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 …

Dreams And Images: The Roles Of Particularism And Principlism In The Law, R George Wright, Faith A. Knotts

R. George Wright Professor

The term ‘particularism’ is rarely used in connection with the law, but the idea of ‘particularism’ itself is of great importance throughout the law. Particularism de-emphasizes the roles of principles, rules, standards, policies, formulas, and tests in the law. Instead, particularism emphasizes vivid and concrete analogies, hypotheticals, stories, images, instructive fables, parables, particular incidents, myths and legends, evocative dreams, and similar sorts of narratives.

This Article establishes the contrast between particularism and its opposite, principlism. The Article notes the contrast between these two approaches to the law, particularly in the vital area of the historical legal battle over slavery, segregation, …

Limited Scope Representation: An Experiment In San Diego Housing Court, Lisa Young

Lisa Young

Limited Scope Representation: An Experiment in San Diego Housing Court Abstract By Lisa Young This paper analyses how limited scope representation effects the settlement agreements reached by litigants in San Diego Housing Court. Limited scope representation, also known as “unbundling,” is defined as a form of legal representation where the attorney only represents the client in one part of the client’s case. Limited Scope Representation is growing as a viable response to the significant lack of legal representation for middle- and low-income Americans. This paper is the first scholarship to test whether limited scope representation actually makes a substantive difference …

Revisiting The Crime-Fraud Exception To The Attorney-Client Privilege: A Proposal To Remedy The Disparity In Protections For Civil And Criminal Privilege Holders, Cary A. Bricker

cary a bricker

Abstract: This article surveys circuit court holdings that address the crime-fraud exception to the attorney-client privilege and analyzes the differential treatment conferred on civil versus criminal privilege-holders. The federal judiciary uniformly holds that civil litigants must be apprised of the crime fraud allegations and have the opportunity to rebut them in an adversarial hearing: to deny them these protections is a Due Process violation. In the criminal context, conversely, privilege-holders rarely learn the allegations nor have the opportunity to rebut them. However, all federal courts that have addressed the issue concur that denying these protections in a criminal case does …

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Matthew I Hall

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the “cases or controversies” clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model—which was first adopted by the Supreme Court less than 45 years ago—fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the “cases or controversies” clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider and resolve mootness issues …

Redefining Harm, Reimagining Remedies And Reclaiming Domestic Violence Law, Margaret Johnson

Margaret E Johnson

Women subjected to domestic violence are disserved by the civil domestic violence laws that should effectively address and redress their harms. The Civil Protective Order [CPO] laws should remedy all domestic abuse and not solely physical violence or criminal acts. All forms of abuse, including psychological, emotional, economic and physical abuse, cause severe emotional distress, physical harm, isolation, sustained fear, intimidation, poverty, degradation, humiliation, and coerced loss of autonomy. Moreover, all abuse is interrelated, because, as researchers have demonstrated, most domestic violence is the fundamental operation of systemic oppression through the exertion of power and control. Given the effectiveness of …

Meditations On Strathclyde: Controlling Private Land Use Restrictions At The Crossroads Of Legal Systems, John A. Lovett

John Lovett

This article presents a comparative study of a pivotal case decided by the Lands Tribunal of Scotland, Strathclyde Joint Police Board v. The Elderslie Estates Ltd. The decision exemplifies how Scotland, one of the world’s leading mixed jurisdictions, addresses several fundamental property law issues. Should landowners be allowed to impose restrictions on the use of land that bind future owners in perpetuity? Should courts have any power to modify or terminate those land use restrictions if the passage of time appears to undermine their initial purpose and utility? Does the application of the European Convention on Human Rights change how …

Is Arbitration Under Attack? Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Ramona L. Lampley

This article explores the hotly debated field of enforcing arbitration clauses with binding class-action waivers. While the enforcement of arbitration clauses generally, and those with class-action waivers specifically, has undergone much debate in the past three years in both the academic and judicial fora; this article casts a new look on the analysis. Instead of advocating simply for or against the enforcement of the class-action waiver, this article analyzes the dialogue between the consumer products industry and the consuming public, via the court system. This dialogue has resulted in a “new wave” of consumer products arbitration agreements: agreements that are …

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, …

Michelle Obama: The "Darker Side" Of Presidential Spousal Involvement And Activism, Gregory S. Parks, Quinetta M. Roberson, Phd

Cornell Law Faculty Working Papers

Pundits and commentators have attempted to make sense of the role that race and gender have played in the 2008 presidential campaign. Whereas researchers are drawing on varying bodies of scholarship (legal, cognitive and social psychology, and political science) to illuminate the role that Senator Obama’s race and Senator Clinton’s gender has/had on their campaign, Michelle Obama has been left out of the discussion. As Senator Clinton once noted, elections are like hiring decisions. As such, new frontiers in employment discrimination law place Michelle Obama in context within the current presidential campaign. First, racism and sexism are both alive and …

A Tale Of Two Waivers: Waiver Of The Jury Waiver Defense Under The Federal Rules Of Civil Procedure, Jarod S. Gonzalez

Jarod S. Gonzalez

There is an extensive amount of academic commentary on the enforceability of pre-dispute contractual jury waivers. My article, entitled A Tale of Two Waivers: Waiver of the Jury Waiver Defense under the Federal Rules of Civil Procedure, considers a related topic that has not received much scholarly attention: the procedure for raising a jury waiver defense in federal civil litigation. Specifically, I advocate a novel approach that treats a contractual jury waiver defense as an affirmative defense under Rule 8 of the Federal Rules of Civil Procedure. The affirmative defense approach requires a party that desires to strike a jury …

In The Name Of Efficiency, Scott Shackelford

Scott Shackelford

India, the most populous and diverse democracy in the world, has a legal system to match. This system, a composition of ancient Hindi panchayats (village assemblies), Islamic law, and a formal British judiciary, has long been under immense strain, stifling economic competiveness and the pursuit of justice alike. As Lord Delvin famously quipped “If our business methods were as antiquated as our legal methods we should be a bankrupt country.” There are currently nearly 25 million cases pending in Indian courts, some of which have been appealed and argued for more than 20 years. Meanwhile, India spends only .2 percent …

Ripping Off Grandma And Grandpa Without Hurting The Banks Of America: Allowing The Elderly And Other Easy Prey To Pay For The Crimes Of Immoral Individuals And Institutions, Brett D. Maxfield

Brett D Maxfield

This paper looks at the abuses of the banks of America in the ways they influence the law of credit and debt collection and what can be done to reform the system.

Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan

Working Paper Series

There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …

“What’S The Matter With You Catholics?” Soundings In Catholic Social Thought: Traditions In Turmoil. By Mary Ann Glendon, Patrick Mckinley Brennan

Working Paper Series

This review essay of Mary Ann Glendon's Traditions in Turmoil (2006) explores such topics as tradition, moral discourse, human rights, subsidiarity, natural law, the common good, civil society, and constitutional and statutory interpretation. In doing so, it provides an introduction both to Catholic social thought and to the thought of Bernard Lonergan.

The First Amendment Constitutional Implications Of Facebook And Myspace And Other Online Activity Of Students In Public High Schools, Brandon J. Hoover

Brandon J. Hoover

My paper, entitled The First Amendment Constitutional Implications of MySpace and Facebook, will explore what constitutional issues may arise through the use of social networking websites such as MySpace and Facebook. The paper will begin with an explanation of social networking websites; how such sites were developed, how many users each cite has, and how such sites work. The central focus of the paper will be on youth who use such sites. After laying the basic framework of what these sites are and what they do, the paper will next turn to the First Amendment issue of free speech. Some …

Wedging Open The Courthouse Doors: Federal Employee Access To Judicial Review Of Constitutional And Statutory Claims, Barbara A. Atkin, Elaine Kaplan, Gregory O'Duden

Barbara A. Atkin

This article addresses, in a comprehensive fashion, jurisdictional barriers that federal employees face in obtaining judicial review of statutory and constitutional claims. Many statutory claims that employees had previously brought in federal court are now precluded entirely by the Civil Service Reform Act of 1978. Courts, however, retain jurisdiction where there are independent jurisdictional bases for review. They also traditionally have preserved their jurisdiction to grant equitable relief for constitutional violations. Determination of those types of government action for which Congress intended the CSRA remedies to be exclusive has been hotly litigated. In addition, even when the claims are not …

Hedonic Adaptation And The Settlement Of Civil Lawsuits, Jonathan S. Masur, John Bronsteen, Christopher Buccafusco

Jonathan S. Masur

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person’s capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater …

Faster, Higher, And Stronger: Why Athletes Should Have The Choice To Use Performance-Enhancing Drugs, Robert J. Bello

Robert J Bello

From: Robert Bello Date: January 28, 2008 RE: Abstract Performance-enhancing drugs can be safely and effectively used when taken in smaller dosages to help athletes perform better. They are outlawed in sports by current legislation due to the adverse effects caused by high dosages and a decades old assumption that those are the typical side effects and usage patterns. The complete ban ignores the benefits of performance-enhancing drugs and creates many problems of its own. A large reason why athletes suffer adverse side effects from steroids is because they take them with little knowledge and without medical supervision. Lacking supervision, …

La Responsabilidad Solidaria Tributaria Por La Adquisición De Activos En El Marco De Operaciones De Reorganización Societaria, Freddy Escobar, Andrés Valle

Freddy Escobar

No abstract provided.

The Holocaust, Museum Ethics, And Legalism, Jennifer Kreder

Jennifer Kreder

The attached article is a provocative analysis of the “Holocaust art movement.” The movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims refused by the Auschwitz-Birkenau State Museum: One to recover a suitcase stolen from a murdered man, and the other to recover watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes uncomplicated by the monetary issues in many of the …

Disability, The Person, The Market, Andrea Bortoluzzi

Andrea Bortoluzzi

The introduction of the institution of the ‘Amministrazione di Sostegno’ into Italian law abandons the model of subjectivity handed down by tradition; indeed, it deconstructs it. In its aim of protecting, with the least possible limitations, the personal capacity of persons wholly or partially deprived of autonomy in performing the functions of everyday life, this new institution delineates a person no longer in abstract terms but as a person of flesh and blood, one whose relationship is not with the State but with the society of which he is a member. His society is considered in terms of its potential …

No Bonds But Those Freely Chosen: An Obituary For The Principle Of Forced Heirship In American Law, Vincent D. Rougeau

Vincent D. Rougeau

This article explains the history of forced heirship in Louisiana and describes the negative implications of its demise. Section IV outlines how the end of forced heirship reveals the changing values of Louisiana culture and views on the family.

The Anticommons And The Problem Of Numerus Clausus Of Property Rights, Enrico Baffi

enrico baffi

In the academic literature there the idea that revolutionary French lawmakers wanted to encourage the circulation of goods by limiting the possibility of creating property rights, thus reacting to the risk that the high transaction costs necessary to make several people reach an agreement would compromise the transfer of goods to a different use (and to a different owner). The so-called "theory of the anticommons" is the legal and economic development of this idea. But law and economics in recent years have led to the identification of further explanations, in terms of economic efficiency, of the principle of the numerus …