Law Commons^™

Direct Application Of International Commercial Law In Chinese Courts: Intellectual Property, Trade, And International Transportation, Jie Huang

Jie Huang

Different from scholarship that focuses on the relationship between China and International Law regarding territory, armed conflicts, human rights violations, this article explores the relationship between China and International Law in a commercial setting. It explores how Chinese courts apply international commercial law in adjudicating cases involving foreign factors. Moreover, this article goes beyond contemporary scholarship that concerns international commercial law and China but only focuses on the text of Chinese statutes and judicial interpretations: it elaborates how courts apply statutes and judicial interpretations in actual adjudications through cases studies. By covering cases decided by the Supreme People’s Court and …

The Trouble With Putting All Of Your Eggs In One Basket: Using A Property Rights Model To Resolve Disputes Over Cryopreserved Embryos, Bridget M. Fuselier

Bridget M Fuselier

“The Trouble With Putting All of Your Eggs in One Basket:

Using a Property Rights Model to Resolve Disputes Over Cryopreserved Embryos”

Bridget M. Fuselier

ABSTRACT

This article covers a very current and relevant topic in today’s legal environment. Previous articles have merely discussed competing models or coverage of the disputes in the case law. My article embarks upon a comprehensive look at the specific problem presented and then goes on to offer a specific model with proposed legislation to address these disputes in a fundamentally more efficient manner.

As evidenced by current efforts in a number of states, the …

Wild Rice: The Minnesota Legislature, A Distinctive Crop, Gmos, And Ojibwe Perspectives, Rachel Elena Durkee Walker, Jill Doerfler

Rachel Elena Durkee Walker

No abstract provided.

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Lumen N. Mulligan

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court’s section 1331 jurisprudence in terms of the contemporary judicial usage of “right” (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Levin

Hillel Levin

Based on a true story, this brief Essay begins with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), and others--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;

* When we interpret pronouncements in real life, …

A Troubled House Of Cards: Examining How The “Housing And Economic Recovery Act Of 2008” Fails To Resolve The Foreclosure Crisis, Chad Emerson

Chad Emerson

No abstract provided.

Dumping Emtala: Restoring The Fiduciary Ethic, Improving Community Care, And Increasing Efficiency Through The Membership Model, Joseph A. Gonzalez

Joseph A Gonzalez

The U.S. healthcare system is breaking. Hospital emergency departments ("EDs") disproportionately bear this burden. EMTALA, the federal law that mandates treatment in an emergency, is responsible. By forcing a hospital to provide medical treatment, despite a patient's inability to pay, EMTALA has altered treatment standards for the worse. In this note, I suggest that repealing EMTALA will allow the market to capture the treatment values that motivated EMTALA's passage. Permitting EDs to base treatment on a patient's pre-existing hospital membership encourages better treatment than EMTALA. A market driven ED will succeed where EMTALA has failed.

Mcconnell V. Federal Election Commission: The Problem Of Eradicating Campaign Finance Corruption, Michelle C. Gabriel

Michelle C Gabriel

The article analyzes McConnell, the Supreme Court decision that upheld all major provisions of the Bipartisan Campaign Reform Act (BCRA) of 2002, and examines the four main empirical claims the Court makes therein: (1) Wealthy campaign donors are able to “buy” greater access to politicians with campaign contributions; (2) Limits on freedom to associate within party committees are necessary in order to prevent campaign finance abuses; (3) Reductions in campaign funding will not inhibit political campaigns; and (4) Those who purchase campaign advertisements must be identified, so voters are not misled by the advertisements’ messages. The first two claims are …

Stripping Down The Subprime Crisis, Whitney R. Travis

Whitney R Travis

In Nobelman v. American Savings Bank, the Supreme Court held that a literal reading of the Bankruptcy Code disallowed a Chapter 13 debtor from modifying the rights of a mortgage lender’s claim, secured by a primary residence. The decision thereby required a Chapter 13 debtor to pay the entire amount of the mortgage lender’s claim in order to retain possession of his home. Considering the debtor can modify the rights of nearly every other creditor in bankruptcy, one might wonder why mortgage lenders hold such an elite status. In his concurring opinion, Justice Stevens stated:

At first blush it seems …

Prenatal Drug Exposure: The Impetus For Overreaction By The Legal Community Or A Serious Problem Needing A Serious Solution, Janet W. Steverson

Janet W. Steverson

In 1994 this author argued for the adoption of a legislative scheme that addressed the problems of children exposed prenatally to drugs and alcohol. Under that scheme fetal abuse became a crime. However, the sentence for the crime was probation with drug treatment and no-pregnancy conditions, rather than incarceration. Although no state has enacted the proposed legislative scheme in total, a number of states have enacted bits and pieces of the scheme. No state has, however, made fetal abuse a crime.

In addition to the legislation that has been enacted since 1994, a number of other changes have occurred that …

"Securing" The Nation: Law, Politics, And Organization At The Federal Security Agency, 1939-1953, Mariano-Florentino Cuellar

Mariano-Florentino Cuellar

American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This article analyzes the intersection of these dynamics by investigating the now-forgotten history of the U.S. Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development. In 1939 the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, …

Voter Turnout: From Cost To Cooperation, Jason B. Marisam

Jason B Marisam

Political scientists have repeatedly concluded that state efforts to increase voter turnout will continue to flounder, so long as those efforts remain focused on lowering the already low cost of voting. Accordingly, this Article argues that future efforts to achieve consistently higher and widespread turnout among all demographics must consider other determinants of voter behavior. The primary goal of the Article is to craft a framework based on a thorough understanding of voter motivation and behavior that helps conceptualize and analyze public efforts to increase voter turnout. The framework fills a gap in the literature by drawing from a range …

North Carolina, Juvenile Court Jurisdiction, And The Resistance To Reform, Tamar R. Birckhead

Tamar R Birckhead

North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The …

The Two Appointments Clauses: Statutory Qualifications For Federal Officers, Hanah M. Volokh

Hanah M. Volokh

Congress often exercises control over appointments to federal office by writing job qualifications and putting them directly into the statute creating the office. This practice is best examined by viewing the Appointments Clause not as a single entity, but as two related clauses that set up two very different methods of appointment: presidential nomination and Senate confirmation as the default method, and vesting in one of three authorized positions as an optional alternative method for certain types of officers. When creating an office, Congress must choose one of these methods for appointing the officer, but cannot create a hybrid method …

The Scent Of Subject Matter Jurisdiction: Remand And Appellate Review Under The Supplemental Jurisdiction Statute, Deborah J. Challener

Deborah J Challener

Abstract

Under 28 U.S.C. § 1447(c) and (d), as well as Supreme Court precedent, remand orders in removed cases are immune from appellate review when they are based on a lack of subject matter jurisdiction. Until recently, all appellate courts that had addressed the issue had concluded that the remand of supplemental claims under 28 U.S.C. § 1367(c), the supplemental jurisdiction statute, does not constitute a remand for lack of subject matter jurisdiction and therefore is reviewable on appeal.

In 2007, however, the Supreme Court held in Powerex Corp. v. Reliant Energy Services, Inc. that as long as a remand …

Implications Of The Uk Companies Act 2006 For Institutional Investors And The Corporate Social Responsibility Movement, Gordon L. Clark, Eric R. W. Knight

Eric R Knight

Non-governmental organisations, activists, and the public-at-large hold large firms accountable on many issues including their environmental footprints and the social standards of their suppliers around the world. For those coming from European social democratic traditions, stakeholders have a legitimate voice in the affairs of the corporation especially in two-tiered governance regimes that separate supervision from management. Notwithstanding attempts to re-write their proper roles and responsibilities, the Anglo-American corporation is widely believed to be the medium for the accumulation of shareholder value.

Recently, however, a counter-argument has emerged suggesting that the UK Companies Act 2006 broke with this tradition to embrace …

Judicial Review Of Legislative Procedure: Determining Who Determines The Rules Of Proceedings, Stephen Raher

Stephen Raher

In the early days of the republic, the United States followed the British trend of giving legislatures nearly complete freedom to determine their internal operating rules. To this day, forty-nine state constitutions contain rules-of-proceedings clauses, vesting legislatures with plenary rule-making power. While this power is still quite broad, it has gradually been limited by other constitutional provisions. Reacting to widespread legislative corruption, voters in the nineteenth century began placing procedural mandates in state constitutions. Such constitutional provisions endeavor to bring transparency and accountability to the legislative process by imposing voting procedures, reporting requirements, and other controls on the law-making process. …

An African Marshall Plan: Changing U.S. Policy To Promote The Rule Of Law And Prevent Mass Atrocity In The Democratic Republic Of Congo, Gregory S. Gordon

Gregory S. Gordon

Since 1998, 5.4 million citizens of the Democratic Republic of Congo (DRC) have been killed in what many refer to as "Africa's First World War" -- the deadliest armed conflict since World War II. Despite a 2003 peace deal and the country's first elections in 2006, a staggering 45,000 people continue to die each month and as many as 4,000 women per year are being raped. As Western Europe needed a massive infusion of American assistance to lift itself from misery after World War II, this article contends that the DRC needs such an infusion now. It posits that ending …

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Maxwell Gregg Bloche

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching 50 million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

What Will The Life Of Riley V. Kennedy Mean For Section 5 Of The Voting Rights Act?, Michael J. Pitts

Michael J. Pitts

No abstract provided.

Members Of Parliament’S Privileges And Subjects’ Protection From Libel, Noel Cox

Noel Cox

In Buchanan v Jennings [2002] 3 NZLR 145 (CA); [2004] UKPC 36; [2005] 2 All ER 273 (New Zealand PC) the Judicial Committee of the Privy Council, on appeal from the Court of Appeal of New Zealand (unanimously) held that a Member of Parliament may be held liable in defamation if the member makes a defamatory statement in the House of Representatives and later affirmed the statement (without repeating it) on an occasion which was not protected by parliamentary privilege. The statement in the House was covered by absolute privilege in the Defamation Act 1992 (N.Z.) and the Bill of …

Peerage Privileges Since The House Of Lords Act 1999, Noel Cox

Noel Cox

The recent and ongoing reform of the House of Lords in the United Kingdom, which has thus far seen the passage of the House of Lords Act 1999, which excluded almost all hereditary peers and peeresses from the House, has focused attention upon the appointment process for membership of the upper house, whether hereditary, appointed, or elected. Less attention has been paid to the role of the peerage. Though officially it is said that any proposals for substantial reform of the composition of the Lords will have to look at the Lords’ role, powers and procedures and its relationship with …

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

Alexandra B. Klass

This Article considers the broad range of “tort experiments” states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called “federalism revolution” of the 1990s to limit Congressional authority in the name of states’ rights, …

The Effect Of 2005 Bankruptcy Reform On Credit Card Industry Profits And Prices, Michael N. Simkovic

Michael N Simkovic

The U.S. Bankruptcy code changed dramatically with the passage of The Bankruptcy Abuse Prevention and Consumer Protection Act Of 2005. This act increased the costs and decreased the benefits of bankruptcy to consumers. Supporters of the law claimed that it would benefit consumers as well as creditors, because reducing the losses faced by creditors would lower the cost of credit to consumers. Critics of the law depicted it as special interest legislation designed to profit credit card companies at the expense of consumers. This study tests whether the 2005 Bankruptcy Reform: (1) reduced the number of bankruptcies; (2) reduced credit …

Notice And Opportunity To Repair Construction Defects: An Imperfect Response To The Perfect Storm, Alice M. Noble-Allgire

Alice M. Noble-Allgire

The U.S. home building industry is in a financial crisis fueled by a rise in construction defect litigation. During the past two decades, insurance carriers have pulled out of the market in many areas of the country or raised premiums precipitously, blaming increased risks from construction defect litigation. With insurance either unavailable or prohibitively costly, many builders have gone out of business, stopped building certain types of housing projects, or passed the increased costs along to consumers – all of which threatens the availability and affordability of housing. State legislatures have attempted to address the crisis by prohibiting homeowners from …

Voluntary Disclosure Of Hiv/Aids Status By A Public Health Official To Law Enforcement Agents: The Shortcomings Of South Dakota's Law Section 34-22-12.1(6) And Traditional Public Health Measures, Daniel C. Moon

Daniel C Moon

Section 34-22-12.1(6) of South Dakota’s Codified Laws grants the Secretary of the Health Department to disclose private medical information regarding an individual’s HIV/AIDS status if he or she thinks that that individual is engaged in intentionally infecting another person with HIV/AIDS. This law is problematic because it does not (1) adequately protect an individual’s privacy, and (2) achieve its public health goals. From the privacy aspect, it provides less protection to information regarding an individual’s HIV/AIDS status from three aspects: (1) less protection than the same information possessed by covered entities under the Health Insurance Portability and Accountability Act (“HIPAA”), …

The Real Id Act: Is It Really Worth It?, Sheena Eastman

Sheena Eastman

No abstract provided.

Ensuring A Right Of Access To The Courts For Bias Crime Victims: A Section 5 Defense Of The Matthew Shepard Act, Jordan Woods

Jordan Blair Woods

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

How The Government Can Protect Home Mortgage Consumers: A Proposal To Provide Consumers A Risk Assessment Of Mortgages, Adeline Park

Adeline Park

The recent sub-prime mortgage crisis has revealed the consumer’s vulnerability in the home mortgage marketplace. Consumers face an overwhelming variety of mortgage options, and are not motivated to invest the necessary time and resources to comprehend the meaning and implications of each loan feature. I propose that the government assess the risk of each loan feature available in the home mortgage market, based on the historical number of foreclosures each loan type has yielded. The government will then require lenders to display the risk assessment icon on all sales, marketing, and advertising materials. The risk assessment icon will identify the …