Law Commons^™

Unlimited Rights In A Water-Scarce World? Quantification Of Dormant Rights To Common Pool Groundwater, Jennifer L. Harder

McGeorge School of Law Scholarly Articles

No abstract provided.

The Human Right To Water: A False Promise?, Stephen C. Mccaffrey

McGeorge School of Law Scholarly Articles

No abstract provided.

The Parthenon Marbles Revisited: A New Strategy For Greece, Nadia Banteka

McGeorge School of Law Scholarly Articles

Cultural property disputes raise questions of ownership, possession, alleged destruction, and looting. They are also affected by legal vacuums, and idiosyncratic statutes of limitations. Should objects of cultural heritage that have been removed in the past be returned to their source nation? This article discusses the perennial claim Greece made to the British Museum for the return of a collection of sculptures from the Parthenon and the Acropolis of Athens. This article identifies a trajectory towards a more effective approach on cultural property disputes transcending the traditional ownership versus value debate. It advocates a shift of the discussion from one …

Policy Review And Development Guide: Lesbian, Gay, Bisexual, Transgender, Questioning, And Intersex Persons In Custodial Settings, 3rd Ed., Brenda V. Smith, Jaime M. Yarussi

Research Reports & White Papers

The Project on Addressing Prison Rape (the Project) at American University’s Washington College of Law (WCL) has had a cooperative agreement with the National Institute of Corrections (NIC) to provide training and technical assistance to high-level correctional decisionmakers on key issues in preventing and addressing staff sexual misconduct since 1999. In 2003, with the enactment of the Prison Rape Elimination Act (PREA), the Project’s focus shifted to addressing prison rape—both staff sexual misconduct and inmateon- inmate sexual abuse. Beginning in 2006, Smith Consulting began a collaborative effort with the Project and NIC to focus efforts on providing technical assistance to …

The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes (Note), Alexandra L. Klein

Faculty Articles

After the devastation of Hurricane Katrina, the monks at St. Joseph Abbey in Louisiana sought a new source of income. They began producing simple wooden coffins priced at much lower rates than caskets sold in funeral homes. After the Abbey had made a large investment in its business, St. Joseph Woodworks, the Louisiana State Board of Embalmers and Funeral Directors ordered it to close. Although the monks did not provide funeral or embalming services, a Louisiana statute regulating the funeral industry prohibited the monks from selling coffins.

Under the statute, "funeral directing" included "any service whatsoever connected with... the purchase …

Fragmented Oversight Of Nonprofits In The United States: Does It Work? Can It Work?, Lloyd Hitoshi Mayer

Journal Articles

Previously Brendan Wilson and I concluded that oversight of nonprofit governance would be most effective if it remained the responsibility of the states, although it would benefit from both a federal funding mechanism and enhanced coordination with the Internal Revenue Service.' More recently I concluded that oversight of federal tax exemption would be better served if Congress shifted the locus of that oversight to a national, self-regulatory organization working in close cooperation with the IRS given the perennial financial and other limitations faced by the IRS.2 What neither of these earlier articles addressed, however, was whether the current split of …

The Supreme Court's Quiet Expansion Of Qualified Immunity, Kit Kinports

Faculty Scholarship

This Essay discusses the Supreme Court’s tendency in recent opinions to covertly expand the reach of the qualified immunity defense available to public officials in § 1983 civil rights suits. In particular, the Essay points out that the Court, often in per curiam rulings, has described qualified immunity in increasingly broad terms and has qualified and retreated from its precedents, without offering any explanation or even acknowledging that it is deviating from past practice.

In making this claim, I focus on three specific issues: the manner in which the Court characterizes the standard governing the qualified immunity defense; the question …

Heien'S Mistake Of Law, Kit Kinports

Faculty Scholarship

The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien as just another small …

Fashioning Children: Gender Restrictive Dress Codes As An Entry Point For The Tans School To Prison Pipeline, Deanna J. Glickman

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Double Counting: The Appropriate Application Of The Vulnerable Victim Enhancement For Child Sex Offenders, Amy Yoon

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Still Not Equal: A Report From The Red States, Clifford Rosky

Utah Law Faculty Scholarship

This chapter considers how the LGBT movement might pursue legal equality — alongside lived equality — now that same-sex couples enjoy the freedom to marry across the United States. In particular, it focuses on the passage of antidiscrimination laws in swing states and red states. While this objective may sound familiar — perhaps even passé — the political dynamics and strategic dilemmas that it presents are unprecedented. As one activist admits, the challenges now facing LGBT people in swing states and red states are “unlike anything we’ve faced before.” The chapter begins by explaining why the LGBT movement is likely …

Indians, Race, And Criminal Jurisdiction In Indian Country, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

With the possible exception of the Indian Major Crimes Act, the classification of “Indian” for the purposes of the ICCA and the Duro Fix is not “racial” even if it includes non-enrolled people of Indian ancestry with significant connections to tribal communities. Furthermore, although the first prong of the Rogers test should be eliminated on policy grounds, the holding of the Zepeda court that the first prong could be satisfied by proof of blood quantum from any Indian tribe, recognized or not, is highly suspicious, seems to be arbitrary, and boosts the argument that the classification of “Indian” in such …

Drinking From A Firehose: Conversation Analysis Of Consultations In A Brief Advice Clinic, Linda F. Smith

Utah Law Faculty Scholarship

This article concerns the important issues of access to justice and practical lawyering skills. Clients are representing themselves in family law matters in ever increasing numbers. Courts, bar groups, nonprofits and law schools have responded by offering “brief advice” clinics. How well these clinics operate can significantly influence the public’s access to justice. This article analyses actual consultations in a brief advice clinic relying upon transcriptions of recordings and using conversation analysis techniques. This analysis demonstrates that the matters brought to the clinic are not “simple” ones where legal representation is not needed. These clients are facing serious problems from …

Let Them In: Family Presence During Intensive Care Unit Procedures, Leslie P. Francis, Sarah J. Beesley, Ramona O. Hopkins, Diane Chapman, Joclynn Johnson, Nathanael Johnson, Samuel M. Brown

Utah Law Faculty Scholarship

Families have for decades advocated for full access to intensive care units (ICUs) and meaningful partnership with clinicians, resulting in gradual improvements in family access and collaboration with ICU clinicians. Despite such advances, family members in adult ICUs are still commonly asked to leave the patient’s room during invasive bedside procedures, regardless of whether the patient would prefer family to be present. Physicians may be resistant to having family members at the bedside due to concerns about trainee education, medicolegal implications, possible effects on the technical quality of procedures due to distractions, and procedural sterility. Limited evidence from parallel settings …

Applied Ethics: A Misnomer For A Field?, Leslie Francis

Utah Law Faculty Scholarship

You may have guessed that I’m a pragmatist, methodologically. To that, I plead guilty; I think ethics could learn a great deal from the pragmatist tradition. And one of the most important things it could learn is to object to artificial separations between “ethics” and its “application.”

Trump University And Presidential Impeachment, Christopher L. Peterson

Utah Law Faculty Scholarship

Donald J. Trump (“Trump”), the Republican Party’s 2016 nominee for President of the United States, currently faces three lawsuits accusing him of fraud, false advertising, and racketeering. These ongoing cases focus on a series of wealth seminars Trump called “Trump University” which collected over $40 million from consumers seeking to learn Trump’s real estate investing strategies. Although these consumer protection cases are civil proceedings, the underlying legal elements in several counts plaintiffs seek to prove run parallel to the legal elements of serious crimes under both state and federal law. Somehow in the cacophony of the 2016 presidential campaign, no …

Same-Sex Marriage Litigation And Children's Right To Be Queer, Clifford Rosky

Utah Law Faculty Scholarship

This essay examines how lawyers and judges have framed the question of children’s queerness in litigation over samesex marriage. First, it argues that in United States v. Windsor and Obergefell v. Hodges, the US Supreme Court invoked the tropes of dignity, injury, and immutability to set the outer limits of sexual liberty for both children and adults. Next, the essay looks back to the early work of queer theorists, legal scholars, and lawyers to unearth a more promising vision of law’s relationship to children’s queerness. By juxtaposing how two judges approached the possibility of the gay child in Utah and …

Role-Play Simulations For Climate Change Adaptation Education And Engagement, Danya Rumore, Todd Schenk, Lawrence Susskind

Utah Law Faculty Scholarship

In order to effectively adapt to climate change, public officials and other stakeholders need to rapidly enhance their understanding of local risks and ability to collaboratively and adaptively respond. We argue that science-based role-play simulation exercises, a type of ‘serious game’ involving face-to-face mock decision-making, have considerable potential as education and engagement tools for enhancing readiness to adapt. Prior research suggests role-play simulations and other serious games can foster public learning and encourage collective action in public policy-making contexts. However, the effectiveness of such exercises in the context of climate change adaptation education and engagement has heretofore been underexplored. We …

The Struggle For The Rule Of Law In South Africa (Symposium: Twenty Years Of South African Constitutionalism: Constitutional Rights, Judicial Independence And The Transition To Democracy), Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Do We Need Subject Matter-Specific Pedagogies?, Kris Franklin

Articles & Chapters

No abstract provided.

In The Wasteland Of Your Mind: Criminology, Scientific Discovieries And The Criminal Process, Michael L. Perlin, Alison Lynch

Articles & Chapters

This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.

Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to …

Freedom Of Speech And Equality: Do We Have To Choose?, Nadine Strossen

Articles & Chapters

No abstract provided.

Current Issues In Therapeutic Jurisprudence, David Wexler

Articles & Chapters

No abstract provided.

Research Governance, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Forthcoming in Climate Engineering and the Law: Regulation and Liability for Solar Radiation Management and Carbon Dioxide Removal (Michael B. Gerrard & Tracy Hester, eds.), this chapter approaches the complex topic of climate engineering research governance in four Parts.

Part I describes the forms research has taken so far and those that are expected in the future. It also offers short summaries of five instances of climate engineering field research conducted since 2009. Part II considers the key issues and concerns that have prompted calls for governance and that have inspired sometimes heated debate of what it should involve. Part …

Climate Change And Sustainable Development In Brazilian Law, Gabriel Wedy

Sabin Center for Climate Change Law

This article aims to explain briefly how the National Policy for Climate Change (NPCC) in Brazil - established by Act 12.107/2009 – is structured. This Act will be critically analyzed according to what is being currently discussed on Climate Change Law, both globally and within the United States.

It will also seek to demonstrate the importance of the constitutional principle of sustainable development provided for in the Brazilian Federal Constitution in order to correct omissions and imperfections of the National Policy for Climate Change, whenever it is subject to interpretation and implementation by the Judiciary branch, the Executive branch and …

The Director Duty Of Care In Qatar, Joel Slawotsky, Jon M. Truby

Duke Journal of Comparative & International Law

In this age of globalization, cross-border investment and intense competition for capital, comparative corporate governance is an increasingly important topic. This Article examines and analyzes the duty of care for directors of publicly-traded companies, comparing Qatari law with Delaware law. It finds that Qatari law on the duty of care is deficient in several respects. Under current Qatari law, directors are liable for duty of care violations for “mistaken” business decisions. Neither gross negligence nor something more than mere negligence is required. Moreover, Qatari law makes these duties non-exculpatory. Thus, in comparison with Delaware, Qatari director obligations are riskier to …

Affordable Care Act Fails For Lack Of Uniformity, Steven J. Willis, Hans G. Tanzler Iv

University of Florida Journal of Law & Public Policy

No abstract provided.

Still Searching For The Tzutzu Flower: Cautions Against Extending The Federal Analogue Act Of 1986, Audrey Redford

University of Florida Journal of Law & Public Policy

No abstract provided.

Copyright Infringement And The Fair Use Defense: Navigating The Legal Maze, Daniel P. Fernandez, H. Wayne Cecil, Alex R. Figares

University of Florida Journal of Law & Public Policy

No abstract provided.

Rated "M" For Misleading: How Deceptive, Anti-Consumer Practices In The Videogame Industry Became The New Norm, Luis Baez

University of Florida Journal of Law & Public Policy

No abstract provided.