Law Commons^™

The Supreme Common Law Court Of The United States, Jack M. Beermann

Faculty Scholarship

The U.S. Supreme Court's primary role in the history of the United States, especially in constitutional cases (and cases hovering in the universe of the Constitution), has been to limit Congress's ability to redefine and redistribute rights in a direction most people would characterize as liberal. In other words, the Supreme Court, for most of the history of the United States since the adoption of the Constitution, has been a conservative force against change and redistribution. The Court has used five distinct devices to advance its control over the law. First, it has construed rights-creating constitutional provisions narrowly when those …

The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas

Faculty Scholarship

Sexual reproduction, also known as making babies the old-fashioned way, has always brought with it significant challenges for family law, especially regarding protecting the best interests of children, and the identification of parents with the right and responsibility to rear them. But these challenges often seem mundane in the face of what has evolved since physicians have been injected into baby making and thus into novel parent-child relationships. The addition of physicians and their "new" medical technologies, sometimes called Assisted Reproductive Technology (ART), have forced the law to reconsider the very definition of motherhood and have radically altered society's view …

United States V. Burns: Canada's Extraterritorial Extension Of Canadian Law And Creation Of A Canadian "Safe Haven" In Capital Extradition Cases, Andrea Cortland

University of Miami Inter-American Law Review

No abstract provided.

When Human Rights Conflict: Mediating International Parental Kidnapping Disputes Involving The Domestic Violence Defense, Julia Alanen

University of Miami Inter-American Law Review

No abstract provided.

Private Equity's Three Lessons For Agency Theory, William Wilson Bratton

Articles

No abstract provided.

What Is Urban Health Policy And What's Law Got To Do With It?, Larry I. Palmer

Faculty Publications

No abstract provided.

A Darwinist View Of The Living Constitution, Scott Dodson

Faculty Publications

The metaphor of a “living” Constitution imports terms from biology into law and, in the process, relies on biology for its meaning. A proper understanding of biology is therefore central to understanding the idea of “living” constitutionalism. Yet despite its rampant use by both opponents and proponents of living constitutionalism, and despite the current fervent debate over whether biology can be useful to the law, no one has evaluated the metaphor from a biological perspective. This Essay begins that inquiry in an interdisciplinary study of law, science, and philology. The Essay first evaluates the metaphor as it is currently used …

Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

The modern incarnation of tort subrogation allows an insurer to force its insured to turn over the litigation proceeds independently obtained by the insured against a third-party tortfeasor, even if the insured has not been made whole by such litigation. This Article demonstrates that such a result is the product of a subrogation-as-contract paradigm that has taken hold in the federal system, most notably by the United States Supreme Court in Sereboff v. Mid-Atlantic Services, 547 U.S. 356 (2006). More importantly, the Article illustrates the conceptual and historical roots of subrogation to demonstrate the extent to which subrogation-as-contract is divorced …

On The Continuing Misuse Of Event Studies: The Example Of Bessen And Meurer, Glynn S. Lunney Jr

Faculty Scholarship

In their book, Patent Failure: How Judges, Bureaucrats, and Lauyers Put Innovators at Risk, James Bessen and Michael Meurer present an empirical assessment of the costs and benefits of patent protection. Their conclusion is startling. For most industries, the availability of patents discourages innovation.

According to Bessen and Meurer, patents benefit innovators by providing exclusivity and thereby enabling an innovator to capture more rents or profits from their innovation than they could with lead-time or other market mechanisms alone. While innovators can obtain rents from their own Patents, they also face the threat of infringement litigation from Patents held by …

The Emerging Importance Of "Social Visibility" In Defining A "Particular Social Group" And Its Potential Impact On Asylum Claims Related To Sexual Orientation And Gender, Fatma E. Marouf

Faculty Scholarship

An emerging issue in U.S. asylum claims based on "membership in a particular social group" is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate. Until recently, however, neither the Board of Immigration Appeals (BIA) nor the federal courts focused on "social visibility" in defining this term. The dominant view of the international community, rooted in the BIA's seminal decision in Acosta, defines a "particular social group" based solely on the existence of an "immutable" characteristic," one …

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Faculty Scholarship

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests.

This article - prepared for …

Law Commissions And Access To Justice: What Justice Should We Be Talking About?, Patricia Hughes

Osgoode Hall Law Journal

In addition to their explicit mandates, law reform commissions have a generic mandate to make recommendations that are designed to increase access to justice. Moreover, contemporary commissions ought to interpret the concept of access to justice broadly. Even though they undertake topics of 'lawyers' law,' or at times limit their focus to the narrower legal system, commissions should also consider how law can be employed to realize economic or social justice. In order to make pragmatic recommendations to increase access to justice, commissions must study the non-legal realm and incorporate into their work the insights of other disciplines and the …

Lessons In Access To Justice: Racialized Youths In Ontario's Safe Schools, Janet E. Mosher

Osgoode Hall Law Journal

Access to justice is often equated with access to institutionalized dispute resolution processes, and the objective barriers that hinder such access-costs and delay most particularly-are commonly identified as the primary objects of reform efforts. In sharp contrast, when interviews and focus groups were conducted with racialized youths in Toronto regarding their experiences of access to justice in the context of school disciplinary matters, accounts of access to dispute resolution processes being impeded by costs and delay did not figure prominently. The interviews and focus groups revealed that many racialized youths scarcely ever considered accessing institutionalized dispute resolution processes largely because …

Peer Review In Canada: Results From A Promising Experiment, Frederick Zemans, James Stribopoulos

Osgoode Hall Law Journal

The end point in the access to justice debate often focuses on expanding the availability of legal services for the poor. This article argues that true access to justice requires greater focus on the quality of legal services provided. It tells the story of the introduction of peer review in Canada as a quality assurance tool for evaluating the legal work of a group of criminal lawyers. The article chronicles the various obstacles encountered in making even a very limited form of peer review a reality in Canada, where historically there has been skepticism about the peer review process in …

The Advocate

The Advocate

No abstract provided.

Covering All Kids: States Setting The Pace, Jennifer Ryan, Safiya Mojerie

National Health Policy Forum

Providing health insurance coverage for the uninsured is a challenge that has remained unresolved for decades. In the absence of a national solution, states have initiated their own efforts to expand access to health insurance coverage, particularly for children. This issue brief provides a history and status of state universal children’s coverage initiatives and features several states that appear to be setting the pace by developing successful strategies for expansion and cultivating the political will and leadership needed to institute them. In highlighting some of the key lessons that can be learned from states’ experiences, this paper may inform the …

Memorial Service Val Nolan, Jr., 82

Val Nolan Jr. (1976 Acting; 1980 Acting)

No abstract provided.

Mckithen V. Brown: Due Process And Post-Conviction Dna Testing, Elizabeth A. Laughton

Duke Law & Technology Review

When the Second Circuit decided McKithen v. Brown, it joined an ever-growing list of courts faced with a difficult and pressing issue of both constitutional and criminal law: is there a federal constitutional right of post-conviction access to evidence for DNA testing? This issue, which sits at the intersection of new forensic technologies and fundamental principles of constitutional due process, has divided the courts. The Second Circuit, wary of reaching a hasty conclusion, remanded McKithen’s case to the district court for consideration. The district court for the Eastern District of New York was asked to decide whether a constitutional right …

Masthead

Journal of Digital Forensics, Security and Law

No abstract provided.

Front Matter

Journal of Digital Forensics, Security and Law

No abstract provided.

Back Matter

Journal of Digital Forensics, Security and Law

No abstract provided.

Brief For Respondents Riverkeeper, Inc., Entergy Corporation V. Environmental Protection Agency V. Riverkeeper, Nos. 07-588, 07-589 & 07-597 (U.S. Sept. 29, 2008), Richard J. Lazarus

U.S. Supreme Court Briefs

No abstract provided.

L. Kaline V. J. Kaline, 2007-Ca-126 (Blkft. Tr. Ct. App., Sept. 29, 2008), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals, the Court determined that the lower court did not err in the distribution of property when the court relied on property lists supplied by both the Plaintiff and Defendant, and after neither party objected to the property settlement. If a divorce has an agreeable settlement prior to the divorce, the court will not see it as a default divorce. The Court maintains a lower court determination when it is found to be fair and equitable and will not grant a stay on execution of judgement.

Vol. 35, No. 05 (September 29, 2008)

Indiana Law Annotated

No abstract provided.

Hail, Paulson, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Is Military Law Relevant To The "Evolving Standards Of Decency" Embodied In The Eighth Amendment?, Corey Rayburn Yung

NULR Online

No abstract provided.

The State Of The First Amendment, Timothy Zick

Popular Media

No abstract provided.

September 28: 2008: Repentence, Bruce Ledewitz

Hallowed Secularism

Blog post, “Repentence“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Determining Orphan Works Vs. Public Domain Status For Print Works Published In The U.S. From 1923 Through 1977, Inclusive, David Lowe

Published Works

Document is a proposed draft of a decision tree to be used in mass digitization workflows to facilitate determining whether or not a published item (U.S. imprints only, 1923-1977) may be digitized and then given open access.