Law Commons^™

Perfecting And Maintaining The Perfection In Article 9 Security Interests Under The 2010 Amendments: New Sections 9-503 And 9-316, Steven Harris, Jason Kilborn, Margit Livingston

College of Law Faculty

No abstract provided.

An Edifice Of Its Own Creation: The Supreme Court's Recent Arbitration Cases, David Franklin, Steven Greenberger

College of Law Faculty

Prof. Greenberger's comments follow main article (pgs. 511-514)

Cluster Introduction: Culture, Knowledge, Law, And Community Countering New Sovereignty With Knowledge, Gil Gott, Sumi Cho

College of Law Faculty

No abstract provided.

Becoming Asian American And The Magic Of Historical Accident, Sumi Cho

College of Law Faculty

No abstract provided.

Procedures And Remedies Under Section 504 And The Ada For Public School Children With Disabilities, Mark Weber

College of Law Faculty

Much has been written about procedures and remedies under the Individuals with Disabilities Education Act, but few scholars have explored procedural rights and corresponding mechanisms of administrative and judicial relief for victims of public schools’ violations of children’s rights under section 504 of the Rehabilitation Act of 1973 and title II of the Americans with Disabilities Act. This paper will discuss the administrative procedures that must be followed in hearings regarding complaints of violations of those laws by public school districts and the relief that hearing officers and courts may provide. It will begin with an update on developments regarding …

Is Systemic Risk Prevention The New Paradigm? A Proposal To Expand Investor Protection Principles To The Hedge Fund Industry, Cary Martin Shelby

College of Law Faculty

The Dodd-Frank Act finally achieved the inevitable. It subjects hedge funds to significant regulatory oversight even though they were previously exempt from regulation. In 2006, the SEC notoriously failed at this task when the D.C. Court of Appeals held that the agency acted outside of its rulemaking authority in attempting to regulate hedge fund advisers. Through the passage of the Dodd-Frank Act, Congress finally finished what the SEC started by using the current political climate to close this regulatory loophole. The Dodd-Frank Act is a step in the right direction, but it leaves an important question largely unanswered: Should hedge …

Class Action Defendants' New Lochnerism,, Mark Moller

College of Law Faculty

In the much-watched Dukes v. Walmart, Walmart has advanced a deceptively compelling claim: Due process, Walmart says, guarantees it the right to mount a “full defense” based on “any relevant rebuttal evidence [Walmart] choose[s], including evidence that there was no discrimination against one or more members of the class.” Because Walmart cannot possibly present rebuttal evidence against each of the 1.5 million gender discrimination claims that form the Dukes class, the class action, Walmart concludes, is unconstitutional. The argument is not original to Walmart - it is a staple of the class action defense bar. What should originalists make of …

Common Problems For The Common Answers Test: Class Certification In Amgen And Comcast, Mark Moller

College of Law Faculty

No abstract provided.

Justice Scalia And The Art Of Rhetoric, Jeffrey Shaman

College of Law Faculty

This essay offers something different from the usual law review article: an examination of Justice Scalia's judicial opinions from a literary perspective rather than a legal one. The essay demonstrates that Justice Scalia is a master of metaphor and other belletristic flourishes. Focusing on the style rather than the substance of his writing, the essay uses examples from various Scalia opinions to illustrate that he wields a wicked poison pen, peppers his opinions with creative lists of examples, and is wont to drop in a bon mot here and there, not to mention an arcane foreign phrase that send lesser …

Rules Of General Applicability, Jeffrey Shaman

College of Law Faculty

In some instances, the Supreme Court has held that, despite their restrictive effect upon speech or religion, rules of general applicability are exempt from oversight under the First Amendment. In Arcara v. Cloud Books, the Court ruled that the Free Speech Clause was not violated by a rule of general applicability even where it had a restrictive effect upon expressive activity. Arcara was an isolated decision that has enjoyed little influence in subsequent decisions involving free speech. On the other hand, in Employment Division v. Smith, the Court effectuated a major doctrinal revision to the Free Exercise Clause by ruling …

Lumpy Property, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Should Environmental Taxes Be Precautionary?, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

This paper considers whether environmental taxes should be accelerated (or delayed) if the environmental harm from pollution is uncertain and irreversible, and where we are likely to learn more about the nature of the harm or about mitigation technologies in the future. It concludes that environmental taxes should be set equal to expected marginal harm from pollution given the currently available information and should be neither accelerated nor delayed because of the prospect of learning or irreversible harm. The reason is that taxes equal to expected marginal harm decentralize decisions to market participants who will, facing these taxes, make appropriate …

Aggregation And Law, Eric A. Posner, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

If a plaintiff brings two claims, each with a 0.4 probability of being valid, the plaintiff will usually lose, even if the claims are based on independent events, and thus the probability of at least one of the claims being valid is 0.64. If a plaintiff brings two independent claims, and each of them is too weak to justify a remedy, the plaintiff will usually lose, even if the claims are jointly powerful enough to justify a remedy. Thus, as a general rule courts refuse to engage in what we call factual aggregation (the first case) and normative aggregation (the …

Go White, Young Man, Alfred Brophy

Vanderbilt Law Review

No abstract provided.

The Legal Regulation Of Gay And Lesbian Families As Interstate Immigration Law, Sarah Abramowicz

Vanderbilt Law Review

No abstract provided.

American Legal History Revisited, James W. Ely Jr.

Vanderbilt Law Review

No abstract provided.

Blowing Hot Air: An Analysis Of State Involvement In Greenhouse Gas Litigation, Caroline Cecot

Vanderbilt Law Review

In Massachusetts v. EPA (2007), the U.S. Supreme Court interpreted the Clean Air Act ("CAA") to require the Environmental Protection Agency ("EPA") to regulate greenhouse gas emissions1 from motor vehicles if the EPA Administrator finds that the emissions endanger public health and welfare ("Endangerment Finding"). In December 2009, the Administrator made such an Endangerment Finding, obligating the EPA to work with the National Highway Traffic Safety Administration ("NHTSA") to develop average fuel economy and greenhouse gas emission standards for new light-duty vehicles. After issuing proposals and reviewing comments from the public, the two agencies announced their groundbreaking final regulation ("Tailpipe …

With Child, Without Rights?: Restoring A Pregnant Woman's Right To Refuse Medical Treatment Through The Hiv Lens, Michael Ulrich

Faculty Scholarship

In Doe v. Division of Youth & Family Services , a hospital employee sought state intervention when an HIV-positive woman refused to comply with treatment recommendations during her pregnancy to drastically reduce the chances of mother-to-child-transmission (MTCT), eventually triggering a lawsuit against the hospital. With an increase in the number of HIV-positive women becoming pregnant and the court avoiding constitutional analysis of the woman’s right to refuse medical treatment, there is a clear void where legal analysis is surely needed. This Article fills this void for the inevitable case where an HIV-positive pregnant woman’s right to refuse medical treatment is …

Brief Of Amici Curiae Health Law & Policy Scholars And Prescriptions Policy Choices In Support Of Respondents On The Constitutional Validity Of The Medicaid Expansion In State Of Florida V. Department Of Health And Human Services, Kevin Outterson, Nicole Huberfeld

Faculty Scholarship

The Medicaid expansion in Section 2001(a)(1)(C) of the Patient Protection and Affordable Care Act is one part of Congress’s comprehensive effort to expand access to health care coverage. This expansion is not revolutionary, but builds on many prior statutory amendments to Medicaid. Nor does it alter the voluntary nature of the Medicaid program – as before, States remain free to decline federal funding. The Petitioners and their amici have mischaracterized the expansion to obscure these facts, hoping this Court will unravel this hard-fought legislative enactment.

The question presented is whether Congress may offer States generous additional funding for Medicaid, with …

A Tale Of Two Cases: Urging Caution In The Prosecution Of Hiv Non-Disclosure, Isabel Grant, Jonathan Glenn Betteridge

All Faculty Publications

Two provincial Courts of Appeal have recently released unanimous decisions that clarify the law regarding the obligation imposed upon people living with HIV to disclose their HIV status prior to sexual relations. The decision of the Manitoba Court of Appeal in R v. Mabior and of the Quebec Court of Appeal in R c. D.C. must be seen against a background of increasing criminal prosecutions in Canada of people with HIV who allegedly do not disclose their HIV status to sexual partners. Since the first HIV nondisclosure prosecution in 1989, there have been over 120 prosecutions. A high proportion of …

Taking Threats Seriously: Section 264.1 And Threats As A Form Of Domestic Violence, Joanna Birenbaum, Isabel Grant

All Faculty Publications

An alarming number of women are in abusive relationships where violence and threats of violence pervade their lives. This article examines the offence of uttering threats in the Canadian Criminal Code, using the Manitoba Court of Appeal decision in R v O’Brien as a backdrop. We make two arguments. First, we argue that, in intimate relationships, threats of death and bodily harm are a form of domestic violence, often used by men in concert with physical violence and other forms of intimidation to control and dominate women. The Canadian criminal justice response to charges of uttering threats in intimate partner …

The Normal Ones Take Time': Civil Commitment And Sexual Assault In R. V. Alsadi, Isabel Grant

All Faculty Publications

This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be …

Book Review Of American Property: A History Of How, Why, And What We Own, By Stuart Banner, Douglas C. Harris

All Faculty Publications

Property Law is about things, but only secondarily. It is primarily about relationships between people as they pertain to things. As a result, although we commonly identify material and immaterial things as private, common, or state property, property law deals with the subset of human relationships that determines rights and responsibilities with respect to things. The institution of property law — the rules that define this subset of human relationships — arises in the context of scarcity. When things are scarce and accordingly hold exchange value, humans construct ideas of ownership. We have been doing so for millennia, or at …

Ipeelee And The Pursuit Of Proportionality In A World Of Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

The law of sentencing in Canada is being pulled in opposing directions: Parliament regularly legislates new mandatory sentences that limit judicial discretion while the Supreme Court strongly affirms the “highly individualized” nature of sentencing. Mandatory sentences have proliferated in recent years, contrary to overwhelming social science evidence that they do not deliver on their promises of deterrence and crime control, and largely unimpeded by the Charter. However, the recent decision in R v Ipeelee arguably puts the principles relevant to the sentencing of Aboriginal people on a collision course with the substantial limits on judicial discretion that are central to …

The 'Great Writ' Reinvigorated? Habeas Corpus In Contemporary Canada, Debra Parkes

All Faculty Publications

This short prelude to Professor James Oldham’s 2nd Annual DeLloyd J Guth Visiting Lecture in Legal History, “Habeas Corpus, Legal History and Guantanamo Bay,” discusses some of ways that the writ of habeas corpus plays an important role in promoting access to justice and protecting basic liberty interests in contemporary Canadian law. The focus will be on developments in the law since the Canadian Charter of Rights and Freedoms was enacted, touching on two important features of a modern doctrine of habeas corpus, namely flexibility and gap-filling, both of which Professor Oldham also develops in his essay.

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes

All Faculty Publications

This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form …

Gender Equality Rights And Trade Regimes: Coordinating Compliance, Pitman B. Potter

All Faculty Publications

Taken together, the symposium papers and presentations illustrate the rich diversity of perspectives and issues emerging from the discourse of Coordinated Compliance with regard to specific issues on gender equality and trade, revealing a fundamental concern over human well-being along with an abiding commitment to scholarly rigor.

Transparency Norms, The World Trade System And Free Trade Agreements: The Case Of Ceta, Ljiljana Biuković

All Faculty Publications

Canada and the European Union (EU) are negotiating an ambitious Comprehensive Economic and Trade Agreement (CETA). While the content of the agreement has not yet been officially disclosed by its negotiators, the general public and the business community are already concerned about the scope and effect of CETA on the two economies and their societies. This article deals with CETA’s transparency provisions. It claims that, whereas CETA has not yet utilized external transparency to ensure support for the negotiations, it does have the potential for greater regulatory transparency in technical barriers to trade (TBT)- and sanitary and phytosanitary (SPS)-related matters …

The End Of 'Modes Of Liability' For International Crimes, James G. Stewart

All Faculty Publications

Modes of liability, such as ordering, instigation, superior responsibility and joint criminal liability, are arguably the most discussed topics in modern international criminal justice. In recent years, a wide range of scholars have rebuked some of these modes of liability for compromising basic concepts in liberal notions of blame attribution, thereby reducing international defendants to mere instruments for the promotion of wider socio-political objectives. Critics attribute this willingness to depart from orthodox concepts of criminal responsibility to international forces, be they interpretative styles typical of human rights or aspirations associated with transitional justice. Strangely, however, complicity has avoided these criticisms …

You Can’T Post That . . . Or Can You? Legal Issues Related To College And University Students’ Online Speech, Neal H. Hutchens

Educational Policy Studies and Evaluation Faculty Publications

Online activities increasingly represent a common part of the student experience. Along with seeking to engage students in positive ways in relation to their online activities, colleges and universities must also deal with instances of when students’ online expression potentially violates campus conduct standards. This article provides a review of legal standards relevant to students’ online speech, including an examination of cases arising in an online context.