Law Commons^™

The Hedgehog, The Fox, And Kozolychyk: The Practical And Philosophical Foundations Of Best Practices In Legal Harmonization For Economic Development, Antonio F. Perez

Scholarly Articles

This essay explicates Professor Boris Kozolchyk’s magnum opus, Comparative Commercial Contracts, as a vehicle for exploring the practical and philosophical foundations for effective efforts to promote international legal harmonization in private law. Its central thesis is that good practices are founded on the philosophical premises embedded in Kozolchyk’s work, which in turn are drawn from Kozolchyk’s practical experience. This experience yields a vision of practices reflecting those of the archetypal merchant, a bonus vir (a good man or person), and the conception of commercial justice as fairness and reasonableness made possible by practical guidance rooted in requirements of the bonus …

The Twilight Of The China's Decade?, Rett R. Ludwikowski

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The main goal of this article is to present to the European reader the implications of the crisis of the Chinese banking system which peaked in August 2015, and triggered a period of high volatility in the US. stockmarket. As a result, trade relations between China and the US. have deteriorated, which raises the question of whether the Chinese economic system will implode and contribute to the global crisis, or whether it can be controlled by Beijing?

The article assumes two things: that subsidies are at the core of US. criticism of Chinese trade priorities; and that to understand recent …

Two Aspects Of Liberty, John H. Garvey

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Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do …

Free Exercise By Moonlight, Marc O. Degirolami

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How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

2. Hosanna-Tabor's approach to constitutional free exercise is now more powerful than Smith's. Smith has been eclipsed.

3. Hosanna-Tabor has shown itself to be feeble. It has …

The Miller Revolution, Cara H. Drinan

Scholarly Articles

In a series of cases culminating in Miller v. Alabama, the United States Supreme Court has limited the extent to which juveniles may be exposed to the harshest criminal sentences. Scholars have addressed discrete components of these recent Court decisions, from their Eighth Amendment methodology to their effect upon state legislation. In this Article, I draw upon that scholarship to make a broader claim: the Miller trilogy has revolutionized juvenile justice. While we have begun to see only the most inchoate signs of this revolution in practice, this Article endeavors to describe what this revolution may look like both in …

The Morality Of Market Mechanisms, Lucia A. Silecchia

Scholarly Articles

In Pope Francis’ Encyclical on the environment, Laudato Si’, the leader of the Catholic church presents a moral argument for combating climate change and other environmental harm. As he has done throughout his papacy, the Pope highlights concerns about economic disparity, arguing that climate change disproportionally impacts developing nations and the world’s poor. Along with critiques of “consumerism” and the modern economic system, the Pope expressed deep skepticism about the motives and impacts of market mechanisms as emissions reduction tools. The Pope is not the first to challenge the ethics of market-based systems of environmental protection. Critics have argued that …

Virtue, Freedom, And The First Amendment, Marc O. Degirolami

Scholarly Articles

The modern First Amendment embodies the idea of freedom as a fundamental good of con- temporary American society. The First Amendment protects and promotes everybody's freedom of thought, belief speech, and religious exercise as basic goods-as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.

Something like this collection of views constitutes the conventional account of the …

"Should" Or "Must"?: Distinguishing Mandates From Guidelines In Tort Claims Contexts, A.G. Harmon

Scholarly Articles

This Article intends to bring some order to the discussion, both by

means of explaining what the science of the language arts—linguistics—says

about the matter, and by explaining how that science comports with what courts

think they are doing when they determine a government statement is, or is not,

a mandate. Linguists have considered language crimes before, relating to

perjury, bribery, and criminal threats, and I myself have conducted a linguistic

analysis with regard to the civil law Tarasoff context (i.e., “duties to warn”),

but a linguistic analysis of mandates as opposed to guidelines has not yet been

attempted.

Part …

“Modern Day Slavery”- Implications Of A Label, Mary Graw Leary

Scholarly Articles

Over the last decades much progress has been made in the fight against human trafficking. As with any social movement, divisions exists among activists and scholars on the most effective direction to execute social change. Often, these focus on language. One such critical discussion is whether it is appropriate to label human trafficking “Modern Day Slavery.” Although the term has existed for several years, the analogy gained a more full acceptance with its use by President Obama in September 2012 when he described “the injustice, the outrage, of human trafficking which must be called by its true name -- modern …

The Community Listening Project, Faith Mullen

Scholarly Articles

This report is the product of an effort of the DC Consortium of Legal Services Providers (“Consortium”) to learn from low income DC residents about the challenges they face and the barriers that prevent them from overcoming poverty by asking them, directly, about their most pressing problems.The Community Listening Project was envisioned as a companion to the DC Access to Justice Commission’s forthcoming report on unmet legal needs of low-income residents of the District of Columbia. Both the Community Listening Project and the Access to Justice Commission’s legal needs study are intended to provide critical information to enable the community, …

Bridging The Justice Gap In Family Law: Repurposing Federal Iv-D Funding To Expand Community-Based Legal And Social Services For Parents, Stacy Brustin, Lisa Vollendorf Martin

Scholarly Articles

Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal role. These attorneys represent the state’s ostensible interests in ensuring that children are financially supported and in preventing welfare dependence; they do not represent individual parents. The outcomes of child support proceedings have profound, long-term constitutional and financial implications for parents, yet litigants rarely understand their rights or the role of the government.

Originally, the goal of state child support enforcement efforts was to recapture the costs of welfare expenditures. In 1990, two-thirds of cases …

Protestant Ecclesiastical Law And The Ius Commune, Kenneth Pennington

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Protestants almost never called their ecclesiastical norms ‘canons.’ When Protestant jurists or theologians wrote ‘canon law’ (Ius canonicum) in their works, it was clear to their readers that they meant Roman canon law. Surprisingly, Protestant jurists often cited Roman canon law and its jurisprudence long after Martin Luther burned books of Roman canon law at the Elster gate in Wittenberg. These jurists also continued to teach courses at the universities that treated the Ius canonicum. Consequently, an essay on Protestant canon law must confront the question: how much Roman canon law and the jurisprudence of the medieval …

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.

New Era Or Just One Step In The History Of The Supreme Court Of The United States?, Rett R. Ludwikowski

Scholarly Articles

The vacancy arising as a result of the death of Antonin Scalia, one of the nine justices of the Supreme Court of the United States, paralyzed the Court’s work for a few months. Even Donald Trump’s victory in the presidential election did not immediately resolve the problem of political balance in the Court.

This article, commenting on the stalemate over the Supreme Court, tries to answer some questions. Is the process of politicization of formally politically independent justices a natural result of mutual attrition of the authorities? Does the situation after Scalia’s death undermine the separation of powers, a fundamental …

Substantial Burdens Imply Central Beliefs, Marc O. Degirolami

Scholarly Articles

Religious accommodations are exemptions from compliance with the law. Before granting a religious accommodation, it would seem necessary to inquire about precisely how the law interferes with a claimant's system of religious belief and practice. And yet one of the most vexing issues in the law of religious accommodation concerns not merely the nature of a "substantial burden" on religious exercise, but even the propriety of any legal inquiry about religious burdens at all. Any assessment of the importance or centrality of a religious belief or practice within the claimant's belief system is strictly forbidden: "Repeatedly and in many different …

Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien

Scholarly Articles

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will …

Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles

Scholarly Articles

Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A well known examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers.” …

Laudato Si’ And Care For Our Common Home: What Does It Mean For The Legal Profession?, Lucia A. Silecchia

Scholarly Articles

Pope Francis’s recent encyclical, Laudato Si’ (“Praised Be You”), has been one of the most widely anticipated papal documents in recent memory. It has also received far more popular commentary than would be expected of a papal encyclical. Yet, while Laudato Si’ has been widely dubbed “the climate change” encyclical, it is far broader than that. It is also a far-reaching analysis of a number of political, economic, social and legal issues, in addition to being an extensive exposition on human duties toward creation.

In the text of this encyclical, there are also some important lessons to be gleaned for …

“Social Love” As A Vision For Environmental Law: Laudato Si’ And The Rule Of Law, Lucia A. Silecchia

Scholarly Articles

In the years of his still-young papacy, Pope Francis has often spoken and written about ecological responsibility, addressing both the Catholic and global communities in his exhortations on environmental matters. In June of 2015, he released his most extensive exposition on these issues in his encyclical letter, Laudato Si: On Care for Our Common Home.In this wide-ranging encyclical, Pope Francis expressed a fascinating paradox with respect to law and ecology. On the one hand, Laudato Si’ contains a stunningly enthusiastic endorsement of a strong local, national and, in particular, international legal system empowered to impose strict environmental and economic controls …

American Presidentialism In The Light Of Barack Obama’S Immigration Reform, Rett R. Ludwikowski, Anna Ludwikowski

Scholarly Articles

The main purpose of this article is to bring the reader into an atmosphere of intensity created by the political disputes about the need of immigration reform in the United States. It is unquestionable that problems of the immigrants, who for decades were crossing illegally American borders, contribute to internal political turbulence in this country. This article proceeds on the assumption, that the immigration related problems created a social melting pot which became one of the most serious challenges for the American policymakers. The confrontation of the President with Congress was inevitable. On the one hand, Obama’s administration started to …

Public Enforcement Of Patent Law, Megan M. La Belle

Scholarly Articles

Law enforcement in the modern regulatory state is largely a joint enterprise. In areas such as securities, antitrust, civil rights, and environmental law, enforcement responsibilities are allocated between public and private actors. Patent law, on the other hand, is enforced almost exclusively through private lawsuits. Considering patent law's constitutionally mandated public purpose--“to promote the Progress of Science and useful Arts”-- this privatization of patent enforcement is troubling.

In recent years, there has been some movement away from this purely private enforcement scheme for patent law. The Department of Justice and the Federal Trade Commission, for example, have involved themselves in …

Data Privacy And Inmate Recidivism, Chad Squitieri

Scholarly Articles

Private companies are awarded contracts to provide Internet technologies within jails and prisons. These correctional contractors often argue that their services can reduce recidivism rates by, for example, providing inmates with access to video messaging services where inmates can communicate with loved ones who are otherwise unable to travel to communicate in person. A close examination of the privacy policies offered by correctional contractors, however, reveals how efforts to reduce recidivism rates are undermined.

As this Essay will explain, correctional contractors collect sensitive data about inmates and the loved ones with whom they communicate. If this data is stolen or …

A Legal Definition Of Leadership: Understanding §3b1.1 Of The Federal Sentencing Guidelines, Marin Roger Scordato

Scholarly Articles

This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.

Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept. The first …

Law Student Mediators Wear A Triple Crown: Skilled, Sellable, & Successful, Laurie A. Lewis

Scholarly Articles

This Article considers several trends that converge to make it a highly favorable time for law students to obtain mediation training and work as mediators prior to graduating. Part I summarizes a brief history of the modern ADR movement, and mediation's emergence as the ADR methodology of choice. Part II discusses the proliferation of live clinics in law schools, with a special emphasis upon mediation clinics and their role in teaching unique practice-ready skills. Part III focuses on the practicalities of community mediation training as well as state requirements for mediators. Finally, Part IV considers the tight legal job market …

Marketable And Mobile: Ube Recommended, Veryl Victoria Miles

Scholarly Articles

The first administration of the Uniform Bar Examination (UBE) occurred just five years ago in Missouri and North Dakota. At that time, the concept of a bar examination with a test score that was portable among participating jurisdictions was an exciting development for longtime proponents of a uniform bar exam. And while there were only two participating jurisdictions on board in 2011, NCBE was well on its way in making the case for the UBE as an attractive test alternative throughout the nation. Today there are 25 jurisdictions that have adopted the UBE, and by July 2018 all 25 jurisdictions …

Top-Down Bank Capital Regulation, Heidi Mandanis Schooner

Scholarly Articles

In proposing a top-down system of capital regulation, this Article shares a precautionary attitude toward bank regulation found increasingly in post-Financial Crisis scholarship. The viewpoint is one that favors ex ante financial regulation in which regulators are charged with avoiding public harm. More broadly, this Article rejects the notion that regulation is the enemy of markets and therefore must be minimized. Regulation is viewed neutrally—neither inherently good nor inherently bad—as a co-existing partner in highly complex and ever evolving financial markets.

To develop the case for a top-down system of capital regulation, this Article continues as follows, Part II describes …

Fee Shifting For Ptab Proceedings, Megan M. La Belle

Scholarly Articles

Fee shifting in patent litigation has been a hot topic in recent years. In Octane Fitness v. ICON and Highmark v. Allcare, the Supreme Court made it easier to shift fees under 35 U.S.C. § 285, which allows courts to award reasonable attorney’s fees to prevailing parties in patent cases. Moreover, several bills have been introduced in Congress since 2013 that would expand courts’ power beyond the parameters of § 285. Various aspects of these proposals have been heavily debated, including whether fee shifting should be mandatory or discretionary, how to recover fees from the “real party in interest,” and …

The Court After Scalia, Kevin C. Walsh

Scholarly Articles

In this editorial, Professor Walsh surveys the 2015-2016 U.S. Supreme Court term, with particular attention to the effects the late Justice Antonin Scalia's absence had on the Court's decisions.

Glimpses Of Marshall In The Military, Kevin C. Walsh

Scholarly Articles

Before President John Adams appointed him as Chief Justice of the United States in 1801, John Marshall was a soldier, a state legislator, a federal legislator, an envoy to France, and the Secretary of State. He also maintained a thriving practice in Virginia and federal courts, occasionally teaming up with political rival and personal friend Patrick Henry. Forty-five years old at the time of his appointment to the Supreme Court, Marshall has been serving his state and his country for a quarter century before he took judicial office. Marshall is an exemplar of professional excellence for all lawyers and judges. …