Law Commons^™

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Tara L. Grove

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …

Our Exceptional Constitution, Timothy Zick

Timothy Zick

No abstract provided.

Judges Talking To Jurors In Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else, Paul Marcus

Paul Marcus

No abstract provided.

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye

Paul Marcus

At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding of the …

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Neal E. Devins

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …

A Comparative Examination Of Counter-Terrorism Law And Policy, Laurent Mayali, John Yoo

Laurent Mayali

This article conducts a comparative analysis of U.S. and European counter-terrorism law and policy. Recent attacks vy ISIS in the U.S., France, and Germany have revealed important differences between American and European approaches. Before September 11, 2001, the United States responded to terrorism primarily with existing law enforcement authorities, though in isolated cases it pursued military measures abroad. In this respect, it lagged behind the approach of European nations, which had confronted internal terrorism inspired vy leftwing ideology or separatist goals. But after the 9-11 attacks, the United States adopted a preventive posture that aimed to pre-empt terrorist groups before …

Vertical And Horizontal Perspectives On Rights Consciousness, David M. Engel

David M. Engel

It has become commonplace to assert that rights consciousness is expanding globally and that individuals worldwide demonstrate an increasing awareness of and insistence upon their legal entitlements. To marshal empirical support for such claims is, however, exceedingly complex. One important line of socio-legal research on rights consciousness adopts what might be called a “vertical” perspective, tracing the flow of legal norms and practices from prestigious international organizations and world centers of cultural production to local settings, where they may be adopted, resisted, or transformed. Vertical perspectives on rights consciousness have contributed new understandings of law in contemporary societies around the …

Lessons From The Efforts To Manage The Shift Away From Defined Benefit Plans To Defined Contribution Plans In Australia, The United Kingdom, And The United States, Elizabeth F. Brown

Elizabeth F Brown

This is an earlier version of this Article that was published in the 53 American Business Law Journal 315 (Summer 2016). Please see that journal for the final version of this Article. This Article examines what lessons may be learned from examining how Australia, the United Kingdom, and the United States have tried to manage the shift away from defined benefit plans towards defined contribution plans. This shift has fundamentally changed the relationship between workers and the financial industry. While defined contribution plans provide employees with some advantages over defined benefit plans (e.g., portability, early vesting, greater autonomy), they also …

Constitutional Change And Wade's Ultimate Political Fact, Richard Kay

Richard Kay

Legal Transplantation Or Legal Innovation? Equity-Crowdfunding Regulation In Taiwan After Title Iii Of The U.S. Jobs Act, Chang-Hsien Tsai

Chang-hsien (Robert) TSAI

National Legal Traditions At Work In The Jurisprudence Of The Court Of Justice Of The European Union: Symposium: Foreign Law In Constitutional Courts, Fernanda Nicola

Fernanda G. Nicola

Supranationalism And Foreign Law At The Court Of Justice Of The Eu Symposium: Foreign Law In Constitutional Courts: Introduction, Fernanda Nicola

Fernanda G. Nicola

Educational Choice And The Courts: U.S. And Germany, John Coons

John Coons

No abstract provided.

Regulation Of Companies With Publicly Listed Share Capital In The People's Republic Of China, Nicholas Howson

Nicholas Howson

No abstract provided.

The Giving Reasons Requirement, Martin Shapiro

Martin Shapiro

No abstract provided.

Three Voices Of Socio-Legal Studies, Malcolm M. Feeley

Malcolm Feeley

No abstract provided.

La Adaptación A Las Necesidades: Convergencia Y Divergencia, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda

Ronald D. Rotunda

If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Sital Kalantry

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

The Divergent Evolution Of English Property Law, Jerry L. Anderson

Jerry L. Anderson

Despite the common origins of American and English property law, there are now some significant, and interesting, differences. This article examines five divergent aspects in the areas of title registration, limitations on ownership, condominiums, adverse possession, and foreclosure. In each case, the differences should cause us to think about whether our system represents the best approach, in terms of efficiency and fairness.

Comparative Law: Global Legal Traditions For The 21st Century, Michael Bazyler, Abdullahi Al-Naim, Russell Miller, Peter Yu

Peter K. Yu

No abstract provided.

Co-Ownership Of Patents: A Comparative And Economic View, Robert P. Merges, Lawrence A. Locke

Robert P Merges

No abstract provided.

On The Comparative Study Of Corruption, Franklin E. Zimring, David T. Johnson

Franklin E. Zimring

No abstract provided.

Comparing U.S. And Ec Copyright Protection For Computer Programs: Are They More Different Than They Seem, Pamela Samuelson

Pamela Samuelson

No abstract provided.

Path Dependence In Discrimination Law: Employment Cases In The United States And The European Union, Katerina Linos

Katerina Linos

No abstract provided.

Market Corrective Rulemaking: Drawing On Eu Insights To Rationalize U.S. Regulation, Reeve T. Bull

Reeve T Bull

When justifying the government’s role in intervening in the free market, economists and legal scholars alike point to the problem of “market failures”: laissez-faire capitalism may not produce optimal outcomes in certain cases, and government interventions can promote overall market efficiency. The existence of such market failures is not terribly controversial; the question of whether government regulators can correctly identify these flaws and devise appropriate solutions, by contrast, is significantly more contentious. Unfortunately, under the existing regulatory framework, government officials are not especially well-positioned to make these difficult determinations. Congress does not, as a general matter, consider the economic costs …

A Government Of Laws Not Of Precedents 1776-1876: The Google Challenge To Common Law Myth, James Maxeiner

James R Maxeiner

Conventional wisdom holds that the United States is a common law country of precedents where, until the 20th century (the “Age of Statutes”), statutes had little role. Digitization by Google and others of previously hard to find legal works of the 19th century challenges this common law myth. At the Centennial in 1876 Americans celebrated that “The great fact in the progress of American jurisprudence … is its tendency towards organic statute law and towards the systematizing of law; in other words, towards written constitutions and codification.” This article tests the claim of the Centennial Writers of 1876 and finds …

Equity Crowdfunding: All Regulated But Not Equal, Garry A. Gabison

Garry A. Gabison

This paper describes how different countries have approached equity crowdfunding. This paper focuses on countries or regulatory authorities that either expressed their awareness of the phenomenon but decided to adopt a holding pattern (monitoring and investigating) or that decided to adopt new laws and regulations. Countries like Australia have opted to reaffirm how their current set of regulations applies to crowdfunding whereas others like the United States, Italy, the United Kingdom, and France have elected to create new exemptions in an effort to facilitate equity crowdfunding. This paper compares how each country decided to regulate the different participants in the …

Can The Center Hold? The Vulnerabilities Of The Official Legal Regimen For Intercountry Adoption, David M. Smolin

David M. Smolin

Amidst controversy, a legal regimen for intercountry adoption (ICA) has been developed over the past twenty-five years. The primary constituent parts are the 1989 UN-based Convention on the Rights of the Child (“CRC”) and the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). Since the creation of those conventions, international and national legal efforts have focused on delineation and implementation of a set of standards based on their principles in the attempt to create a stable and reliable intercountry adoption system. This project of the creation of a stable and reliable intercountry …

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

David B Kopel

Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back as least as far as the reign of Alfred the Great in ninth century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff …