Law Commons^™

Applying Life Insurance Principles To Coastal Property Insurance To Incentivize Adaptation To Climate Change, Edward P. Richards

Journal Articles

Current levels of greenhouse gases will result in significant sea level rise in the future, irrespective of the success of any future mitigation efforts. Paleoclimate and geologic data from past periods of rising sea level show that low lying areas, especially river deltas which are home to half a billion people, will be inundated. The best way to represent this risk through insurance is to apply the human-life insurance model to coastal property insurance. Human-life insurance is based on the assumption that every insured will die. Because the risk of death increases with age, the cost of insurance increases with …

Gay Marriage And The Problem Of Property, Andrea B. Carroll, Christopher K. Odinet

Journal Articles

The Supreme Court's gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court's ruling. In this Commentary, we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses. This is particularly important when considering the rights of third parties and their settled expectations in the context of retroactivity, as well the ways in which the Court's decision may …

Substantial Confusion About "Substantial Burdens", Chad Flanders

All Faculty Scholarship

As the Supreme Court rev1s1ts the clash between religious belief and the Affordable Care Act (ACA) in the Zubik¹ case, it is worth mulling over a key phrase in the law that governs that clash: '·substantial burden." According to the Religious Freedom Restoration Act (RFRA), the government must-provided it does not meet certain other conditions, such as showing a compelling interest-make an accommodation if it places a ''substantial burden'' on a person's religious exercise.² If the question in the Hobby Lobby case was whether a for-profit corporation could be a ''person" that ''exercised religion,"³ the question the …

Should The Best Offense Ever Be A Good Defense?, Colonel Gary P. Corn

Vanderbilt Journal of Transnational Law

The Chairman of the Joint Chiefs of Staff's Standing Rules of Engagement/Standing Rules for the Use of Force (SROE/SRUF) for U.S. Forces provides strategic guidance to the armed forces on the authority to use force during all military operations. The standing self-defense rules in the SROE for national, unit, and individual self-defense form the core of these use-of-force authorities. The SROE self-defense rules are incorrectly built on a unitary jus ad bellum framework, legally inapplicable below the level of national self-defense. Coupled with the pressures of sustained counter-insurgency operations, this misalignment of individual and unit self-defense authorities has led to …

Tax, Don't Ban: A Comparative Look At Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

Massive migration of Muslims to the West in recent years has raised the question whether Shari'a--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through …

Mystery Date: Advocating For A Harmonized System Of Expiration Date Labeling Of Food, Akshat Tiwari

Vanderbilt Journal of Transnational Law

Americans throw out roughly 25 percent of the food they bring home. Negative perceptions associated with expiration dates are a leading cause for this waste. However, a complex patchwork of state-run regulatory regimes and varying terminology makes it difficult for consumers to determine whether a food product is unsafe to eat or simply past a peak quality level arbitrarily set by manufacturers. Regulatory trends in Europe, the United Kingdom, Canada, Australia, and New Zealand suggest a move towards binding expiration date labeling through guidelines for establishing a "best before" or "use-by" date. This Note examines laws currently in place in …

Religion And Child Custody, Margaret F. Brinig

Journal Articles

This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …

Student-Edited Law Reviews Should Continue To Flourish, Sudha Setty

Faculty Scholarship

In this Article, the Author opines that the institution of the student-edited law review could no doubt be improved upon in a number of ways, but the existence of the student-edited journal should be sustained, nurtured, and grown by law school administration and faculty. Helping student-edited law reviews improve and flourish should be part of the mission of teachers, scholars, and lawyers committed to providing a skills-based education, for an intellectual discourse, and a service to the legal community.

Space Traffic Management: A Challenge Of Cosmic Proportions, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Space traffic management has often, for example in the IAA Cosmic Study of 2006, been rather broadly defined as “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from space to Earth free of physical or radio-frequency interference.” Oftentimes, especially in space law literature, references or even comparisons have been made to traffic management as it has developed in aviation and (to a lesser extent) in maritime transport.

However, it should be realized that space traffic management, especially under the definition quoted, comprises a considerably larger range of activities …

Arbitrator Behaviour In Asymmetrical Adjudication (Part Two): An Examination Of Hypotheses Of Bias In Investment Treaty Arbitration, Gus Van Harten

Osgoode Hall Law Journal

This article reports on a study of potential systemic bias in the resolution of ambiguous legal issues by investment treaty arbitrators. It outlines tentative but significant findings that the arbitrators in general tended to favour (1) foreign investors over states overall, (2) foreign investors from major Western capital-exporting states over other foreign investors, and, albeit based on more limited data, (3) the United States as a respondent state over other respondent states. The evidence is derived from an extensive content analysis of the arbitrators’ resolution of fourteen legal issues that are contested among arbitrators or in secondary literature. The findings …

Bordering The Constitution, Constituting The Border, Efrat Arbel

Osgoode Hall Law Journal

It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site at which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS)--a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation--I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border in two fundamentally different …

Reconsidering Copyright’S Constitutionality, Graham J. Reynolds

Osgoode Hall Law Journal

In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [Michelin], Justice Teitelbaum of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms and that, even if they did, these provisions could be justified under s 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these conclusions …

Unfair Treatment For Experienced Pilots— How The Ninth Circuit Promoted Age Discrimination, Dana Hilzendager

Journal of Air Law and Commerce

No abstract provided.

Employment Law - A Union's Duty Of Fair Representation In Pilot Seniority Negotiations, Kelly Almeter

Journal of Air Law and Commerce

No abstract provided.

Busted Benefits—The Seventh Circuit Honors Explicit Contractual Terms Of United’S Mileageplus Benefits Program, Abigail Storm

Journal of Air Law and Commerce

No abstract provided.

Wright Is Still Wrong: The Wright Amendment Reform Act And Airline Competition At Dallas Love Field, Barrett V. Armbruster

Journal of Air Law and Commerce

No abstract provided.

Fingerprints: A New Means Of Identification In Airport Security Screening, Chase Hilton

Journal of Air Law and Commerce

No abstract provided.

Safety In The Sky: Will Reforming And Restructuring The Tsa Improve Our Security Or Merely Infringe On Our Rights?, Katherine A. Lowe

Journal of Air Law and Commerce

No abstract provided.

Food Allergies On Flights - How A Narrow Interpretation Of "Service" Preemption Under The Airline Deregulation Act Could Give Allergic Passengers Much Needed Protection, Laci Verdusco Resendiz

Journal of Air Law and Commerce

No abstract provided.

Airline Security And Employee Immunity: The Second Circuit Promotes Airline Security Interests At All Costs—Even If It Means Throwing Efficiency And Accountability By The Wayside, Landon M. Hankins

Journal of Air Law and Commerce

No abstract provided.

Federal Preemption—The Hazy Line Of Common Law Claim Preemption Under The Airline Deregulation Act, Jessica Mannon

Journal of Air Law and Commerce

No abstract provided.

Hijacking Open Skies: The Line Between Tough Competition And Unfair Advantage In The International Aviation Market, Hannah E. Cline

Journal of Air Law and Commerce

No abstract provided.

"He Said, She Said": With A Twist, Ronen Perry, Oren Gazal-Ayal, Chen Toubul

SMU Law Review

Many studies have explored the effect of judges’ memberships in social categories, such as gender, ethnicity, religion, age, and political affiliation, on their decisions. No study has investigated whether membership in social categories affects public perceptions of judicial decisions, especially when such membership is suspected to affect one’s perception of reality. This question is important, inter alia, because the argument that the judiciary must be representative or reflective of society is partly linked to the assumption that representation enhances public trust in the judiciary. Such an assumption holds to the extent that lack of representation is perceived by members of …

A Correlational Analysis Of Secondary Data For Factors Influencing Graduation From Adult Drug Court, David N. Masri

Theses and Dissertations

The proliferation of drug courts throughout the world over the last two decades presents an opportunity and a challenge. The drug court approach involves a combination of treatment and judicial supervision which is a diversion from incarceration and/or ‘traditional’ criminal justice supervision. Despite widespread study of drug courts, there is much that researchers still do not know and there is still controversy as to how and why drug courts work. This research study is an examination of secondary data from an urban, mid-Atlantic drug court to attempt to correlate factors that contribute to success (as defined by graduation) in drug …

Fraud On The Court And Abusive Discovery, David R. Hague

Faculty Articles

Unbeknownst to many, federal courts have the power under the Federal Rules of Civil Procedure to set aside judgments entered years earlier that were obtained by “fraud on the court.” Fraud on the court, however, can take many forms and courts and commentators agree that it is a nebulous concept. The power to set aside a judgment requires courts to strike a balance between the principles of justice and finality. A majority of courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is flawed. And courts that have …

The Cfpb Anti-Arbitration Proposal: Let’S Just Give Arbitration A Chance, Ramona L. Lampley

Faculty Articles

In October 2015, the Consumer Financial Protection Bureau (“CFPB”) announced that it would propose a rule banning class action waivers in arbitration agreements for consumer financial services products. This proclamation came to fruition in May 2016 when the CFPB proposed 12 C.F.R. part 1040 and sought public comment on the proposed rule. The CFPB claims that the class-waiver, often imbedded in consumer arbitration agreements, gives companies a “free pass from being held accountable by their customers[,]” comparing it to the relief a consumer can obtain as being part of a class action. At the same time, the CFPB proposed reporting …

Unconscionable Judicial Disdain For Unsophisticated Consumers And Employees' Contractual Rights? Legal And Empirical Analyses Of Courts' Mandatory Arbitration Rulings And The Systematic Erosion Of Procedural And Substantive Unconscionability Defenses Under The Federal Arbitration Act 1800-2015, Willy E. Rice

Faculty Articles

Although the Consumer Financial Protection Bureau (“CFPB”) has taken steps to educate consumers about the perils of hidden and complicated arbitration provisions in contracts, these activities are not enough. Exceedingly large populations of unsophisticated employees need assistance because they are increasingly forced to arbitrate state and federal claims. Consequently, the Court's extremely harsh “federal policies” have gradually, systematically, and significantly eroded consumers and employees' ability to defend themselves in compulsive-arbitration trials.

While arbitration may be within the reasonable expectations of consumers, a process that builds prohibitively expensive fees into the arbitration process is not. It is substantively unconscionable to require …

What’S Fear Got To Do With It?: The “Armed And Dangerous” Requirement Of Terry, Gerald S. Reamey

Faculty Articles

Reason to believe a person may be involved in criminal activity is not necessarily also reason to believe that person is armed and dangerous. "Stop and frisk," therefore, more accurately should be thought of as "stop and maybe frisk." But courts have conflated or ignored these two distinctive kinds of suspicion, inviting police officers to frisk automatically during an investigative detention, a practice that ignores the reasonableness requirement of the Fourth Amendment and subjects suspects to the indignity and intrusion of a search unsupported by any level of suspicion. This article explores some of the ways in which this undermining …

Deadly Misunderstandings About Police Use Of Deadly Force, Gerald S. Reamey

Faculty Articles

This short article, written for law enforcement and criminal justice professionals in Texas, summarizes and addresses some of the most common ways in which the laws of justification in Texas are misunderstood and misapplied. The focus is on the use of deadly force by law enforcement officers and the specific provisions contained within the Texas Penal Code regulating the use of the highest level of force by police and others.

Sorting: Legal Specialization And The Privatization Of The American Legal Profession, Michael S. Ariens

Faculty Articles

Beginning in the 1950s, legal specialization was promoted to the majority of the American legal profession, small firm and solo practice lawyers, by the elite of the bar as the future of legal professionalism. Legal specialization was a form of sorting lawyers, and sorting was contrary to the traditional understanding of an undivided legal profession. Over the course of the next thirty years, this effort succeeded. This new understanding of legal professionalism emphasized the idea of competence based on a deep but particularized knowledge of law. This resulted in a slipping away of the beliefs that law was a public …