Law Commons^™

Reverse Legal Transplants, Sital Kalantry

North Carolina Law Review

No abstract provided.

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

North Carolina Law Review

No abstract provided.

Following The Money: The Aca’S Fiscal-Political Economy And Lessons For Future Health Care Reform, William M. Sage, Timothy M. Westmoreland

Faculty Scholarship

It is no exaggeration to say that American health policy is frequently subordinated to budgetary policies and procedures. The Affordable Care Act (ACA) was undeniably ambitious, reaching health care services and underlying health as well as health insurance. Yet fiscal politics determined the ACA’s design and guided its implementation, as well as sometimes assisting and sometimes constraining efforts to repeal or replace it. In particular, the ACA’s vulnerability to litigation has been the price its drafters paid in exchange for fiscal-political acceptability. Future health care reformers should consider whether the nation is well served by perpetuating such an artificial relationship …

Predictable Punishments, Brian Galle, Murat C. Mungan

Faculty Scholarship

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness. But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly. Modern “big data” techniques promise to overcome this information shortfall but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information. Building on a formal model we present elsewhere, we show that …

Safety, Crisis, And Criminal Law, Jenny E. Carroll

Faculty Scholarship

Concepts of safety and prevention of danger pervade the criminal law canon. Arizona is no exception. The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose. The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions …

The Judicial Admissions Exception To The Statute Of Frauds: A Curiously Gradual Adoption, Wayne Barnes

Faculty Scholarship

The statute of frauds requires certain categories of contracts to be evidenced by a signed writing. The original purpose of the statute of frauds, indeed its titular purpose, is the prevention of the fraudulent assertion of a non-existent oral contract. Although a signed writing is the formal way in which to satisfy the statute of frauds, courts have long recognized various exceptions to the writing requirement which will be held to satisfy the statute absent a writing. The effect of such exceptions is that they constitute an alternative form of evidence for the presence of a contract. One such exception …

Artificial Intelligence, The Law-Machine Interface, And Fair Use Automation, Peter K. Yu

Faculty Scholarship

From IBM Watson's success in Jeopardy! to Google DeepMind's victories in Go, the past decade has seen artificial intelligence advancing in leaps and bounds. Such advances have captured the attention of not only computer experts and academic commentators but also policymakers, the mass media and the public at large. In recent years, legal scholars have also actively explored how artificial intelligence will impact the law. Such exploration has resulted in a fast-growing body of scholarship.

One area that has not received sufficient policy and scholarly attention concerns the law-machine interface in a hybrid environment in which both humans and intelligent …

Discovering Our Field In Our Stories, Howard Gadlin, Nancy A. Welsh

Faculty Scholarship

It’s the people who make a field.

This book draws on the thought-provoking, diverse, delightful, sometimes painful, and ultimately beautiful personal histories of some of the thinkers, inventors, influencers, reformers, disrupters, and transformers who have created—and continue to create—the field of conflict resolution. The authors of the essays in this book play a variety of roles: mediator, facilitator, arbitrator, ombuds, academic, system designer, entrepreneur, leader of public or private conflict resolution organization, researcher, advocate for conflict resolution, critic of conflict resolution. They represent the various waves of people who have populated our field, the founders, the institutionalizers, and the leaders …

Walling Out: Rules And Standards In The Beach Access Context, Timothy M. Mulvaney

Faculty Scholarship

The overwhelming majority of U.S. states facially allocate exclusionary rights and access privileges to beaches by categorically deciding whom to wall in and whom to wall out. In the conventional terms of the longstanding debate surrounding the design of legal directives, such “rules” are considered substantively determinant ex ante and, in application, analogically transparent across similarly situated cases. Only a small number of jurisdictions have adopted “standards” in the beach access context, which—again, on the conventional account—sacrifice both determinacy and transparency for the ability to accommodate ex post the complexities of individual cases. This Article contends that beach access policy …

Symmetry’S Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Faculty Scholarship

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

Theorizing Developmental Regionalism In Narratives Of African Regional Trade Agreement, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

There is a gap in the legal scholarship on African regional trade agreements (RTAs) that links law and development to narratives of developmental regionalism. This article undertakes a critical analysis of the ‘developmental regionalism’ paradigm as they have been applied in the study of African RTAs. The article identifies three areas of critical intervention to address the incoherence of developmental regionalism in Africa: limitation in theory; narrow conceptualization; and an insufficient attention to the role of law. First, to address the gap in theorizing the ‘development’ in developmental regionalism, this article makes the case for an explicit linking of Law …

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Coca-Cola: A Decisive Irs Transferpricing Victory, At Last, Reuven S. Avi-Yonah, Gianluca Mazzoni

Articles

In this article, Avi-Yonah and Mazzoni examine the Tax Court’s decision in Coca-Cola, the first decisive IRS victory in a major transfer pricing case since 1979.

My Covid Pause, Jennifer Nedelsky

Articles & Book Chapters

No abstract provided.

A Mixed-Methods Analysis Of Biofuels, Teresa Cristina Garcia

Graduate Theses and Dissertations

Brazil has the largest sugarcane acreage in the world (FAOSTAT, 2020) and is the world leader in the production of sugarcane-based ethanol (Sousa Junior et al., 2017). Due to the technical experience in the production of biofuels and the availability of sugarcane straw and bagasse, the country has a great potential to commercially produce second-generation ethanol (E2G) (Nyko et. al., 2010). In 2017, Brazil enacted a new National Biofuels Policy, called RenovaBio, to expand the production and use of biofuels in the country. This dissertation combines three essays that explore biofuels law and policy with a special focus on Brazil. …

Laboratories Of Exclusion: Medicaid, Federalism & Immigrants, Medha D. Makhlouf

Faculty Scholarly Works

Medicaid’s cooperative federalism structure gives states significant discretion to include or exclude various categories of immigrants. This has created extreme geographic variability in immigrants’ access to health coverage. This Article describes federalism’s role in influencing state policies on immigrant eligibility for Medicaid and its implications for national health policy. Although there are disagreements over the extent to which public funds should be used to subsidize immigrant health coverage, this Article reveals that decentralized policymaking on immigrant access to Medicaid has weakened national health policy. It has failed to incentivize the type of state policy experimentation and replication that justifies federalism …

The Lagged Effect Of State Gun Laws On The Reduction Of State-Level Firearm Homicide Mortality In The United States From 1999 To 2017, L. C. Chien, M. Gakh

School of Public Health Faculty Research

© 2020 The Authors Objectives: Gun violence is a pressing concern in the United States, where many laws targeting gun violence vary across states and localities. Studies have investigated the association between gun laws and gun violence, but not many focus on the role of time, which is critical for implementation. This study aims to determine the lagged association of gun laws with firearm homicide mortality to better understand the impacts of state gun laws over time. Study design: The design of this study is a longitudinal study. Methods: This study applied the distributed lag non-linear model to assess the …

Algorithmic Opacity, Private Accountability, And Corporate Social Disclosure In The Age Of Artificial Intelligence, Sylvia Lu

Vanderbilt Journal of Entertainment & Technology Law

Today, firms develop machine-learning algorithms to control human decisions in nearly every industry, creating a structural tension between commercial opacity and democratic transparency. In many of their commercial applications, advanced algorithms are technically complicated and privately owned, which allows them to hide from legal regimes and prevents public scrutiny. However, they may demonstrate their negative effects—erosion of democratic norms, damages to financial gains, and extending harms to stakeholders—without warning. Nevertheless, because the inner workings and applications of algorithms are generally incomprehensible and protected as trade secrets, they can be completely shielded from public surveillance. One of the solutions to this …

Grown From The Shadows: How Technology And Taxes Can Bring Private Companies Into The Public Light, Alon Sugarman

Vanderbilt Journal of Entertainment & Technology Law

The initial public offering (IPO) has started to make a comeback, but in forms that require less oversight and at a later point in a company’s lifecycle. These new trends cut main street investors out of early-stage corporate growth and have imperiled the fortunes and retirement funds of a generation. One of the most significant precipitating factors in this new dynamic is electronic private markets that allow sophisticated investors to trade pre-IPO shares. These electronic private markets provide liquidity to institutional investors, which relieves institutional pressure on companies to go public. The current approaches to IPO reform are primarily deregulatory, …

The Regulation Of Commercial Speech: Can Alternative Meat Companies Have Their Beef And Speak It Too?, Eryn Terry

Vanderbilt Journal of Entertainment & Technology Law

Would you eat a hamburger that was made in a petri dish? Consumers may have this option soon as laboratory-grown meat begins to hit supermarket shelves. Laboratory-grown meat is made from animal stem cells that eventually transform into primitive fibers and tissue within the confines of a petri dish. Although a lot remains unknown about laboratory-grown meat, consumers can think of it as meat production without the farm. How might consumers react to meat labels indicating that their products were made in a petri dish? Laboratory-grown meat companies have yet to find out, as some states have passed laws that …

Crimes And Offenses: Proposed Constitutional Carry Act Of 2019 & Executive Order By The Governor Temporarily Extending Renewal Requirements For Weapons Carry Licenses, Kristin Harripaul, Briana A. James

Georgia State University Law Review

In March 2020, Governor Brian Kemp (R) issued an Executive Order declaring a Public Health State of Emergency due to COVID-19. The Supreme Court of Georgia also issued a Judicial Order declaring a Statewide Judicial Emergency. The Council of Probate Court Judges subsequently characterized the processing of weapons carry licenses as non-essential and temporarily suspended license issuances to limit the spread of COVID-19. HB 2 would have eliminated the license requirement and the need for probate judges to process applications. However, HB 2 never received a hearing before the 2019–20 legislative session ended. Gun rights advocates called on Governor Kemp …

Torts, Jarome E. Gautreaux

Mercer Law Review

This Article addresses recent cases decided during the survey period in the area of torts. This survey period is especially remarkable for a couple of cases decided by the Georgia Supreme Court that overruled prior precedents.

Copyright's Fixation Requirement: Is It Still Needed?, Attamongkol Tantratian

Maurer Theses and Dissertations

While the United States requires fixation for an original work to be entitled to federal copyright protection, many other countries ignore such requirement. The difference could lead to partial copyright protection standards across jurisdictions over certain works that are not fixed. Examples of such works include extemporaneous speeches, lectures, improvisational performances, and contemporary arts that are transitory. Moreover, with today’s rapid development of arts and technologies, creative works can be presented via new media without being fixed in a traditional way. The examples include live streams of lectures and music performances, which have become part of the “new normal.” In …

Responsible Scholarship In A Crisis: A Plea For Fairness In Academic Discourse On Carbon Pricing References, Stepan Wood, Meinhard Doelle, Dayna N. Scott

Dalhousie Law Journal

This article offers a critical review of a paper Professor Dwight Newman recently published on the constitutionality of the federal government’s national carbon pricing legislation and the Saskatchewan and Ontario court decisions upholding the law. Rather than engage with the substance of Professor Newman’s article, the authors consider whether it respects the norms of rigorous and fair inquiry that enable constructive scholarly debate. The authors conclude that it does not, and that the consequences for the Supreme Court’s resolution of the carbon pricing reference cases could be significant.

Le présent article propose une analyse critique d’un texte publié récemment par …

Billing Without Bilking: Regulating Time-Based Legal Fees, Noel Semple

Dalhousie Law Journal

The billable hour is the most common method for calculating legal fees in Canada. Codes of conduct state that time-based fees must be “fair and reasonable” and “disclosed in a timely fashion,” but provide very little additional guidance. Throughout a time-based retainer, lawyers and clients are confronted with ethical ambiguity. This creates both opportunities for exploitation and conflicts of interest.

This article argues that clear rules and efficient procedures are required to determine what specific billing and disclosure practices are “fair,” “reasonable,” and “timely.” Detailed rules are already replacing vague standards for contingency fees, and time- based fees should move …

“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg

Dalhousie Law Journal

This article revisits the arguments in Brian Langille’s seminal law review article, “Labour Law is a Subset of Employment Law.” Langille’s article was based upon two main claims: (a) that (individual) employment law should be understood as the “set” and (collective) labour law the “subset” of employment law (the primacy of employment law); (b) that “public values” have priority over “private values” in the regulation of work (the primacy of public values). These two claims were presented as mutually reinforcing in “Subset.” Drawing on specific examples from UK and Canadian law, this article endorses the first claim but rejects the …

Labour Law As A Subset Of Employment Law? Up-Dating Langille’S Insights With A Capabilities Approach, Bruce P. Archibald

Dalhousie Law Journal

Brian Langille’s influential 1981 article entitled “Labour Law is a Subset of Employment Law” is evaluated in the light of changes in the economic, social and political context since its publication and the shifts in the appropriate normative underpinnings for such an exercise. Langille’s conceptually radical original version of a unified field for legal governance of the workplace, rooted in liberal constitutional principles, has been accepted in the interim by many. However, four decades later, this schema is no longer an adequate basis for responding to challenges for achieving fairness and justice in a world of precarious employment, globally organized …

If Labour Law Is A Subset Of Employment Law, What Is Employment Law A Subset Of?, Brian A. Langille

Dalhousie Law Journal

An academic life lived over decades can provide real rewards. One is thinking about a subject, such as labour law, over a significant period. Such longer-term speculation can lead to interesting questions—such as, what makes labour law a subject anyway? A second advantage of academic seniority is the opportunity to sustain longer-term relationships with other scholars. Both the temporal and personal advantages are joined here because four leading labour law scholars whom I have known for a (sometimes very long) while, have written about an essay that I wrote forty years ago. This essay is my effort to join them …

Does “No, Not Without A Condom” Mean “Yes, Even Without A Condom”?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant

Dalhousie Law Journal

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …

Re-Thinking The Process For Administering Oaths And Affirmations, Colton Fehr

Dalhousie Law Journal

Courts around the world require witnesses to swear an oath to a religious deity or affirm to tell the truth before providing testimony. It is widely thought that such a process has the potential to give rise to unnecessary bias against witnesses based on their religious beliefs or lack thereof. Scholars have offered two main prescriptions to remedy this problem: (i) abolish the oath and have all witnesses promise to tell the truth; or (ii) require oath-swearing witnesses to invoke a non-specific reference to God. The former proposal is problematic as it rests on the unproven assertion that giving an …