Law Commons^™

Exceptional Engagement: Protocol I And A World United Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable …

Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton

Vanderbilt Law School Faculty Publications

The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework …

Soft Law As Delegation, Timothy Meyer

Vanderbilt Law School Faculty Publications

This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

Unlearning Fear Of Out-Group Others, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In this brief Comment, Maroney offers a perspective based in the scientific study of fear and social-group judgment. She discusses research showing that humans display heightened, persistent fear responses to "outgroup" faces, and suggests ways in which such research might inform our assessment of intergroup conflict resolution. Comment responsive to Douglas H. Yarn & Gregory Todd Jones, A Biological Approach to Understanding Resistance to Apology, Forgiveness, and Reconciliation in Group Conflict, 72 Law & Contemp. Probs. 63 (2009).

In Family Law, Love's Got A Lot To Do With It: A Response To Philip Shaver, Terry A. Maroney

Vanderbilt Law School Faculty Publications

In a contribution to this Symposium on Law and Emotion: Re-Envisioning Family Law, Phillip Shaver and his co-authors succinctly encapsulate contemporary psychological theory on interpersonal attachment -- primarily parent-child attachment and its role in creating lifelong attachment patterns -- and seek to outline the relevance of such research for both social policy and law. This Comment demonstrates that many areas of family law already seek to cultivate and reward attachment. But attachment is not and cannot be the sole-or even, perhaps, the most important-factor driving most legal determinations. Recognizing the importance of secure attachment does not answer difficult questions about …

Can Clinical Genetics Laboratories Be Sued For Medical Malpractice?, Ellen Wright Clayton, Alexandra L. Foulkes, Jessica L. Roberts, Et Al.

Vanderbilt Law School Faculty Publications

From a legal perspective, is a clinical laboratory a healthcare provider? Physicians are clearly healthcare providers who owe their patients the associated fiduciary duties. It is less clear, however, which-if any-legal duties genetic testing labs owe to the individuals who seek their services.

The question of whether clinical genetics laboratories are healthcare providers for legal purposes may be thornier than it could initially appear. Clinical genetics laboratories perform multiple tasks. Most significantly, they sequence genetic samples and then interpret the results. As "next generation sequencing" has become more accessible,' labs can generate and interpret more sequence data for a growing …

The Google Dilemma, James Grimmelmann

Cornell Law Faculty Publications

Web search is critical to our ability to use the Internet. Whoever controls search engines has enormous influence on all of us; whoever controls the search engines, perhaps, controls the Internet itself. This short essay (based on talks given in January and April 2008) uses the stories of five famous search queries to illustrate the conflicts over search and the enormous power Google wields in choosing whose voices are heard on the Internet.

Rating Agencies And Reputational Risk, David J. Reiss

Cornell Law Faculty Publications

This essay is a lightly-edited version of a talk given at the University of Maryland School of Law and the Journal of Business & Technology Law's Conference on the Subprime Meltdown in October 2008. It briefly reviews the reputational risk literature and applies it to the rating agency industry. In particular, it looks at three of the inputs into reputation - trust, transparency, and leadership - and evaluates how rating agencies fared in the period leading up to the subprime meltdown. It concludes that rating agencies did poorly when it came to all three of these reputational inputs.

Commerce In Religion, Bernadette Meyler

Cornell Law Faculty Publications

As this Symposium Article contends, religion increasingly overlaps with the commercial sphere, and courts are obligated to determine whether or not to adopt an entirely hands-off approach simply because the specter of religion lurks on the horizon. Whereas the jurisprudence of the European Court of Human Rights tends to accept its member states' separation of commercial elements out from the protections more generally accorded to religion, the U.S. Supreme Court has treated the two spheres as overlapping. To the extent that each court does consider religious transactions in terms of commercial relations, each also arrives at a very different conception …

Crime Labs And Prison Guards: A Comment On Melendez-Diaz And Its Potential Impact On Capital Sentencing Proceedings, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him." Four years ago, in Crawford v. Washington, the United States Supreme Court held that this right bars the admission of testimonial hearsay statements against criminal defendants, regardless of whether or not the statements fall within an evidentiary hearsay exception. It was a decision that other courts later described as a "bombshell," a "renaissance," and "a newly shaped lens" through which to view the Confrontation Clause. The case generated an extensive amount of discussion among legal commentators.

Since its …

The Afterlife Of Ford And Panetti: Execution Competence And The Capacity To Assist Counsel, Christopher W. Seeds

Cornell Law Faculty Publications

The capacity to assist counsel and communicate a defense once held a central place in assessing competence for execution. Since Ford v. Wainwright (1986), however, courts have discarded this measure, viewing Justice Powell’s concurring opinion, which required only that a prisoner understand the execution as mortal punishment for a capital crime, as the Eighth Amendment rule. In a significant development, the Supreme Court’s decision in Panetti v. Quarterman (2007) - its first interpreting Ford - sends notice that Justice Powell’s statements on the substantive standard are not Ford's rule, providing a long overdue opportunity to address whether executing prisoners with …

A New Look At Judicial Impact: Attorneys' Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey P. Miller, Michael A. Perino

Cornell Law Faculty Publications

Judicial impact studies have generally found widespread compliance by lower courts. Often, however, these studies employ relatively insensitive measures of compliance, limit their focus to compliance with Supreme Court precedent, and only occasionally examine the impact of judicial decisions on the ultimate consumers of those rulings - the members of society who are subject to them. Significant questions thus remain, such as whether and to what extent lower courts in fact comply with precedent and what if any role fear of reversal plays in compliance. To address these gaps, we use regression analysis to examine how the district courts in …

When Should A Mistake Of Fact Excuse?, Stephen P. Garvey

Cornell Law Faculty Publications

This symposium contribution advances two claims. First, a mistake (or ignorance) of fact should matter in the criminal law only insofar as it causes an actor to be ignorant of the law. Mistakes of fact should have exculpatory force if and only if they cause ignorance of the law, which ignorance ought to be an excuse to criminal liability. Second, an actor who should otherwise be excused because he is ignorant of the law, which ignorance is in turn the result of some mistake of fact, should not lose that excuse just because the underlying mistake of fact can in …

Recent Developments: Doe V. Montgomery County Bd. Of Elections: The Limitations Period For Judicial Review Of Petition Certification Accrues After Aggrievement, And Mandatory Referendum Petition Signature Requirements Apply To Active And Inactive Voters, Christian Kintigh

University of Baltimore Law Forum

No abstract provided.

The Richness Of Experience, Empathy, And The Role Of A Judge: The Senate Confirmation Hearings For Judge Sonia Sotomayor, Arrie W. Davis

University of Baltimore Law Forum

No abstract provided.

Privatizing And Publicizing Speech, Nelson Tebbe

Cornell Law Faculty Publications

When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although …

Protecting Well-Being While Pursuing Justice, Barbara Sturgis

Center on Children, Families, and the Law: Faculty Publications

The second and third chapters in this section draw attention to circumstances in which concerns regarding the ability of the criminal justice process to achieve just outcomes intersect with concerns regarding the potential effects of that process on the psychological well-being of various participants. These chapters by Bruce Winick, Jodi Quas, and Bradley McAuliff can reasonably be understood as complimentary in the following sense. Winick’s chapter endorses a substantive legal standard and a proposed procedure for applying that standard that raises a series of questions regarding the manner in which that procedure, and the participants in that procedure, will be …

Managing Performance [In Child Welfare Supervision], Megan E. Paul, Michelle Graef, Erika J. Robinson, Kristin Saathoff

Center on Children, Families, and the Law: Faculty Publications

One of the primary roles of a supervisor is to manage worker performance. Performance management is the "continuous process of identifying, measuring, and developing the performance of individuals and teams and aligning performance with the strategic goals of the organization" (Aguinis, 2007, p. 2). Supervisors must regularly assess current performance levels and take steps to improve performance in a way that is congruent with agency goals. The ultimate goal is to achieve agency objectives through individual and team performance.

To effectively manage performance, supervisors must know what the performance expectations are for workers and clearly communicate these expectations to workers. …

No Matter What: The Inevitability Of Mexican-Us Migration And Its Lessons For Border Control Strategies, Ragini Shah

Suffolk University Law School Faculty Works

Since the mid 1980s, immigration reform has always included a mix of increased access to legal status for undocumented workers and escalation of border enforcement strategies. Recent events including the economic recession and Arizona’s passage of its own immigration enforcement regime have brought the border enforcement strategies more squarely into the public debate. Unfortunately, the debate continues to be grounded in the unsupported assumption that increased enforcement measures will decrease the number of unauthorized migrants that enter the country each year. This article critiques that assumption and argues instead that immigration policy must be seen in a larger context of …

Conflict Of Laws In Massachusetts, Part Ii: Related Problems In Selecting The Applicable Law, Joseph W. Glannon, Gabriel H. Teninbaum

Suffolk University Law School Faculty Works

This article is a survey of conflict of laws principles in Massachusetts. It explains the historical and current Massachusetts approach to conflict of laws issues, and then applies that methodology to a variety of substantive and procedural topic areas. It concludes with recommendations for ways that Massachusetts courts can improve their analysis of these problems to promote fair and consistent outcomes.

"Just Trying To Be Human In This Place": Storytelling And Film In The First-Year Law School Classroom, Kate Nace Day, Russell G. Murphy

Suffolk University Law School Faculty Works

In 2007, the latest in a long line of studies and research projects that critically examined American legal education were published. The Carnegie Foundation Report, “Educating Lawyers: Preparation for the Profession of Law”, and the empirical research findings of linguistic anthropologist Elizabeth Mertz, “The Language of Law School: Learning to 'Think Like A Lawyer'”, identified many shortcomings and negative consequences that result from the traditional pedagogy of the American law school classroom. In this Article, Professors Kate Nace Day and Russell G. Murphy explore some of the findings of these studies in the context of their experimentation with the use …

Punishment For Ecological Disasters: Punitive Damages And/Or Criminal Sanctions, Leo M. Romero

Faculty Scholarship

This article addresses the means of punishing conduct that causes serious environmental harm like the Exxon Valdez oil spill. In particular, it considers the appropriateness and effectiveness of both punitive damages and criminal sanctions as remedies in such cases in light of the U.S. Supreme Court's approaches to reviewing both punitive damages awards and criminal sentences for excessiveness. This article recommends, first, that state legislatures should authorize and regulate punitive damages so that appellate courts will not interfere with punitive damages awards, as happened in the Exxon case. Second, states should enforce criminal provisions in environmental statutes against both corporate …

Privacy By Deletion: The Need For A Global Data Deletion Principle, Benjamin J. Keele

Library Staff Publications

With global personal information flows increasing, efforts have been made to develop principles to standardize data protection regulations. However, no set ofprinciples has yet achieved universal adoption. This note proposes a principle mandating that personal data be securely destroyed when it is no longer necessary for the purpose for which it was collected. Including a data deletion principle in future data protection standards will increase respect for individual autonomy and decrease the risk of abuse of personal data. Though data deletion is already practiced by many data controllers, including it in legal data protection mandates wil further the goal of …

Agata Jurkowska, Tadeusz Skoczny (Eds.), Wyłączenia Grupowe Spod Zakazu Porozumień Ograniczających Konkurencję We Wspólnocie Europejskiej I W Polsce [Block Exemptions From The Prohibition Of Competition Restricting Agreements In The Ec And Poland] Wydawnictwo Naukowe Wydziału Zarządzania Uniwersytetu Warszawskiego [University Of Warsaw, Faculty Of Management Press], Warszawa 2008, 576 P., Monika Bychowska

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Dawid Miąsik, Tadeusz Skoczny, Małgorzata Surdek (Eds.), Sprawa Microsoft – Studium Przypadku. Prawo Konkurencji Na Rynkach Nowych Technologii [Microsoft – Case Study. Competition Law On New Technology Markets] Wydawnictwo Naukowe Wydziału Zarządzania Uniwersytetu Warszawskiego [University Of Warsaw, Faculty Of Management Press], Warszawa 2008, 377 P., Cezary Banasiński

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Rajmund Molski, Prawo Antymonopolowe W Obliczu Globalizacji. Kierunki Rozwoju [Antitrust Law In The Face Of Globalization. Directions Of Development], Oficyna Wydawnicza Branta, Bydgoszcz-Szczecin 2008, 336 P., Agata Jurkowska

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Filip Elżanowski, Polityka Energetyczna. Prawne Instrumenty Realizacji [The Energy Policy. Legal Instruments Of Its Implementation] Lexisnexis, Warszawa 2008, 240 P., Bartłomiej Nowak

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Waldemar Hoff, Prawny Model Regulacji Sektorowej [The Legal Model Of Sector-Specific Regulation], Difin, Warszawa 2008, 302 P., Jerzy Supernat

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Stanisław Piątek (Ed.) Regulacja Rynków Telekomunikacyjnych [Regulation Of Telecommunications Markets] Wydawnictwo Naukowe Wydziału Zarządzania Uniwersytetu Warszawskiego [University Of Warsaw, Faculty Of Management Press], Warszawa 2007, 395 P., Arwid Mednis

Yearbook of Antitrust and Regulatory Studies

No abstract provided.

Cognition, Law, Stories, Stephen M. Mcjohn, Lorie Graham

Suffolk University Law School Faculty Works

This essay reviews Steven Pinker, The Stuff of Thought (Penguin 2007), which offers insights from cognitive science just where it overlaps the most with law - how we use basic cognitive categories like intent, space, time, events and causation. The Stuff of Thought might offer insights into a broad range of issues in legal theory. Legal theory could make more use of such cognitive science concepts as chunking, recursion, and the primary qualities of an object. Other topics likewise resonate in thinking about the law: The book suggests that metaphor is an important cognitive tool, but less constraining than might …