Law Commons^™

The Questionable Constitutionality Of Curtailing Cuckolding: Alienation-Of Affection And Criminal-Conversation Torts, H. Hunter Bruton

Duke Law Journal

What can you do if your husband or wife cheats on you? Go to a marriage counselor? Seek a divorce? Sue the marital interloper for millions of dollars in damages? The third option is still available in some states through actions euphemistically titled “alienation of affection” and “criminal conversation.” This Note tackles their constitutionality in light of the Supreme Court’s growing body of jurisprudence dealing with intimate relations and marital status. Put simply, it attempts to answer the question: Is there a constitutional right to commit adultery? After exploring both the First and Fourteenth Amendments as avenues for establishing this …

How Courts Adjudicate Patent Definiteness And Disclosure, John R. Allison, Lisa Larrimore Ouellette

Duke Law Journal

Section 112 of the Patent Act requires patentees to clearly explain what their invention is (a requirement known as claim definiteness), as well as how to make and use it (the disclosure requirements of enablement and written description). Many concerns about the modern patent system stem from these requirements. But despite the critical importance of § 112 to the functioning of the patent system, there is surprisingly little empirical data about how it has been applied in practice. To remedy the reliance on anecdotes, we have created a hand-coded dataset of 1144 reported court decisions from 1982 to 2012 in …

Removing The "Silencer": Coverage And Protection Of Physician Speech Under The First Amendment, Ryan T. Weiss

Duke Law Journal

The physician–patient relationship rests on a bedrock of trust. Without trust, patients—and for that matter, physicians—are less willing to divulge information critical to providing accurate medical diagnoses and treatments. The state of Florida seemingly ignored this when its legislature, with support from the National Rifle Association and other pro-gun advocates, enacted the Firearm Owners Privacy Act (FOPA), a statute that restricts physicians from questioning their patients about firearm ownership. In Wollschlaeger v. Governor of Florida , the United States Court of Appeals for the Eleventh Circuit held that FOPA did not regulate physician speech but, instead, regulated physician conduct. As …

Journal Staff

Duke Law Journal

No abstract provided.

Process And Reconciliation: Integrating The Duty To Consult With Environmental Assessment, Neil Craik

Osgoode Hall Law Journal

As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. …

Book Review: The Strategic Constitution: Understanding Canadian Power In The World By Irvin Studin, Stephen Paul Haigh

Osgoode Hall Law Journal

This is a book review of The Strategic Constitution: Understanding Canadian Power in the World by Irvin Studin

Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley

Osgoode Hall Law Journal

Recent American debates about the relationship between the historic political compromises underlying constitutional provisions and their contemporary judicial application have been largely ignored in Canada. The Supreme Court of Canada has only twice referred to originalism—and never positively. But in two 2014 decisions about how central institutions of government—the Senate and the Supreme Court of Canada itself—might be changed, the Court relied on the underlying historic political compromises to interpret the Constitution, rejecting arguments from the text or democratic principle. In this article, I consider how Canadian courts have looked to history in the past and in the 2014 decisions, …

The Objectives And Principles Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade

Osgoode Hall Law Journal

Article 7 (Principles) and Article 8 (Objectives) are prominent within the text of the WTO TRIPS Agreement, yet have figured sparingly in the reasoning of the Dispute Settlement Body (DSB). This discrepancy is accentuated when considered in light of three key factors. First, the pioneering step taken by TRIPS negotiators to include broad declarations of intent within the operative text. Second, the 2001 reinforcement given to these provisions in the Doha Declaration on TRIPS and Public Health. Finally, the verbatim replication of these provisions within other international IP instruments, notably, the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and the WIPO …

Shining A Light On Shadow Money, John Crawford

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Court Addresses Entrenchment Claims Brought Against Directors Under Activist Hedge Fund Attack, Robert S. Reder, Stanley Oneyeador

Vanderbilt Law Review En Banc

No abstract provided.

Delaware Court Invalidates Commonly-Used Corporate Classified Board Provision As Contrary To Delaware Law, Robert S. Reder, Lauren Messonnier Meyers

Vanderbilt Law Review En Banc

No abstract provided.

Is Erie Normal, Michael S. Greve

Vanderbilt Law Review En Banc

No abstract provided.

The Constitution Of Agency Statutory Interpretation, Evan J. Criddle

Vanderbilt Law Review En Banc

No abstract provided.

In Praise Of (Some) Ex Post Regulation: A Response To Professor Galle, Kyle D. Logue

Vanderbilt Law Review En Banc

No abstract provided.

A Closer Look At Ncmp, Elected President Reforms, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

The proposed changes to the political system continue the Government’s narrative that political reforms ought to enhance Parliament’s representativeness and increase Singaporeans’ civic participation. They reinforce the Government’s abiding belief that the political system must produce a Government with a clear mandate, demonstrated through a strong parliamentary majority, for it to govern resolutely and decisively in the long-term interests of Singapore.

Enactment Of Apology Legislation In Hong Kong: Report And Second Round Consultation, Lisa Wong, Kit Wah Cecilia Wong Ng, Hing Cheung Thomas Au, Nadja Alexander, Lok Kwan David Dai, Hing Fung Leung, Wai Hung Francis Law, Queenie Lau, Ting Kwok Iu, Shing Ping James Chiu, Shahla Ali, Michael Beckett, Thomas Edward Kwong

Research Collection Yong Pung How School Of Law

Nadja Alexander was contributor to the Report of the Department of Justice of Hong Kong as Chair of the Working Group.In the report published by the Working Group on Mediation of the Department of Justice in 2010, it was recommended, among others, that the question of whether there should be an apology or legislative provisions dealing with the making of apologies for the purpose of enhancing settlement deserves further consideration. In 2012, for Secretary for Justice established the Steering Committee on Mediation ("Steering Committee") with a view to further promoting the development of mediation in Hong Kong. The regulatory Framework …

The End Of Ownership: Personal Property In The Digital Economy, Aaron Perzanowski, Jason Schultz

Books

An argument for retaining the notion of personal property in the products we “buy” in the digital marketplace.

The open access edition of this book was made possible by generous funding from Arcadia – a charitable fund of Lisbet Rausing and Peter Baldwin.

If you buy a book at the bookstore, you own it. You can take it home, scribble in the margins, put in on the shelf, lend it to a friend, sell it at a garage sale. But is the same thing true for the ebooks or other digital goods you buy? Retailers and copyright holders argue that …

Abercrombie 2.0 - Can We Get There From Here? The Thoughts On 'Suggestive Fair Use', Joseph S. Miller

Scholarly Works

Professor Linford, unlike Caesar’s Antony, seeks not only to bury Abercrombie, but to praise it, at least in part. Using linguistic evidence, both historical and experimental, he would relocate a bobbled boundary—from the descriptive–suggestive transition to the suggestive–arbitrary transition—and thereby establish a reformed template for sorting word marks according to their source-signifying strength. The basic difference between acquired and inherent distinctiveness not only remains in Linford’s account, however; it draws new strength from insights about semantic change. Behold, Abercrombie 2.0! His recent article, which is both provocative and engaging, continues the reconstructive work Linford began in his critique of …

Best Practices For A State Alzheimer's Disease Registry: Lessons From Georgia, Elizabeth Weeks Leonard, Rui Bu, Amanda Alexandra Brown

Scholarly Works

In May 2014, the Georgia General Assembly enacted legislation establishing the Alzheimer’s Disease Registry (“Registry”) in order to generate new data for research and policy planning. The Task Force bill followed similar federal legislation. This state action has not only drawn tremendous attention to the continued prevalence of Alzheimer’s disease among the population of Georgia but also raised a series of questions regarding the practicability, legality, and effectiveness of the Registry. The lessons learned in Georgia, as Registry implementation moves forward, will provide guidance for other states interested in collecting similar data. In Part I of this article we describe …

A Hitchhiker’S Guide To The Oecd’S International Vat/Gst Guidelines, Walter Hellerstein

Scholarly Works

The OECD’s International VAT/GST Guidelines, which were released in their consolidated form at the OECD’s Global Forum on VAT in Paris in late 2015, are the culmination of nearly two decades of efforts to provide internationally accepted standards for consumption taxation of cross-border trade, particularly trade in services and intangibles. This article provides a roadmap to the Guidelines, especially for readers who may be unfamiliar with consumption tax principles, in general, or VATs in particular. Part II of the article provides the background to the Guidelines, describing the basic features of a VAT, the problems with which the Guidelines are …

Children, Diane Marie Amann

Scholarly Works

This chapter, which appears in The Cambridge Companion to International Criminal Law (William A. Schabas ed. 2016), discusses how international criminal law instruments and institutions address crimes against and affecting children. It contrasts the absence of express attention in the post-World War II era with the multiple provisions pertaining to children in the 1998 Statute of the International Criminal Court. The chapter examines key judgments in that court and in the Special Court for Sierra Leone, as well as the ICC’s current, comprehensive approach to the effects that crimes within its jurisdiction have on children. The chapter concludes with a …

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney's Fees Under Section 505 Of The Copyright Act, David E. Shipley

Scholarly Works

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

Ethical Challenges Of Using Law Student Interns/Externs To Expand Services To Low-Income Older Adults, Eleanor Lanier

Scholarly Works

No abstract provided.

Considering The Best Interests Test In The Context Of Disabilities, Vincent Ooi, Jia Wei Loh

Research Collection Yong Pung How School Of Law

The United Kingdom is bound by several international obligations to eliminate discrimination against persons with disabilities, chief among these being the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’), which was ratified on 8 June 2009.Compliance with these obligations is secured at the domestic level through provisions such as those in the Equality Act 2010 (‘EA 2010’). However, parents with disabilities remain exceptionally vulnerable to losing the care and custody of their children under care orders and child arrangements orders.Thus, in 2006 the Social Care Institute for Excellence conducted a knowledge review which found that social workers …

Editorial Board And Table Of Contents

Child and Family Law Journal

No abstract provided.

Victims With Responsibilities: Requiring Male Victims Of Statutory Rape To Pay Child Support With No Escape, Jessica Persaud

Child and Family Law Journal

No abstract provided.

Gras-Fed Americans: Sick Of Lax Regulation Of Food Additives, Martha Dragich

Faculty Publications

Americans are “GRAS-fed” because of a “loophole” in the strict regime Congress provided for the regulation of food additives. Additives - and food products containing them - are exempt from this strict regime if they are accorded GRAS (Generally Recognized as Safe) status. The guidelines Congress provided for achieving that status by scientific evidence of safety are no longer observed. Most additives are determined by the producer alone to be GRAS. At the same time, Americans’ consumption of highly processed foods continues to rise, giving rise to long-term health problems that are increasingly tied to diet. The average American’s diet …

Just A Bit Aside, Howard Wasserman

Faculty Publications

In "Time to Drop the Infield Fly Rule and End a Common Law Anomaly," Judge Andrew Guilford and Joel Mallord offer the first cohesive scholarly critique of baseball's venerated and venerable Infield Fly Rule. They argue that the rule is grounded in outdated notions of sportsmanship and opposition to deception and that the game would be more exciting if players could be left to their own strategic and skillful devices on infield fly balls. This Response Essay builds on my previous work to argue that, properly understood, the Infield Fly Rule is justified, necessary, and appropriate in order to to …

Policing Celebratory Behavior: Tactical Vs. Relationship, A Micro Study Of Lexington Kentucky Police Response, Gregg Nelson Jones

Online Theses and Dissertations

In the last three plus decades, considerable attention has been given to certain common phases in the life cycle of gatherings, demonstrations, and riots in the United States. Much of the study focuses on theoretical origin and social psychology associated with each type of event. There is considerably less empirical work regarding police reaction to these events, particularly concerning celebratory behavior following a sporting event. Celebratory incidents are less organized than their protests counterpart. A variety of fans with collective zeal gather in a common location without leadership or mission. Celebratory behavior has become commonplace amongst fans in cities with …

Assessing The Effectiveness Of Safety Training Provided To Corrections Personnel In Appalachia, Ali K. Al Yammahi

Online Theses and Dissertations

The context of the study was assessment of whether corrections officers in Appalachia are receiving adequate health and safety training who attended health and safety trainings sessions provided by the OSHA Training Institute and Education Center on the campus of Eastern Kentucky University. Participants included in the study were corrections officers who have been working in corrections for a minimum of two years. Participants were required to be working in Appalachian corrections during distribution of the questionnaire. Participants were selected by using convenience and snowball sampling procedures. The questionnaire was sent on 4 separate occasions, 10 of the expected 30 …