Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Discipline
Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 194701 - 194730 of 545644

Full-Text Articles in Law

V.48-2, 2011 Masthead Mar 2011

V.48-2, 2011 Masthead

San Diego Law Review

No abstract provided.

Go to article

Dangerous Discretion: Protecting Children By Amending The Federal Child Pornography Statutes To Enforce Sentencing Enhancements And Prevent Noncustodial Sentences, Holly H. Krohel Mar 2011

Dangerous Discretion: Protecting Children By Amending The Federal Child Pornography Statutes To Enforce Sentencing Enhancements And Prevent Noncustodial Sentences, Holly H. Krohel

San Diego Law Review

This Comment argues that Congress should amend the child pornography statutes in order to prevent noncustodial sentences and to make some of the otherwise discretionary enhancements within the Guidelines mandatory. Part II of this Comment discusses the legislative history of the once-mandatory Guidelines and presents an overview of the sentencing structure for those found guilty of a child pornography offense in violation of 18 U.S.C. §§ 2252 or 2252A. Part II also briefly discusses the Supreme Court's holding in United States v. Booker, which rendered the Guidelines advisory. Part III illustrates how some district court judges exercised their newfound discretion--the …

Go to article

Dean's Column: Kay Kindred, A Nevada "First", Rachel J. Anderson Mar 2011

Dean's Column: Kay Kindred, A Nevada "First", Rachel J. Anderson

Scholarly Works

This article documents selected aspects of the life of Professor Kay Kindred, the first female African-American law professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas.

Go to article

Brief Of Aarp And The National Legislative Association On Prescription Drug Prices As Amici Curiae In Support Of Petitioners, Sean Flynn Mar 2011

Brief Of Aarp And The National Legislative Association On Prescription Drug Prices As Amici Curiae In Support Of Petitioners, Sean Flynn

Amicus Briefs & Court Filings

This brief was written in support of Vermont’s Prescription Confidentiality Law, which regulates the confidentiality of prescription records and protects them from being used by pharmaceutical companies as a “targeting tool” to identify doctors most susceptible to sales messages.

Go to article

Partial Patents, Michael Mattioli, Gideon Parchomovsky Mar 2011

Partial Patents, Michael Mattioli, Gideon Parchomovsky

Articles by Maurer Faculty

In this Article, we propose a way to improve the workings of the patent system. Unlike most extant reform proposals that focus on the USPTO and the Federal Circuit and the procedures they employ, our proposal is conceptual in nature. We introduce two new intellectual property forms—“quasi-patents” and “semi-patents.” Quasi-patents, as we define them, would avail only against direct business competitors of the inventor, but not against anyone else. Semi-patents would have the same scope as traditional patents, but their grant would be conditioned on an applicant’s consent to publish all research information pertaining to the protected invention. These two …

Go to article

A Common Law View Of Causation, Science And Statistical Evidence In The Courtroom, Basil C. Bitas Mar 2011

A Common Law View Of Causation, Science And Statistical Evidence In The Courtroom, Basil C. Bitas

Research Collection Yong Pung How School Of Law

In March 2010, the Australian High Court in Amaca Ltd v Ellis [2010] HCA 5 (“Amaca”) moved assertively to clarify the approach of the Australian courts to causation in cases of lung disease involving multiple pathogens. The court demonstrated sensitivity to both the scientific and legal inquiries while reaffirming the obligation of plaintiffs to prove causation based on the balance of probabilities. In examining the plaintiff’s statistical evidence, the court established important guideposts regarding the proper use and interpretation of epidemiology in the courtroom, highlighting both the relevance and limits of such proof regarding causation and the satisfaction of the …

Go to article

Mohammed Jawad And The Military Commissions Of Guantánamo, David J. R. Frakt Mar 2011

Mohammed Jawad And The Military Commissions Of Guantánamo, David J. R. Frakt

Duke Law Journal

On December 17, 2002, Mohammed Jawad, then about fourteen or fifteen years old, was arrested by Afghan police on suspicion of involvement in a single grenade attack on a U.S. military jeep in a crowded public bazaar in Kabul. The attack injured two U.S. service members and their local interpreter. According to news accounts and public statements by senior Afghan officials, multiple persons were arrested for and confessed to this crime. But Jawad was the only suspect handed over to U.S. authorities. Before turning him over, Afghan officials threatened to kill Jawad or a member of his family if he …

Go to article

Unbundling Risk, Lee Anne Fennell Mar 2011

Unbundling Risk, Lee Anne Fennell

Duke Law Journal

Scholars have explored many ways to rearrange risk outside of traditional insurance markets. An interesting literature addresses a range of innovative alternatives, including the sale of unmatured tort claims or chances at windfalls, "anti-insurance," or "reverse insurance," and index-based derivatives that address routine (but life-altering) risks, such as those to home values or livelihoods. Because most of this work grows out of a conviction that specific risk allocations embedded in law could be improved upon, the merits of the newly proposed risk arrangements have taken center stage. This Article, in contrast, examines questions surrounding risk customization itself such as the …

Go to article

Where Are My Children … And My Rights? Parental Rights Termination As A Consequence Of Deportation, C. Elizabeth Hall Mar 2011

Where Are My Children … And My Rights? Parental Rights Termination As A Consequence Of Deportation, C. Elizabeth Hall

Duke Law Journal

The U.S. Supreme Court has set out a constitutional framework under which termination-of-parental-rights cases must be adjudicated in state courts. In all cases, this framework requires proof of parental unfitness by clear and convincing evidence before parental rights can be terminated, even when the parents in question are illegal immigrants. Despite this framework, in a rash of recently published cases, courts have terminated the parental rights of illegal immigrant parents without regard for these requirements. Those who work closely with immigrants fear that the published instances are merely the tip of the iceberg. This Note aims to shed light on …

Go to article

The China-Taiwan Ecfa, Geopolitical Dimensions And Wto Law, Pasha L. Hsieh Mar 2011

The China-Taiwan Ecfa, Geopolitical Dimensions And Wto Law, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article examines legal and geopolitical aspects of the China-Taiwan Economic Cooperation Framework Agreement (ECFA). It begins by analyzing areas in which the two governments’ measures contravene rules of the World Trade Organization (WTO). In particular, it provides the first detailed examination of the significant implications emerging from the ECFA for cross-straits trade relations and East Asian regionalism. The article also explains how the ECFA was modeled on free trade agreements (FTAs) of the Association of Southeast Asian Nations and assesses the impact of the ECFA’s early harvest program. Finally, the article discusses the ECFA’s consistency with WTO requirements for …

Go to article

India And Pakistan: A Tale Of Judicial Appointments, Shubhankar Dam Mar 2011

India And Pakistan: A Tale Of Judicial Appointments, Shubhankar Dam

Research Collection Yong Pung How School Of Law

Recent judicial appointments in India and Pakistan have led to battles between their respective judicial and executive branches. In a moment of remarkable constitutional coincidence, two appointments were set aside in India and Pakistan last week. First, India's Supreme Court invalidated the appointment of P. J. Thomas to the Central Vigilance Commission (CVC). Days later, Pakistan's Supreme Court invalidated Deedar Shah's appointment to the National Accountability Bureau (NAB).

Go to article

Elephants In The Room: Challenges Of Integrating China Into The Wto System, Henry S. Gao Mar 2011

Elephants In The Room: Challenges Of Integrating China Into The Wto System, Henry S. Gao

Research Collection Yong Pung How School Of Law

Since China’s accession to the WTO in late 2001, one of the most intriguing questions for trade analysts has been whether the “new kid on the block” would seek to disrupt the status quo in the WTO upon its entry. This paper answers the question by reviewing China’s participation in two key activities of the WTO, i.e., trade negotiations and dispute settlement, as well as another important component of global trade governance: regional trade agreements (RTAs). Drawing from an in-depth study of China’s record in these activities, the author argues that, overall, China has transformed from a passive “taker” of …

Go to article

Abortion, Dignity And A Capabilities Approach, Rosalind Dixon, Martha Craven Nussbaum Mar 2011

Abortion, Dignity And A Capabilities Approach, Rosalind Dixon, Martha Craven Nussbaum

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

The Law Of Religious Liberty In A Tolerant Society, Brian Leiter Mar 2011

The Law Of Religious Liberty In A Tolerant Society, Brian Leiter

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

Updating Constitutional Rules, Rosalind Dixon Mar 2011

Updating Constitutional Rules, Rosalind Dixon

Public Law and Legal Theory Working Papers

No abstract provided.

Go to article

The Complexity Of Jurisdictional Clarity, Scott Dodson Mar 2011

The Complexity Of Jurisdictional Clarity, Scott Dodson

Faculty Publications

The ideal of clear and simple jurisdictional rules seems like a no-brainer. Clarity in areas of subject-matter jurisdiction generally reduces the cost of litigating those issues and thus preserves litigant and judicial resources for the merits of a dispute. As a result, scholars and justices regularly promote the rhetoric of jurisdictional clarity. Yet no one has probed that rhetoric or reconciled it with the reality of subject-matter jurisdiction doctrine, which is anything but clear and simple. This Article begins to fill that gap, and, in the process, shifts the perspective of existing conversations between rules and standards and between mandates …

Go to article

Listening To Victims, Jayne W. Barnard Mar 2011

Listening To Victims, Jayne W. Barnard

Faculty Publications

No abstract provided.

Go to article

Trips And Its Achilles' Heel, Peter K. Yu Mar 2011

Trips And Its Achilles' Heel, Peter K. Yu

Faculty Scholarship

Written for the "15 Years of TRIPS Implementation" Symposium, this article examines why the TRIPS Agreement fails to provide effective global enforcement of intellectual property rights. It attributes such failure to five sets of challenges: historical, economic, tactical, disciplinary, and technological.

The article then outlines the various actions taken by both developed and less developed countries to steer the TRIPS Agreement and the larger international intellectual property system toward their preferred positions. While developed countries push for the development of stronger enforcement norms, less developed countries resist those demands and complain about the use of bilateral, plurilateral, and regional trade …

Go to article

Conventional Wisdom: Acknowledging Uncertainty In The Unknown, Mary Margaret Penrose Mar 2011

Conventional Wisdom: Acknowledging Uncertainty In The Unknown, Mary Margaret Penrose

Faculty Scholarship

That which has never been tried or tested cannot be confidently, much less boastfully, touted. In fact, something that has never occurred requires careful assessment and often receives numerous differing predictions regarding success and potential failure. In employing the scientific model, one relies on a hypothesis to calculate what is most likely to occur. But law does not use the true scientific method. Rather, law is as fluid and changing as the participants who make and interpret it. Thus, as the Article V issue of a State-Convention process to amend the United States Constitution is considered, all commentators on the …

Go to article

The Promise And Perils Of New Regionalist Approaches To Sustainable Communities, Lisa T. Alexander Mar 2011

The Promise And Perils Of New Regionalist Approaches To Sustainable Communities, Lisa T. Alexander

Faculty Scholarship

This Article argues that "new regionalism" is a form of "new governance." New regionalist approaches include collaborative efforts between cities and outlying suburbs to resolve metropolitan challenges such as affordable housing creation, transportation and sprawl. Such practices focus on regions as key sites for the resolution of public problems that transcend traditional local government and state boundaries. New regionalist praxis responds to local government law's failure to advance equity and sustainability throughout metropolitan regions. New regionalism promotes voluntary agreements and interlocal collaborations, rather than formal government or mandated regulation to resolve regional problems. New regionalism, then, is a form of …

Go to article

United States V. Wise: Is Failure To Stop For The Police A Sentence-Enhancing Crime Of Violence?, Edan Burkett Mar 2011

United States V. Wise: Is Failure To Stop For The Police A Sentence-Enhancing Crime Of Violence?, Edan Burkett

BYU Law Review

No abstract provided.

Go to article

Preserving Access To Tattoos: First Amendment Trumps Municipal Ban In Anderson V. City Of Hermosa Beach, Richard Hyde Mar 2011

Preserving Access To Tattoos: First Amendment Trumps Municipal Ban In Anderson V. City Of Hermosa Beach, Richard Hyde

BYU Law Review

No abstract provided.

Go to article

Substantially Burdened, Substantially In Conflict, Or Substantially Unneeded? A Discussion Of Abdulhaseeb V. Calbone, D. Evan Pack Mar 2011

Substantially Burdened, Substantially In Conflict, Or Substantially Unneeded? A Discussion Of Abdulhaseeb V. Calbone, D. Evan Pack

BYU Law Review

No abstract provided.

Go to article

Frontmatter Mar 2011

Frontmatter

BYU Law Review

No abstract provided.

Go to article

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman Mar 2011

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

William & Mary Bill of Rights Journal

No abstract provided.

Go to article

Pledge Your Body For Your Bread: Welfare, Drug Testing, And The Inferior Fourth Amendment, Jordan C. Budd Mar 2011

Pledge Your Body For Your Bread: Welfare, Drug Testing, And The Inferior Fourth Amendment, Jordan C. Budd

William & Mary Bill of Rights Journal

Proposals to subject welfare recipients to periodic drug testing have emerged over the last three years as a significant legislative trend across the United States. Since 2007, over half of the states have considered bills requiring aid recipients to submit to invasive extraction procedures as an ongoing condition of public assistance. The vast majority of the legislation imposes testing without regard to suspected drug use, reflecting the implicit assumption that the poor are inherently predisposed to culpable conduct and thus may be subject to class-based intrusions that would be inarguably impermissible if inflicted on the less destitute. These proposals are …

Go to article

Redefining The Supremacy Clause In The Global Age: Reconciling Medellin With Original Intent, Sarah Elizabeth Nokes Mar 2011

Redefining The Supremacy Clause In The Global Age: Reconciling Medellin With Original Intent, Sarah Elizabeth Nokes

William & Mary Bill of Rights Journal

No abstract provided.

Go to article

The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan Feb 2011

The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan

Working Paper Series

Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no …

Go to article

Asylum Rights And Wrongs: What The Proposed Refugee Protection Act Will Do And What More Will Need To Be Done, Michele R. Pistone Feb 2011

Asylum Rights And Wrongs: What The Proposed Refugee Protection Act Will Do And What More Will Need To Be Done, Michele R. Pistone

Working Paper Series

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added major new restrictions to U.S. asylum law. Several other laws passed in the wake of 9/11 produced additional restrictions. Various proposals to modify or even eliminate the changes made by IIRI¬RA and the post-9/11 laws have been introduced over the years; the Refu¬gee Protection Act of 2010 (RPA) is the most prominent recent example of these efforts. As this Article details, the RPA has much to commend within it, especially its proposed elimination of the one year deadline for asylum applications that was originally imposed by IIRIRA.

Go to article

Virginia V. Sebelius - U.S. Brief For Appellant, U.S. Department Of Health And Human Services Feb 2011

Virginia V. Sebelius - U.S. Brief For Appellant, U.S. Department Of Health And Human Services

Patient Protection and Affordable Care Act Litigation

No abstract provided.

Go to article

First Prev Next Last