Law Commons^™

Strength In Intellectual Property Protection And Foreign Direct Investment Flows In Least Developed Countries, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

The Variation In The Use Of Sub-Regional Integration Courts Between Business And Human Rights Actors: The Case Of The East African Court Of Justice, James T. Gathii

Faculty Publications & Other Works

No abstract provided.

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

Hearsay Evidence: Legal Discourse, Circumstantiality, And The Woman In White, Matthew Finley

Global Tides

In Wilkie Collins’s The Woman in White, Walter Hartright begins the narrative by stating that, because “the Law is still … the pre-engaged servant of the long purse,” he has arranged the novel to reveal the truth (5). The author, then, puts the law on trial by engaging the interplay between legal questions of witness credibility and testimonial evidence and their impact on social factors such as class and gender. The law’s emphasis on externality leads the system to privilege the snakelike Fosco over the heroic Walter, Laura, and Marian, signaling the courts' capital offence. Although the novel is …

Trafficking Smuggled Migrants: An Issue Of Vulnerability, Rachel A. Hews

Global Tides

This paper analyzes why the UN’s efforts against the sex trafficking of smuggled migrants, specifically regarding the Palermo and Smuggling Protocols, have been inadequate in preventing migrant smuggling. It concludes that the crime-based focus on prosecution overshadows prevention of the crime and protection of the victims, and that a human rights approach addressing the vulnerability of smuggled migrants would be more effective in reducing migrant smuggling long-term. Proposed solutions include decreasing both the “push” and “pull” factors of migration by ratifying existing legislation regarding basic human rights, implementing national policies that increase migrant rights in destination countries, and shifting further …

The Rise Of The Unilateral Executive, Anna Kitsmarishvili

Global Tides

This paper addresses the impact of executive order issuance on the separation of powers among the executive and legislative branches—particularly in the realm of foreign affairs. It concludes that judicial vagueness and avoidance regarding presidential directives has resulted in increased Executive authority. The aggrandizement of presidential powers in foreign affairs is revealed through examples from both the Bush and the Obama Administrations. By reviewing landmark U.S. Supreme Court cases, such as United States v. Curtiss-Wright Corp. (1936) and Youngstown Sheet & Tube Co. v. Sawyer (1952), the paper examines the traditional framework of the Court regarding presidential direct action and …

Bending The Curve: Reflections On A Decade Of Illinois Juvenile Justice Reform, Diane C. Geraghty

Faculty Publications & Other Works

No abstract provided.

Modernizing Informed Consent: Expanding The Boundaries Of Materiality, Nadia N. Sawicki

Faculty Publications & Other Works

Informed consent law’s emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician’s personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, …

Dear I.R.S., It Is Time To Enforce The Campaigning Prohibition. Even Against Churches, Samuel Brunson

Faculty Publications & Other Works

In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the IRS was to revoke its exemption.

While simple in theory, in practice, the IRS rarely penalizes churches that violate the campaigning prohibition and virtually never revokes a church's tax exemption. And, because no taxpayer has standing to challenge the IRS's inaction, the IRS has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.

This …

Customary International Law, The Separation Of Powers, And The Choice Of Law In Armed Conflicts And Wars, John C. Dehn

Faculty Publications & Other Works

After over fourteen years of continuous armed conflict, neither courts nor commentators are closer to a common understanding of how, or the extent to which, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates and defends the first normative theory regarding the general relationship of customary international law to the U.S. legal system that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law …

Ip Litigation In United States District Courts: 1994 To 2014, Matthew Sag

Faculty Publications & Other Works

This Article undertakes a broad-based empirical review of intellectual property (“IP”) litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades.

This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt …

Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki

Faculty Publications & Other Works

No abstract provided.

Ethical Limitations On The State's Use Of Arational Persuasion, Nadia N. Sawicki

Faculty Publications & Other Works

Policymakers frequently use arational appeals – such as those relying on emotion, cognitive biases, and subliminal messaging – to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers, rather than reasoned argument. This Article develops a fuller account of the non-consequentialist objections to arational persuasion by state actors, as well as the arguments in favor of such tactics, that have been presented by scholars of rhetoric, political theory, and cognitive science. The Article concludes by proposing ethically justifiable limitations on state communications that should be compelling to …

Developing Prevention-Oriented Discipline Codes Of Conduct, Miranda Johnson, Pamela A. Fenning

Faculty Publications & Other Works

No abstract provided.

Special-Education Litigation: An Empirical Analysis Of North Carolina's First Tier, Lisa Lukasik

Scholarly Works

Special-education litigation begins, under the terms of the Individuals with Disabilities Education Act (IDEA), with an “impartial due process” proceeding. States enjoy limited discretion to establish the manner by which they will effectuate this process. Variations in implementation exist. Most states offer a “single-tiered” process, and eight offer a “two-tiered” proceeding.

National debate about the effectiveness of these administrative proceedings has increased over the last decade. One contested question is whether a single-tiered or two-tiered administrative process better serves the objectives of the Act.

Meaningful empirical examination of these specialized proceedings has begun to inform this debate, but significant research …

Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Steven A. Ramirez, Kristin N. Johnson, Cary Martin Shelby

Faculty Publications & Other Works

No abstract provided.

90th Anniversary Of Women Law Graduates, Thomas M. Haney

Faculty Publications & Other Works

No abstract provided.

Taxing Utopia, Samuel Brunson

Faculty Publications & Other Works

Nineteenth-century American religious movements challenged many aspects of American society. Although their challenges to mainstream America's vision of sex and marriage remain the best-known aspects of many of these groups, their challenges to traditional American economics are just as important. Eschewing individual ownership of property, many of these new Christian movements followed the New Testament model of a body of believers that held all property in common.

In the early twentieth century, these religious communal groups had to contend with something new: an income tax. Communalism did not fit into the individualistic economic system envisioned b-y the drafters of the …

Saving The Serengeti: Africa's New International Judicial Environmentalism, James T. Gathii

Faculty Publications & Other Works

This Article analyzes recent environmental law decisions of Africa's fledgling international courts. In 2014, for example, the East African Court of Justice stopped the government of Tanzania from building a road across Serengeti National Park because of its potential adverse environmental impacts. Decisions like these have inaugurated a new era of enhanced environmental judicial protection in Africa. This expansion into environmental law decision-making by Africa's international trade courts contrasts with other international courts that are designed to specialize on one issue area such as human rights or international trade, but not both. By contrast, Africa's international courts are simultaneously pushing …

Foster Care Reentry Laws: Mending The Safety Net For Emerging Adults In The Transition To Independence, Bruce A. Boyer

Faculty Publications & Other Works

While state child welfare agencies are notoriously bad parents, for some youth they remain the best available option. This is particularly true for older youth who have no other viable choice for permanency, and who must therefore aim toward achieving independence as graduates from the foster care system. Because of the many challenges facing youth exiting foster care to independence, most states now permit youth to receive continuing foster care services and supports beyond 18, and in many cases up to 21. Frequently, however, the goal of extending time in care for older youth is impacted by the opposition of …

An Active Learning Approach To Teaching Tough Topics: Personal Jurisdiction As An Example, Cynthia M. Ho

Faculty Publications & Other Works

No abstract provided.

Just Listening: The Equal Hearing Principle And The Moral Life Of Judges, Barry Sullivan

Faculty Publications & Other Works

No abstract provided.

A Profile Of Bio-Pharma Consolidation Activity, Jordan Paradise

Faculty Publications & Other Works

No abstract provided.

A Collision Course Between Trips Flexibilities And Investor-State Proceedings, Cynthia M. Ho

Faculty Publications & Other Works

This Article discusses an important, yet understudied threat to patent, as well as other intellectual property sovereignty under TRIPS: pending and potential challenges by companies under international agreements protecting investments. Although such agreements have existed for decades, Philip Morris and Eli Lilly are blazing a new path for companies to sue countries they claim interfere with their intellectual property rights through so-called investor-state arbitrations. These suits seek hundreds of millions in compensation and even injunctive relief for alleged violations of internationally agreed intellectual property norms. The suits fundamentally challenge TRIPS flexibilities at the very time the Declaration on Patent Protection …

Merging Two Excellent Schools To Create A Great Law School, John R. Tunheim

Mitchell Hamline Law Review

No abstract provided.

Creative Equity: A Practical Approach To The Actor's Copyright, Sarah Howes

Mitchell Hamline Law Review

No abstract provided.

Transgressions Of A Timid Judiciary: Our Highest Court's Refusal To Overturn Abood V. Board Of Education—Harris V. Quinn, Joe E. Ling

Mitchell Hamline Law Review

No abstract provided.

From Conflict To Community: The Contribution Of Circle Process In Moving From Dysfunction And Polarization To Dialogue And Understanding In Direct Public Engagement In Local Government Decision-Making, Howard J. Vogel

Mitchell Hamline Law Review

No abstract provided.

Cultivating Courageous Communities Through The Practice And Power Of Dialogue, Robert R. Stains

Mitchell Hamline Law Review

No abstract provided.

From Dysfunction And Polarization To Legislation: Native American Religious Freedom Rights And Minnesota Autopsy Law, Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, Emily Segar-Johnson

Mitchell Hamline Law Review

No abstract provided.