, it then argues that moderate departmentalism increases the capacity of the federal courts to control presidential conduct.

Animal Frontiers: A Tale Of Three Zoos In Israel/Palestine, Irus Braverman

Journal Articles

Situated within fifty miles of each other at the heart of Israel-Palestine, three zoos — Jerusalem, Qalqilya, and Gaza — tell three very different stories about nonhuman animals, humans, and their imbricated survival across borders and at times of war. Through in-depth interviews with personnel from these three zoos, this article tracks the material and symbolic identities of three zoo animals. Yet the article is not just about animals; it is also a story about nationalism and its clandestine manifestations in ideologies of conservation. I argue here that alongside the straightforward story about sustaining wildlife, Israeli zoos’ control of zoo …

The Other Missouri Model: Systemic Juvenile Injustice In The Show-Me State, Mae C, Quinn

Journal Articles

For years Missouri has been touted as a model for juvenile justice. Stakeholders and commentators continually declare that the Show-Me State – with its “Missouri Model” – employs the most modern and innovative ap-proaches when it comes to treatment of court-involved youth. This account is reflected in press coverage, television news shows, and agency white papers. But this is only part of the picture; there is much more happening in Missouri when it comes to juveniles. However, this “other” part of the story seldom has been openly discussed – until now.1. This Article seeks to contrast the rosy picture painted …

Giving Kids Their Due: Theorizing A Modern Fourteenth Amendment Framework For Juvenile Defense Representation, Mae C. Quinn

Journal Articles

This Essay advocates expansion of the right to and role of juvenile-defense counsel under the Fourteenth Amendment as articulated by the Supreme Court in In re Gault. It makes this move in light of the evolution of juvenile-court practices over time and modern understandings of adolescent development principles. In doing so it takes a different approach than many advocates and academics who have called for greater reliance on the concepts established in Gideon v. Wainwright and its progeny, relating to the right to and role of counsel in adult-criminal proceedings. Instead it suggests that standards of representation for juveniles must …

Heuristics, Cognitive Biases, And Accountability: Decision-Making In Dependency Court, Matthew I. Fraidin

Journal Articles

On tens of thousands of occasions each year, state court judges wrongly separate children from their families and place them in foster care. And while a child is in foster care, judges are called on to render hundreds of decisions affecting every aspect of the child’s life. This Article uses insights from social psychology research to analyze the environment of dependency court and to recommend changes that will improve decisions. Research indicates that decision makers aware at the time they make a decision that they will be called upon later to explain it may engage in a systematic, deliberate decision-making …

(Un)Reasonable Suspicion: Racial Profiling In Immigration Enforcement After Arizona V. United States, Kristina M. Campbell

Journal Articles

n June 25, 2012, the Supreme Court of the United States issued its landmark decision in Arizona v. United States, 1 striking down three of the four provisions of Arizona’s notorious Senate Bill (“S.B.”) 10702 challenged by the United States Department of Justice as preempted by federal immigration law. Despite agreeing with the government that the majority of Arizona’s attempt to regulate immigration at the state level through S.B. 1070 was impermissible, the Supreme Court let stand the most controversial section of the law, Section 2(B)—the socalled “show me your papers” provision.3 Under Section 2(B), state and local law enforcement …

The Military's Workplace Flexibility Framework, Marcy L. Karin, Katie Onachila

Journal Articles

Workplace flexibility is a tool the military may use to support its operations, improve the recruitment and retention of military personnel, and fulfill its obligation to support veterans and military families. The return of combat troops from Iraq provides a valuable catalyst to take stock of the use of workplace flexibility in the U.S. military and employers supporting the military community. While the unique critical needs of the military are an inescapable variable when creating laws and policies, the military must meet the workplace flexibility needs of its services members and their families to maximize the effectiveness and efficiency of …

Law Clinics And Lobbying Restrictions, Marcy L. Karin, Kevin Barry

Journal Articles

“Can law school clinics lobby?” This question has plagued professors for decades but has gone unanswered, until now. This Article situates law school clinics within the labyrinthine law of lobbying restrictions and concludes that clinics may indeed lobby. For ethical, pedagogical, and, ultimately, practical reasons, it is critical that professors who teach in clinics understand these restrictions. This Article offers advice to professors and students on safely navigating this complicated terrain.