Law Commons^™

Globalization And Structure, Julian Ku, John Yoo

William & Mary Law Review

No abstract provided.

Deterring And Compensating Oil-Spill Catastrophes: The Need For Strict And Two-Tier Liability, W. Kip Viscusi, Richard J. Zeckhauser

Vanderbilt Law Review

The BP Deepwater Horizon oil spill highlighted the glaring weaknesses in the current liability and regulatory regime for oil spills and for environmental catastrophes more broadly. This Article proposes a new liability structure for deep-sea oil drilling and for catastrophic risks generally. It delineates a two-tier system of liability. The first tier would impose strict liability up to the firm's financial resources, including insurance coverage. The second tier would be an annual tax equal to the expected costs in the coming year beyond this damages amount. Before beginning a risky operation, the proposed liability scheme would identify a single firm-the …

Sheltering Victims: The Need For Regulations In Domestic Violence Asylum Law, Angel Marie Graf

DePaul Journal of Women, Gender and the Law

No abstract provided.

Cost Effective Legal Research, Mike Martinez Jr, Katy Stein

Law Librarian Scholarship

This article discusses free and low-cost legal research resources that can help reduce the cost of litigation. A lawyer using such resources must appreciate not only the advantages of such resources, but also the disadvantages.

The Unconstitutionality Of State Regulation Of Immigration Through Criminal Law, Gabriel J. Chin, Marc L. Miller

Duke Law Journal

The mirror-image theory of cooperative state enforcement of federal immigration law is a phenomenon—one of the most wildly successful legal ideas in decades. The mirror-image theory proposes that states can enact and enforce criminal immigration laws that are based on federal statutes. The theory that it is unobjectionable for a state to carry out federal policy is the basis of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act—better known as SB 1070—and similar laws enacted in Alabama, Georgia, Indiana, and Utah. The same theory has provoked the introduction of bills in numerous other states and earlier but more narrowly …

The Mechanics Of Federal Appeals: Uniformity And Case Management In The Circuit Courts, Marin K. Levy

Duke Law Journal

Case-management practices of appellate courts define the judicial review of appeals. The circuit courts constantly make decisions about which cases will receive oral argument, which will have dispositions written by staff attorneys in lieu of judges, and which will result in unpublished opinions—decisions that exert a powerful influence on the quality of justice that can be obtained from the federal appellate courts. Despite their importance, there has been no in-depth review of the case-management practices of the different circuit courts in the academic literature.

This Article begins to fill that void. It first documents and analyzes the practices of five …

Every Grain Of Sand: Would A Judicial Takings Doctrine Freeze The Common Law Of Property?, David S. Wheelock

Duke Law Journal

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, a plurality of the U.S. Supreme Court endorsed the proposition that the Takings Clause of the Fifth Amendment might operate as a constraint not only on executive and legislative action, but also on judicial decisions. In a federal system in which property rights are established almost exclusively by state law, and in which the meaning of state law is determined by state courts, the notion of judicial takings raises several difficult questions. The question that is the province of this Note is whether a doctrine of judicial takings …

Truth, Lies, And Stolen Valor: A Case For Protecting False Statements Of Fact Under The First Amendment, Julia K. Wood

Duke Law Journal

The Stolen Valor Act of 2005 (the Act) makes it a crime to lie about having received a medal authorized by Congress for the military. In 2010, in United States v. Alvarez, the Ninth Circuit found the Act unconstitutional under the First Amendment, holding that false statements of fact, like other content-based restrictions on speech, are subject to strict scrutiny. The Act failed this test because, according to the court, it was not narrowly tailored to serve a compelling government interest. The decision highlights the uncertainty of First Amendment protections for false speech. Though the Supreme Court has held that …

Journal Staff

Duke Law Journal

No abstract provided.

Finding Evidence On Facebook, Jeffrey Bellin

Popular Media

No abstract provided.

Hard Times For Peace Between Two Internally Divided Societies, Claudia Heiss

Human Rights & Human Welfare

These are not promising days for those who desire peace between Israelis and Palestinians, with two states respected by each other and recognized by the international community, living securely side by side. Richard Falk’s article rightly stresses the negative role played by the US Government in its sharp rejection of the Palestinian bid for statehood at the United Nations Security Council. The problem, however, seems to lie deeper in these complex societies and their current political leaderships.

November Roundtable: The Palestine Bid For Statehood At The Un, Introduction, Claudia Fuentes Julio

Human Rights & Human Welfare

An annotation of:

“Statehood versus “Facts on the Ground””. By Richard Falk. Aljazeera, September 20, 2011.

The Us On The Palestinian Statehood Bid: Weighing The Costs, Thomas Pegram

Human Rights & Human Welfare

Reflecting on the controversy surrounding the Palestinian bid for statehood, Richard Falk neatly subverts the opening words of the UN Charter, “we the people,” as having always surrendered to “we the governments,” and, in the modern era of American empire, “we the hegemon.”

This may well be true. The UN Security Council (UNSC), in particular, is viewed in Washington as a vehicle for hegemonic ambitions—to be indulged when it serves its purpose and vetoed and sidelined when it does not. Unfolding events at the UNSC, reportedly due to vote on the Palestinian resolution on November 11 but now postponed perhaps …

The Sum Of The Parts, Therese O'Donnell

Human Rights & Human Welfare

From one perspective the Middle East lends itself as a macabre mise-en-scene where the triumph of realpolitik over the legitimacies of international law can be continually re-staged. To be sure, at least two sovereign states seem to go their own way, even in the face of rampant and valid international criticism—the end of a construction freeze on illegal settlements and failures to condemn clearly illustrate this point. However, two can play at that game. The US veto of the October 2003 draft Security Council resolution declaring as illegal Israel’s construction of its security fence, beyond the 1949 Green Line and …

2011 Byu Law School Annual Report, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

No abstract provided.

Transnational Class Actions And The Illusory Search For Res Judicata, Tanya Monestier

Law Faculty Scholarship

The transnational class action-a class action in which a portion of the class consists of non-US claimants-is here to stay Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the "home" courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign …

Overlitigating Corporate Fraud: An Empirical Examination, Jessica M. Erickson

Law Faculty Publications

Corporate law leaves no stone unturned when it comes to litigating corporate fraud. The legal system has developed a remarkable array of litigation options shareholder derivative suits, securities class actions, SEC enforcement actions, even criminal prosecutions all aimed at preventing the next corporate scandal. Scholars have long assumed that these different lawsuits offer different avenues for deterring the masterminds of corporate fraud yet this assumption has gone untested in the legal literature. This Article aims to fill that gap through the first empirical examination of the broader world of corporate fraud litigation. Analyzing over 700 lawsuits, the study reveals that …

The Corroborative Effect Of Lies, Siyuan Chen

Research Collection Yong Pung How School Of Law

PP v Kamrul Hasan Abdul Quddus [2010] SGHC 7; Kamrul Hasan Abdul Quddus v PP [2011] SGCA 52. Overview of the case: In PP v Kamrul Hasan Abdul Quddus, the accused was charged with murder. He and the deceased had been in a tumultuous relationship, and the main evidence that connected the deceased’s death to the accused, apart from the fact that her body was found in the construction site that the accused worked at, was that DNA taken from her rectum tested positive for semen that matched his DNA.

Collateral Censorship And The Limits Of Intermediary Immunity, Felix T. Wu

Articles

The law often limits the liability of an intermediary for the speech it carries. And rightly so, because imposing liability on intermediaries can induce them to filter out questionable content and this “collateral censorship” risks suppressing much lawful, even highly beneficial, speech. The “collateral censorship” rationale has its limits, though, and correspondingly, so should the applicability of intermediary immunity. The worry with collateral censorship is not just that intermediaries censor, but that they censor more than an original speaker would in the face of potential liability. Increased censorship, in turn, is the product of applying liability targeted at original speakers …

Teaching Rule Synthesis With Real Cases, Paul Figley

Scholarly Articles in Law Reviews & Journals

Rule synthesis is the process of integrating a rule or principle from several cases. It is a skill attorneys and judges use on a daily basis to formulate effective arguments, develop jurisprudence, and anticipate future problems. Teaching new law students how to synthesize rules is a critical component in training them to think like lawyers.

This article suggests how rule synthesis might be taught in one classroom session using real cases. It advocates a three-part approach. First, explain the nature of rule synthesis to the students. Second, do a whimsical exercise with them to show how rule synthesis works. Finally, …

Ncaa Transgender Student-Athlete 'Policy': Analysis, Shawn Crincoli

Scholarly Works

No abstract provided.

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine …

Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes

Michigan Law Review

In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …

Trust And The Commitment To Fairness, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

Assistant Professor Eugene Tan writes that tripartism has given us years of industrial peace and prosperity in Singapore, but warns that trust must work both ways. The high principle of tripartism does not necessarily mean that the partners will subscribe to the same policies and outlook on what is needed for workplace harmony.

Prevention Of Vessel-Source Marine Pollution: A Note On The Challenges And Prospects For Chinese Practice Under International Law, Nengye Liu, Frank Maes

Research Collection Yong Pung How School Of Law

This article examines China’s domestic legal regime for the prevention of vessel sourcepollution. It pays special attention to the recently adopted Regulation on Preventionand Control of Marine Pollution from Vessels. Potential challenges and emerging issuesthat China has to confront are addressed, including: application of the legislation todisputed sea areas between China and its neighbors, freedom of navigation in theexclusive economic zone, reduction of emission from ships, and prevention of invasivespecies from ballast water.

Finding The Appropriate Mode Of Dispute Resolution: Introducing Neutral Evaluation In The Subordinate Courts, Dorcas Quek Anderson, Chi-Ling Seah

Research Collection Yong Pung How School Of Law

The Alternative Dispute Resolution (ADR) movement has gained significant traction over the last three decades and has been expanding at a rapid pace in many common law jurisdictions. The allure of ADR lies, in large part, in its recognition of litigants’ desire for self-determination and autonomy in resolving their disputes. ADR became even more attractive as dissatisfaction with the traditional court system grew. In the seminal Roscoe Pound Conference on Popular Causes of Dissatisfaction with the Administration of Justice in USA, the changing role of the courts was highlighted, casting ADR further into the spotlight.i Instead of offering only adjudication …

Regulating Business Impacts On Human Rights In Southeast Asia - Lessons From The Eu, Mahdev Mohan

Research Collection Yong Pung How School Of Law

The mid-June endorsement by the United Nations Human Rights Council of a new set of Guiding Principles for Business and Human Rights has been welcomed as the authoritative global standard for corporations to respect human rights. The Guiding Principles are the culmination of a 6-year UN-commissioned study by Professor John Ruggie, which concludes that companies should carry out human rights due diligence to identify, prevent, mitigate, and account for how they address their adverse human rights impacts. Drawing on related regulation in Europe, this article considers how best to implement the Guiding Principles in Southeast Asia.

The "Party Scope" Of Exclusive Jurisdiction Clauses: Global Partners Fund Ltd V Babcock & Brown Ltd, Adeline Chong

Research Collection Yong Pung How School Of Law

Coherency in international litigation and upholding exclusive jurisdiction clauses, for the most part, work hand in hand. Courts generally take jurisdiction on very wide and exorbitant grounds. There is therefore the ever-present risk of irreconcilable judgments stemming from multiple courts hearing disputes arising from the same transaction or state of affairs. One way in which such a risk is averted is by giving effect to exclusive jurisdiction clauses where parties have included such clauses into their contracts. Thus, when faced with an action brought in breach of an exclusive jurisdiction clause in favour of another forum, the starting position is …

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Musings On Mediation, Kleenex, And (Smudged) White Hats, Nancy A. Welsh

Faculty Scholarship

This Essay speculates on the global future of mediation. It anticipates that mediation’s popularity will continue to grow both in the U.S. and abroad particularly as courts continue to encourage and institutionalize the process. Meanwhile, the Essay acknowledges the existence and continuing development of a relatively small cadre of elite lawyers and retired judges who serve as private mediators in large, complex matters.

The Essay also raises concerns, though, regarding the current lack of clarity in the goals and procedural characteristics that define mediation. The Essay asserts that such lack of clarity invites abuse of the mediation privilege and exclusionary …