Law Commons^™

Considerations For Climate Change And Variability Adaptation On The Navajo Nation, Julie Nania, Karen Cozzetto, Nicole Gillett, Sabre Druen, Anne Mariah Tapp, Michael Eitner, Beth Baldwin, National Integrated Drought Information System (U.S.), Western Water Assessment (Program), University Of Colorado Boulder. Renewable And Sustainable Energy Institute, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Books, Reports, and Studies

[6], 204 p. : color illustrations, color maps

Experimenting With Religious Liberty: The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Baltimore's Piratical Patriot Privateers: The Arrogante Barcelones, 20 U.S. 496 (1822), Shannon Byrne

Legal History Publications

The case of The Arrogante Barcelones involved a complicated story of facts, due in part to the cunningness of one of the main players, Joseph Almeida. Almeida’s maneuvers make sense when viewed through the lens of nineteenth century Baltimore, the War of 1812, and U.S. citizens’ involvement in South American privateering. At first glance, this case seems to hinge on issues regarding the validity of Almeida’s commission, the authority of the condemnation, and the sufficiency of the documentation produced to prove it. However, the United States Supreme Court ultimately avoids untangling those maritime issues and instead bases its opinion in …

On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.

The Vietnam Draft Cases And The Pro-Religion Equality Project, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Getches Wilkinson Center Newsletter, Winter/Spring 2014, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

An Examination Of Federal Sentencing Guidelines’ Treatment Of Mdma (“Ecstacy”), Alyssa Hennig

Belmont Law Review

This Note analyzes the MDMA drug equivalency ratio under the current Guidelines and argues that the ratio is based on incomplete and inaccurate information. Part I of this Note provides an overview of the United States Sentencing Commission (“the Commission”) and the United States Sentencing Guidelines (“the Guidelines”). Part II discusses the rise of MDMA and the legislative response. It also summarizes the Commission’s findings regarding the social and physiological harms of MDMA that formed the basis for the Commission’s decision about the appropriate MDMA drug equivalency ratio. Part III examines the errors in the Commission’s empirical analysis of the …

What Might Have Been: 25 Years Of Robert Bork On The United States Supreme Court, Benjamin Pomerance

Belmont Law Review

This Article tries to briefly attempt an answer to what would have happened if Robert Bork had sat on the Supreme Court bench. Part I examines the backgrounds of Judge Bork and Justice Kennedy, and then studies some of the major cases decided by the Court in four key areas — abortion, freedom of speech, the right to bear arms, and civil rights — during the last twenty-five years. Part II then evaluates the voting record of Justice Kennedy in these cases, as well as the views held by Judge Bork — based on Bork’s own writings, on opinions that …

Where’S The Consultation? The War Powers Resolution And Libya, Eileen Burgin

The University of New Hampshire Law Review

[Excerpt] “President Barack Obama triggered a War Powers Resolution (WPR) controversy with his military response to the anti-government rebellion and civil war in Libya in 2011. Members of Congress seized upon the WPR, questioning whether the Obama administration had complied with the WPR’s requirements when the United States launched the initial Libyan Operation Odyssey Dawn (OOD) and subsequently participated in the North Atlantic Treaty Organization (NATO) Operation Unified Protector (OUP). Many legislators charged that President Obama had violated the WPR. Concerns centered on such issues as presidential reliance on the United Nations (U.N.) Security Council—rather than Congress—for authorization to act, …

Allocating Responsibility For Health Care Decisions Under The United States Affordable Care Act, Wendy K. Mariner

Faculty Scholarship

This article summarizes the major elements of the ACA's insurance reforms and how they affect responsibility for making decisions about the health care that people receive. A key example of the difficulty of allocating decision making responsibility is the effort to define a minimum benefit package for insurance plans, called essential health benefits. While the ACA should achieve its goal of near-universal access to care, it leaves in place a multiplicity of processes and decision-makers for determining individual treatment. As a result, decisions about what care is provided are likely to remain, much as they are today, divided among government …

Insider Trading And Other Securities Frauds In The United States: Lessons For Chile, Dante Figueroa

Michigan Business & Entrepreneurial Law Review

This Article is a comparative analysis of insider trading law in the United States and Chile. The study summarily reviews the historical, political, and legal foundations of insider trading regulation in both jurisdictions, identifying areas of convergence, as well as areas in which the Chilean securities market could benefit vis- ` a-vis the more advanced experience of the considerably larger American securities market. The Article also highlights the axiological closeness between both jurisdictions concerning the protection of inside corporate information and the fiduciary role of those who intervene in securities markets in their various capacities (as investors, shareholders, corporate officers, …

Liability And Admission Of Wrongdoing In Public Enforcement Of Law, Samuel W. Buell

Faculty Scholarship

Some judges and scholars have questioned the social value of the standard form in which the Securities and Exchange Commission settles its corporate enforcement actions, including the agency’s use of essentially unreviewed consent decrees that include no admission of liability or wrongdoing. This essay for a symposium on SEC enforcement provides an analysis of the deterrent effects of the three main components of settlements in public enforcement of law: liability, admission, and remedy. The conclusions are the following. All three components have beneficial deterrent effects. Cost considerations nonetheless justify some settlements that dispense with liability or admission, or even both. …

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

Faculty Scholarship

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue …

The Bankruptcy-Law Safe Harbor For Derivatives: A Path-Dependence Analysis, Steven L. Schwarcz, Ori Sharon

Faculty Scholarship

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This article argues that these rights and immunities result from a form of path dependence, a sequence of industry-lobbied legislative steps, each incremental and in turn serving as apparent justification for the next step, without a rigorous and systematic vetting of the consequences. Because the resulting “safe harbor” has not been fully vetted, its significance and utility should not be taken for granted; and thus regulators, legislators, and other policymakers—whether in the United States or abroad—should not automatically assume, based on its …

Kamakahi V. Asrm: The Egg Donor Price Fixing Litigation, Kimberly D. Krawiec

Faculty Scholarship

In April 2011, Lindsay Kamakahi caused an international stir by suing the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), SART-member fertility clinics, and a number of egg donor agencies on behalf of herself and other oocyte donors. The suit challenged the ASRM-SART oocyte donor compensation guidelines, which limit payments to egg donors to $5,000 ($10,000 under special circumstances), as an illegal price-fixing agreement in violation of United States antitrust laws.

Ensuing discussion of the case has touched on familiar debates surrounding coercion, commodification, and exploitation. It has also revealed many misconceptions about oocyte donation, …

Trademarks Under The North American Free Trade Agreement (Nafta), With References To The Current Mexican Law, Roberto Rosas

Faculty Articles

The introduction of Mexico into the international trademark arena may significantly influence the future of the North American Free Trade Agreement (“NAFTA”). NAFTA established a reliable and efficient system for trademark registration and protection. This system not only protects owners of trademarks, but also helps consumers identify and purchase goods or services that meet their needs.

Despite its membership in NAFTA, Mexico is in the process of internationalizing its Intellectual Property protections. It is evident that among countries, economic improvement is generally the main motivation to form Free Trade Agreements, and Mexico's case is no different. Mexico has pursued an …

Usada The Unconquerable: The One-Side Nature Of The United States Anti-Doping Administration’S Arbitration Process, Brian A. Dziewa

Saint Louis University Law Journal

No abstract provided.

The Snowden Revelations, The Transatlantic Trade And Investment Partnership And The Divide Between U.S.- Eu In Data Privacy Protection, Ioanna Tourkochoriti

University of Arkansas at Little Rock Law Review

No abstract provided.

Segregation In United States Healthcare: From Reconstruction To Deluxe Jim Crow, Kerri L. Hunkele

Honors Theses and Capstones

During the time period between Reconstruction and the Deluxe Jim Crow era, African Americans were legally oppressed, which hindered their ability to live fully and equally in society with whites. This was especially true in terms of healthcare. Segregation laws were implemented to separate blacks from the rest of society in everyday life; the worst of these laws affected the ability of African Americans to gain access to medical care that was equal to whites. This inequality prevented blacks from being accepted into society and from living quality lives that stem from adequate healthcare. Although the federal and state governments …

Contemporary Practice Of The United States Relating To International Law, July 2014, Kristina Daugirdas, Julian Davis Mortenson

Articles

United States Negotiates Prisoner Exchange to Secure Release of U.S. Soldier Held in Afghanistan • United States Refuses to Grant Visa to Iranian UN Envoy • Multilateral Naval Code of Conduct Aims to Prevent Unintended Conflict in Contested Areas of East and South China Seas • Senate Approves Treaties to Regulate Fishing • United States Indicts Chinese Military Officials for Economic Espionage • U.S. Supreme Court Declines to Terminate Long-Running Efforts to Force Argentina to Pay Defaulted Sovereign Debt • United States Condemns Uganda’s Antigay Law as Violating Human Rights • President Barack Obama Certifies That U.S. Peacekeepers in Mali …

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

State’S Rights, Last Rights, And Voting Rights, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

There are two ways to read the Supreme Court’s decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race …

The Effect Of Adopting Right To Work Laws: A Paired State Approach, Johnny Xu

MPA/MPP/MPFM Capstone Projects

The issue of unionization is an enduring one both politically and economically. A major subset within union studies deal with so-called “right-to-work laws.” States with right to work laws are concentrated heavily in the South and in the Plains states and have been that way since the 1940s or 1950s. The most recent additions of right-to-work states are Indiana and Michigan both in 2012. This paper will contribute to the debate by creating a new and novel dataset to analyze what the effects of adopting right to work laws are for a state over time as well as between a …

Teach The Women Well: Education Equality Is Key To Preventing Modern Day Slavery Of Women And Girls., Katharine A. Drummong

The Scholar: St. Mary's Law Review on Race and Social Justice

The key to ending modern-day slavery of women and girls requires placing further support for education initiatives in origin countries. A pro-education approach has yielded the greatest return. Since the beginning of civilization to the present, people have been trafficked and enslaved. Movements to abolish slavery gained momentum at the beginning of the nineteenth century: Great Britain outlawed slave trading in 1807, the United States abolished slavery in 1865, the League of Nations enacted a treaty calling for the end of slavery in 1926, and the efforts have strengthened in modern times. The United States’ Trafficking Victims Protection Act (TVPA) …

From Arbitrariness To Coherency In Sentencing: Reducing The Rate Of Imprisonment And Crime While Saving Billions Of Taxpayer Dollars, Mirko Bagaric

Michigan Journal of Race and Law

Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on …

Institutional Preconditions For Policy Success, Blake Hudson

Journal Articles

Policy failures receive much attention from the public and from policy makers adjusting policy in response to failure. Yet, lessons learned from policy failures are necessarily ex post observations. Not only has the policy failed to achieve its purposes, but a great deal of political, institutional, temporal, and economic capital has been wasted. A new body of literature on policy success undertakes ex ante analysis of successful policy designs, instrument choices, and other policy-making variables to establish a framework for more effective policy making. Though policy success may be inhibited by a variety of procedural, programmatic, or political factors, institutional …

Spillover Across Remedies, Michael Coenen

Journal Articles

Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which …

The American Legal Profession In The Twenty-First Century, Stephen M. Sheppard

Faculty Articles

Lawyers in the United States work in public service, private counseling, and dispute resolution, but many also work outside of traditional legal practice. The million-member American bar, second largest in the world, grows more diverse by gender, and ethnicity and older on average. All members of this learned profession must qualify by education or examination and by proof of good character and fitness before taking an oath to serve as an attorney. Thence, there are few limitations on the form of legal practice, though many law firms require an associateship before an attorney becomes an owner of the firm. Economic …

Foreword: The Death Penalty In Decline: From Colonial America To The Present, John Bessler

All Faculty Scholarship

This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.

Eroding The Foundations Of International Humanitarian Law: The United States Post-9/11, Col. Morris Davis

Case Western Reserve Journal of International Law

No abstract provided.