Law Commons^™

Freefalling With A Parachute That May Not Open: Debtor-In-Possession Financing In The Wake Of The Great Recession, Jarrod B. Martin, Kristofor W. Nelson, Eric Rudenberg, Jonathan Squires

University of Miami Law Review

No abstract provided.

The Aftermath Of The Cash Balance Controversy: Applying The Contribution-Based Test For Age Discrimination To Traditional Defined Benefit Pensions, Edward A. Zelinsky

Articles

No abstract provided.

The Res Judicata Worth Of Illegal Bankruptcy Reorganization Plans, David G. Carlson

Articles

The article examines the interplay between res judicata and the confirmation of bankruptcy reorganization plans, particularly under Chapter 13. It argues that while res judicata is essential for finality, it must not compromise procedural fairness and due process. The author advocates for a balanced approach where confirmed plans are binding but also ensure that creditors' rights are protected through proper legal procedures.

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Richmond Law Magazine: Summer 2009

Richmond Law Magazine

Features:

Teaching in China

How Much Does Law Matter?

Seeking Dignity

A Dream Deferred

Access Mars: Assessing Cave Capabilities Establishing Specific Solutions: Final Report, Abdul Mohsen Al Husseini, Luis Alvarez Sanchez, Konstantinos Antonakopoulos, Jeffrey (Johannes) Apeldoorn, Kenneth Lowell Ashford Jr., Kutay Deniz Atabay, Sara Langston, Et Al.

Publications

The human race has evolved, grown and expanded through the exploration of Earth. After initial steps on the Moon, our next challenge is to explore the solar system. Mars shows potential for both scientific discovery and future human settlement, and so is a prime candidate for the next leap of human exploration. Such a bold endeavor will be a driver for an unprecedented worldwide cooperative effort and the catalyst for a new era of international, intercultural and interdisciplinary human relations. Scientific and technological progress will also accelerate as mankind is ushered into a new era of space exploration.

Currently proposed …

Peoples, Bce, And The Good Corporate "Citizen", Edward J. Waitzer, Johnny Jaswal

Osgoode Hall Law Journal

This article considers the use of various legal instruments to advance a more expansive but well-defined view of directors' duties and discretion--a view which focuses on the longer-term interests of the corporation. We begin with an attempt to clarify the nature of directors' statutory duties under Canadian corporate law. We then consider the recent decisions of the Supreme Court of Canada in Peoples Department Stores Inc. (Trustee of) v. Wise and BCE v. 1976 Debentureholders, in which the Court took a broad view of corporate purpose, but failed to provide clear logic or operational guidance as to consequential directorial responsibilities. …

On The Constitutionability Of Global Public Policy Networks, Petra Dobner

Indiana Journal of Global Legal Studies

Global Public Policy Networks (GPPNs) are increasingly influential in the global policy-making process. According to the Global Public Policy Institute, GPPNs are cross-sectoral coalitions of actors from governments, international organizations, civil society, and private industry. In structure, these networks differ from traditional hierarchical organizations, but their primary functions-negotiation, coordination, rulemaking, and implementation-pick up the classic tasks of formal international organizations and intergovernmental cooperation.

The power and acceptance of these networks are based on the real or alleged expertise of their members, their former or current formal positions in national or international organizations or private industry, and their personal connections. Although …

Book Review Of “Populations, Public Health, And The Law,” Wendy E. Parmet (Georgetown University Press, Washington, D.C., 2009), Elizabeth Weeks Leonard

Scholarly Works

Wendy Parmet's new book, Populations, Public Health, and the Law, is a provocative, milestone contribution to the growing body of public health law scholarship. This article reviews this scholarly work.

Collateral Damage? Juvenile Snitches In America’S 'Wars' On Drugs, Crime And Gangs, Andrea L. Dennis

Scholarly Works

The government’s use of children as informants in America’s 'wars' on drugs, crime, and gangs is little recognized and rarely discussed by scholars, policymakers, and the public. As with many governmental practices, only notorious instances make headlines, such as when a child is killed in retaliation for informing. Because public attention rarely is focused on the practice, it has not generated consistent documentation of, regulation of, or accountability for such use of child informants. As a starting point for discussion, this article illuminates the experiences of child informants, describing a facet of the snitching institution that generally operates under the …

From Judging Culture To Taxing "Indians": Tracing The Legal Discourse Of The "Indian Mode Of Life", Constance Macintosh

Osgoode Hall Law Journal

In this article I consider how judicial decision making characterizes Indigenous peoples' culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

Competition Law And The International Transport Sectors, Sock Yong Phang

Research Collection School Of Economics

This article charts the evolving regulation of cooperation and coordination between international transport firms, in particular those operating within the liner shipping and international air transport sectors. There has been a long history of exemption of these sectors from the rules and regulations of antitrust or competition law. In the past three decades, regulatory reforms and privatization have, however, subjected these sectors to competitive forces that have transformed these industries. With the introduction of competition law in many jurisdictions, the justifications for their continued exemption have come under intense scrutiny. In the late 19705, the US initiated deregulation of its …

Alternative Software Protection In View Of In Re Bilski, Charles Duan, Lauren Katzenellenbogen, James Skelley

Scholarly Articles in Law Reviews & Journals

The United States Court of Appeals for the Federal Circuit's (CAFC) en banc decision, In re Bilski, redefined the standard for patenting processes including business methods and computer software. In Bilski, the Federal Circuit departed from the "useful, concrete, and tangible result" test it had established in State Street Bank & Trust Co. v. SignatureFinancialGroup,Inc., which had been the standard for the past ten years. The Federal Circuit returned to a test articulated nearly 40 years ago by the Supreme Court in Gottschalk v. Benson, and clarified that State Street was "never intended to supplant the Supreme Court's test.", Under …

Memorial To Barbara Ringer, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

The story goes that in 439 BC the retired consul Cincinnatus was summoned from the plow by the Senate and people of Rome. One more time, he saw the Republic through a time of particular peril, resigning office immediately afterwards to return to his rural retirement - to be transmuted into a timeless emblem of selfless probity. Episodes of this kind are even rarer in the annals of the U.S. civil service than in the Roman history. But I had the good fortune to be a witness to one such - Barbara Ringer's return to the Library of Congress in …

Boumediene’S Quiet Theory: Access To Courts And The Separation Of Powers., Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy's analysis - of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus - without understanding the significance of his separation-of-powers …

Managing The Unmanageable: A Brief Accounting Of A Special Master’S Thirty Years Of Experience In Complex Litigation, Paul Rice

Scholarly Articles in Law Reviews & Journals

Managing an efficient, but fair, pretrial process in a large and complex case has always been a challenge. With the advent of electronic communications and the corresponding explosion of privilege claims, this challenge has become significantly more difficult. Indeed, it is not uncommon for corporate parties to assert tens of thousands, if not hundreds of thousands, of privilege claims. Furthermore, the resolution of these privilege questions is often compounded by difficult choice of law questions that can have the result of different substantive principles being applied to identical discovery demands originating in different jurisdictions. Additionally, before addressing the increasingly voluminous …

Juveniles’ Knowledge Of The Court Process: Results From Instruction From An Electronic Source, Christine Driver, Eve M. Brank

Department of Psychology: Faculty Publications

Our study first determined what juveniles know about the juvenile court process. Second, it evaluated a DVD designed to be a systematic and simple way to improve this knowledge. A pre- and post-test design was used with two pilot samples and two samples from the population of interest. A sample from a juvenile detention center (n = 118) was the focus of this study. Initial knowledge of the court process was quite low for the detention sample (pretest M = 64.0%, SD = 14.2%). All samples experienced a significant improvement of knowledge after watching the DVD. Youth in the …

What's It All About? Finding The Appropriate Problem Definition In Mediation, Leonard L. Riskin, Nancy A. Welsh

Faculty Scholarship

In this article, we propose four mechanisms to enable mediation participants to explore problems broadly and then to decide what problem definition is most appropriate for the mediation of their case:

• A three-step systematic method for determining the problem to be addressed;
• Two variations of a rule that could be adopted by courts (and private providers) that would require lawyers or mediators to implement this systematic way of working with problem definition; and
• A new rule under which a court (or private) mediation program would offer to customize any mediation in order to seek the most appropriate problem definition

We …

Harmonizing The Internal Market Or Public Health? Revisiting Case C-491/01 (British American Tobacco) And Case C-380/03 (Tobacco Advertising Ii), Han-Wei Liu

Research Collection Yong Pung How School Of Law

According to settled ECJ case law, including Case C-376/98 (Tobacco Advertising I), Article 95 EC cannot be construed as conferring upon the Community a general power to regulate the internal market. Measures that the Community legislature adopts under this Article must rather have the specific objective of improving conditions for the establishment and functioning of the internal market; that is, they must be designed to remove genuine obstacles to free movement or distortions of competition, rather than purely abstract risk. [2] In some respects, however, Article 95 appears to provide a pretext for the Community legislature to implement other policy …

Our Shared Stake, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

It's the time of the active citizen. Recent spurts of collective campaigning have mobilised surprising ground support. Eugene Tan analyses the coming age of civil society here through the passionate and visible advocacy of certain groups in recent events.

Imbree V Mcneilly: A View From Singapore, Yihan Goh

Research Collection Yong Pung How School Of Law

In Imbree v. McNeilly, the High Court of Australia ruled that a learner driver is no longer to be held to the standard of a reasonable but unqualified (and inexperienced) driver in negligence claims. It is the modest aim of this case note to show that Imbree, while a decision on a narrow point, in fact hints at a larger difficulty in the ascertainment of the standard of care in individual cases. It is in this context that it will be suggested that, when the time comes for Singapore courts to consider the applicability of Imbree, this difficulty should be …

Report Of The Law Reform Committee On Ancillary Orders After Foreign Divorce Or Annulment, Aqbal Singh, Debbie Ong, Yock Lin Tan, Tiong Min Yeo

Research Collection Yong Pung How School Of Law

A matrimonial order of divorce, nullity or legal separation is often followed by ancillary orders relating to division of matrimonial property, custody of children and maintenance. Under Singapore law, many of the court’s powers in respect of these types of orders depend on the court having jurisdiction to pronounce on the status of the marriage. If an order made by a foreign court is recognised to have annulled or dissolved the marriage, then it is not possible for the Singapore court to assume jurisdiction in respect of the marriage; there is no marriage to speak of anymore. The legal consequence …

Activating Victim Constituency In International Criminal Justice, Mark Findlay

Research Collection Yong Pung How School Of Law

This article lays out why in the context of global crime, crime control and the legitimacy of global governance, a victim constituency makes sense in terms of the stated aims of international criminal justice and of a wider ‘new morality’ on which it should be grounded. The incapacity to confront appropriately the consequences to victims of global crime has tended to mean that international criminal justice and the governance that flows from it are unsatisfactorily entwined with sectarian international relations and narrow cultural inclusion. Therefore, in governance terms alone, the conceptualization of global crime victims should be expanded and emancipated …

From Clampdown To Limited Empowerment: Hard And Soft Law In The Calibration And Regulation Of Religious Conduct In Singapore, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

The focus of Singapore's response to terrorism post 9/11 has been to reach out to the “moderate, mainstream” Muslims as a bulwark against societal implosion. This article examines the broad-based endeavor toward “religious moderation.” While coercive draconian legislation remain the mainstay against extremists and radicals, the mobilization of soft law, aspirational norms, and values are consciously woven into the state's endeavors to enhance society's resilience and cohesion. They also seek to regulate religious conduct at a time when the state wishes to entrench secularism as a cornerstone of the governance of a multi-racial, multireligious society. Rights and regulation are not …

A Missing Part In International Investment Law: The Effectiveness Of Investment Protection Of Taiwan's Bits Vis-À-Vis Asean States, Han-Wei Liu

Research Collection Yong Pung How School Of Law

Taiwan, classified as an “unrecognized state” or an “entity sui generis” by most international law scholars, has been excluded from most major international organizations and agreements for decades. This diplomatic isolation has had a negative influence on the protection of Taiwan’s overseas investments. This Article explores the six bilateral investment treaties (“BITs”) that the Taiwanese government has reached with the Association of Southeast Asian Nations (“ASEAN”) States and compares the weaknesses of the Taiwanese agreements with the investment frameworks established within ASEAN States. This Article concludes that Taiwan’s BITs with six ASEAN Member States fail to serve the very aim …

A Law Library Development Project In Iraq: Looking Back Two Years Later, Kimberli Kelmor

Georgetown Law Faculty Publications and Other Works

Sometimes you get a chance to work on a project so complex, even you don't come to fully understand its impact until years later. At least that has been the experience for me regarding the opportunity I had to work in Iraq with the International Human Rights Law Institute (IHRLI) from February 2004 to January 1, 2006. As I reported in a previous essay, IHRLI, an institute of the DePaul University College of Law headed by Cherif Bassiouni, received a United States Agency for International Development (USAID) Higher Education and Development (HEAD) contract to work with three Iraqi law schools.' …

Assessing Legal Competencies For Obesity Prevention And Control, Wendy Collins Perdue

Law Faculty Publications

Obesity is the result of people consistently consuming more calories than they expend. A complex interaction of social and environmental conditions affects both energy consumption and physical activity levels. Health professionals who understand the social and environmental factors related to obesity risk may find it challenging to identify, understand, or develop a strategy to improve the vast array of laws that play a role in shaping our environment and behaviors.

Competency in the use of laws and legal authorities is one of the four core elements of public health legal preparedness. Legal competency" is a particularly important component of a …

Lessons From The Laboratory: The Polar Opposites On The Public Sector Labor Law Spectrum, Ann C. Hodges

Law Faculty Publications

Section I analyzes the legal framework and history of collective bargaining in Illinois, and Section II follows with a similar analysis for Virginia. Each section includes current data about public sector employees and union activity in the two states. Section III follows with a discussion of possible explanations for the differences in the law of the two states. Section IV looks at the lessons from this analysis for state and federal lawmakers, unions, employers, and labor relations advocacy groups.

Nietzsche's Philosophy Of Action, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

Randomization In Adjudication, Adam M. Samaha

Public Law and Legal Theory Working Papers

Flipping a coin to decide a case is among the most serious forms of judicial misconduct, and yet judges react quite differently to other types of lotteries. Judges tend to tolerate or encourage deliberately random decisions in nonjudicial settings ranging from military drafts to experimental welfare requirements. Equally striking, most adjudicators now embrace randomization within their own institutions: they commonly use lotteries to assign incoming cases to each other. This practice creates a remarkable tension. Because adjudicators vary in competence and ideology, randomizing their case assignments will effectively randomize outcomes in a subset of merits decisions. We might then ask …