Law Commons^™

Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg

Faculty Publications

American energy policy has slowly begun to change the mix in the sources of supply of electricity to residences, industry, and businesses. Renewable sources of electricity have been promoted as future contributors of large portions of the nation's electricity consumption. Wind power has been identified as a potentially substantial future electricity source contributing up to 20% of American demand 2030. To achieve these optimistic goals, there must be: (1) cost-effective, reliable energy technology; (2) sufficient investment capital to finance new construction; and (3) the existence of supportive governmental policies at all levels government. This article discusses the importance of inter-governmental …

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

William & Mary Bill of Rights Journal

No abstract provided.

Scaling Property With Professor Ellickson, Lee Anne Fennell

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.

Dialogue Magazine, Fall 2009

Dialogue, the magazine of the DePaul University College of Law

No abstract provided.

When Insiders Become Outsiders: Parental Objections To Public School Sex Education Programs, Emily J. Brown

Duke Law Journal

This Note argues that parents' fundamental right to direct their children's moral and educational upbringing includes the right to exempt their children from objectionable sex education programs in public schools. Schools usurp parents' fundamental rights when they unilaterally introduce children to topics of human sexuality without parental notice or permission. Alleged violations of these rights merit strict scrutiny review from courts. When parents' objections are confined to discrete, tangible events, parents are constitutionally entitled to exempt their children from objectionable activities. The efficacy of this constitutional relief is more limited, however, when parental objections are pervasive and unassociated with a …

Journal Staff

Duke Law Journal

No abstract provided.

Constraining Public Employee Speech: Government’S Control Of Its Workers’ Speech To Protect Its Own Expression, Helen Norton

Duke Law Journal

This Article identifies a key doctrinal shift in courts' treatment Of public employees' First Amendment claims-a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on-and defer to-government's claim to control its workers' expression to protect its own speech. More specifically, courts increasingly permit government …

Rescuing The Hero: The Ramifications Of Expanding The Duty To Rescue On Society And The Law, Amelia H. Ashton

Duke Law Journal

The ongoing debate about the legal duty to rescue another person in peril is fraught with a familiar tension. On one side stands the traditional and distinctly American determination that freedom from such a duty is essential, that the technical rules of tort law and self-preservation instincts disdain such a requirement, and that the postulates of religion and morality are sure to fill in any legal gaps. On the other, a more recent humanitarian perspective-seen in revisions to the Restatement, case law, and some state statutes-advocates for requiring easy rescue, positing that religiously inspired morality and public good-doing are unlikely, …

The Fiduciary Duty In Mutual Fund Excessive Fee Cases: Ripe For Reexamination, Emily D. Johnson

Duke Law Journal

Congress imposed a fiduciary duty regarding compensation on investment advisors by adding Section 36(b) to the Investment Company Act of 1940. Legislators intended this fiduciary duty to protect mutual fund investors from excessive management fees. It has failed. Mutual fund investors continue to pay significantly higher fees than institutional investors for the same money management services. In Jones v. Harris Associates, decided in 2008, the Seventh Circuit broke with the widely followed, thirty-year-old precedent of Gartenberg v. Merrill Lynch Asset Management. Chief Judge Easterbrook authored the majority opinion and Judge Posner wrote vigorously in dissent. This disagreement between two titans …

Journal Staff

Duke Law Journal

No abstract provided.

Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge

Scholarly Works

The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of …

There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch

Scholarly Works

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.

Summary Of Delgado V. American Family Ins. Group, 125 Nev. Adv. Op. 44, Thomas D. Pilkington

Nevada Supreme Court Summaries

Appeal from a district court order granting summary judgment in a contract action.

Summary Of Ozawa V. Vision Airlines, Inc., 125 Nev. Adv. Op. No. 16, Nick Portz

Nevada Supreme Court Summaries

Consolidated appeals considering two issues: (1) whether to recognize a new exception to the at-will employment doctrine and to allow a claim for tortious discharge related to an employee’s termination for attempting to organize his fellow employees; and (2) whether the district court abused its discretion in its resolution of respondents’ request for attorney fees and costs.

Methodological Approaches To Comparative Law, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

A Few Drops Of Oil Will Not Be Enough, Stephen James

Human Rights & Human Welfare

Nicholas Kristof and Sheryl WuDunn provide a rich description of the various kinds of violence, deprivation, depredation and exploitation that women experience on a vast scale in the developing world. They write of sex trafficking, acid attacks, “bride burning,” enslavement, spousal beatings, unequal healthcare (something the USA still struggles with), insufficient food, gendered abortions and infant and maternal mortality. They are right to identify the education of women and girls as part of the solution to the widespread “gendercide.” However, their approach focuses too much on the capacity, indeed the virtue or heroism, of individual women. It does not take …

From Outrage To Action, Henry Krisch

Human Rights & Human Welfare

Kristof and WuDunn provide a vivid panoramic view of problems faced by women (primarily in the “developing” world), what has been done and what more could be done to help them achieve dignity and autonomy in their lives, and how vindication of their rights could contribute to the broader social development of their societies. In this they provide us with important insights into how human rights might be effectively proclaimed and successfully implemented. In reviewing their considerable contributions, I shall also suggest some limitations on both their analysis and their policy recommendations.

Funny Money: How Federal Education Funding Hurts Poor And Minority Students, Cassandra Jones Havard

All Faculty Scholarship

Neither race nor class alone can predict educational achievement. However, in America, disparities in funding for education may be an impediment to educational opportunity for disadvantaged youth. At the crux of the Nation's achievement gap among minority children is the question of the how states should allocate federal education funds, and how local school districts should use those monies. Educators have long recognized that the socioeconomic circumstances of many public school students present great educational challenges. Since 1965, Congress has authorized the use of federal funds by local school districts to remedy the achievement gap.

Part I of this Article …

Stop The Killing: Potential Courtroom Use Of A Questionnaire That Predicts The Likelihood That A Victim Of Intimate Partner Violence Will Be Murdered By Her Partner, Amanda Hitt, Lynn Mclain

All Faculty Scholarship

Judges in domestic cases often underestimate the risk to a mother and her children that an angry and abusive father or other intimate partner poses. In a recent Maryland case, for example, two judges refused to deny a father visitation or require that visitation be supervised, despite the fact that the father had threatened suicide. During the father’s unsupervised visitation, he drowned all three of his children, then attempted to kill himself.

The Danger Assessment tool (the D.A.) developed by a Johns Hopkins Nursing professor and validated by herself and other social scientists shows how much the father’s thoughts of …

The Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, Nancy M. Modesitt

All Faculty Scholarship

Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …

Expanding Liability For Negligence Per Se, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

In order to succeed in a tort suit under negligence per se, a victim must be of the class of persons protected by the statute and his injury must be of the type that the statute was intended to prevent. Referring to them as "the limiting liability conditions", this Article calls for a diminishment of their role in determining liability in torts. It is argued that whenever non-compliance with a statutory provision increases risks to the class of persons the victim belongs to or of the type of injury the victim suffered and those risks are foreseeable, there is a …

Normativity, Fairness, And The Problem Of Factual Uncertainty, Andrew Botterell, Christopher Essert

Osgoode Hall Law Journal

This article concerns the problem of factual uncertainty in negligence law. We argue that negligence law's insistence that fair terms of interaction be maintained between individuals--a requirement that typically manifests itself in the need for the plaintiff to prove factual or "but-for" causation--sometimes allows for the imposition of liability in the absence of such proof. In particular, we argue that the but-for requirement can be abandoned in certain situations where multiple defendants have imposed the same unreasonable risk on a plaintiff, where the plaintiff suffers the very sort of harm that rendered the risk unreasonable, and where the plaintiff cannot …

Demythologizing Phosita - Applying The Non-Obviousness Requirement Under Canadian Patent Law To Keep Knowledge In The Public Domain And Foster Innovation, Matthew Herder

Osgoode Hall Law Journal

The Supreme Court of Canada recently revised the doctrine of non-obviousness in a pharmaceutical "selection patent" case, Apotex Inc. v. Sanofi-Synthelabo Canada Inc. Although the Court was cognizant of changes to the same doctrine in the United States and the United Kingdom, a critical flaw in how the doctrine is being applied in Canada escaped its attention. Using content analysis methodology, this article shows that Canadian courts frequently fail to characterize the "person having ordinary skill in the art" (PHOSITA) for the purpose of the obviousness inquiry. The article argues that this surprisingly common analytical mistake betrays a deep misunderstanding …

Book Notes: Principles Of International Investment Law, By Rudolf Dolzer & Christoph Schreuer, Ren Bucholz

Osgoode Hall Law Journal

THE NUMBER OF BILATERAL, MULTILATERAL, and regional investment treaties has surged since the mid-twentieth century.

Accounting Of Profits To Remedy Biotechnology Patent Infringement, Kuris Andrews, Jeremy De Beer

Osgoode Hall Law Journal

A number of important agricultural biotechnology patent disputes have arisen in Canada since the 2004 Supreme Court of Canada decision in Monsanto v. Schmeiser. Typically, defendants no longer contest issues of patent validity or infringement. Instead, the controversies have shifted to discussions about applicable remedies for infringement. The Schmeiser case ostensibly marked a fundamental change in the appropriate method for conducting an accounting of the profits that a defendant infringer must disgorge to a plaintiff patentee. The remedy of accounting of profits in patent cases, however, remains mired in definitional and conceptual confusion, which the Schmeiser case has brought to …

Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal

American University Law Review

No abstract provided.

Sirius Mistake: The Fcc's Failure To Stop A Merger To Monopoly In Satellite Radio, Leigh M. Murray

American University Law Review

No abstract provided.

V.11-1, 2009 Masthead

San Diego International Law Journal

No abstract provided.

The Gaza War Of 2009: Applying International Humanitarian Law To Israel And Hamas, Justus Reid Weiner, Avi Bell

San Diego International Law Journal

This Article explores the many international legal issues raised by the Palestinian-Israeli tension along Gaza's borders. It first examines legal issues raised by Palestinian conduct and then turns to legal issues raised by Israeli conduct. As will be demonstrated, criticisms of Israeli behavior ... lack any basis in international law. By contrast, Palestinian behaviors that are rarely criticized constitute severe violations of international law.

Constitutions, International Law, And The Settlement Function Of Law: A Schema For Further Reflection, Larry Alexander

San Diego International Law Journal

Imagine a community living in a defined geographical area. Its members generally believe that their actions should be guided by moral norms, and they generally comply with those norms as they understand them. And, from our external vantage point, we believe that they are indeed subject to moral norms and should comply with them, both in dealing with each other and with those outside their community....