Law Commons^™

Volume 84, Issue 9 (2011)

Obiter Dicta

No abstract provided.

Vol. 41, No. 09 (October 31, 2011)

Indiana Law Annotated

No abstract provided.

Just Notice: A Paradigm-Shifting Solution To Economic Dismissals, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Cornell Law Faculty Publications

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

October 29, 2011: Why Any Change In The Establishment Clause?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Any Change in the Establishment Clause?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Publishing Conference Proceedings And Events With Digitalcommons@Wsu, Jonathan Mcglone

Open Access Week

Learn how you can organize and present conference and event information on the web using DigitalCommons@WSU.

2011 Scholars And Artists Bibliography, Michael Schwartz Library, Cleveland State University, Friends Of The Michael Schwartz Library, Mark Tebeau

Scholars and Artists Bibliographies

This bibliography was created for the annual Friends of the Michael Schwartz Library Scholars and Artists Reception, recognizing scholarly and creative achievements of Cleveland State University faculty, staff and emeriti. Mark Tebeau was the guest speaker

Summary Of Pacificare Of Nev., Inc. V. Rogers, 127 Nev. Adv. Op. 71, Jason Deforest

Nevada Supreme Court Summaries

An appeal from a district court order denying a motion to compel arbitration in a tort and contract action.

Misogynistic Cyber Hate Speech, Danielle Keats Citron

Faculty Scholarship

In her testimony, Professor Citron provided a picture of misogynistic cyber hate, from the very worst abuses involving the harassment of individuals to less virulent forms of misogyny.

What Can I Do With This?: Deciphering Copyright And License Notices, Benjamin J. Keele, Frederick W. Dingledy

Library Staff Publications

No abstract provided.

Summary Of Nunnery V. State, 127 Nev. Adv. Op. 69, Sabrina Dolson

Nevada Supreme Court Summaries

The Court considers an appeal of a death penalty sentence for a first-degree murder conviction.

Summary Of Wilson V. State, 127 Nev. Adv. Op. 68, Aaron K. Haar

Nevada Supreme Court Summaries

The Court considered an appeal from the district court’s dismissal of Petitioner’s third state petition for writ of habeas corpus in light of McConnell v. State.

Summary Of Cervantes V. Health Plan Of Nev., Inc. Et Al., 127 Nev. Adv. Op. 70, Kelli M. Devaney

Nevada Supreme Court Summaries

An appeal of the Eighth Judicial District Court’s grant of summary judgment in a tort action.

An Anthem For Ows?, Timothy Zick

Popular Media

No abstract provided.

Publishing Open Access Journals With Digital Commons, Jonathan Mcglone

Open Access Week

Learn how the Library can help you launch an Open Access Journal using DigitalCommons publishing software.

Digitalcommons@Wsu: Visibility Of Your Scholarship Matters, Dave Stout

Open Access Week

Wayne State University Libraries is taking a leadership role in helping scholars at Wayne distribute their scholarship and creative works via the Digital Commons service. Why is this important to you? Because visibility of your academic output to other scholars and stakeholders, around the world, is important. Digital Commons helps to remove barriers (paywalls, access restrictions, etc...) to your scholarship that is a common aspect of traditional commercial publishing avenues, and increases the global reach of your scholarship. It's easy, effective, and it works!

Join Dave Stout, Director of Sales for Digital Commons at Berkeley Electronic Press, to learn more …

Censoring The Internet, Timothy Zick

Popular Media

No abstract provided.

Elusive Empowerment: Compensating The Sex Trafficked Person Under The Trafficking Victims Protection Act, Theodore R. Sangalis

Fordham Law Review

Globally, hundreds of thousands-perhaps millions-are being forced or coerced into commercial sex acts. In the United States, this sex trafficking problem has become a lucrative illegal industry, and it is quickly growing. In response, Congress passed the Trafficking Victims Protection Act of 2000 (TVPA) to eradicate the industry by prosecuting the perpetrators, protecting the victims, and preventing the practice. Through several reauthorizations, one federal strategy that has emerged is compensating the victims through mandatory criminal restitution and civil remedies. Collection of restitution damages has been lacking, however, and no civil suit filed for sex trafficking survivors has reached the merits. …

Weaving Functional Brain Imaging Into The Tapestry Of Evidence: A Case For Functional Neuroimaging In Federal Criminal Courts, Adam Teitcher

Fordham Law Review

Recent advances in brain imaging technologies allow researchers to "peer inside" a defendant's brain. Although functional neuroimaging evidence is frequently used in civil litigation, federal courts have been hesitant to admit it into evidence in criminal trials. Scholars and commentators alike continue to debate the merits, detriments, and general admissibility of functional neuroimaging evidence in the criminal context. Meanwhile, federal judges repeatedly admit various forms of forensic science into evidence without evaluating them under the appropriate admissibility standards. This Note argues that this has created a double standard for evidence admissibility. Functional neuroimaging evidence may, in fact, be more scientifically …

Bringing An End To The Trend: Cutting Judicial "Approval" And "Rejection" Out Of Non-Class Mass Settlement, Alexandra N. Rothman

Fordham Law Review

In March 2010, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York rejected a mass settlement between the City of New York and the 9/11 first responders and rescue workers. The settlement was not a class action but some ten thousand individual cases aggregated for efficiency purposes. Nonetheless, Judge Hellerstein, invoking the spirit of Rule 23(e) of the Federal Rules of Civil Procedure, which provides for judicial approval of class action settlement, decided that the initial settlement was not enough, and sent the parties back to the negotiating table. There, the parties reached …

Protecting The Erisa Whistleblower: The Reach Of Section 510 Of Erisa, Adam B. Gartner

Fordham Law Review

Congress passed the Employee Retirement Income Security Act of 1974 (ERISA) to ensure the protection of private employee benefits. In doing so, Congress created uniform national standards for the administration of private employee benefit plans. Section 510 of ERISA affords some protection to whistleblowers who report ERISA violations. There is uncertainty, however, about whether section 510 protects a whistleblower who complains directly to his or her employer, or whether protection is limited to an individual who makes a report externally. Some circuit courts have held that section 510 protects all ERISA whistleblowers, while others have held that section 510's protections …

O Sonia, Where Art Thou?: Why Justice Sotomayor's Silent "Opinion" Should Serve As Shady Grove's Holding, Craig T. Cagney

Fordham Law Review

Since the Supreme Court decided the case in 1938, Erie Railroad Co. v. Tompkins has limited the application of the Federal Rules of Civil Procedure. By changing shape, Erie has eluded the Court's attempts to curb its influence for most of the past century. Only recently, in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., did the Court manage to apply a Federal Rule over Erie's contrary command to apply state law, but that decision so divided the Court that no one opinion enjoyed the support of five Justices. The resulting confusion among the lower courts over which should …

Private Ordering With Shareholder Bylaws, D. Gordon Smith, Matthew Wright, Marcus Kai Hintze

Fordham Law Review

In this Article, we propose legal reforms to empower shareholders in public corporations. Currently,most shareholders participate in corporate governance in three ways: they vote, they sell, and they sue. We would expand the menu for shareholders in public corporations by enabling them to contract using shareholder bylaws. We contend that such private ordering will improve shareholder monitoring of managers and create laboratories of corporate governance that benefit the entire corporate governance system.

To Transfer Or Not To Transfer: Identifying And Protecting Human Rights Interests In Non-Refoulment, Vijay Padmanabhan

Fordham Law Review

Human rights law imposes upon States an absolute duty not to transfer an individual to another State where there are substantial grounds for believing he or she will be tortured or subjected to cruel, inhuman, or degrading treatment. This protection, called non-refoulement, emanates from a theory of human rights that recognizes rights fulfillment requires States to protect those within their jurisdiction from rights violations perpetrated by third parties, including other States. Generally human rights law recognizes that resource constraints and/or competing rights restrict protection duties. But such limitations have not been recognized in the non-refoulement context. In recent years the …

The Honor Of Private Law, Nathan Oman

Fordham Law Review

While combativeness is central to how our culture both experiences and conceptualizes litigation, we generally notice it only as a regrettable cost. This Article offers a less squeamish vision, one that sees in the struggle of people suing one another a morally valuable activity: the vindication of insulted honor. This claim is offered as a normative defense of a civil recourse approach to private law. According to civil recourse theorists, tort and contract law should be seen as empowering plaintiffs to act against defendants, rather than as economically optimal incentives or as a means of enforcing duties of corrective justice. …

The Philip D. Reed Lecture Series: The State Secrets Privilege And Access To Justice: What Is The Proper Balance?, The Honorable Robert D. Sack, The Honorable John D. Bates, Douglas Letter, Ben Wizner

Fordham Law Review

No abstract provided.

Readers' Copyright, Jessica Litman

Open Access Week

An open lecture on reclaiming copyright for readers, listeners, and viewers, given by University of Michigan Law professor Jessica Litman.

A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. Litman argues that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public …

Ndls Update 10/25/2011, Notre Dame Law School

NDLS Update

No abstract provided.

What Is Open Access?, Jonathan Mcglone

Open Access Week

Come learn about the growing electronic publishing movement that seeks free access to scholarly materials -- Open Access. WSU Scholarly Communications Librarian Jon McGlone will introduce the topic, share examples of Open Access across North America and at Wayne State, and address some of the basic questions and issues Open Access raises.