Law Commons^™

Competences Of The "Union" And Sex Equality: A Comparative Look At The European Union And The United States, Barbara Havelková

Michigan Law Review First Impressions

The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers ("competences" in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.

A Report On Trade Remedies And Rules Of Application, Charles O. Verrill Jr.

Faculty Scholarship

Document presented for discussion at the OECD Directorate for Science Technology & Industry, Steel Committee Meeting, 10-11 December 2009.

The GATT authorizes three trade remedies that can be utilized by members of the WTO to address troublesome imports: antidumping measures and countervailing duties, which are authorized by Article VI, and safeguards which are authorized by Article XIX. Detailed roadmaps for the application of these measures were adopted in the Uruguay Round implementing agreements that each WTO member is required to observe in applying trade measures against imports from other WTO member countries.

This Report summarizes the rules governing application of …

Growing Pains In The Administrative State: The Patent Office’S Troubled Quest For Managerial Control, Arti K. Rai

Faculty Scholarship

In the last ten years, the workload of the Patent and Trademark Office ("PTO") has increased dramatically. Complaints about the PTO's ability to manage its workload have increased in tandem. Interestingly, although Congress has explicitly given the PTO rulemaking authority over the processing of patent applications, and withheld from it authority over "substantive" patent law, the PTO has arguably enjoyed more success in influencing substantive law than in executing direct efforts to manage its workload. This Article explores the multiple, mutually reinforcing reasons for this anomaly. It argues that although there are good reasons to be frustrated with the PTO's …

Foreign Officials And Sovereign Immunity In U.S. Courts, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Assemblage-Oriented Ocean Resource Management: How The Marine Environment Washes Over Traditional Territorial Lines, John A. Duff

Michigan Journal of International Law

This Essay assesses challenges that arise when marine territorial boundaries do not encompass the appropriate assemblage of resources and relationships necessary for effective authority and management. It reviews the manner in which certain offshore resource uses have been "quasi-territorialized" by the application of other forms of jurisdiction. It also highlights regime-jurisdiction-private interest-oriented responses to territory-oriented challenges in the form of assemblages of authority, interests, space, and time. Given the scalar progression of the links in the discussion, the assessment moves from international principles to exercises of national sovereignty to domestic administration of space and resources to private legal interests.

Oh, I'M Sorry, Did That Identity Belong To You: How Ignorance, Ambiguity, And Identity Theft Create Opportunity For Immigration Reform In The United States, Matthew T. Hovey

Villanova Law Review (1956 - )

No abstract provided.

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

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 …

Help From Across The Pond: Applying The U.K. Law Commission's Presumption That Exclusion From Management In A Private Company Is Unfairly Prejudicial As A Guide To Assessing Claims Of Minority Shareholder Oppression In U.S. Closely Held Corporations, Lindsey M. Heger

South Carolina Journal of International Law and Business

No abstract provided.

Beyond Balls And Strikes: Towards A Problem-Solving Ethic In Foreclosure Proceedings, Raymond H. Brescia

Case Western Reserve Law Review

No abstract provided.

Robbed Of The American Dream, Megan Walker

Human Rights & Human Welfare

Many people have immigrated to the United States, hoping to live the “American dream.” Unfortunately, this romantic notion is part of the reason that the United States has become one of the most sought after destination countries for human trafficking. It is easy for traffickers to convince potential victims that they can live the American dream. Traffickers from all over the world and all walks of life profit in this booming market, by promising poor and vulnerable people high wages in legitimate jobs as farm workers, maids, and waitresses. Many of these people end up in terrible conditions as indentured …

Former Presidents And Executive Privilege, Laurent Sacharoff

Hofstra Law Faculty Scholarship

The Constitution provides former Presidents with no powers or role, and yet numerous former presidents including Truman and Nixon have asserted executive privilege in order to withhold information from Congress, historians, and the public. The most recent former President, George W. Bush, is likely to make similar assertions based upon his sweeping view of the rights of former Presidents as reflected in his recently revoked Executive Order 13,233, potentially leading to a constitutional collision between the rights of former Presidents and those of Congress. This Article argues that, notwithstanding Nixon v. Administrator of General Services (GSA), former Presidents should retain …

Beyond The Wto? An Anatomy Of Eu And Us Preferential Trade Agreements, Henrik Horn, Petros C. Mavroidis, André Sapir

Faculty Scholarship

It is often alleged that PTAs involving the EC and the US include a significant number of obligations in areas not currently covered by the WTO Agreement, such as investment protection, competition policy, labour standards and environmental protection. The primary purpose of this study is to highlight the extent to which these claims are true. The study divides the contents of all PTAs involving the EC and the US currently notified to the WTO, into 14 'WTO' and 38 'WTO-X' areas, where WTO provisions come under the current mandate of the WTO, and WTO-X provisions deal with issues lying outside …

American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick

Osgoode Hall Law Journal

This article examines the use of American jurisprudence by the judges of the McLachlin Court, using an earlier study of such citations as a reference point. In addition to tracking overall use of American citations over time, it looks at these trends: which Canadian judges use American cases and for which types of cases; and which American cases, courts, and judges are being cited. Brief descriptions of the Supreme Court cases with the largest use of American citations precede a categorization of the results. The article confirms previous academic findings that the use of American citations have been modest, with …

Eminent Domain: The Unintended Consequences Of Kelo, Tracy Lynn Bower

UNLV Theses, Dissertations, Professional Papers, and Capstones

In recent years, local governments in the United States have increasingly used eminent domain to promote economic development, raising concerns among property-right advocates over what those advocates view as unlawful, or what should be unlawful, takings of private property in order to benefit another private property owner. This philosophical and legal dispute reached a crisis point in the 2005 United States Supreme Court decision in Kelo v. City of New London. In that decision, the court narrowly upheld a Connecticut Supreme Court ruling granting the City of New London permission to redevelop land that had been seized from existing homeowners …

Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman

Scholarly Works

No abstract provided.

University Software Ownership And Litigation: A First Examination, Arti K. Rai, John R. Allison, Bhaven N. Sampat, Colin Crossman

Faculty Scholarship

Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years. Despite this reality, and concerns that universities act as "patent trolls" when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents. In this Article, we present the first such examination. Our empirical research reveals that software patents represent a significant and growing proportion of university patent holdings. Additionally, the most important determinant of the number of software patents a university owns is not its research and development ("R&D") …

Rethinking The Identity And Role Of United States Attorneys, Sara Sun Beale

Faculty Scholarship

This article considers the proper role of politics in federal prosecutions, and how that bears on the position of the U.S. Attorney. First, the article sets forth an account of the problems disclosed by investigations into the Bush Justice Department, including the controversial firing of nine U.S. Attorneys and claims that particular prosecutions were politically motivated. It then explores the historical development of the role of the U.S. Attorneys, their relationship to the Attorney General and the Department of Justice, and their role in the contemporary federal criminal justice system.

With that background, the article considers the question whether there …

Global Warming And The Problem Of Policy Innovation: Lessons From The Early Environmental Movement, Christopher H. Schroeder

Faculty Scholarship

When it comes to influencing government decisions, special interests have some built-in advantages over the general public interest. When the individual members of special interest groups have a good deal to gain or lose as a result of government action, special interests can organize more effectively, and generate benefits for elected officials, such as campaign contributions and other forms of political support. They will seek to use those advantages to influence government decisions favorable to them. The public choice theory of government decision making sometimes comes close to elevating this point into a universal law, suggesting that the general public …

Implementing The New Ecosystem Services Mandate Of The Section 404 Compensatory Mitigation Program - A Catalyst For Advancing Science And Policy, James Salzman, J.B. Ruhl, Iris Goodman

Faculty Scholarship

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that …

Sovereignty, Deference, And Deportation: Allocating And Enforcing Immigrants' Rights In The United States And Europe, Angela M. Banks

Faculty Publications

No abstract provided.

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum

Michigan Law Review

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …

Cees Newsletter, No. 8, Nov. 2008, University Of Colorado Boulder. Center For Energy & Environmental Security

CEES: The Center for Energy & Environmental Security [Newsletter] (2008)

No abstract provided.

The Unconscionability Game: Strategic Judging And The Development Of Federal Arbitration Law, Aaron-Andrew P. Bruhl

Faculty Publications

This Article uses recent developments in the enforcement of arbitration agreements to illustrate one way in which strategic dynamics can drive doctrinal change. In a fairly short period of time, arbitration has grown from a method of resolving disputes between sophisticated business entities into a phenomenon that pervades the contemporary economy. The United States Supreme Court has encouraged this transformation through expansive interpretations of the Federal Arbitration Act. But not all courts have embraced arbitration so fervently, and therefore case law in this area is marked by tension and conflict. The thesis of this Article is that we can better …

Baselines Newsletter, No. 3, Fall 2008, University Of Colorado Boulder. Natural Resources Law Center

Baselines: The Natural Resources Law Center Newsletter (2007-2011)

No abstract provided.

The [Capital] Punishment Fits The Crime: A Comparative Analysis Of The Death Penalty And Proportionality In The United States Of America And The People's Republic Of China, Ryan Florio

University of Miami International and Comparative Law Review

The governments of both the United States and China maintain the death penalty as a means of punishing its most dangerous criminals, but with an astounding 68 capital offenses, China perennially remains the world leader in executions. This article examines the theory of proportionality of criminal punishment and how it relates to the respective death penalty policies in the United States and China. A comparative analysis will reveal two extremely different societies with two different perspectives on proportionality. one that recognizes and protects fundamental freedoms and another that places emphasis on collective societal welfare over individual rights. The article will …

Cravath By The Sea: Recruitment In The Large Halifax Law Firm, 1900-1955, Jeffrey Haylock

Dalhousie Law Journal

The traditional view is that regularized, meritocratic hiring in Canadian law firms had to wait until the 1960s, with the rise in importance of Ontario university law schools. There was, however, more regional variation than this view allows. After an overview of the rise of large firms in the U.S. and Canada, and of the modern hiring strategies (the "Cravath system") that developed in New York in the early twentieth century, the author considers whether Halifax firms were employing these strategies between 1900 and 1955. Nepotistic hiring continued unabated; however, the three large firms of the period recruited young students …

Extra-Legal Characteristics And Sentencing Disparity Among Federal Drug Offenders, Justin D. Galasso

Sociology & Criminal Justice Theses & Dissertations

The development of the federal sentencing guidelines was made as an attempt to provide a uniform standard of sentencing procedure for defendants convicted within the federal legal system. Unfortunately, such unvarying policy has over the years birthed a system of sentencing that lacks equality among like defendants. The Supreme Court, in 2005, ruled that the sentencing guidelines were no longer to be compulsory during sentencing procedures, but rather act as an ancillary tool. The present study examines multiple legal and extra-legal variables and their influence on two aspects of imprisonment probability for federal drug offenders for the years of 1999-2006: …

United States V. Burns: Canada's Extraterritorial Extension Of Canadian Law And Creation Of A Canadian "Safe Haven" In Capital Extradition Cases, Andrea Cortland

University of Miami Inter-American Law Review

No abstract provided.

Section 2: 2008 Election And The Supreme Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.