Law Commons^™

Capturing Individual Harms, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

The aggregated lifestyles and behaviors of individuals impose significant environmental harms yet remain largely unregulated. A growing literature recognizes the environmental significance of individual behaviors, critiques the failure of environmental law and policy to capture harms traceable to individual behaviors, and suggests and evaluates strategies for capturing individual harms going forward. This Article contributes to the existing literature by approaching the problem of environmentally significant individual harms through the lens of environmental federalism. Using climate change and individual greenhouse gas (“GHG”) emissions as an exemplar, the Article illustrates how local information, local governments, and local implementation can enhance policies designed …

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark

Scholarly Articles in Law Reviews & Journals

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …

The Future Of Climate Change Litigation After Aep V. Connecticut, Amanda Leiter, Rick Faulk, Eric Lasker, Mike Myers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Making A List And Checking It Twice, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

False Dichotomies Of Transitional Justice: Gender, Conflict And Combatants In Colombia, Shana Tabak

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Amicus Curiae Brief On The Practice Of Cumulative Charging Before International Criminal Bodies Submitted To The Appeals Chamber Of The Special Tribunal For Lebanon Pursuant To Rule 131 Of The Rules Of Procedure And Evidence, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

On 7 February 2011, President of the Special Tribunal for Lebanon (STL), Antonio Cassese, issued a general invitation to, inter alia, nongovernmental organizations and academic institutions to submit briefs on specic issues related to the 15 preliminary questions addressed to the judges of the Appeals Chamber pursuant to Rule 68(G) of the Rules of Procedure and Evidence (RPE). On 11 February 2011, the War Crimes Research Oce (WCRO) of the American University Washington College of Law submitted an amicus curiae brief under Rule 131 of the RPE addressing the specific question of whether cumulative charging is an accepted practice before …

The Campaign For Bias-Free Policing In Vermont: One State’S Resistance To The Localization Of Federal Immigration Agency, Amanda L. Park

Capstone Collection

There are roughly 1,500 immigrants from Mexico and Central America currently working on farms in Vermont, helping to sustain approximately half of all milk produced in the state. But the lack of adequate visa-to-work options leaves these individuals without proper documentation to be in the US. As such, they are vulnerable to exploitation by their employers, susceptible to harassment from the communities in which they live, and under constant threat of deportation by federal immigration agents. Now, the US Department of Homeland Security—in charge of domestic defense and immigration—is attempting to use local and state law enforcement officers in the …

Decent Work, Older Workers, And Vulnerability In The Economic Recession: A Comparative Study Of Australia, The United Kingdom, And The United States, Susan Bisom-Rapp, Andrew Frazer, Malcolm Sargeant

Faculty Scholarship

In countries with aging populations, the global recession presents unique challenges for older workers, and compels an assessment of how they are faring. To this end, the International Labour Organization's concept of decent work provides a useful metric or yardstick. Decent work, a multifaceted conception, assists in revealing the interdependence of measures needed to secure human dignity across the course of working lives. With this in mind, in three English-speaking, common law countries (Australia, the United Kingdom, and the United States), this Article considers several decent work principles applicable to older workers and provides evaluations in light of them. Relevant …

Cooperation’S Cost, Miriam H. Baer

Faculty Scholarship

This Article explores the costs and benefits of criminal cooperation, the widespread practice by which prosecutors offer criminal defendants reduced sentences in exchange for their assistance in apprehending other criminals. On one hand, cooperation increases the likelihood that criminals will be detected and prosecuted successfully. This is the “Detection Effect” of cooperation, and it has long been cited as the policy’s primary justification.

On the other hand, cooperation also reduces the expected sanction for offenders who believe they can cooperate if caught. This is the Sanction Effect of cooperation, and it may grow substantially if the government signs up too …

Protecting Scientific Integrity: The Commercial Speech Doctrine Applied To Industry Publications, Joanna K. Sax

Faculty Scholarship

Pharmaceutical companies face increasing pressure to bring new treatments to market in order to survive. The economic reality of survival and profits may distort a company’s decision-making process regarding full disclosure on a particular new drug.

Part II of this article analyzes the publication tactics employed by some members of the pharmaceutical industry (hereinafter “industry”) and explains how some of the publications promote misleading information. Part III proposes policy recommendations to require accurate dissemination of the results of clinical trials in order to protect scientific integrity and the public welfare. Part IV of this article addresses whether industry publications are …

William Howard Taft And The Taft Arbitration Treaties, John E. Noyes

Faculty Scholarship

Part I of this Essay explains Taft's interest in international law, placing it in historical context. Part II, outlines key features of the treaties and explores the debate over their ratification. Part III then reflects on the significance of the treaties.

The Road To Nowhere: Caterpillar V. Usinor And Cisg Claims By Downstream Buyers Against Remote Sellers, Donald J. Smythe

Faculty Scholarship

No abstract provided.

The Rise Of The Corporation, The Birth Of Public Relations, And The Foundations Of Modern Political Economy, Donald J. Smythe

Faculty Scholarship

No abstract provided.

Blood Sugar Sex Magik: A Review Of Postconviction Dna Testing Statutes And Legislative Recommendations, Justin Brooks, Alexander Simpson

Faculty Scholarship

Forty-eight states, the District of Columbia, and the federal government have adopted some form of postconviction DNA testing law. Some significant challenges arise when these laws are applied to cases like Richards, which do not involve rape kits but rather require a broader view of how DNA testing can prove innocence. Furthermore, the laws are not uniform, and in the politically charged atmosphere of criminal lawmaking, some of the laws are poorly thought out. This Article reviews these postconviction statutes from the perspective of practitioners who litigate these cases, while also exploring the major questions that ought to be addressed …

Contract's Adaptation And The Online Bargain, Nancy Kim

Faculty Scholarship

The model of traditional contracts is that of two individuals negotiating terms that are to each party's advantage. This model persists even though it no longer reflects the reality of consumer contracts. This Article traces the evolution of modern day consumer contracts and explains how courts have accommodated business needs by distorting contract law. This Article argues that the doctrine of consideration should be reconceptualized in light of new technologies and changes in doctrinal application. It concludes that in order to restore contract law's legitimacy, courts must allocate the burdens of technological and doctrinal changes in a more evenhanded manner. …

Linguistic Colonialism: Law, Independence, And Language Rights In Puerto Rico, Andrea Freeman

Faculty Scholarship

Part I reviews and analyzes courts' attempts to reconcile the conflict between the statutory English-language requirement for federal jurors, Puerto Rico's almost entirely Spanish-speaking population, and the Sixth Amendment's constitutional mandate. This part consists of three sub-parts: a description of Puerto Rico's linguistic landscape in comparison with that of the United States, a history of fair cross section challenges pertaining to the District of Puerto Rico, and a comparative look at fair cross section challenges in the Ninth Circuit. Part II examines the tension between language and constitutional rights through the lens of one case, Diffenderfer v. Gomez-Colon. In this …

The Vulnerabilities Of The Patient Protection And Affordable Care Act And The Tragedy Of Repeal, Susan A. Channick

Faculty Scholarship

No abstract provided.

Inter-American System, Claudia Martin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Writings On The Wall: The Need For An Authorship-Centric Approach To The Authentication Of Social-Networking Evidence, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

People are stupid when it comes to their online postings. The recent spate of social-networking websites has shown that people place shocking amounts of personal information online. Unlike more traditional modes of communication, the unique nature of these websites allows users to hide behind a veil of anonymity. But while social-networking sites may carry significant social benefits, they also leave users—and their personal information—vulnerable to hacking and other forms of abuse. This vulnerability is playing out in courtrooms across the country and will only increase as social-networking use continues to proliferate. This Article addresses the evidentiary hurdle of authenticating social-networking …

Table Of Contents - Issue 1

Missouri Law Review

Table of Contents - Issue 1

On The Contemporary Meaning Of Korematsu: Liberty Lies In The Hearts Of Men And Women, David A. Harris

Missouri Law Review

In just a few years, seven decades will have passed since the United States Supreme Court's decision in Korematsu v. United States, one of the most reviled of all of the Court's cases. However, similarities between the World War II era and our own have instigated a re-evaluation of Korematsu. When the Court decided Korenatsu in 1944, the United States was at war with the Japanese empire, which created considerable suspicion of anyone who shared the ethnicity of these foreign enemies. Since September 11, 2001, America has faced another external threat - from the al Qaeda terrorists - and there …

Walking Out On The Check: How Missouri Abandoned Its Public Defenders And Left The Poor To Foot The Bill, Chris Dandurand

Missouri Law Review

This Note looks at the Pratte decision, which arose primarily from the MSPD's most recent effort to cope with its drastically insufficient level of funding. In Missouri, as in many other states, the funding crisis has manifested itself in the form of extremely high caseloads for public defender offices. Straining to prevent a system-wide collapse, the Missouri Public Defender Commission (Commission) enacted regulations that gave each district office of the public defender the power to manage its caseload. These regulations effectively gave each district office the discretion to deny representation to indigent defendants who were otherwise entitled to counsel under …

Swimming Against The Tide: The Eighth Circuit Holds That Fleeing A Police Officer In A Motor Vehicle Is Not A Crime Of Violence, Nichole Walsch

Missouri Law Review

In 2009, the U.S. Court of Appeals for the Eighth Circuit held that the Minnesota offense of fleeing a peace officer in a motor vehicle is not a "crime of violence" for the purposes of the Federal Sentencing Guidelines. Under the Federal Sentencing Guidelines (Sentencing Guidelines), a crime of violence is defined as any state or federal offense "punishable by imprisonment for a term exceeding one year" that involves the use of physical force against another person or that "is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential …

Stimulating School Reform: The American Recovery And Reinvestment Act And The Shifting Federal Role In Education, Benjamin Michael Superfine

Missouri Law Review

The American Recovery and Reinvestment Act (ARRA), aimed at stimulating and stabilizing the American economy during the worst financial crisis since the Great Depression, reflects significant new dimensions of federal action in the area of educational reform. In addition to saving jobs in the educator workforce, the ARRA was designed to spark the implementation of specific reform strategies in states and schools and lay a foundation for the Obama administration's subsequent educational reform efforts, including the impending reauthorization of the No Child Left Behind Act of 2001. While the goals of the educational reform provisions of the ARRA are laudable, …

In A Class Of Their Own: The Eighth Circuit Upholds A Credit Card Agreement's Class Action Waiver And Mandatory Arbitration Clause, Lucinda Housley Luetkemeyer

Missouri Law Review

The United States Court of Appeals for the Eighth Circuit recently joined the cadre of courts to uphold class action waivers in arbitration agreements. In Cicle v. Chase Bank USA, the court held that a Missouri woman's putative class action suit against a credit card company was barred due to theclass action waiver in her card agreement's arbitration clause. The Eighth Circuit reversed a sharply worded federal district court order and rejected the plaintiff s contention that the class action waiver was a "de facto immunity provision[]" for the credit card company which would leave her and other similarly situation …

Giving A Voice To The Inanimate: The Right Of A Corporation To Political Free Speech, Alex Osterlind

Missouri Law Review

This Note examines the concept of corporate personhood and whether the state-created corporate entity is contemplated by the First Amendment. To discuss this controversy in relation to federal election laws constraining corporate financing, this Note first explains the particulars giving rise to the Citizens United case. Next, this Note examines the legislative and judicial treatment of corporate financing laws in regard to elections. Building upon this milieu, this Note presents the viewpoints of both those opposed to unrestricted corporate political speech as well as those championing a broad interpretation of the First Amendment that encompasses the corporate entity. Finally, this …

De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea, Tom Swoboda

Journal of Dispute Resolution

This Note addresses a recent Alabama Supreme Court decision concerning the issue of contracted appellate review in arbitration agreements. After analyzing the history of enforcement of arbitration agreements between contracting parties in U.S. Supreme Court precedent, this Note will explore the most recent Supreme Court decision regarding when parties may seek judicial review of arbitration awards. The Federal Arbitration Act's (FAA) preemptive effect over state court law will also be addressed, as the Supreme Court was not thoroughly explanatory on the issue. This Note will also evaluate and compare another state court ruling in Pennsylvania on the same judicial review …

Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon

Journal of Dispute Resolution

This article will begin with a brief explanation of rule of law development work. Section III will describe the role of legitimacy in developing rule of law. Section IV will discuss some examples of how ADR programs are typically included in rule of law development work. Section V will discuss when promotion of ADR programs may work against the development of rule of laws, specifically when ADR might seem more like a new form of corruption or when it might reinforce already existing bad practices. Section VI will offer some questions for ADR and rule of law development practitioners to …

New Twist On An Old Approach: Missouri's Use Of Unconscionability And Consent In The Class Arbitration Waiver Analysis - Brewer V. Missouri Title Loans, Inc., A, Whitney Hampton

Journal of Dispute Resolution

In recent years, the inclusion of arbitration agreements in consumer product contracts has become increasingly popular. In an effort to shield themselves from the damaging effects of expensive class action suits by consumers, many companies have begun to include class arbitration waivers in their contracts, which effectively mandate individual arbitration. These arbitration agreements were initially met with optimism. However, courts have seemingly developed a sense of disdain toward them because of their apparent ability to perpetuate disreputable business practices. This has left many courts searching for ways to invalidate class arbitration waivers.

End-Of-Life Decision-Making In Canada: The Report By The Royal Society Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schuklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila Mclean, Ross Upshur, Daniel Marc Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters: Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada, Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death, Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada’s constitutional order, Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …