Law Commons^™

Preface - Lsu Journal Of Energy Law And Resources, Patrick H. Martin

LSU Journal of Energy Law and Resources

No abstract provided.

Crisis In The Classroom: Using Simulations To Enhance Decision-Making Skills, Shawn Marie Boyne

Journal of Legal Education

No abstract provided.

Traditional Knowledge, Cultural Expression, And The Siren's Call Of Property, Justin Hughes

Articles

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas

Articles

No abstract provided.

Criminal Law And Procedure, Aaron J. Campbell, Kathleen B. Martin

University of Richmond Law Review

This article aims to give the criminal law practitioner a succinct review of significant cases regarding criminal law and procedure decided by the Supreme Court of Virginia and the Court ofAppeals of Virginia during the past year. The authors have focused their discussion of the cases on cogent points found in the holdings. The article also briefly summarizes recent legislative enactments pertaining to criminal law.

Taxation, Craig D. Bell

University of Richmond Law Review

No abstract provided.

How (Not) To Talk About Abortion, Meredith Johnson Harbach

University of Richmond Law Review

No abstract provided.

The Moral Complexity Of Cause Lawyers Within The State, David Luban

Fordham Law Review

No abstract provided.

Unconstitutional Animus, Susannah W. Pollvogt

Fordham Law Review

   It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively how animus is properly defined, what counts as evidence of animus in any given case, or the precise doctrinal significance of a finding of animus. The U.S. Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while a number of scholars have discussed animus in terms of moral philosophy, …

But Is It Just? The Inability For Current Adjudicatory Standards To Provide “Just Compensation” For Creeping Expropriations, Shain Corey

Fordham Law Review

   In hopes of promoting foreign direct investment, the world has experienced an influx of bilateral investment treaties over the past twenty years. One protection these treaties afford to foreign investors is the guarantee of “just compensation” if the host government expropriates their investment, either directly or indirectly. Extensive jurisprudence exists discussing how a tribunal determines “just compensation” in cases of expropriation; however, these methods have historically revolved around valuing direct expropriations. While tribunals use these same methods to value indirect expropriations, analysis of these adjudications, particularly in the cases of a creeping expropriation, result in inconsistent and unpredictable outcomes

   This …

Unclear Authority, Unclear Futures: Challenges To State Legislation Providing In-State Tuition Benefits To Undocumented Students Pursuing Higher Education, Julia R. Kim

Fordham Law Review

   Exercising its federal power to regulate immigration, Congress has responded to illegal immigration by enacting deterrent legislation that includes provisions denying public benefits to undocumented immigrants. One of these provisions, 8 U.S.C. § 1623, explicitly bars states from providing postsecondary education benefits to undocumented immigrants on the basis of in-state residency. As a consequence, undocumented young adults—many of whom grew up and received their primary and secondary education in the United States—are effectively barred from pursuing higher education by their ineligibility for in-state tuition rates and financial aid. Some states, however, have evaded the § 1623 bar by providing undocumented …

A Gate Forever Closed? Retiring Immigration Law’S Post-Departure Bar, Jonathan H. Ross

Fordham Law Review

   Immigration law’s “post-departure bar” destroys the jurisdiction of either an immigration judge or the Board of Immigration Appeals to hear a motion to reopen or reconsider filed by an alien who is no longer physically within the country. This Note examines the current conflict between the federal circuits regarding the post-departure bar and why the circuits that have decided to strike down the bar in the cases before them have ruled in line with certain trends present in recent Supreme Court immigration cases.

   Conflict between the circuits has arisen because the governing statute, the Illegal Immigration Reform and Immigrant Responsibility …

Funding Conditions And Free Speech For Hiv/Aids Ngos: He Who Pays The Piper Cannot Always Call The Tune, Alexander P. Wentworth-Ping

Fordham Law Review

   The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act pledges billions of dollars to fund NGOs combating the HIV/AIDS epidemic but requires recipients to adopt a policy explicitly opposing prostitution and sex trafficking. A possible recipient NGO confronts a tough decision: adopt an affirmative statement against prostitution and sex trafficking to accept the funds, alienating a vital partner in its efforts to eradicate HIV/AIDS; or deny the funds to speak its own message, though without the benefit of government assistance.

   Courts are split on whether the Leadership Act’s policy requirement places an unconstitutional condition on federal funds that requires …

Harmonizing Commercial Wind Power And The Endangered Species Act Through Administrative Reform, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Article explores the intersection of utility-scale wind power development and the Endangered Species Act, which thus far has not been as happy a union as one might expect. Part I provides background on how the ESA and wind power have met in policy, permitting, and litigation. Part II then examines whether wind power (and other renewable energy sources) can and should receive a green pass under the ESA given its unquestioned climate change mitigation benefits, concluding that doing so would face a host of legal and policy concerns. Part III then outlines a model for administrative innovation of ESA …

Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine …

Supply And Demand: Barriers To A New Energy Future, Jim Rossi, Michael P. Vandenbergh, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy …

International Law In Domestic Courts And The Jurisdictional Immunities Of The State Case, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

National court litigation in Greece and Italy prompted Germany to bring suit before the international Court of Justice (‘ICJ’), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, as well as the ICJ’s judgment itself, raise two questions about the relationship between executive branches and courts. First, if national court decisions conflict with the views of the forum state’s executive branch, which controls for the purpose of determining state practice in customary international law? Secondly, are national courts more likely to produce ‘outlier’ decisions that challenge or undermine existing international law when the forum state’s …

Customizing Employment Arbitration, Randall Thomas, Kenneth J. Martin, Erin O'Hara O'Connor

Vanderbilt Law School Faculty Publications

According to the dispute resolution literature, one advantage of arbitration over litigation is that arbitration enables the parties to customize their dispute resolution procedures. For example, parties can choose the qualifications of the arbitrator(s), the governing procedural rules, the limitation period, recoverable damages, rules for discovery and the presentation of evidence and witnesses, and the specificity of required arbitrator findings. While other scholars have questioned whether parties to arbitration agreements frequently take advantage of this customization, there is little solid empirical information about the topic. In this article, we study the arbitration clauses found in a random sample of 910 …

The Endangered Species Act's Fall From Grace In The Supreme Court, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Thirty-five years ago, the Endangered Species Act ("ESA") had as auspicious a debut in the U.S. Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended "to halt and reverse the trend toward species extinction, whatever the cost" and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed …

The Political Economy Of Climate Change Winners, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Many people and businesses in the United States stand to receive market and nonmarket benefits from climate change as it moves forward over the next 100 years. Speaking of climate change benefits is not for polite 'green' conversation, but ignoring them as climate policy dialogue and legal scholarship consistently have" will not make them go away. It is important to take climate change benefits into account if they lead people and businesses to believe that climate change will not be so bad for them, or even to believe it has made them into climate change winners. Thus, whereas legal scholars …

The Tax Expenditure Budget Is A Zombie Accountant, Steven A. Dean

Faculty Scholarship

Like a student blocking his access to the internet to help him study, governments across the globe rely on commitment devices to generate fiscal discipline. From the collapse of the Congressional Supercommittee in the United States to the near-cataclysmic failure of a mechanism designed to prevent the European Union debt crisis, the evidence suggests that faith in such commitment devices is misplaced. This Article focuses on one such device that stubbornly refuses to stay dead: the tax expenditure budget. Created to guard against abuse by publicizing the costs of tax subsidies then resurrected as a bean counter, the tax expenditure …

The Litigation Finance Contract, Maya Steinitz

Faculty Scholarship

Litigation funding-for-profit, nonrecourse funding of a litigation by a nonparty-is a new and rapidly developing industry. It has been described as one of the "biggest and most influential trends in civil justice" today by RAND, the New York Times, and others. Despite the importance and growth of the industry, there is a complete absence of information about or discussion of litigation finance contracting, even though all the promises and pitfalls of litigation funding stem from the relationships those contracts establish and organize. Further, the literature and case law pertaining to litigation funding have evolved from an analogy between litigation funding …

Back From The Abyss: Real Estate Tax Planning From The Bottom Up (Slides), Steven M. Friedman

William & Mary Annual Tax Conference

No abstract provided.

Interstate Transmission Challenges For Renewable Energy: A Federalism Mismatch, Alexandra B. Klass, Elizabeth J. Wilson

Vanderbilt Law Review

It is impossible to talk about developing renewable energy resources in the United States without also talking about developing electric transmission infrastructure. More specifically, the transmission-planning strategies that may have worked in the past are no longer effective to integrate new sources of renewable energy into the transmission grid. Transmission lines were historically built to link large stationary power plants to nearby electricity demand centers like cities. For renewable energy, however, state mandates and policies are driving investment in wind-and to a lesser extent solar-energy, creating a need for new transmission lines to link these dispersed resources with electric load …

Building-Related Renewable Energy And The Case Of 360 State Street, Sara C. Bronin

Vanderbilt Law Review

This Article focuses on small-scale and midsized facilities and does not consider large-scale facilities, which tend to be located far from population centers. These facilities certainly raise pressing legal concerns, not least of which is how the energy sprawl they create should be managed. Indeed, siting (along with initial start-up financing) is a primary barrier to large-scale renewable energy. This Article sets large-scale facilities aside and focuses primarily on projects whose scale allows them to be incorporated into inhabited structures.

Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch

Scholarly Works

This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorneyclient conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. …

Towards A Communicative Theory Of International Law, Timothy L. Meyer

Scholarly Works

Does international law's effectiveness require a clear distinction between law and non-law? This essay, which reviews Jean d'Aspremont's Formalism and the Sources of International Law, argues the answer is no. Ambiguity about the legal nature of international instruments has important benefits. Clarity in the law may encourage states to do the minimum necessary to comply, while some uncertainty about what the law requires may induce states to take extra efforts to ensure they are in compliance. Ambiguity in the law also promotes dynamic change, an important feature in rapidly developing areas of the law such as international environmental law and …

Pro Bono Collaborative E-Newsletter (No. 10) (November 2012), Roger Williams University School Of Law

Pro Bono Collaborative Newsletter

No abstract provided.

Shifting Seas: The Law's Response To Changing Ocean Conditions (9th Marine Law Symposium) (November 14-15, 2012), Roger Williams University School Of Law Library

Marine Affairs Institute Conferences, Lectures, and Events

No abstract provided.

2012 Byu Law School Annual Report, J. Reuben Clark Law School

The BYU Advocate (& Annual Reports)

No abstract provided.