Law Commons^™

Family, The Market, And Adr, The, Amy J. Cohen

Journal of Dispute Resolution

This Article proceeds in three Parts. I begin by briefly summarizing what I will refer to as separate spheres ideology-the idea that our normative understandings of the family and the market are constructed in contradistinction to one another. I then show how this conceptual distinction between the family and the market shaped the development of alternative dispute processing during two periods of time. The first period, which I introduce to frame the second, examines how dispute processing reformers-beginning during the Progressive era and continuing to the 1930s-distinguished alternative forums for family disputes from alternative forums for commercial ones. In Part …

Dispensing Injustice: Stolt-Nielsen And Its Implications - Stolt-Nielsen S.A. V. Animalfeeds Int'l Corp., Nicholas Goodrich

Journal of Dispute Resolution

The immediate effect of the holding was to allow a group of corporate defendants to use their superior bargaining position in the contracting process to effectively shield themselves from liability. Although Stolt-Nielsen involved business entities, the case also has implications in the consumer context. If the Court were to extend the reasoning of the case to disputes involving adhesion contracts, corporations would enjoy this immunity in the context of consumer disputes. Far from a hypothetical exercise in the reaches of Supreme Court jurisprudence, the Court is expected to decide this very issue during the 2010 term. In light of these …

Comment: Trends And Challenges In Bringing Together Adr And The Rule Of Law, Stephanie E. Smith

Journal of Dispute Resolution

The goals of justice, peace, and prosperity will not be achieved overnight. Strategies that aim to achieve a perfect state in a short time frame are doomed to failure. Rule of law approaches should be individualized for local context, and be nimble enough to adapt over time to advance these ambitious goals. Success will require drawing upon expertise from many practice areas and academic fields, and coordinating activities to maximize limited resources.

On Precarious Ground: Binding Arbitration Clauses, Collective Bargaining Agreements, And Waiver Of Statutory Workplace Discrimination Claims Post-Pyett - Duraku V. Tishman Speyer Properties, Inc., J. Nicholas Haynes

Journal of Dispute Resolution

During the 1960s, federal and state governments put into place a maze of statutes aimed at protecting the civil rights of minorities, both in society and in the workplace. While these statutes have undoubtedly lessened workplace discrimination for minorities in the United States, there are still some areas that are uncertain or unsettled, especially when a union is involved on behalf of the employees. More to the point, there has been a wealth of confusion as to whether the right to bring a statutory workplace discrimination claim can be waived when a worker joins a union and allows the union …

Migration Conservation: A View From Above, Robert L. Fischman

Articles by Maurer Faculty

The extinction prevention focus of natural resources policy diverts attention from important issues of ecological integrity and adaptation to climate change. Animal migration conservation serves as a bridge from the imperiled species problem to the more spatially and temporally difficult problems surrounding climate change adaptation. Conserving abundant animal migrations both strengthens the resilience of the ecosystems in which they function and tests the resilience of social institutions responsible for adaptation. This essay synthesizes the findings of a two-year, interdisciplinary study of animal migration conservation. It also introduces the articles that follow in a symposium issue of the journal, Environmental Law.

Gangs And Gang Activity In America: A Prevention Report, Portland State University. Criminology And Criminal Justice Senior Capstone

Criminology and Criminal Justice Senior Capstone Project

This report covers information on gangs, gang activity, and gang prevention. The report reveals information such as the history of gangs in the U.S., the definition of “gang,” data on prevalence, persons affected by gang activity, demographics of gangs and their members, criminal activity committed by gangs, gang hierarchical structure, prevention strategies, and effectiveness of gang prevention programs.

What Is The 'Law' In Chinese Tax Administration?, Wei Cui

All Faculty Publications

In December 2009, in just weeks of proximity to the issuance of several controversial, arguably ultra vires tax circulars by the Ministry of Finance and by the State Administration of Taxation (SAT), the latter agency promulgated a seminal regulation governing informal rulemaking activities of all tax authorities in China. This regulation took effect on July 1, 2010, and promises to significantly improve the clarity, transparency, predictability, and quality of tax rulemaking. Ironically, it can also be seen as a rebuke to a cynical view that is rather prevalent among Chinese tax practitioners and reinforced by the recent problematic tax circulars. …

Fiscal Federalism In Chinese Taxation, Wei Cui

All Faculty Publications

The recent policy literature on fiscal federalism in China has concentrated on the large “vertical fiscal gap” resulting in inadequate local provision of public goods and services. Thus there is an evident interest in giving local governments more taxing powers. After a brief historical survey, the article discusses a 1993 State Council directive that centralized taxing power. This has led local governments to make use of their control over tax administration to alter effective tax rates, and to the practice of “refund after collection”, whereby local governments disguise tax cuts as expenditures, following a logic opposite to tax expenditures. This …

Why Study Large Projects? Environmental Regulation’S Neglected Frontier, Natasha Affolder

All Faculty Publications

Large-scale natural resource and infrastructure projects create some of the most challenging and high-stakes contexts for environmental regulation. Witness the heated debates surrounding the Keystone XL pipeline project. But to date, large projects have attracted relatively little sustained interest from scholars of environmental law and regulation. Case studies stand alone as valuable empirical accounts of individual pipelines, dams, and mining projects. But synthesis of these case studies is lacking. A workshop that celebrates the approaching 20th year anniversary of Ian Ayres’ and John Braithwaite’s 1992 book, Responsive Regulation, provides an opportune moment to reflect on this lacuna in environmental regulatory …

Some Thoughts On The Evolution Of Executive Equity Compensation, Herwig Schlunk

Vanderbilt Law Review

No abstract provided.

Let's Not Kill All The Privacy Laws (And Lawyers), Fred H. Cate, Christopher Kuner, Christopher Millard, Dan Jerker B. Svantesson

Articles by Maurer Faculty

No abstract provided.

Cracks In The Firmament Of Burma's Military Government: From Unity Through Coercion To Buying Support, David C. Williams

Articles by Maurer Faculty

Despite holding recent elections, Burma’s military government does not intend to relinquish power; its new constitution guarantees the army the right to do whatever it wants. Democracy will therefore not come to Burma through legal, peaceful, incremental steps. Instead, democracy will come to Burma outside the legal process, because the basis for the regime’s power has changed, becoming markedly weaker. When it first seized power in 1961, the military was united and therefore able to rule through coercion alone. In the past several decades, by contrast, the generals have increasingly sought to purchase support by giving income and resource streams …

Park Access And Distributional Inequities In Pinellas County, Florida, Kyle Ray Hirvela

USF Tampa Graduate Theses and Dissertations

Although environmental justice research has traditionally focused on environmental disamenities and health hazards, recent studies have begun to examine social inequities in the distribution of urban amenities such as street trees and parks that provide several direct and indirect health benefits to local residents. This thesis adds to this knowledge by evaluating distributional inequities in both distribution and access to parks in Pinellas County, the most densely populated and one of the most racially segregated counties in Florida. An important objective was to determine if neighborhoods with lower levels of park access are more likely to contain a significantly higher …

Did The Fda Properly Assess The Safety Of Olestra As A Food Additive?, Leah Lebel

The Science Journal of the Lander College of Arts and Sciences

The following is an excerpt of the introduction to this article: Olestra, a fat-substitute comprised of sucrose that has been esterified with fatty acids (Blume 1995), has been the subject of much controversy ever since its creation. Olestra is not absorbed (Mattson and Nolen 1972) because it cannot be hydrolyzed by pancreatic lipases (Mattson and Volpenhein 1972) or taken up across the enterocyte microvillus membrane (Freston et al. 1997), and thus, cannot be utilized for energy. Olestra has physical and organoleptic properties similar to those of traditional triglycerides (Jandacek and Webb 1978) and is emulsified together with triglyceride (Freston et …

Urbanization And Land Surface Temperature In Pinellas County, Florida, Bruce Coffyn Mitchell

USF Tampa Graduate Theses and Dissertations

Since the early 1800's, many studies have recognized increased heat in urban areas, known as the urban heat island (UHI) effect, as one of the results of human modification to the natural landscape. UHI is related to differences in land surface temperature (LST) between rural areas and urban areas where factors of the built environment such as the thermodynamic capacities of materials, structural geometry, and heat generating activities cause increased storage and re-radiation of heat to the atmosphere. This thesis examines the correlation between factors of urbanization and differences in land surface temperature (LST) in the subtropical climate of Pinellas …

Administering Election Law, Saul Zipkin

Marquette Law Review

In recent years, commentators have expressed heightened concern about the harms to democratic legitimacy caused by political actors making decisions about the electoral process on partisan or incumbent-protecting bases. This concern has been recognized in a number of judicial opinions, but has not taken form in election law doctrine. This Article argues that administrative law presents a well-developed doctrinal resource for addressing concerns about democratic legitimacy in the electoral process. Administrative law trades off some direct electoral control for some demonstrated expertise and shores up the democratic element through lines of accountability to the legislature, the executive, and the public. …

Editorial: Voting Rights For The Incarcerated, Juan Moreno Haines

UC Law Journal of Race and Economic Justice

The Hastings Race and Poverty Law Journal is proud to present Voices from the Community. This feature will allow us to publish pieces written by those affected by the legal system, so that our Journal is not merely one of academic discourse, but one that invites persons experiencing injustice to add their perspectives to our publication. In our introductory piece, Juan Moreno Haines, a man currently incarcerated at San Quentin State Prison, lends firsthand insight on felon disenfranchisement and how it affects him and the other men with whom he is incarcerated.

Equality Behind Bars: Improving The Legal Protections Of Transgender Inmates In The California Prison Systems, Angela Okamura

UC Law Journal of Race and Economic Justice

This note examines the failure of federal and California law to protect perhaps its most vulnerable population: transgender prisoners. Although California expresses its concern for the safety and well-being of transgender individuals in other areas of the law, rights for transgender inmates get left in the dust. Transgender inmates are disproportionately likely to be sexually abused in prison, and their safety is not adequately assured under the current state of federal or California law. Currently, when classifying and housing prisoners, officials of the California Department of Corrections and Rehabilitation ("CDCR") are only required to look at factors that point to …

The Intersection Of Intellectual Property And Race In The Twenty-First Century: An Examination Of The Interpretation Of Racial Categories In Patent Law, Tiffany Cruz Gonzalez

UC Law Journal of Race and Economic Justice

The political and jurisprudential treatment of racespecific patents, patents on inventions that are aimed at certain racially or ethnically defined groups, in the United States has the potential to legitimize the reification of race and severely impact society's understanding of racial disparities. Accordingly, with the increase in race-specific patents, and race-based technology in general, the way that the courts will construe racial categories in claim terms will determine the pattern and practice of future race relations in the United States. This note examines the role of a judge and an inventor in the potential litigation of a racespecific patent both …

A Civil Right To Counsel Through The States Using California's Efficiency Project As A Model Toward A Civil Gideon, Brian Brophy

UC Law Journal of Race and Economic Justice

While the United States Supreme Court's decision in Gideon v. Wainwright guaranteed the right to counsel in criminal trials, the poor are often left without representation in civil cases. These cases can have devastating impacts on the poor's access to housing, welfare benefits, children, and more. In 2009, California passed the Sargent Shriver Civil Counsel Act, which created pilot projects that guarantee access to counsel in civil cases for indigent Californians. This note examines how state legislatures can use California's act as a model to expand access to counsel into the civil context. If state officials are shown the dire …

You Don't Have To Reinvent The Wheel: A Comparison Of Wage And Hour Laws, Their Effects On The Latino Family, And What We Can Learn From Them, Brenda Valle

UC Law Journal of Race and Economic Justice

Latinos have become the fastest growing minority population in the United States. As a result, the United States has seen a surfacing of issues that have had a unique impact on the Latino population. One issue that has specifically affected Latinos is the weakness in wage and hour laws, both at the federal and state level. Because Latinos as a group are primarily concentrated in low-wage sectors, wage and hour laws have a greater impact on Latinos than any other group. Furthermore, the negative impact wage and hour laws have does not stop with the low-wage worker but extends to …

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

School of Law Faculty Publications

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …

The Anti-Counterfeiting Trade Agreement (Acta): An Assessment, Dalindyebo Shabalala

School of Law Faculty Publications

The Anti-Counterfeiting Trade Agreement (‘ACTA’) is motivated by the perceived lack of progress of multilateral enforcement of intellectual property rights. Building on the equivalent provisions in EU and US bilateral and regional free trade agreements (FTAs), the ACTA parties sought to establish best practice international standards to which other countries could aspire or adhere. Proponents stressed the need to combat the increase in global piracy and counterfeiting, drawing on estimates of the scale of the problem, such as those from the OECD that suggested international trade in counterfeit and pirated products amounted to some $200 billion in 2005 (excluding domestically …

The Impact Of The American Doctrine Of Discovery On Native Land Rights In Australia, Canada, And New Zealand, Blake Watson

School of Law Faculty Publications

In Johnson v. McIntosh, John Marshall proclaimed that European discovery of America “gave exclusive title to those who made it . . . .” 21 U.S. 543, 574 (1823). Marshall presented a revised version of the discovery doctrine in Worcester v. Georgia, 31 U.S. 515 (1832), yet it is Johnson that remains the leading decision on native property rights in the United States. The Johnson discovery rule has not only diminished native rights in the United States, but has also influenced the definition of indigenous land rights in Australia, Canada, and New Zealand.

This Article sheds light on …

End The Experiment: The Attorney-Client Privilege Should Not Protect Communications In The Allied Lawyer Setting, Grace M. Giesel

Marquette Law Review

In recent years, courts have seen an explosion of claims that communications need not be disclosed because they enjoy the protection of something often referred to as the “common interest doctrine.” These claims—claims of attorney–client privilege—occur in two situations: the joint client setting and the allied lawyer setting. In a joint client situation, an attorney represents two or more clients on a matter with all parties working together on the joint endeavor. In an allied lawyer situation, several entities or individuals work together on a matter of common interest but the parties have separate lawyers.

This Article argues, uncontroversially, that …

Till Death Do Us Part: Chief Justices And The United States Supreme Court, Todd C. Peppers, Chad M. Oldfather

Marquette Law Review

None

Car-Ving Out Notions Of Privacy: The Impact Of Gps Tracking And Why Maynard Is A Move In The Right Direction, Justin P. Webb

Marquette Law Review

In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that the aggregation of information about an individual’s movements, over an extended period of time, violated an individual’s reasonable expectation of privacy. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court’s decision was correct, insofar as it takes account of the interaction of changing technology and …

Criminal Law In The Shadow Of Violence, Alice Ristroph

Faculty Scholarship

No abstract provided.

The Elder Economic Security Initiative™: The Elder Economic Security Standard™ Index For Iowa, Gerontology Institute, University Of Massachusetts Boston, Wider Opportunities For Women

Gerontology Institute Publications

This report addresses income adequacy for Iowa’s older adults using the national WOW-GI National Elder Economic Security Standard Index (Elder Index) methodology. The Elder Index benchmarks basic costs of living for elder households and illustrates how costs of living vary geographically and are based on the characteristics of elder households, including household size, home ownership or renter status and health status. The costs are based on market costs for basic needs of elder households and do not assume any public or private supports.

The Elder Economic Security Initiative™: The Elder Economic Security Standard™ Index For Colorado, Gerontology Institute, University Of Massachusetts Boston, Wider Opportunities For Women

Gerontology Institute Publications

This report addresses income adequacy for Colorado’s older adults using the national WOW-GI National Elder Economic Security Standard Index (Elder Index) methodology. The Elder Index benchmarks basic costs of living for elder households and illustrates how costs of living vary geographically and are based on the characteristics of elder households, including household size, home ownership or renter status and health status. The costs are based on market costs for basic needs of elder households and do not assume any public or private supports.