Law Commons^™

Ethics In Government At The Local Level, Vincent R. Johnson

ExpressO

No abstract provided.

International Antisuit Injunctions: Enjoining Foreign Litigations And Arbitrations - Beholding The System From Outside, Marco Stacher

Cornell Law School J.D. Student Research Papers

Antisuit injunctions are issued by a court to prevent a party from bringing suit in another forum. They are a powerful tool available to American courts to implement their decision on jurisdiction. It goes without saying that granting such an injunction de facto affects the capability of the other forum to hear the dispute, which conflicts with the principle of comity. American courts therefore only enjoin a party from proceeding in another forum if certain criteria are satisfied. This paper discusses these criteria in the context of international litigations and arbitrations. It analyzes the case law on this issue and …

Tais Rodriguez-Tushbeim V. Minister Of Interior, Aharon Barak, Dorit Beinisch, Eliezer Rivlin, Miriam Naor, Ayala Procaccia, Mishael Cheshin, Esther Hayut, Edmond E. Levy, Asher Grunis, Jacob Turkel

Translated Opinions

Facts: The petitioners were lawful non-Jewish residents in Israel. They studied Judaism in various frameworks in Israel, and went abroad for a short time to undergo the ceremony of converting to Judaism in various Jewish communities outside Israel. Upon their return to Israel, they applied to the Ministry of the Interior (the first respondent) to be recognized as Jews for the purposes of the right of immigrate to Israel under the Law of Return, 5710-1950. The first respondent refused to recognize the conversions of the petitioners, on the ground that the petitioners did not join the communities that converted them, …

Victims Of Peace: Current Abuse Allegations Against U.N. Peacekeepers And The Role Of Law In Preventing Them In The Future, Alexandra R. Harrington

ExpressO

This article addresses the increasingly prevalent and horrific allegations of sexual abuse made against U.N. peacekeepers. The primary allegations addressed are those from the Congo, as the most plentiful and readily available evidence of these abuses comes from the region. The goal of this paper is not merely to critique the U.N. and its handling of the current peacekeeper abuse allegations, as such a critique would only serve half of the problem. Rather, this paper will use the past and current understandings of the U.N. Charter, peacekeeping, international law, and military justice to suggest several options for handling both the …

Women As A Symbol Of Cultural Conflict: The Compatability Of Egypt's Shari'a Derived Personal Status Laws With Its International Obligations, And Prospects For Reform, Jasmin Moussa

Archived Theses and Dissertations

This thesis examines the compatibility of Shari'a-derived personal status laws in Egypt with the international legal obligation to eliminate gender discrimination (specifically in the area of family relations). In Egypt, the Shari'a-derived personal status law for Sunni Muslims governs family relations, including marriage, divorce, child custody and successions, and have been frequently criticized for discriminating against women. However, this body of law is not immutable, it has proven flexible over the centuries, and has accommodated many changes in society.

As such, an important question is: are Egypt's personal status laws reconcilable with its international obligations? If not, how can they …

Summary Of Mitchell V. Clark County Sch. Dist., 121 Nev. Adv. Op. 21, Chris Orme

Nevada Supreme Court Summaries

Julie Mitchell, a Clark County classroom teacher, inexplicably fell down a flight of stairs while at work. The Court held that stairs, in and of themselves, and other things that are not peculiar to the employment environment, are not sufficiently dangerous to be the cause of a workers’ compensation claim.

Summary Of Rosky V. State, 121 Nev. Adv. Op. No. 22, Jason Peck

Nevada Supreme Court Summaries

Police executed a search warrant at John Rosky’s apartment as part of an investigation into the sexual assault of a 13-year-old girl. Two police officers eventually drove Rosky to a police substation for questioning but they did not formally arrest him or administer Miranda warnings. Police informed Rosky that his participation was voluntary and that he was free to leave at any time. At one point during the questioning, Rosky took a ten-minute break and went outside the police station unaccompanied by the detectives. The detectives used mild forms of deception and confronted Rosky with their belief that he was …

Summary Of Viray V. State, 121 Nev. Adv. Op. 19, Chris Orme

Nevada Supreme Court Summaries

A jury convicted Benjardi Batucan Viray for lewdness with a minor. He appealed claiming that there was an improper inclusion of new information at a preliminary hearing and that this inclusion was sufficient to declare a mistrial. The Nevada Supreme Court held that a change in the factual situation is not sufficient to declare a mistrial if the inclusion of new information does not affect the defendant’s substantial rights and the charged offense remained the same. The second issue was whether a court should declare a mistrial when a juror disregards the admonishment of the court to not speak about …

Criteria Of International Tax Policy, Herbert I. Lazerow

University of San Diego Law and Economics Research Paper Series

Professor Joseph Sneed a generation ago developed seven macro-criteria for evaluating income tax changes. This paper asks whether those criteria are useful in the general field of international income tax. I conclude that Adequacy, Practicality, Equity, and Free Market Compatibility are important internationally, as is a new criterion, Balance-of-payments Enhancement, while the criteria of Reduced Economic Inequality, Stability and Political Order do not figure prominently in international tax.

The Web Of Law, Thomas A. Smith

University of San Diego Law and Economics Research Paper Series

Scientists and mathematicians in recent years have become intensely interested in the structure of networks. Networks turn out to be crucial to understanding everything from physics and biology, to economics and sociology. This article proposes that the science of networks has important contributions to make to the study of law as well. Legal scholars have yet to study, or even recognize as such, one of the largest, most accessible, and best documented human-created networks in existence. This is the centuries-old network of case law and other legal authorities into which lawyers, judges, and legal scholars routinely delve in order to …

Canonical Construction And Statutory Revisionism: The Strange Case Of The Appropriations Canon, Daniel B. Rodriguez, Mathew D. Mccubbins

University of San Diego Law and Economics Research Paper Series

In this article, we consider the impact of positive political theory on legislative interpretation and, in particular, the debate over interpretive canons. Our vehicle for this consideration is the appropriations canon. By virtue of this canon, courts construe narrowly legislative changes to statutes made through the appropriations process. We consider the underlying logic and rationale of this canon -- essentially, that the appropriations process is unrepresentative and insufficiently deliberative -- and use this analysis to investigate, more broadly, the processes of canonical construction in the modern statutory interpretation jurisprudence. Canonical construction, we argue, must be attentive to the equilibrium effects …

Social Choice, Crypto-Initiatives And Policy Making By Direct Democracy, Thad Kousser, M D. Mccubbins

University of San Diego Law and Economics Research Paper Series

The initiative process was created originally to enable citizens to enact public policy directly and in so doing to overturn the dominion of interest groups and of state and local party machines. In recent years, initiatives have been thought to serve as a check on legislative authority and to provide the people with a means to pressure the legislature into adopting more public regarding policies. Indeed, the general consensus emerging from the most recent academic research is that, at their worst, initiatives are benign, while at their best, they serve to further the interests of electoral majorities.

A few scholars, …

Procedural Justice, Lawrence B. Solum

University of San Diego Law and Economics Research Paper Series

"Procedural Justice" offers a theory of procedural fairness for civil dispute resolution. The core idea behind the theory is the procedural legitimacy thesis: participation rights are essential for the legitimacy of adjudicatory procedures. The theory yields two principles of procedural justice: the accuracy principle and the participation principle. The two principles require a system of procedure to aim at accuracy and to afford reasonable rights of participation qualified by a practicability constraint.

The Article begins in Part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, …

Descriptive Trademarks And The First Amendment, Lisa P. Ramsey

University of San Diego Law and Economics Research Paper Series

The protection of exclusive rights in descriptive trademarks is an unconstitutional restriction of speech under the First Amendment. Trademark laws that prohibit a competitor from using trademarked descriptive words to sell a product fail to satisfy the Central Hudson test for evaluating the constitutionality of commercial speech regulations. The use of a descriptive term to accurately describe a product is not misleading expression regardless of whether another business claims trademark rights in that term. Although the government has a substantial interest in protecting the ability of consumers to identify and distinguish among the products of a business and its competitors, …

Corporate Ethics In The Health Care Marketplace, Lynne Dallas

University of San Diego Law and Economics Research Paper Series

Consider three examples of problematic corporate decision making: first, in 2002, employees were less likely to have employer-provided insurance than thirty years ago and the price of health care for those who do receive it is ever increasing. Second, while many employees are without health insurance, the compensation for chief executive officers and other executive officers has increased dramatically. Third, consider the well-publicized examples of corporate decisions to engage in fraudulent and unethical business practices.

These problems will not be solved by glib references to market ideology that claims markets alone adequately regulate corporate behavior. Nor will these problems be …

Sharing Potential And The Potential For Sharing: Open Source Licensing As A Legal And Economic Modality For The Dissemination Of Renewable Energy Technology, Jason Wiener

ExpressO

No abstract provided.

Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller

Law and Economics Papers

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …

Strategic Judging Under The United States Sentencing Guidelines: Positive Political Theory And Evidence, Max M. Schanzenbach, Emerson Tiller

Public Law and Legal Theory Papers

We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" -- fact-based and law-based determinations made during the sentencing phase -- to maximize the judges' sentencing preferences subject to the Guideline’s constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the …

Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emerson H. Tiller

Public Law and Legal Theory Papers

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …

Donna Dubray (Cordier) V. St. Francis Mission, Frank Pommersheim

Tribal Court Opinions Authored by Emeritus Professor of Law Frank Pommersheim

No abstract provided.

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

Protecting Black Tribal Members: Is The Thirteenth Amendment The Linchpin To Securing Equal Rights Within Indian Country?, Lydia M. Edwards

ExpressO

Currently, two of those tribes are caught in an ongoing struggle between their “full blood” members and their members of African descent. The Seminole and Cherokee tribes have taken several measures to remove their Freedmen from the tribes thus denying them access to federally funded programs, monies, and the right to vote in tribal elections. The Freedmen filed suit to contest this discrimination, but courts have continually dismissed the suits because of tribal sovereignty. In some cases, the Freedmen sued the federal government for allowing the tribes to disenfranchise them. However, the courts dismissed the suits because tribes are indispensable …

‘Code’ And The Slow Erosion Of Privacy, Ronald Leenes, Bert-Jaap Koops

ExpressO

The notion of software code replacing legal code as a mechanism to control human behavior – ‘code as law’ – is often illustrated with examples in intellectual property and freedom of speech. This article examines the neglected issue of the impact of ‘code as law’ on privacy. To what extent is privacy-related ‘code’ being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects …

May 20, 2005, Ifc Consultation Advisory No.8, Ann Pasco

IFC E&S Performance Standards

No abstract provided.

The Crawford Issue- The Supreme Court Sharpens The Teeth Of The Confrontation Clause, Nathan Reed Haines

ExpressO

No abstract provided.

Law And Neuroscience, Atahualpa Fernandez

ExpressO

Localizing the brain correlates related to moral judgments, using neuroimage techniques (and also studies on brain lesions), seems to be, without doubt, one of the big events in the history of the normative social sciences.The best neuroscientific model of normative judgment available today establishes that the ethical-cerebral law operator counts on, in his neural evaluative-affective systems, a permanent presence of requirements, obligations and strategies, with a “should be” that incorporates internally rational and emotional reasons, that are constitutively integrated in all the activities at the practical, theoretical and normal levels of every process of exercising the law.

Law And Human Nature: The Social-Adaptive Function Of The Normative Behavior, Atahualpa Fernandez

ExpressO

The objective of this article is to offer a critical (re)interpretation of genesis and evolution, object and purpose, as well as useful qualified methods for interpreting, justifying and applying modern practical law, all with the intention of putting philosophic thought and contemporary formal theory of reason at the service of hermeutics and juridical argumentation. Law is no more—no less—than an social-adaptive strategy, evermore complex, but always noticeably deficient, used to articulate argumentatively—in fact, not always with justice—through the virtue of prudence, elementary relational social ties through which men construct approved styles of interaction and social structure, i.e., to organize and …

The Need For An Independent Federal Judiciary: Prison Reform Litigation Spurs Structural Change – The California Penal Crisis, James D. Maynard

ExpressO

This Article examines Madrid V. Gomez, 889 F.Supp. 1146, the last case before the passage of the PLRA in which a federal court broadly intervened in a state prison system through structural reform litigation. Part II outlines the historical and jurisprudential foundations that legitimate federal judicial intervention in state prisons. Part III examines the California prison system through the lens of the Madrid litigation and the ongoing social and political problems caused by the prison crisis. Part IV concludes that judicial intervention remains the only viable tool to remedy constitutional deficiencies in state prisons when majoritarian political processes fail to …

What Is Legal Doctrine, Emerson Tiller, Frank B. Cross

Public Law and Legal Theory Papers

Legal doctrine is the currency of the law. In many respects, doctrine is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored the others’ efforts. Part of the reason for this unfortunate disconnect is that neither has effectively come to grips with the descriptive meaning of legal doctrine. In this article, we attempt to describe …

Re Provincial Health Services Authority And Peiupse, Innis Christie

Innis Christie Collection

Grievance by the Union alleging wrongful dismissal of the Grievor, based on allegations of physical abuse of a patient in one of the Employer's health care facilities. The Union has requested pre­hearing production of various documents in the medical file of the patient who made the allegations. The Employer has refused pro­duction based on the P.E.I. Mental Health Act, R.S.P.E.I. 1988, c. M-6.1. The parties have agreed that the issue of whether the Employer can and should be ordered to produce the documents in issue is to be decided by the Chair of the Board of Arbitration estab­lished to deal …