Law Commons^™

Journal Staff

Alaska Law Review

No abstract provided.

Note From The Editor, Jennie Morawetz

Alaska Law Review

No abstract provided.

Rethinking Merger Efficiencies, Daniel A. Crane

Articles

The two leading merger systems-those of the United States and the European Union-treat the potential benefits and risks of mergers asymmetrically. Both systems require considerably greater proof of efficiencies than they do of potential harms if the efficiencies are to offset concerns over the accumulation or exercise of market power The implicit asymmetry principle has important systemic effects for merger control. It not only stands in the way of some socially desirable mergers but also may indirectly facilitate the clearance of some socially undesirable mergers. Neither system explicitly justifies this asymmetry, and none of the plausible justifications are normatively supportable. …

United States Food Law Update: Moving Toward A More Balanced Food Regulatory Regime, A. Bryan Endres, Nicholas R. Johnson

Journal of Food Law & Policy

For decades, the federal government has played a significant role in promoting healthy eating. In the early 1900s, the United States Department of Agriculture (USDA) promoted a foundational diet of milk, proteins, fruits and vegetables, and grains. Most Americans are at least somewhat familiar, although perhaps confused, with the more nuanced healthy eating recommendations contained in the food pyramid - first employed in 1992. And virtually every American has experienced the federally supported school lunch program. In the first half of 2011, these two iconic programs underwent significant change as part of a stepped-up effort to improve the health of …

An Original Take On Originalism, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The argument that Professor Orin Kerr proffers in An Equilibrium-Adjustment Theory of the Fourth Amendment' is simple: Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. This equilibrium-adjustment theory is elegant and, because it rests on a relatively "neutral" historical foundation, might be attractive to judges and scholars from different perspectives. Contrary to Kerr's assertion, however, it does not easily explain many of the Court's cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are …

Reclaiming The Legal Fiction Of Congressional Delegation, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In …

To Dollars From Sense: Qualitative To Quantitative Translation In Jury Damage Awards, Valerie P. Hans, Valerie F. Reyna

Cornell Law Faculty Publications

This article offers a new multistage account of jury damage award decision making. Drawing on psychological and economic research on judgment, decision making, and numeracy, the model posits that jurors first make a categorical gist judgment that money damages are warranted, and then make an ordinal gist judgment ranking the damages deserved as low, medium, or high. They then construct numbers that fit the gist of the appropriate magnitude. The article employs data from jury decision-making research to explore the plausibility of the model.

Revisiting The Similar Fact Rule In Singapore: Public Prosecutor V. Mas Swan Bin Adnan And Another, Siyuan Chen

Research Collection Yong Pung How School Of Law

The similar fact rule in Singapore—as with the law on any evidence law doctrine that can be found in both our Evidence Act and the common law—has required clarification for some time. This note, which discusses the latest local decision on the similar fact rule, considers if that decision is compatible with the Evidence Act and the various conceptualisations underlying the doctrine.

The Judicial Duty To Give Reasons: Thong Ah Fat V Public Prosecutor [2011] Sgca 65, Siyuan Chen

Research Collection Yong Pung How School Of Law

The accused was charged under the Misuse of Drugs Act after being found with 142.41 grams of diamorphine at the Woodlands Checkpoint. The High Court Judge found the accused guilty and sentenced him to death in a brief judgment of five paragraphs. The Court of Appeal, however, ordered a retrial as it was of the view that the Judge’s reasoning was “unclear” and the “judicial duty to give reasoned decisions” was not discharged

Splitting Hairs: What Subtle Distinctions Teach Us About Authority, Benjamin J. Keele

Library Staff Publications

Legal researchers constantly deal with issues of authority. Did the police have authority to search the car? Is this court of appeals decision binding authority on my case? What statutes are authoritative in my jurisdiction? These questions are important, and librarians often help find answers. The question of authority that librarians are best equipped to answer, however, is “How authoritative is this source?”

A Comparison Of Renewable Portfolio Standards And Feed-In Tariffs As Legislative Mechanisms To Provide Renewable Power Incentives: Impacts On Power Supply, Transmission, And Grid Intermittency, Steven Ferrey

Suffolk University Law School Faculty Works

A federalist form of government is used in several important nations, including the United States, Germany, India, Australia, Brazil, Canada, Malaysia, and Switzerland. A federalist form of government divides political sovereignty between a central federal authority and constituent states or provinces. To implement new government policy regulating private power, the challenging transcendent issues are legal and regulatory, rather than technical. Certain measures in various industrialized countries, when implemented at the state rather than federal level, must be designed and implemented carefully to achieve a legal, regulatory fit in a federalist system of government.

For purposes of comparison, this article considers …

Choosing A Better Path: The Misguided Appeal Of Increased Criminal Liability After Deepwater Horizon, Joshua Fershee

William & Mary Environmental Law and Policy Review

No abstract provided.

State Mandated Disability Insurance As Salve To The Consumer Bankruptcy Imbroglio, Alena Allen

BYU Law Review

From Main Street to Wall Street, Americans are hurting. In 2009, over 1.4 million families filed for bankruptcy. Researchers examining the causes of bankruptcy discovered that as many as sixty-two percent of all bankruptcies were precipitated by a medical crisis. Because many Americans are living paycheck to paycheck and lack disability insurance, when a medical crisis strikes, bank accounts are quickly depleted by the amalgam of high medical bills and lost wages. Disability insurance provides needed wage replacement when a worker is unable to work due to an illness or injury. This Article presents the case for statemandated disability insurance …

Moral Mandate Or Personal Preference? Possible Avenues For Accommodation Of Civil Servants Morally Opposed To Facilitating Same-Sex Marriage, Matthew Chandler

BYU Law Review

No abstract provided.

The New Resident Evil? State Regulation Of Violent Video Games And The First Amendment, James Dunkelberger

BYU Law Review

No abstract provided.

Letting The Legislature Decide: Why The Court's Use Of In Loco Parentis Ought To Be Praised, Not Condemned, Tyler Stoehr

BYU Law Review

No abstract provided.

Hydraulic Fracturing And "Spotty" Regulation: Why The Federal Government Should Let States Control Unconventional Onshore Drilling, Matt Willie

BYU Law Review

No abstract provided.

Frontmatter

BYU Law Review

No abstract provided.

Introduction, Jayne W. Barnard

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Lifting The Cloak: Preventive Detention As Punishment, Douglas Husak

San Diego Law Review

Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully …

Center For Terrorism Law: Monthly Activity Report, 2011-12, St. Mary's University School Of Law Center For Terrorism Law

Monthly Report

No abstract provided.

Turning Unambiguous Statutory Materials Into Ambiguous Statutes: Ordering Principles, Avoidance, And Transparent Justification In Cases Of Interpretive Choice, Carlos E. González

Duke Law Journal

How should courts handle interpretive choices, such as when statutory text strongly points to one statutory meaning but strong evidence of legislative intent suggests a contradictory statutory meaning? Courts have addressed this longstanding dilemma inconsistently. Sometimes courts follow statutory text over contradictory legislative intent; sometimes they do the exact opposite.

Though reaching contradictory conclusions, many courts facing interpretive choices have argued that the law of interpretation provides definitive solutions. This Article argues that the opposite is true: the law of interpretation generates, rather than resolves, interpretive choices. When this occurs, legally unconstrained judicial discretion and extralegal factors, rather than the …

Journal Staff

Duke Law Journal

No abstract provided.

What Is Securities Fraud?, Samuel W. Buell

Duke Law Journal

As Rule 10b-5 approaches the age of seventy, deep familiarity with this supremely potent and consequential provision of American administrative law has obscured its lack of clear conceptual content. The rule, as written, interpreted, and enforced, is missing a fully developed connection to—of all things—fraud. Fraud is difficult to define. Several approaches are plausible. But the law of securities fraud, and much of the commentary about that body of law, has neither attempted such a definition nor acknowledged its necessity to the coherence and effectiveness of the doctrine.

Securities fraud’s lack of mooring in a fully developed concept of fraud …

Reforming Attempt Liability Under 18 U.S.C. § 2422(B): An Insubstantial Step Back From United States V. Rothenberg , Korey J. Christensen

Duke Law Journal

The statute under which Internet sex predators are prosecuted for illicit online communications prohibits attempts to “knowingly persuade[], induce[], entice[], or coerce[]” minors to engage in “any sexual activity for which any person” can be criminally charged. This broad language has allowed courts to gradually expand the statute’s reach by reducing the level of conduct considered sufficient to constitute a substantial step toward commission of the crime. The Eleventh Circuit’s decision in United States v. Rothenberg is especially illustrative of this problematic expansion, as the court held that a conversation between consenting adults, without more, was sufficient to support a …

Interpretive Freedom: A Necessary Component Of Article Iii Judging , Jennifer M. Bandy

Duke Law Journal

As judges have debated the best method of constitutional and statutory interpretation, scholars have begun calling for increased constraints on the methodological freedoms of Article III judges. This Note rejects such proposals on constitutional grounds. Drawing upon the jurisprudence and scholarship on inherent powers, I argue that interpretive choice is an inherent judicial power. The drafting and ratification history of Article III demonstrates that the Framers expected federal judges to interpret the law. To accomplish this task, however, judges must have some methodological approach to help them prioritize interpretive evidence. Thus, imposition of a binding interpretive methodology upon federal judges …

Dna As Patentable Subject Matter And A Narrow Framework For Addressing The Perceived Problems Caused By Gene Patents, Stephen H. Schilling

Duke Law Journal

Concerns about the alleged harmful effects of gene patents— including hindered research and innovation and impeded patient access to high-quality genetic diagnostic tests—have resulted in overreactions from the public and throughout the legal profession. These overreactions are exemplified by Association for Molecular Pathology v. U.S. Patent and Trademark Office, a 2010 case in the Southern District of New York that held that isolated DNA is unpatentable subject matter under 35 U.S.C. § 101. The problem with these responses is that they fail to adequately consider the role that gene patents and patents on similar biomolecules play in facilitating investment in …

Hipaa Compliance Resources, Paul M. Birch

Law Faculty Publications

As health care consumers, attorneys may need no introduction to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). It may have introduced itself to you already in the form of a refused request for your spouse’s pharmacy receipts without signed authorization, or lengthier patient information forms to fill out before seeing a new doctor. On the other hand, the legislation may have facilitated your own access to your personal health records that otherwise would have been denied, or shielded those records from public disclosure by deterring a mass data spill. Along with establishing portability requirements for employee health …

Politics In The Non-Political Branch, Justin L. Swanson

College of Journalism and Mass Communications: Professional Projects

Across the country there exists a patchwork of legal systems by which judges are appointed retained. In some states, like Illinois, it is a fully political process where judges actively campaign for election to the bench. But a majority of states, including Nebraska, have adopted the Merit Selection System, which attempts to remove politics from these processes. Nevertheless, politics can enter into the retention votes. And when they do, it can be extremely difficult for judges to overcome.

Sex, Privacy And Public Health In A Casual Encounters Culture, Mary D. Fan

Articles

The regulation of sex and disease is a cultural and political flashpoint and recurring challenge that law's antiquated arsenal has been hard- pressed to effectively address. Compelling data demonstrate the need for attention—for example, one in four women aged fourteen to nineteen is infected with at least one sexually transmitted disease ("STD"); managing STDs costs an estimated $15.9 billion annually; and syphilis, once near eradication, is on the rise again, as are the rates of HIV diagnosis among people aged fifteen to twenty-four. Public health officials on the front lines have called for paradigm changes to tackle the enormous challenge. …