Law Commons^™

Women And The Law: How Far We’Ve Come And Where We Need To Go, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

Introduction to the program on “Women and the Law: How Far We've Come and Where We Need to Go” held at Pace Law School, October 24, 2008.

Bisexuals Need Not Apply: A Comparative Appraisal Of Refugee Law And Policy In Canada, The United States, And Australia, Sean Rehaag

Articles & Book Chapters

This paper offers an analysis of refugee claims on grounds of bisexuality. After discussing the grounds on which sexual minorities may qualify for refugee status under international refugee law, the paper empirically assesses the success rates of bisexual refugee claimants in three major host states: Canada, the United States, and Australia. It concludes that bisexuals are significantly less successful than other sexual minority groups in obtaining refugee status in those countries. Through an examination of selected published decisions involving bisexual refugee claimants, the author identifies two main areas for concern that may partly account for the difficulties that bisexual refugee …

Debunking Blackstonian Copyright, Shyamkrishna Balganesh

Faculty Scholarship

More than two decades ago, in attempting to make sense of the structural dissonance between copyright and free expression, the U.S. Supreme Court famously declared that copyright was intended to be “the engine of free expression.” Ironically, this characterization was at the time intended as little more than a rhetorical device. In that very case, the Court proceeded immediately thereafter to analyze copyright as a “marketable” property right and conclude that absent a showing of market failure, neither fair use nor the First Amendment would preclude a finding of infringement. Instead of injecting a new set of values into copyright …

Not-So-Informed Consent: Using The Doctor-Patient Relationship To Promote State-Supported Outcomes, Amanda Mcmurray Roe

Case Western Reserve Law Review

No abstract provided.

First Annual Climate And Energy Law Symposium: Federal Preemption Or State Prerogative: California In The Face Of National Climate Policy: An Introduction, Richard J. Lazarus

San Diego Journal of Climate & Energy Law

The University of San Diego School of Law's decision to create a new scholarly law journal dedicated to climate and energy issues could hardly come at a better time. ...
... The resulting debate and discussion, reflected in the following papers that the speakers produced, should be required reading for those lawmakers both in Washington, DC and in state capitals such as Sacramento, as they craft federal and state laws that seek to address this "most pressing environmental challenge."

Where Are The Victims? The Credibility Gap In Human Trafficking Research, Johnny E. Mcgaha, Amanda Evans

Intercultural Human Rights Law Review

Nothing drives the passion and stirs the emotion, especially in the U.S., more than the horrendous stories of modem-day human slavery. Whether sexual, domestic, or labor, the terror and horror that human trafficking victims have endured defies the scope of our sensitivities. Most who work in human service fields have heard many stories of these survivors. The dedication of the practitioners and law enforcement officers who are involved in the apprehending and prosecution of offenders, and advocate for victims in these very complex cases, is evident in this symposium alone. As a nation, the stain of slavery has tarnished the …

Front Matter

Intercultural Human Rights Law Review

Front Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 4 (2009).

The Dean's Welcome Address, Alfredo Garcia

Intercultural Human Rights Law Review

Dean Alfredo Garcia's welcome address for the 2008 Intercultural Human Rights Law Review Annual Symposium.

The Cuban Embargo And Human Rights: Appraisal And Recommendations, Armando Perez-Roura

Intercultural Human Rights Law Review

Presentation by Armando Perez-Roura, Director Radio Mimba, translated into English by Ms. Cristina Maldonaldo.

Embargo Or Blockade - The Legal And Moral Dimensions Of The U.S. Economic Sanctions On Cuba, Berta Esperanza Hernandez-Truyol

Intercultural Human Rights Law Review

This essay will evaluate the embargo and its consequences in three parts. First, it briefly sets out the Human Rights framework within which this work scrutinizes the embargo. Following it presents a brief history of Cuba-U.S. relations including the creation and progression of the economic sanctions the U.S. has imposed on the neighboring island. Next, the essay evaluates the legality of the sanctions and concludes with a critical analysis of the impact of the sanctions.

The Legal Nature Of Trafficking In Human Beings, Ryszard Piotrowicz

Intercultural Human Rights Law Review

It is incorrect to say that people trafficking is a breach of human rights for the same reason that it is incorrect to say that 2+2=5: because it is wrong and there is an inherent good in getting things right. This article assesses what, legally, is actually happening when trafficking in human beings (THB) takes place, and considers the practical ramifications arising from that assessment. What actually is THB? The most widely accepted definition is contained in the Palermo Protocol (the Protocol) to the United Nations Convention on Transnational Organised Crime (UNCTOC), which entered into force in December 2003. Article …

Human Trafficking In The Balkans: An Inside Report, Jasna Vujin

Intercultural Human Rights Law Review

Human trafficking is not a myth or something that is part of our volatile past. It is not a problem that is targeting isolated parts of the world making only a small number of people its victims. It is our menace today and part of the cruel reality that we are raising our children in. It is a plague that endangers the world community, for no part of the globe is immune. How is it possible then that in this day and age, when the safeguarding of human rights is considered such a priority by many nations, human slavery continues …

Irreconcilable Differences? The Troubled Marriage Of Science And Law, Susan Haack

Law and Contemporary Problems

There haven't always been scientific witnesses: in fact, there haven't always been witnesses. In early medieval times, courts relied on tests by oath, ordeal, and sometimes by combat. Here, Haack provides a brief historical background to the use of scientific experts in law and then proceeds to discuss in greater detail the values underlying scientific inquiry, the uncertainty in the quest of knowledge and understanding, and the methods by which consensus is reached, even if that consensus is always tentative. She then contrasts scientific inquiry with the law's quest for "truth" in the courtroom and, particularly, the normative and temporal …

Rethinking Visitation: From A Parental To A Relational Right, Ayelet Blecher-Prigat

Duke Journal of Gender Law & Policy

[...] visitation rights are considered to arise from the very fact of parenthood, so that parents are entitled to this right simply by being legally recognized as parents. [...] visitation rights are subject to the general rule of parental exclusivity: only a child's legal parents have rights considered parental, and non-parents cannot acquire them.

In The Wake Of Ledbetter V. Goodyear Tire & Rubber Company: Applying The Discovery Rule To Determine The Start Of The Limitations Period For Pay Discrimination Claims, Nancy Zisk

Duke Journal of Gender Law & Policy

"14 These laws include Title VII of the Civil Rights Act of 1964,15 Section 1981 of the Civil War Reconstruction statutes,16 the Age Discrimination in Employment Act of 1967 (ADEA),17 the Equal Pay Act (EPA),18 and the Americans with Disabilities Act of 1990 (ADA).19 While the statutes define different types of discrimination, each addresses discrimination in employment and defines a limitations period in which an employee can bring a claim.20 With Title VII defining the "paradigm," the first step in determining whether a claim is timely under any statute is determining when the discriminatory act takes place.21 To do that, …

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

Faculty Publications

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion—which declares that the "spirit" of a statute should trump its "letter"—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

The Language Of Law And The Practice Of Politics: Great Powers And The Rhetoric Of Self-Determination In The Cases Of Kosovo And South Ossetia, Christopher J. Borgen

Faculty Publications

If international law is all but irrelevant to international relations why do states spend so much time and effort justifying their actions under international law? The immediate reaction by many is to dismiss this as "cheap talk," a rhetorical fig leaf or simple bluster of little consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages.

This Article seeks to elucidate what …

We Can Work It Out: Entertaining A Dispute Resolution System Design For Bankruptcy Court, Elayne E. Greenberg

Faculty Publications

On October 2, 2009, dispute resolution scholars and bankruptcy court jurists courageously began the difficult conversation about the feasibility of an expanded dispute resolution system design for bankruptcy court. This commentary distills that conversation through a dispute resolution system design lens. Dispute resolution system design offers a framework for organizations to more effectively manage and resolve recurring conflicts. The design of a dispute resolution system requires clarifying ideas, elucidating values, prioritizing goals, considering options and incorporating that information into a more workable process to respond to conflict. All the while, the stakeholders and dispute resolution designers work together to clarify, …

Defining Race: The Obama Phenomenon And The Voting Rights Act, Janai S. Nelson

Faculty Publications

This piece publishes remarks delivered at a symposium organized by the Albany Law Review and the Albany Journal of Science and Technology exploring the definition of race. The topic, “Defining Race,” is related to the recent presidential election and, in particular, to Barack Obama's successful candidacy to become the first black President of the United States. Rather than deconstruct, redefine, or explore the definition of race, these remarks explore briefly whether race relations in the electoral arena have changed to such a degree that race and race-based remedies are no longer needed, and what evidence from this presidential election would …

A New Look At Judicial Impact: Attorney's Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey Miller, Michael A. Perino

Faculty Publications

Political scientists have long been interested in what impact judicial decisions have on their intended audiences. Compliance has been defined as the lower court's proper application of standards the superior court has enunciated in deciding all cases raising similar or related questions. Most studies find widespread compliance in lower courts, with only rare instances of overt defiance.

This Article attempts to address three questions in the extant judicial impact literature. First, existing studies use rather insensitive measures of compliance and thus may fail to identify instances of subtle resistance to higher court rulings. Second, judicial impact literature has a restrained …

Culpability In Creating The Choice Of Evils, Marc O. Degirolami

Faculty Publications

Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction answers that he cannot and bars the necessity defense under those circumstances. Whereas many scholars have condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the conditions leading to the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise, or, in a word, justified. Criminal "created …

The Lawyer's Role In A Contemporary Democracy, Tensions Between Various Conceptions Of The Lawyer's Role, Rethinking The Legal Reform Agenda: Will Raising The Standards For Bar Admission Promote Or Undermine Democracy, Human Rights, And Rule Of Law?, Samuel J. Levine, Russell G. Pearce

Fordham Law Review

No abstract provided.

Notes On A Geography Of Knowledge, Michael J. Madison

Fordham Law Review

No abstract provided.

The President's Welcome Address The President's Welcome Address (2008 Intercultural Human Rights Law Review Symposium), Franklyn M. Casale

Intercultural Human Rights Law Review

Rev. Monsignor Franklyn M. Casale's welcome address for the 2008 Intercultural Human Rights Law Review Annual Symposium.

Sanctions And International Law (Keynote Address), W. Michael Reisman

Intercultural Human Rights Law Review

Keynote Address by W. Michael Reisman, Myres S. McDougal Professor of International Law at Yale Law School, for the 2008 Intercultural Human Rights Law Review Annual Symposium.

140th Anniversary Symposium: Fourteenth Amendment Citizenship And The Reconstruction-Era Black Public Sphere, James Fox

Con Law Center Articles and Publications

This project delves more deeply into the possible meanings of constitutional citizenship.. Somewhat in the tradition of the popular constitutionalism scholars, it proposes that the best source for meanings of constitutional citizenship will come not from traditionally originalist sources but from those who attempted to redefine citizenship in a more egalitarian and democratic manner and who established, both in word and in practice, meanings for citizenship on the ground. This argument borrows a theoretical framework from political and social theory: the theories of civil society and the public sphere. This captures—in ways often missed by both legal scholars and historians—the …

The Lawyer's Role In A Contemporary Democracy, Promoting Social Change And Political Values, The Lawyer As Catalyst Of Social Change, James E. Moliterno

Fordham Law Review

No abstract provided.

The History Of State Action In The Environmental Realm: A Presumption Against Preemption In Climate Change Law?, Victor B. Flatt

San Diego Journal of Climate & Energy Law

As we move toward an almost certain comprehensive federal law to address climate change, increasing attention is being paid to what will happen to state and local climate change and climate change-related programs that have arisen in this country in the law few years. As the symposium demonstrated, California has a particular concern that federal law might block its environmental and climate change policies. ...
... In most areas, almost 40 years of environmental federalism has allowed states to regulate beyond the federal government for the protection of their citizens, and we can examine this history empirically in order to …