Law | Open Access Articles | Digital Commons Network™

Takeover Regulation In The United States And Europe: An Institutional Approach, William J. Magnuson

Pace International Law Review

No abstract provided.

Go to article

Disrupting Terrorist Financing With Civil Litigation, Jack D. Smith, Gregory J. Cooper

Case Western Reserve Journal of International Law

No abstract provided.

Go to article

We're All Experts Now: A Security Case Against Security Detention, Deborah Pearlstein

Case Western Reserve Journal of International Law

No abstract provided.

Go to article

Introduction, Claudia Martin, Diego Rodríguez-Pinzón

American University International Law Review

No abstract provided.

Go to article

El Establecimiento De La Responsabilidad Internacional Del Estado Por Violacion A Normas Contenidas En La Declaracion Americana De Los Derechos Y Deberes Del Hombre , Julio José Rojas Báez

American University International Law Review

No abstract provided.

Go to article

Introduction: In Honor Of Gordon Slynn, U.K. Law Lord And Judge Of The Ec Court Of Justice, Roger J. Goebel

Fordham International Law Journal

This symposium issue and the next issue of the Fordham International Law Journal are dedicated to the memory of Gordon Slynn, 1930–2009, a distinguished jurist, accomplished barrister, and a renowned expert in European Union and international law.

Go to article

A Tiny Problem With Huge Implications - Nanotech Agents As Enablers Or Substitutes For Banned Chemical Weapons: Is A New Treaty Needed?, Evan J. Wallach

Fordham International Law Journal

The underlying thesis of this Article is that while smaller-sized particles and separate nano-sized carriers of known agents are clearly covered by the CWC, nanomimics are not as squarely within the relevant provisions. The bulk of this Article deals with that question. Despite the invitation to woolgather, this Article is limited to the tightest possible analytical approach. Part I begins with definitions of chemical and biological agents within existing treaties, and of nanoproducts, including those existing beyond presently-known technical capabilities, but which are at least reasonably conceivable (“nanobots”). Part II provides an overview of treaty law that is potentially applicable …

Go to article

Future Generations: A Prioritarian View, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Go to article

The Public’S Right To Health: When Patient Rights Threaten The Commons, Elizabeth Weeks Leonard

Scholarly Works

This Article offers a contemporary examination of traditional public health objectives to address social problems not amenable to individual resolution. Taking the tradition a step further, it defines a "public health right" that may justify certain government actions that otherwise appear to impair individual rights. For example, lawmakers are considering whether current regulations on prescription drugs should be loosened to allow terminally ill patients to access drugs before they have been tested and approved for the general public. This Article concludes that expanding access to experimental drugs would violate the public health right to scientific knowledge and new drug development. …

Go to article

Litigating Groups, Elizabeth Chamblee Burch

Scholarly Works

Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and …

Go to article

Le Droit Myope, Régine Tremblay

All Faculty Publications

Cet essai présente la violence conjugale comme un enjeu de droit privé et de droit public, comme une problématique qui se situe au confluent de ces deux catégories considérées comme mutuellement exclusives. L'évolution de la perception de I'homosexualité en droit public a transformé notre idée du couple en droit privé. Ceci remet en question notre façon de penser le couple, les individus qui le composent et la violence qui s'y produit.

Go to article

The Ties That Bind: Multiculturalism And Secularism Reconsidered, Brenna Bhandar

All Faculty Publications

Explores contemporary contestations over the rights of Muslim girls and women to wear the veil in both France and the U.K.

Go to article

Banned From Lawyering: Gordon Martin, Communist, W. Wesley Pue

All Faculty Publications

This paper assesses the exclusion of Gordon Martin from the practice of law in 1948 solely on the grounds that his communist political commitment was inconsistent with the role of a lawyer. In so doing it canvasses understandings of the day regarding communism, constitutionalism, and American social thought (as embodied in Oliver Wendell Holmes, John Dewey, Charles Beard, James Harvey Robinson, and Thorstein Veblen). Issues relating to self-governance of the legal profession, character, and statutory interpretation under then-current administrative law doctrine are reviewed.

Go to article

Bill C-268: Minimum Sentences For Child Trafficking Needed, Benjamin Perrin

All Faculty Publications

Under-aged girls as young as 12 years old are being subjected to sexual exploitation by traffickers according to a Criminal Intelligence Service of Canada (CISC); this is a pressing national problem, as organized crime networks are actively trafficking Canadian-born women and under-age girls within and between provinces and to the United States, destined for the sex trade. Law enforcement agencies are beginning to investigate and lay human trafficking charges under Canada’s Criminal Code s. 279.01 which carries a maximum term of imprisonment of 14 years, and up to life imprisonment if the accused kidnaps the victim, subjects them to aggravated …

Go to article

Nafta Chapter 11 As Supraconstitution, Stepan Wood, Stephen Clarkson

All Faculty Publications

More and more legal scholars are turning to constitutional law to make sense of the growth of transnational and international legal orders. They often employ constitutional terminology loosely, in a bewildering variety of ways, with little effort to clarify their analytical frameworks or acknowledge the normative presuppositions embedded in their analysis. The potential of constitutional analysis as an instrument of critique of transnational legal orders is frequently lost in methodological confusion and normative controversy. An effort at clarification is necessary. We propose a functional approach to supraconstitutional analysis that applies across issue areas, accommodates variation in kinds and degrees of …

Go to article

Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson

All Faculty Publications

This symposium’s issue on ‘Climate Justice and International Environmental Law: Rethinking the North–South Divide’ asks contributors to explore the intersection between law and emerging ideas of climate justice, and how international environmental law is shaped by and in turn reshapes (or fixates, or interrogates) our understandings of the North–South divide. In relation to the former, the author posits that there appears to be a profound disconnect between the law and the politics of climate change, one that reflects a broader disconnect between those who view the challenge posed by climate change through an ethical lens, and those who see it …

Go to article

Tax Avoidance In The 21st Century, David G. Duff

All Faculty Publications

Over the past few decades, several factors have contributed to what numerous revenue agencies and academic authors have characterized as a significant increase in tax avoidance activity. This paper considers both the causes of increased tax avoidance activity over the past several years as well as governmental responses to this phenomenon in key common law jurisdictions, notably Australia, Canada, New Zealand, the United Kingdom and the United States. Part 2 examines the concept of tax avoidance, distinguishing unacceptable or abusive tax avoidance both from illegal tax evasion on the one hand and acceptable tax planning or tax minimization on the …

Go to article

Tax Expenditures To Limit The Growth Of Carbon Emissions In Canada: Identification And Evaluation, David G. Duff, E. Ian Wiebe

All Faculty Publications

Unlike the U.S., which relies heavily on tax expenditures as instruments of energy and climate change policy, Canada has introduced very few such tax expenditures, relying instead on voluntary initiatives, direct subsidies, and limited regulatory measures to limit carbon emissions. This paper identifies and evaluates the most prominent tax expenditures in Canada to limit the growth of carbon emissions. As background to this inquiry, Part II reviews Canadian experience with carbon emissions over the last two decades and the limited government response to this growing problem. Part III identifies the most prominent tax expenditures that Canadian governments have introduced in …

Go to article

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie Ford

All Faculty Publications

New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …

Go to article

Can Corporate Monitorships Improve Corporate Compliance?, Cristie Ford, David Hess

All Faculty Publications

Over the last few years, prosecutors and SEC enforcement attorneys have increasingly relied on settlement agreements (such as deferred prosecution agreements) to combat securities violations and other corporate criminal acts. Many of these agreements require the use of corporate monitors to oversee the corporation's compliance with the settlement and its implementation of a compliance program to prevent future violations of the law. Although these agreements have received significant attention from legislators and scholars, there has been no investigation into the critically important question of whether or not the use of corporate monitors achieves its intended goals. Based primarily on interviews …

Go to article

Rethinking Risk: The Relevance Of Condoms And Viral Load In Hiv Nondisclosure Prosecutions, Isabel Grant

All Faculty Publications

An HIV-positive individual who fails to disclose his or her status to a sexual partner may face charges ranging from nuisance to murder for such behaviour, with the most common charges being aggravated assault and aggravated sexual assault. The number of prosecutions in Canada against individuals who fail to disclose their HIV-positive status to their sexual partners has risen over the last ten years. At the same time, scientific advancements in treatment options and our understanding of transmission, condom usage, and viral load are constantly influencing the assessment of the risk that nondisclosure poses to the complainant in any given …

Go to article

Contextualizing Criminal Defences: Exploring The Contribution Of Justice Bertha Wilson, Isabel Grant, Debra Parkes

All Faculty Publications

The authors survey the opinions of Justice Wilson in three important criminal defence cases: R. v. Perka, R. V. Hill, and R. v. Lavallee. These cases reveal the development of her understanding of equality in criminal law, ranging from a formal individualistic understanding of equality in Perka through to a nuanced substantive approach to equality in Lavallee. Next, the authors discuss two different ways that context figures in those opinions, to: (1) understand the accused's actions, and (2) to locate the defence itself in its social and historical context to reveal biases and inequalities reflected therein. Finally, the authors examine …

Go to article

The Private Life Of Environmental Treaties, Natasha Affolder

All Faculty Publications

The gravitational pull of environmental treaties is felt not only by states. Yet international lawyers almost exclusively focus on states to explain treaty compliance, measure treaty implementation, and assess treaty effectiveness. This essay draws attention to a phenomenon that falls outside traditional boundaries of treaty analysis: the efforts of private corporations that aim at complying with environmental treaties. Existing models of treaty implementation are inadequate to explain these direct interactions between corporations and treaties. The dominant grammar of treaty “compliance” equally fails to fit. Using a little-studied example - the UNESCO World Heritage Convention - this essay highlights the phenomenon …

Go to article

The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey

Faculty Scholarship

The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …

Go to article

2008 Trademark Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries , David M. Kelly, Stephanie H. Bald

American University Law Review

In 2008, the United States Court of Appeals for the Federal Circuit issued eight trademark decisions and designated one of those eight decisions as precedential. These numbers are significantly lower than in recent years. The cases consist of appeals from the Trademark Trial and Appeal Board (“TTAB”), the United States Court of International Trade, and the United States Court of Federal Claims. Of the eight trademark decisions, four focused on substantive issues and four primarily involved procedural issues. The Federal Circuit generally adopted the findings of the lower tribunals, affirming all but one of the eight decisions on appeal. The …

Go to article

Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker

American University Law Review

Mary Beth Tinker recounts her upbringing and her family’s involvement in important issues of their day. Tinker discusses how her family’s commitment to social justice was shaped by her parents religious values, and how this shaped their commitments to civil rights, ultimately leading to their protesting ongoing injustices. In particular, Tinker discusses how she, her siblings, and friends wore black armbands calling for a Christmas Truce in the Vietnam War and how the case that went before the Supreme Court was one of a series of events in her family’s journey for equality.

Go to article

Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl

American University Law Review

This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new …

Go to article

Appropriability And Property, Yonatan Even

American University Law Review

This paper challenges the malleability of the idea of property as a relative, indeterminate "bundle of rights", which appears to dominate property doctrine at least since Ronald Coase's "The Problem of Social Cost". Focusing on the core goals of property regimes, the paper proposes an alternative view of property rights - one that is centered on the ability of owners to appropriate the benefits of their assets in the face of a threat from numerous potential adversaries, rather than their ability to contract such assets away within a bilateral context. This appropriability problem, it is argued, is a defining concept …

Go to article

Out Of Jail... But Still Not Free To Litigate - Using Congressional Intent To Interpret 28 U.S.C. Sec. 1915(B)'S Application To Released Prisoners, Julia Colarusso

American University Law Review

This Comment argues that, based on the Prison Litigation Reform Act (PLRA)’s purpose and legislative history, prisoners who fulfilled the statute’s payment obligations while incarcerated should be entitled to apply for traditional in forma pauperis (IFP) status under § 1915(a)(1) upon release. Part I traces the historical development of prisoners’ right of access to the courts and its ties to the IFP doctrine. It then examines the PLRA’s many amendments to the federal IFP statute. Part II explains the divergent readings that circuit courts currently apply to § 1915(b). After analyzing the statute’s plain language and legislative history, Part III …

Go to article

Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek

American University Law Review

Courts have developed several non-technical “secondary considerations” to help judges and juries in patent litigation decide whether a patent meets the crucial statutory requirement that a patent be non-obvious. This Article proposes a tenth secondary consideration to help judges and juries: increased market power. If a patent measurably increases its holders’ market power in the market into which it sells products or services, then that increase should weigh in favor of finding the patent non-obvious. Using increased market power incorporates the predictive benefits of several other secondary considerations, while often increasing the accuracy and availability of evidence. It would provide …

Go to article

Full-Text Articles in Law

Takeover Regulation In The United States And Europe: An Institutional Approach, William J. Magnuson

Pace International Law Review

Disrupting Terrorist Financing With Civil Litigation, Jack D. Smith, Gregory J. Cooper

Case Western Reserve Journal of International Law

We're All Experts Now: A Security Case Against Security Detention, Deborah Pearlstein

Case Western Reserve Journal of International Law

Introduction, Claudia Martin, Diego Rodríguez-Pinzón

American University International Law Review

El Establecimiento De La Responsabilidad Internacional Del Estado Por Violacion A Normas Contenidas En La Declaracion Americana De Los Derechos Y Deberes Del Hombre , Julio José Rojas Báez

American University International Law Review

Introduction: In Honor Of Gordon Slynn, U.K. Law Lord And Judge Of The Ec Court Of Justice, Roger J. Goebel

Fordham International Law Journal

A Tiny Problem With Huge Implications - Nanotech Agents As Enablers Or Substitutes For Banned Chemical Weapons: Is A New Treaty Needed?, Evan J. Wallach

Fordham International Law Journal

Future Generations: A Prioritarian View, Matthew D. Adler

Faculty Scholarship

The Public’S Right To Health: When Patient Rights Threaten The Commons, Elizabeth Weeks Leonard

Scholarly Works

Litigating Groups, Elizabeth Chamblee Burch

Scholarly Works

Le Droit Myope, Régine Tremblay

All Faculty Publications

The Ties That Bind: Multiculturalism And Secularism Reconsidered, Brenna Bhandar

All Faculty Publications

Banned From Lawyering: Gordon Martin, Communist, W. Wesley Pue

All Faculty Publications

Bill C-268: Minimum Sentences For Child Trafficking Needed, Benjamin Perrin

All Faculty Publications

Nafta Chapter 11 As Supraconstitution, Stepan Wood, Stephen Clarkson

All Faculty Publications

Beyond A Politics Of The Possible? South-North Relations And Climate Justice, Karin Mickelson

All Faculty Publications

Tax Avoidance In The 21st Century, David G. Duff

All Faculty Publications

Tax Expenditures To Limit The Growth Of Carbon Emissions In Canada: Identification And Evaluation, David G. Duff, E. Ian Wiebe

All Faculty Publications

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie Ford

All Faculty Publications

Can Corporate Monitorships Improve Corporate Compliance?, Cristie Ford, David Hess

All Faculty Publications

Rethinking Risk: The Relevance Of Condoms And Viral Load In Hiv Nondisclosure Prosecutions, Isabel Grant

All Faculty Publications

Contextualizing Criminal Defences: Exploring The Contribution Of Justice Bertha Wilson, Isabel Grant, Debra Parkes

All Faculty Publications

The Private Life Of Environmental Treaties, Natasha Affolder

All Faculty Publications

The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey

Faculty Scholarship

2008 Trademark Decisions Of The Federal Circuit A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit: Area Summaries , David M. Kelly, Stephanie H. Bald

American University Law Review

Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker

American University Law Review

Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl

American University Law Review

Appropriability And Property, Yonatan Even

American University Law Review

Out Of Jail... But Still Not Free To Litigate - Using Congressional Intent To Interpret 28 U.S.C. Sec. 1915(B)'S Application To Released Prisoners, Julia Colarusso

American University Law Review

Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek

American University Law Review