Law Commons^™

Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss

Journal of Dispute Resolution

Since the goal is to compare the European experiments with those adopted in the United States, the paper is structured around that comparison. This part introduces the issues and the methodology. Part II provides a brief description of the case studies, addressing similarities and differences among the European countries. Part III then discusses several mechanisms considered necessary to participation in the United States that have been rejected by the agencies in the European countries. Part IV describes the parallels, though it also points out differences between the countries individually, as well as between them and the United States collectively. Part …

When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain

Journal of Dispute Resolution

The issue before the Missouri Supreme Court in Lawrence H was whether an arbitration agreement signed on behalf of a nursing home resident is binding on plaintiffs in a wrongful death action against the nursing home. Beverly Manor argued that the court's decision in Burns "undercut" the cases holding that a wrongful death claim is a new and independent cause of action. However, the court disagreed that the Burns decision overturned such precedent. The court admitted that the language of Burns may seem to create ambiguity about whether wrongful death is a derivative claim but clarified that the Burns holding …

Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin

Journal of Dispute Resolution

In Oglala Sioux Tribe v. C & W Enterprises, Inc. (Oglala), the U.S. Court of Appeals for the Eighth Circuit dealt with whether a tribe's affirmative participation in the arbitration process waived its sovereign immunity as to arbitration and enforcement of an arbitration award in state court. Previously, courts have maintained that the existence of an arbitration clause in a commercial contract was sufficient to waive tribal immunity, but they relied on the explicit wording of the agreement itself. In the instant decision, this precedent applied to three construction contracts that contained an explicit choice of law provision, but the …

When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry

Journal of Dispute Resolution

In Greenstreet v. Social Security Administration, when the Federal Circuit Court of Appeals could not discern exactly what basis upon which an arbitrator acted, it leapt past any presumption in favor of the arbitrator's discretion and found that what an arbitrator did not do was an abuse of his decision-making volition, just as an act beyond his prescriptive powers would have been an abuse of discretion. So, in attempting to weed out the arbitrariness in the arbitration processes that decide workplace punishments, the court heaped needless and unreasoned process squarely into the arbitrator's path, thereby greatly lessening the amount of …

Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens

Journal of Dispute Resolution

For over half a century, courts have used the doctrine of manifest disregard as a ground for vacating arbitration awards. However, the Supreme Court's ruling in Hall Street Associates. v. Mattel raised questions among lower courts regarding the viability of the doctrine after the Hall Street decision. Today, many lower courts differ in their application of the doctrine. Some courts claim that the Hall Street decision has ended the viability of manifest disregard. Others claim that the doctrine lives on as an interpretation of section 10 of the Federal Arbitration Act (FAA),5 despite the Supreme Court's ruling in Hall Street.

Front Matter, Natural Resources Journal

Natural Resources Journal

No abstract provided.

Reconciling The South Carolina Death Penalty Statute With The Sixth Amendment, Thomas W. Traxler Jr.

South Carolina Law Review

No abstract provided.

You Can't Have Your Cake And Eat It Too: The Standards For Establishing Apparent Agency, Johnathan E. Schulz

South Carolina Law Review

No abstract provided.

Barbe V. Mcbride, Thomas W. Traxler Jr.

South Carolina Law Review

No abstract provided.

Rosenfield V. Wilkins, Andrew R. Deholl

South Carolina Law Review

No abstract provided.

United States V. Newland, Brett Hubler

South Carolina Law Review

No abstract provided.

From The Chair, Lela P. Love

Articles

No abstract provided.

Law Lags Behind: Foia And Affirmative Disclosure Of Information, Michael Herz

Cardozo Public Law, Policy & Ethics Journal

The Freedom of Information Act (FOIA) is increasingly outdated in the digital age due to its reliance on a request-driven model, which limits proactive disclosure of government information. The article argues that while FOIA was groundbreaking in its time, its failure to require agencies to affirmatively disclose information hinders transparency and public access, emphasizing the need for a shift towards a more proactive approach in line with modern technological capabilities.

Buying Back Elections: Extending Supreme Court Speech Limitations To Eliminate Leadership Pacs, Justin Luehman

Cardozo Public Law, Policy & Ethics Journal

The article critiques the current campaign finance system, arguing that the Supreme Court's interpretation of money as speech under the First Amendment has enabled undue influence by wealthy donors and political action committees (PACs), particularly leadership PACs. The author advocates for treating money as property rather than speech to allow stricter regulations and prevent corruption. By extending the "one person, one vote" principle to campaign finance, the article proposes a system where political influence is not dictated by wealth, ensuring equal representation and transparency.

War, Peace, And The Landscape Of The Inka Heartland, Terence N. D'Altroy, Darryl A. Wilkinson

Cardozo Public Law, Policy & Ethics Journal

The article argues that the conservation of cultural heritage in the Inka imperial heartland must move beyond the protection of discrete archaeological sites to encompass the broader landscape, which includes intangible elements such as social memory, power dynamics, and historical narratives. The authors advocate for a holistic approach to heritage management that integrates the physical environment with the cultural and historical contexts that give landscapes their significance.

Over Under Or Through: Physicians, Law, And Health Care Reform, William M. Sage

Faculty Scholarship

My purpose in this commentary is twofold. First, I want to offer a few thoughts on why the American medical profession sometimes has a hard time accepting law on its own terms. Second, I want to suggest that even “good law” from the perspective of the medical profession—should it overcome its habits of resistance—may still be bad health policy for the United States.

Conflict Of Laws (2009), Stephanie K. Marshall, Wm Frank Carroll, James P. George

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2007, through September 30, 2008. The article excludes cases involving federal-state conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

No Strict Evidence Rules In Labor And Employment Arbitration, Michael Z. Green

Faculty Scholarship

Since arbitrators are not bound by the strict rules of evidence applicable in court, there originally developed a practice of admitting hearsay 'for what it is worth.' As various texts and many arbitrators have stated, 'Rarely do the parties know what it is worth, at least not at the hearing.' I would add, nor in the preparation of their briefs. As far back as 1967 a prominent group of arbitrators concluded: 'Unless corroborated by truth-tending circumstances in the environment in which it is uttered, it (hearsay) is unreliable evidence and should be received with mounting skepticism of its probative value …

The U.S. Move To International Accounting Standards - A Matter Of Cultural Discord - How Do We Reconcile, Neal F. Newman

Faculty Scholarship

What exists presently is a worldwide accounting structure consisting of two major regimes. U.S. Generally Accepted Accounting Principles ("U.S. GAAP" or "GAAP") governs companies formed and operating inside the United States. All publicly held companies registered with the SEC must prepare and present their financial statements in accordance with U.S. GAAP. The other major accounting regime is International Financial Reporting Standards ("IFRS"). To date, over 100 countries have adopted and now use some form of IFRS.

It is inefficient for two major accounting standards to govern provinces around the world. Currently, U.S. issuers operate under one set of accounting standards, …

Instream Flows And The Public Trust, Timothy M. Mulvaney

Faculty Scholarship

Empirical evidence suggests that diversion of instream flows for human use, coupled with the potential impacts of changing climatic conditions, is threatening the sustainability of aquatic life. Nonetheless, several states merely prevent stream flows from being reduced below the "7Q10 flow," or the average flow during the driest consecutive seven-day period that has a likelihood of recurring only once every ten years. Overwhelming scientific consensus suggests that 7Q10 merely preserves water quality standards by calculating the concentration of pollutants in point source discharges, without considering water quantity and numerous other core principles of instream management.

The protection of instream flows …

Foreword, Kimberly D. Krawiec

Law and Contemporary Problems

No abstract provided.

Trafficking In Human Blood: Titmuss (1970) And Products Liability, Clark C. Havighurst

Law and Contemporary Problems

No abstract provided.

Gender And The Value Of Bodily Goods: Commodification In Egg And Sperm Donation, Rene Almeling

Law and Contemporary Problems

Listing a child for sale in the local paper's classified section is unthinkable, and it is illegal for donors to sell organs in the US. Yet fertility programs routinely recruit young women and men to "donate" eggs and sperm in return for financial compensation. Payments to women vary substantially, both within particular agencies and in different regions of the US, but the national average is around $4,200. Here, Almeling constructs a theoretical framework analyzing the social process of assigning value to the human body. He further describes the historical emergence of the market in eggs and sperm before turning to …

Surrogacy And The Politics Of Commodification, Elizabeth S. Scott

Law and Contemporary Problems

Scott explores the history of surrogacy over the past twenty years. She also offers a historical account of the legal and social issues surrounding surrogacy over the past twenty years. She seeks to explain how and why the social and political meanings of surrogacy have changed over the past decade. Furthermore, she examines how surrogacy was framed as commodification in the Baby M context.

The Debt Financing Of Parenthood, Melissa B. Jacoby

Law and Contemporary Problems

Jacoby discusses the significant role of lenders in the parenthood market and how they might facilitate access and shape this industry in more profound ways. Second, she introduces the issue of financing assisted reproduction and adoption. Third, she reviews specialty loans for assisted reproduction and adoption, reflecting traditional research in case law and legal and nonlegal scholarly literature, as well as results from a review of news media and Web sites of prominent intermediaries and service suppliers. Lastly, she presents a sampling of political-economy implications relevant to assisted reproduction, leaving other issues for future investigation.

Excluding Unfit Workers: Social Control Versus Social Justice In The Age Of Economic Reform, David E. Bernstein, Thomas C. Leonard

Law and Contemporary Problems

No abstract provided.

States Of Resistance: The Real Id Act And The Limits Of Federal Deputization Of State Agencies In The Regulation Of Non-Citizens, Shirley Lin

Faculty Scholarship

No abstract provided.

Assessing Substance Abuse And Mental Health Among Lawyers, Susan Grover, Mark R. Voss

Popular Media

No abstract provided.

E-Filing And Privacy: What Every Lawyer Needs To Know, Rebecca Green

Popular Media

No abstract provided.

A Choice Of Law Dilemma: The Conflict And Reconciliation Of Laws Governing Cross-Border Transfers Of Stolen Art, Monique Lee

Cardozo Public Law, Policy & Ethics Journal

The note explores the complexities of cross-border transfers of stolen art, focusing on the legal dilemmas posed by differing international property laws. It examines how courts decide which jurisdiction's laws to apply, particularly contrasting the traditional lex situs rule with the Second Restatement's "most significant relationship" test. The analysis highlights New York's unique "combined modern" approach, which balances these methods to align with its policy goals, especially its role as a global art market hub. The note concludes that while this approach offers flexibility, it may lead to forum shopping and inconsistencies, complicating recovery efforts for claimants.