Law Commons^™

Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal, Positivism Approach, Michael Ray Harris

University of Michigan Journal of Law Reform

The failure of regulatory systems over the past two decades to lessen the environment degradation associated with modern human economic output has begun to undermine the legitimacy of environmental lawmaking in the United States and around the world. Recent scholarship suggests that reversal of this trend will require a breach of the environmental administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of regulatory decision-making. This Article examines this claim through the lens of modern legal positivism. Legal positivism provides the tools necessary to test for and identify the specfic structural …

Document Design For Lawyers: The End Of The Typewriter Era, Linda L. Berger

Scholarly Works

This article discusses simple design rules that you can follow in documents that need not comply with court rules and some that you may use even in documents that must comply.

We Live In A Country Of Unhcr: The Un Surrogate State And Refugee Policy In The Middle East, Michael Kagan

Scholarly Works

Many gaps in the protection of refugees can be connected to a de facto transfer of responsibility for managing refugee policy from sovereign states to United Nations agencies. This phenomenon can be seen in dozens of countries in the Middle East, Africa and Asia, where the UN High Commissioner for Refugees (UNHCR) or the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) manage refugee camps, register newly arrived asylum-seekers, carry out refugee status determination, and administer education, health, livelihood and other social welfare programs.

In carrying out these functions, the UN acts to a great …

Mechanisms For Eliciting Cooperation In Counter-Terrorism Policing: Evidence From The United Kingdom, Tom R. Tyler, Stephen J. Schulhofer, Aziz Huq

Public Law and Legal Theory Working Papers

This study examines the effects of counterterrorism policing tactics on public cooperation amongst Muslim communities in London, U.K. It tests a procedural justice model developed in the context of studying crime control in the United States. The study reports results of a randomsample survey of 300 closed and fixed response telephone interviews conducted in Greater London’s Muslim community in February and March 2010. It tests predictors of cooperation with police acting against terrorism. Specifically, the study provides a quantitative analysis of how perceptions of police efficacy, greater terrorism threat, and the choice of policing tactics predict the willingness to cooperate …

Essay: Post-Conviction Death Penalty Investigations: The Need For Independent Investigators, Laurie L. Levenson

Loyola of Los Angeles Law Review

Currently, no standards guide the police or prosecutors on when they should appoint new investigators to conduct post-conviction investigations. One would hope that common sense would lead them to use independent investigators—as opposed to those with conflicts of interest—without a formal rule dictating that they had to do so. Evidence, however, suggests otherwise. This Essay discusses why it is essential to institute more formal guidelines to maintain the fairness and integrity of the justice system.

In addition to the condemned inmates whose cases are often the focus of such post-conviction investigations, 140,000 inmates are currently serving sentences of life imprisonment. …

Essay: Facing The Facts On The Death Penalty, James P. Gray

Loyola of Los Angeles Law Review

No abstract provided.

Executing The Will Of The Voters?: A Roadmap To Mend Or End The California Legislature’S Multi-Billion-Dollar Death Penalty Debacle, Judge Arthur L. Alarcón, Paula M. Mitchell

Loyola of Los Angeles Law Review

Since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions. The current backlog of death penalty cases is so severe that most of the 714 prisoners now on death row will wait well over 20 years before their cases are resolved. Many of these condemned inmates will thus languish on death row for decades, only to die of natural causes while still waiting for their cases to be resolved. Despite numerous warnings of the deterioration of California’s capital punishment system …

The Mccarran Amendment And Groundwater: Why Washington State Should Require Inclusion Of Groundwater In General Stream Adjudications Involving Federal Reserved Water Rights, Aubri Goldsby

Washington Law Review

All water is connected through the hydrologic cycle. When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater, the law often treats the two separately. The legal choice to ignore the interaction of surface and groundwater is particularly notable in “general stream adjudications.” States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source. In 1952, Congress …

The Mccarran Amendment And Groundwater: Why Washington State Should Require Inclusion Of Groundwater In General Stream Adjudications Involving Federal Reserved Water Rights, Aubri Goldsby

Washington Law Review

All water is connected through the hydrologic cycle. When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater, the law often treats the two separately. The legal choice to ignore the interaction of surface and groundwater is particularly notable in “general stream adjudications.” States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source. In 1952, Congress …

The Path Out Of Washington's Takings Quagmire: The Case For Adopting The Federal Takings Analysis, Roger D. Wynne

Washington Law Review

A quagmire awaits anyone attempting to understand the analysis Washington courts employ to determine whether government action constitutes a “taking” of property for which compensation is due under the U.S. Constitution. The Washington takings analysis is complex and confounding, especially when compared to the relatively straightforward takings analysis established by the U.S. Supreme Court. This Article argues that the Washington State Supreme Court should reject the Washington takings analysis and adopt the federal analysis. Comparing the federal and Washington analyses underscores how, as a matter of form, the Washington analysis easily stymies those who must work with it. Substantively, the …

United States Response To Questionnaire Concerning Boundaries And Interfaces With Respect To Copyright And Related Rights, June M. Besek, Jane C. Ginsburg, Lita Helman, Philippa Loengard, Eva Subotnik, Elana Bensoul

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Book Review Of Liquidated: An Ethnography Of Wall Street, By Karen Ho, Nancy Reichman

Journal of Legal Education

No abstract provided.

Questioning The Peremptory Status Of The Prohibition Of The Use Of Force, James A. Green

Michigan Journal of International Law

It is incontrovertible that the prohibition of the unilateral use of force is a fundamental aspect of the United Nations (U.N.) era system for governing the relations between states. Given this fact, the prohibition, as set out most crucially in Article 2(4) of the U.N. Charter, is often seen as the archetypal example of a jus cogens norm (a "peremptory norm" of general international law). Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character. Similarly, the International Law Commission (ILC) has taken this view and it is arguable that the International Court of Justice (ICJ) …

Exporting Subjects: Globalizing Family Law Progress Through International Human Rights, Cyra Akila Choudhury

Michigan Journal of International Law

In our popular culture and social consciousness, women are no longer the second-class citizens they used to be. Magazines, television advertisements, and billboards featuring women show us how we have achieved independence, wealth, desirability, and our intelligence. We are no longer the supporting role in movies and entertainment but stars in our own right. For this, we can thank both changing society and the unrelenting work of many women who refused to bring the coffee for the boss. The women's movement in the United States has made large gains for women through the use of social activism and legal action. …

The Alberta Legal Services Mapping Project: Report For The Peace River Judicial District, Glynnis Lieb

Canadian Forum on Civil Justice

The Peace River Judicial District is the final of eleven Alberta Judicial Districts to be mapped as part of the Alberta Legal Services Mapping Project (ALSMP). The ALSMP is a large-scale, multi-year endeavour, designed to gain an understanding of the legal needs of Albertans and of the legal services available in Alberta.

February/March 2011 Newsletter

Ergo

No abstract provided.

The Deepwater Horizon Oil Spill And The Limits Of Civil Liability, Ronen Perry

Washington Law Review

This Article uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The Article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as …

Motions 2011 Volume 47 Number 5, University Of San Diego School Of Law Student Bar Association

Newspaper, Motions (1987-2019)

No abstract provided.

Essay – Finding The Error In Daubert, Mark Haug, Emily Baird

UC Law Journal

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. laid down the standard for admissibility of expert testimony. We believe the best standard is simpler than the one chosen by the Court: The Daubert standard really is about discerning the trustworthiness of expert, and trustworthiness is best determined through an expert’s accounting of the error within his testimony. Lower courts have struggled with the Daubert standard. We offer evidence of the problem and propose a new standard that would capture the essence of Daubert but significantly simplify its application.

How Different Are Originalism And Non-Originalism?, Peter J. Smith

UC Law Journal

Several prominent and self-described “new originalists” have begun to contend that the objective original meaning of many of the Constitution’s provisions should be ascertained at a very high level of generality. They have also urged recognition of a distinction between constitutional “interpretation,” which involves the determination of the meaning of the constitutional text, and constitutional “construction,” which involves the formulation of legal rules to apply the text to concrete situations. These scholars have noted that because the constitutional text often is phrased at a very high level of generality, originalist interpretation alone simply cannot answer many difficult questions of constitutional …

Note – Don’T Steal My Sunshine: Deconstructing The Flawed Presumption Of Privacy For Unfiled Documents Exchanged During Discovery, Mary Elizabeth Keaney

UC Law Journal

Courts encourage settlement as a way to resolve disputes efficiently and clear congested dockets, but settlement agreements can have a sinister effect too. It is becoming common in modern litigation to draft settlement agreements that require the return of discovery materials and the sealing of court documents from public view. Legitimate privacy concerns warrant sealing pretrial discovery and other court documents. However, the practice of keeping information vital to the public health and safety sealed for a price is illegitimate, and should be prohibited. Legislative efforts are being made to monitor the impact that secret settlement agreements have on public …

Note – Efficient Proximate Cause: Is California Headed For A Katrina-Scale Disaster In The Same Leaky Boat?, Jacqueline Young

UC Law Journal

The threat of natural disaster looms each year over many states in the U.S. Although major disasters are, in that sense, predictable, they nevertheless strike without warning. The private insurance industry has proven incapable of absorbing the risk. Adding to the problem is the fact that the law, in many states, allows insurance companies to skirt around disaster coverage by inserting anti-concurrent causation (“ACC”) clauses into their property insurance policies. Even in states where the law appears to bar such clauses, state programs aimed at increasing disaster insurance have failed to yield sufficient coverage to support the total amount in …

Journal Staff

Duke Law & Technology Review

No abstract provided.

Decreasing Dirty Dumping? A Reevaluation Of Toxic Waste Colonialism And The Global Management Of Transboundary Hazardous Waste, Laura A. Pratt

William & Mary Environmental Law and Policy Review

Even though the phrase “toxic waste colonialism” has fallen out
of usage in the past ten years, the effective global management of transboundary
hazardous waste has yet to become an out-of-date topic. Starting
in the early 1980s, the international community sought to develop international
agreements governing the transboundary movement of hazardous
waste in order to protect developing countries from illegal “dirty dumping”
practices. Over twenty years have passed since the adoption of the Basel
Convention formed the foundation for other subsequent global protocols.
However, the ever-increasing global quantities of hazardous waste, including
the growing electronic waste issue, only exacerbate the …

Finding A New Green In Postwar Iraq And Afghanistan: An Argument For Cooperation, Nathan Kent Miller

William & Mary Environmental Law and Policy Review

No abstract provided.

Virginia Is For Lovers And Directors: Important Differences Between Fiduciary Duties In Virginia And Delaware, Laurence V. Parker Jr.

William & Mary Business Law Review

Virginia and Delaware have different approaches to a director’s fiduciary duties. The Virginia Stock Corporation Act imposes a deferential subjective standard of conduct that allows the more-frequent application of its business judgment rule. Virginia courts have followed the Virginia Stock Corporation Act and have shown even more deference to the decisions of directors than the Virginia Stock Corporation Act may require. In addition, Virginia courts have been reluctant to hold that additional constituencies, beyond the corporation and shareholders as a class, are owed fiduciary duties. Finally, Virginia courts have not imposed “enhanced scrutiny” on the decisions of directors involving hostile …

Is The Breast Best For Business?: The Implications Of The Breastfeeding Promotion Act, Brit Mohler

William & Mary Business Law Review

In June of 2009, the 111th Congress was asked again to consider the Breastfeeding Promotion Act. During that year, for the first time in history, the Senate also took up consideration of the issue, and the President of the United States signed into legislation a portion of the Act as included in a healthcare bill. The Breastfeeding Promotion Act is meant to protect a woman’s right to breastfeed in the workplace. The Act accomplishes this goal by: amending the Civil Rights Act to ensure that breastfeeding will be considered a protected act in the workplace, amending the Fair Labor Standards …

"Eighteen Million Cracks": Gender's Role In The 2008 Presidential Campaign, Gregory S. Parks, Quinette M. Roberson

William & Mary Journal of Race, Gender, and Social Justice

In light of the 2008 presidential campaign, Gregory S. Parks
and Jeffrey J. Rachlinski wrote an extensive analysis, titled A Better
Metric, likening the campaign to an interview process and hiring
decision for a high-ranking job. Though unpublished, their work
spawned a number of published articles, book chapters, and a book
on the role of unconscious race and gender bias in the evaluations of
President Barack Obama, First Lady Michelle Obama, and Secretary
of State Hillary Clinton. In light of the analogy between voting and
hiring decisions, this article argues that questions about sexism and
gender bias along the campaign …

Mainstreaming Gender In Rule Of Law Initiatives In Post-Conflict Settings, Eve M. Grina

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Witchcraft: A Human Rights Conflict Between Customary/Traditional Laws And The Legal Protection Of Women In Contemporary Sub-Saharan Africa, Maakor Quarmyne

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.