Law Commons^™

How Wikipedia Can Overcome The Great Firewall Of China, Nichole Hines

iBlawg

No abstract provided.

Why Technology Provides Compelling Reasons To Apply A Daubert Analysis To The Legal Standard Of Care In Medical Malpractice Cases, Nichole Hines

Duke Law & Technology Review

Traditionally, courts have applied a "customary practice" standard in determining the legal standard of care in medical malpractice cases. Recently, a few courts have abandoned this dated standard and instead applied a Daubert analysis to the standard of care, which focuses on medical evidence that is scientifically based . In light of these recent holdings, this iBrief argues that with the increasing amounts of technologies improving evidence-based medicine, the customary practice standard is no longer a useful or appropriate test for determining the standard of care in medical malpractice cases. By applying a Daubert analysis to an expert’s testimony on …

Policy Tools For Smart Growth In New England, New England Environmental Finance Center

Smart Growth

Across New England communities have been experiencing a rapid outward surge of development away from our community and downtown centers. Effects of sprawl include a loss of wildlife habitat, farm and timber lands; increased costs of community services and higher taxes; auto-dependency, longer commutes, and increased congestion; increases in air and water pollution; a sedentary lifestyle and increased obesity; and losses to one’s sense of place and social ties.

State-level responses to sprawl have surfaced throughout New England in recent years. This report describes 11 examples of these responses, representing all six New England states and a diversity of recent …

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.

Reckoning With Rapanos: Revisiting "Waters Of The United States" And The Limits Of Federal Wetland Regulation , Jonathan H. Adler

Journal of Environmental and Sustainability Law

No abstract provided.

True Access To The Courts For Citizens Working To Protect Natural Resources: Incorporating Attorney's Fees Into The Minnesota Environmental Rights Act , Michael Wietecki

Journal of Environmental and Sustainability Law

No abstract provided.

Environmental Dispute Resolution: Combining Settlement Mechanisms For Transnational Enforcement Of International Environment Disputes , Victoria C. Dawson

Journal of Environmental and Sustainability Law

No abstract provided.

Making The Waters A Little Murkier: Broadening The Endangered Species Act At The Expense Of The Clean Water Act. Defenders Of Wildlife V. United States Environmental Protection Agency , Erik G. Holland

Journal of Environmental and Sustainability Law

No abstract provided.

The Strong Arm Of Cercla: Epa Allowed Free Reign To Recoup Cleanup Costs. United States V. W.R & Grace, Inc., Amy L. Ohnemus

Journal of Environmental and Sustainability Law

No abstract provided.

Federal Agency Action Subject To Section 7(A)(2) Of The Endangered Species Act , Steven G. Davison

Journal of Environmental and Sustainability Law

No abstract provided.

Sublicensing From A Distressed Company: Are You Placing Your Future In The Debtor's Hands?, Michelle M. Harner, David A. Beck

Faculty Scholarship

No abstract provided.

Opposing The Lottery In The U.S.: The Forces Behind Individual Attitudes Towards Legalization In 1975, Andrew J. Economopoulos

Business and Economics Faculty Publications

In the 1970s, opposition to the lottery started to fracture in the US. This study examines causes of the fracture and historical factors that contributed to changes in individual attitudes towards legalization. The opponents at the time held to traditional arguments against legalized lotteries—negative economic effects, costs to others and increased crime. Unlike in the past, however, there was weak religious institutional opposition to lotteries. Individuals with a strong commitment to their religious affiliation were more resistant to pro-lottery arguments, but in most cases could be convinced to support the lottery. The pre-World War II generation remained steadfast against the …

Environmental Updates

Journal of Environmental and Sustainability Law

No abstract provided.

The Relationship Between Standing And Intervention: The Tenth Circuit Answers By "Standing" Down. San Juan County V. United States, Eric S. Oelrich

Journal of Environmental and Sustainability Law

No abstract provided.

The Price Of Pretrial Release: Can We Afford To Keep Our Fourth Amendment Rights?, Melanie Wilson

Scholarly Works

This Article looks at the intersection of the Fourth Amendment, which protects Americans' personal security against arbitrary and oppressive searches by law enforcement officials, and the Eighth Amendment, which proscribes excessive bail. The focus is on the validity and effectiveness of an arrested person's agreement to relinquish some or all of her Fourth Amendment rights as a means of gaining freedom from pre-trial detention. In other words, can an arrested person validly "consent" to waive some of her Fourth Amendment rights to avoid pre-trial detention? Recently, in a case of first impression in the federal courts of appeal, the Ninth …

Torch (November 2006), Amy Homans, Civil Rights Team Project

Torch: The Civil Rights Team Project Newsletter

No abstract provided.

Learn To Write “Like The Man On The Six O’Clock News”, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Because your writing involves words, it might seem difficult to make your writing "transparent." However, speaking involves words too, and broadcasters employ several techniques to make their words transparent. Consequently, legal writers can look for guidance from the men and women "on the six o'clock news."

(Whatever Happened To) The Ada's Record Of Disability Prong(?), Alex B. Long

Scholarly Works

The ADA's record of disability prong is the prong least likely to be used by ADA plaintiffs in claiming protection under the Act. Between the years 2000 and 2004, ADA and Rehabilitation Act plaintiffs in federal court who alleged employment discrimination relied upon the record of disability prong less than one-third as often as the actual and perceived disability prongs in claiming disability status. Nor have ADA plaintiffs enjoyed any greater success when asserting coverage under the record of disability prong during that time period. Congress, the Equal Opportunity Commission (EEOC), and the federal courts bear much of the blame …

The Forum (Volume 36, Number 4), Valparaiso University School Of Law

Valparaiso Law School Forum

No abstract provided.

Fixing Fair Use, Michael W. Carroll

Working Paper Series

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …

Charting Developments Concerning Punitive Damages: Is The Tide Changing?, John Y. Gotanda

Working Paper Series

This essay discusses a number of developments outside of the United States concerning punitive damages, which may ultimately signal a change in the way other countries view American awards of such damages.

To date, courts in many countries have refused to recognize and enforce American punitive damages awards on the ground that they violate the host country’s public policy. In most civil law countries, such as France and Germany, penal damages can only be ordered in criminal proceedings; a civil award of such damages has been viewed as contrary to ordre public. In common law countries, while punitive damages generally …

The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and …

Original Intent In The First Congress, Louis J. Sirico Jr.

Working Paper Series

Most of the literature on this country’s Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

Of Apples And Trees: Adoption And Informed Consent, Ellen Wertheimer

Working Paper Series

This article argues that the doctrine of informed consent should apply to the process of adopting a child. There is substantial evidence that all adopted children are at higher risk of learning disabilities and mental health problems than nonadopted children. The article first summarizes the social science evidence demonstrating these risks and discusses some of the reasons why more extensive studies have not yet been done. The article then turns to the law of informed consent as created and applied in the contexts of medicine and law, and concludes that informed consent doctrine should apply to the process of adoption. …

The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson

Working Paper Series

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage once more.

State …

'How's My Driving?' For Everyone (And Everything?), Lior Strahilevitz

Articles

This is an Article about using reputation-tracking technologies to displace criminal law enforcement and improve the tort system. The Article contains an extended application of this idea to the regulation of motorist behavior and examines the broader case for using technologies that aggregate dispersed information in various settings where reputational concerns do not adequately deter uncooperative behavior. The Article proposes a compulsory "How's My Driving?" program for all motor vehicles. Although more rigorous study is warranted, the initial data from voluntary "How's My Driving?" programs is quite promising, suggesting that the use of "How's My Driving?" placards on commercial trucks …

Clark Memorandum: Fall 2006, J. Reuben Clark Law Society, Byu Law School Alumni Association, J. Reuben Clark Law School

The Clark Memorandum

• Grief and Hope (Hassan Jallow)
• Thoughts on the Family: A Proclamation to the World (Annette W. Jarvis)
• The Other Side of Time (Sheila K. McCleve)
• Utah's Board of Pardons and Parole (Jane H. Wise)

International Private Rights Of Action: A Cost-Benefit Framework, Philip M. Moremen

San Diego International Law Journal

This Article seeks to chart a different course, by developing and applying an analytical cost-benefit framework, for assessing the costs and benefits of PRAs to enforce international law before an international forum. This framework is drawn from various literatures. For example, there is much to be learned about the potential benefits and costs of PRAs in the international setting from the rich literature comparing domestic PRAs with domestic regulation in the American context. More broadly, the article employs a comparative institutional approach, using a comparison between PRAs and regulatory enforcement mechanisms to shed light on their respective costs and benefits. …

Linking Global Warming To Inuit Human Rights, Marguerite E. Middaugh

San Diego International Law Journal

Under international law, the United States government has violated the Inuit's human rights by failing to take action against climate change. The Inter-American Commission on Human Rights should find that the allegations of human rights violations by the Inuit are justified and rule in their favor. This Article first explores the impacts of climate change on the Inuit and each of the Inuit's basic human rights, which are implicated by the environmental changes. Next, the role and responsibility of the U.S. with respect to climate change is examined. This section discusses the current attitude and actions of the U.S. government, …

Richard Posner Meets Reb Chaim Of Brisk: A Comparative Study In The Founding Of Intellectual Legal Movements, Samuel J. Levine

San Diego International Law Journal

This Essay aims to examine some of the common elements of law and economics and the Brisker method that have contributed to their success as intellectual movements. Toward that end, the Essay compares the founding principles of these movements, exploring similarities in their essential characteristics. Part I presents and analyzes representative examples of the conceptual approach underlying each of these methods. Drawing on these and other examples of each method, Part II observes that the success of the methods stems in part from their common reliance on historical antecedents as well as their emphasis on conceptual frameworks broadly applicable within …