Law Commons^™

The Limits Of Advocacy, Amanda Frost

Duke Law Journal

Party control over case presentation is regularly cited as a defining characteristic of the American adversarial system. Accordingly, American judges are strongly discouraged from engaging in so-called "issue creation"-that is, raising legal claims and arguments that the parties have overlooked or ignored-on the ground that doing so is antithetical to an adversarial legal culture that values litigant autonomy and prohibits agenda setting by judges. And yet, despite the rhetoric, federal judges regularly inject new legal issues into ongoing cases. Landmark Supreme Court decisions such as Erie Railroad Co. v. Tompkins and Mapp v. Ohio were decided on grounds never raised …

The Ncaa’S Lost Cause And The Legal Ease Of Redefining Amateurism, Virginia A. Fitt

Duke Law Journal

The recent resolution of the Andrew Oliver case may mark the death throes of the NCAA's no-agent rule, prohibiting college athletes from retaining agents in professional contract negotiations, and perhaps the traditional paradigm of amateurism in sport. In light of the trial court's ruling, as well as continuing calls for the revocation of the NCAA's tax-exempt status, the time is ripe for a reexamination of amateurism and the law. This Note argues that the NCAA has developed a complicated web of largely unenforceable rules and regulations that are unnecessary to maintain tax-exempt status in light of the regulatory environment. This …

Not Peace, But A Sword: Navy V. Egan And The Case Against Judicial Abdication In Foreign Affairs, Jason Rathod

Duke Law Journal

In the United States' system of separation of powers, the judiciary must safeguard the rights of individuals from abuses by the political branches of government. Yet, when it comes to matters touching foreign affairs, scholars such as John Yoo and jurists such as Antonin Scalia argue that the executive branch is entitled to virtually unreviewable discretion. They point to Navy v. Egan for support. There, the Court held that an administrative body that hears appeals from adverse actions against government employees was precluded from reviewing the merits of security clearance determinations because the executive branch deserves "super-strong" deference in foreign …

Constitutional Limits On Private Policing And The State’S Allocation Of Force, M. Rhead Enion

Duke Law Journal

This Note argues that a variety of "private police" forces, such as university patrols and residential security guards, should. be held to the constitutional limitations found in the Bill of Rights. These private police act as arms of the state by supplying force in response to a public demand for order and security. The state, as sovereign, retains responsibility to allocate force, in the form of either public or private police, in response to public demand. This state responsibility-a facet of its police power-is evidenced throughout English and American history. When this force responds to a public demand for order …

Journal Staff

Duke Law Journal

No abstract provided.

Change We Can Believe In?, Katherine Hite

Human Rights & Human Welfare

We were warned to temper our high hopes for a bold new Obama era of human rights. After all, President Obama would have “a lot on his plate”: a serious economic crisis, high unemployment, over forty million people without health insurance, “two wars,” global volatility. But it’s very hard not to be dismayed by some of the continuities from the Bush to the Obama administration, as well as by some Janus-faced policy decisions with damning human rights implications. When it comes to US-Latin America relations, such decisions include: professing support for progressive immigration reform while expanding regressive anti-immigration measures; claiming …

December Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

Obama's speech to the United Nations General Assembly (September, 2009).

and

Does Obama believe in human rights? By Bret Stephens. The Wall Street Journal. October 19, 2009.

Legal Beagle Blog (December 2009), Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

Presidential Control Of The Elite "Non-Agency", Kimberly L. Wehle

All Faculty Scholarship

This article examines the constitutionality of legislation creating a new form of independent agency – in effect, a “non-agency” agency residing in the no-man’s land between Articles I and II of the Constitution. In the Sarbanes-Oxley Act, Congress established the Public Company Accounting Oversight Board (“PCAOB” or “Board”) and endowed it with massive governmental powers while insulating it from traditional mechanisms for ensuring accountability. Congress deemed the PCAOB not an agency, rendered it substantially immune from judicial review, empowered Board members to set their own salaries and budget, and gave the embattled Securities and Exchange Commission – not the President …

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

Economic Foundations Of The Law Of The Sea, Alan O. Sykes, Eric A. Posner

Coase-Sandor Institute for Law & Economics Research Paper Series

The United Nations Convention on the Law of the Sea has a plausible economic logic. Jurisdiction over portions of the ocean is assigned to states which can regulate them most cheaply and value them the most. These jurisdictional rights are subject to limits that reflect the interests of other states in navigation and other uses of the seas. For the vast areas of the ocean that no state can regulate, the Convention provides for an open access regime subject to simple rules, mostly self-enforcing, to limit conflict over resources.

European Union Food Law Update, Emilie H. Leibovitch

Journal of Food Law & Policy

In June 2009, citizens of the European Union elected a new European Parliament. Some Members of the European Parliament (MEPs) were reelected while some were not. The majority party is the EPP, the Group of the European People's Party, and the Group of the Progressive Alliance of Socialists & Democrats has the second majority of the seats. The elections were still governed by the Treaty of Nice, since up until very recently, the future of the Treaty of Lisbon was still uncertain. The Treaty of Lisbon was up until now rejected by a few Member States, who, by their reluctance …

Turning The Faucet Back On: The Future Of Mccain-Feingold's Soft-Money Ban After Davis V. Federal Election Commission, Kevin J. Madden

American University Law Review

No abstract provided.

Product Placement Or Pure Entertainment? Critiquing A Copyright-Preemption Proposal, Kristen E. Riccard

American University Law Review

No abstract provided.

Introducing The Negotiation Navigation Map, Nadja Alexander, Jill Howieson

Research Collection Yong Pung How School Of Law

In this article we reflect upon negotiation strategies and explore the utility of reconciling the dichotomy between interest-based and positional approaches to negotiation. Ultimately, we advocate for a ‘constructive model’ of negotiation and introduce the ‘negotiation navigation map’ that serves the negotiator well in preparing for this approach to negotiation.

A Scorecard For The P4: Full Or Fail?, Henry S. Gao

Research Collection Yong Pung How School Of Law

Since its inception in 2005, the Trans-Pacific Strategic Economic Partnership Agreement (the ‘P4 Agreement’) has been hailed as a ‘high standard’ free trade agreement (FTA). However, there has never been any official explanation as to how the assessment of the Agreement is conducted. Now it’s exam time again, let’s see how the Agreement performs in ‘Free Trade 101’.

Why Egregious Errors Of Law May Yet Justify A Refusal Of Enforcement Under The 'New York Convention', Seng Wei, Edward Ti

Research Collection Yong Pung How School Of Law

Parties on the losing side in international arbitration have long argued that an error of law is a defence to the enforcement of foreign awards. Citing article V(2)(b) of the New York Convention, such parties have argued that a manifest error of law is a violation of public policy. While national courts have generally paid little heed to this line of argument, this article seeks to raise the possibility that there may yet be the exceedingly rare instance in which a court should preclude enforcing an award marred by a hideous error of law. Limited review of an arbitrator's application …

Effective Use Of Non-Reliance Clauses: Satisfying Lowe V Lombank, Kee Yang Low

Research Collection Yong Pung How School Of Law

The inclusion in contracts of “non-reliance” clauses, as a means of pre-empting assertions of misrepresentation, has become commonplace. The validity and effectiveness of such clauses is another matter. This article discusses how a non-reliance clause may act as an evidential estoppel.

An Entity Sui Generis In The Wto: Taiwan's Wto Membership And Its Trade Law Regime, Han-Wei Liu

Research Collection Yong Pung How School Of Law

As one of the founding members of the General Agreement on Tariffs and Trade (GATT), Taiwan (the Republic of China or ROC) - the 17th largest economy, was granted accession to the World Trade Organization (WTO) in November 2001 after its observer status of eleven years. Taiwan, classified by most commentators as an "unrecognized state" or an "entity sui generis", has been excluded from most of the major international organizations. Taiwan's accession to the WTO, therefore, is considered to be an important breakthrough in diplomacy for the past decades. Notwithstanding its WTO membership, the Taiwanese Government has employed numerous trade …

The Use And Misuse Of Well-Known Marks Listings, Kung-Chung Liu, Eric Wang, Xinliang Tao

Research Collection Yong Pung How School Of Law

The continual strengthening of the protection for well-known marks has been one of the features of international trademark development in the post-TRIPS era. In many countries well-known marks can now be granted full trademark right and protection merely from the fact that they are well-known; well-known marks can also be protected against dilution or even the likelihood thereof, and against comparative advertising that is discrediting or denigrating. However, for market late-comers seeking a new trademark, there is no clear way to determine if a particular mark is well-known. Without this certainty the applicant cannot calculate the risk of having the …

Tea Leaves Of The Economy: General Elections In 2010?, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

Incumbent governments with good economic track records would typically capitalise on economic downturns to seize a political advantage by calling for early elections. Will the ruling People's Action Party do so next year in view of the strong economic performances in recent months?

China’S Strategy For Free Trade Agreements: Political Battle In The Name Of Trade, Shuchao Henry Gao

Research Collection Yong Pung How School Of Law

Compared with Europe and America, East Asia is a latecomer in the new gold-rush of Free Trade Agreements (FTAs). In this process, China has played a significant role. This is not only due to the growing economic clout of China, but also because China has taken a conscious strategy to push for economic integration in the region. Thus, for the benefits of the countries in the region, it is very important to understand China’s FTA strategy. This article starts with the evolving picture of China’s FTA web, then discusses the key components of China’s FTA strategy, and concludes by noting …

Law's Expressive Value In Combating Cyber Gender Harassment, Danielle K. Citron

Faculty Scholarship

The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women’s home addresses alongside suggestions that they should be sexually assaulted and technological attacks that shut down blogs and websites. It impedes women’s full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women’s experience, deeming it harmless teasing that women should expect, and tolerate, given the Internet’s Wild West norms …

Neo-Orthodoxy In Academic Freedom, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This review essay analyzes two recent books that advance neo-orthodox theories of academic freedom: Matthew Finkin and Robert Post, For the Common Good: Principles of American Academic Freedom, and Stanley Fish, Save the World on Your Own Time. Both books develop principles articulated in the American Association of University Professors 1915 Declaration, which emphasize the role of faculty in advancing knowledge and the need to insulate professional evaluation of academic work from lay, political interference. This review essay defends the return to protection of the scholarly search for truth as the touchstone of academic freedom, offers critiques of the authors’ …

Fighting Freestyle: The First Amendment, Fairness, And Corporate Reputation, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

There are three distinct groups who might want to engage in speech about commercial entities or to constrain those commercial entities from making particular claims of their own. Competitors may sue each other for false advertising, consumers may sue businesses, and government regulators may impose requirements on what businesses must and may not say. In this context, this Article will evaluate a facially persuasive but ultimately misguided claim about corporate speech: that because consumers regularly get to say nasty things about corporations under the lax standards governing defamation of public figures, corporations must be free to make factual claims subject …

Linton Family Llc And The Step Transaction Doctrine, Wendy G. Gerzog

All Faculty Scholarship

This article discusses Linton, a district court decision about a family limited liability company, indirect gifts, and the step transaction doctrine.

Vol. 37, No. 13 (November 30, 2009)

Indiana Law Annotated

No abstract provided.

Taking My Leave, Timothy Zick

Popular Media

No abstract provided.

The Next Generation: Creating New Peace Processes In The Middle East, Carrie Menkel-Meadow, Irena Nutenko

Georgetown Law Faculty Publications and Other Works

This essay describes how Israeli students in a course on mediation and consensus building taught in an Israeli university law department by and American law professor and an Israeli instructor analyzed and studied the conflict in the Middle East. It describes the suggestions they made for process design for the next stages of whatever peace process might emerge for the region. In light of the students' suggestions, the authors present some ideas as to how different approaches to reconciliation and peace might be used, managed, and coordinated.

November 29, 2009: The Iranian Bomb, Bruce Ledewitz

Hallowed Secularism

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