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Full-Text Articles in Law

The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John J. Costonis Jan 2011

The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John J. Costonis

Journal Articles

Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, …

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Reconstituting Land Use Federalism To Address Transitory And Perpetual Disasters: The Bimodal Federalism Framework, Blake Hudson Jan 2011

Reconstituting Land Use Federalism To Address Transitory And Perpetual Disasters: The Bimodal Federalism Framework, Blake Hudson

Journal Articles

Scholars analyzing the intersection of federalism and disaster law and policy have primarily focused on the difficulties federalism poses for interjurisdictional coordination of disaster response. Though scholars have highlighted that rising disaster risks and costs are associated with “land-use planning that exacerbates, rather than mitigates, disaster risk,” a more holistic analysis of land-use-related disaster law and policy is needed. This Article provides a more comprehensive framework within which to analyze prospective mitigation or prevention of disaster risk and costs through a rebalancing - or reconstituting - of the respective roles of the federal and state governments in land-use planning. The …

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Re-Regulating The Baby Market: A Call For A Ban On Payment Of Birth Mother Living Expenses, Andrea B. Carroll Jan 2011

Re-Regulating The Baby Market: A Call For A Ban On Payment Of Birth Mother Living Expenses, Andrea B. Carroll

Journal Articles

More than fifty years ago, state law on domestic infant adoption changed to uniformly prohibit the practice of baby selling, a development that eliminated the “black market” for babies that many argued previously existed. Nonetheless, one need not look far to find that the United States’ domestic adoption system is broken even today, and the cost structure of the domestic adoption scheme is the greatest offender. A domestic adoption currently costs in the neighborhood of $40,0000, with the vast majority of the associated expenses coming not from the payment of any professional fees, but rather from the payment of living …

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Commerce In The Commons: A Unified Theory Of Natural Capital Regulation Under The Commerce Clause, Blake Hudson Jan 2011

Commerce In The Commons: A Unified Theory Of Natural Capital Regulation Under The Commerce Clause, Blake Hudson

Journal Articles

Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeal have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable - key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized …

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The Improper Dismissal Of Title Vii Claims On "Jurisdictional" Exhaustion Grounds: How Federal Courts Require That Allegations Be Presented To An Agency Without The Resources To Consider Them, Katherine Macfarlane Jan 2011

The Improper Dismissal Of Title Vii Claims On "Jurisdictional" Exhaustion Grounds: How Federal Courts Require That Allegations Be Presented To An Agency Without The Resources To Consider Them, Katherine Macfarlane

Journal Articles

Title VII of the Civil Rights Act of 1964 represents a watershed moment in American history. With Title VII's passage, Congress acknowledged the need to “back” the civil rights movement with “federal legislative power.” Title VII was meant to eliminate practices that inhibit employment opportunity equality. Beyond eliminating those practices, Title VII was also designed to assure equality of employment opportunities and to eliminate conduct that “fostered racially stratified job environments to the disadvantage of minority citizens.” This Title renders unlawful the refusal or failure to hire or “otherwise to discriminate against any individual with respect to his compensation, terms, …

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Hydraulic Fracturing And The Safe Drinking Water Act, Keith B. Hall Jan 2011

Hydraulic Fracturing And The Safe Drinking Water Act, Keith B. Hall

Journal Articles

No abstract provided.

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Abolishing State Trademark Registrations, Lee Ann Lockridge Jan 2011

Abolishing State Trademark Registrations, Lee Ann Lockridge

Journal Articles

No abstract provided.

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Forced To Flee And Forced To Repatriate? How The Cessation Clause Of Article 1c(5) And (6) Of The 1951 Refugee Convention Operates In International Law And Practice, Marissa E. Cwik Jan 2011

Forced To Flee And Forced To Repatriate? How The Cessation Clause Of Article 1c(5) And (6) Of The 1951 Refugee Convention Operates In International Law And Practice, Marissa E. Cwik

Vanderbilt Journal of Transnational Law

The purpose of refugee law is to provide international protection for vulnerable people who are denied state protection. In fulfilling this purpose, the United Nations High Commissioner for Refugees (UNHCR) and asylum states have different legal foundations and implementing materials. When terminating refugee status and protection under the 1951 Refugee Convention Relating to the Status of Refugees, the obligations and legal authorities of UNHCR and asylum states differ. The UNHCR implementing statute allows the facilitation of voluntary repatriation when refugees can return in safety and with dignity. In contrast, host states are able to mandate repatriation when a change in …

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Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin Jan 2011

Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin

Faculty Scholarship

The second generation of state constitutionalism is now emerging. With the methodology of autonomous state constitutional protection more clearly defined, courts and legislatures are turning to the task of determining when, and from whom, they should award damages to citizens deprived of their state constitutional rights. State courts, as well as legislatures contemplating statutes authorizing damage actions, will be tempted to borrow United States Supreme Court interpretations of 42 U.S.C. §1983 in shaping civil relief for infringement of state constitutional rights. This article argues that the Supreme Court’s Section 1983 remedies doctrine is a product of statutory, structural and institutional …

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Crumbling Infrastructure, Crumbling Democracy: Infrastructure Privatization Contracts And Their Effects On State And Local Governance, Ellen Dannin Jan 2011

Crumbling Infrastructure, Crumbling Democracy: Infrastructure Privatization Contracts And Their Effects On State And Local Governance, Ellen Dannin

Faculty Scholarship

Key arguments for privatizing public infrastructure range from providing money so cash-strapped governments can fix crumbling infrastructure and build much needed new infrastructure to shifting future financial risk from the public to a private contractor. The reality, though, is far different. Provisions commonly found in infrastructure privatization contracts make the public the guarantor of private contractors' expected revenues. Indeed, were it not for provisions that protect contractors from diminution of their expected returns, the contracts would be far shorter and much less complex. An effect of those contract provisions is to give private contractors a quasi-governmental status with power over …

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Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye Jan 2011

Unraveling The Exclusionary Rule: From Leon To Herring To Robinson - And Back?, David H. Kaye

Faculty Scholarship

The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstand­ing arrest warrant. The California Supreme …

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Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce Jan 2011

Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce

Faculty Scholarship

Many lawyers lie to their clients by saying, “Everything you tell me is confidential” despite the existence of some rules that require lawyers to disclose client confidences and others that permit lawyers to disclose confidences to protect themselves or collect fees. In an effort to encourage clients to speak honestly, a number of commentators urge lawyers to provide either a general or specific notice of the exceptions to confidentiality. This Article offers a different approach. It seeks to promote an honest and open dialogue between lawyer and client that will create a relationship of mutual trust and will make it …

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Reemployment Under Userra Sections 4312 & 4313: At Will Employment Vs. Temporary Employment, Richard L. Pate Jan 2011

Reemployment Under Userra Sections 4312 & 4313: At Will Employment Vs. Temporary Employment, Richard L. Pate

WCBT Faculty Publications

As thousands of service members return to the U.S., severe economic conditions render acclimation to civilian life especially difficult. In 2010, as the combat mission in Iraq approached an end, the unemployment rate of Iraq and Afghanistan era veterans had reached 13.1 percent. The Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301-4333 (1994) ("USERRA"), was enacted, in great part, to mitigate harms such as those caused by the aforementioned perfect storm. Among other things, USERRA protects service members by entitling them to reemployment after military service. More specifically, USERRA Sections 4312 & 4313 entitle returning service members …

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The Evaluation Of The Implementation Of Fair Value Accounting: Impact On Financial Reporting, Karen Cascini, Alan Delfavero Jan 2011

The Evaluation Of The Implementation Of Fair Value Accounting: Impact On Financial Reporting, Karen Cascini, Alan Delfavero

WCBT Faculty Publications

The accounting industry is in a state of continuous change. In the United States, the historical cost principle has traditionally been the foundation of accounting. Until recently, assets and liabilities have been required to be recorded at their acquisition prices, with the exception of designated financial assets and financial liabilities. However, the Financial Accounting Standards Board (FASB) has now created accounting standards that are distant from the cost principle. Statement of Financial Accounting Standards No. 157: Fair Value Measurements, issued in September 2006 (FAS157, now codified as ASC 820) and Statement of Financial Accounting Standards No. 159: The Fair Value …

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The Status Of Recognition And Enforcement Of Judgments In The European Union, Michael D. Larobina, Richard L. Pate Jan 2011

The Status Of Recognition And Enforcement Of Judgments In The European Union, Michael D. Larobina, Richard L. Pate

WCBT Working Papers

International trade and the free movement of people are inevitably followed by legal disputes. Such litigants require an efficient and predictable dispute resolution mechanism capable of handling cases between diverse nationals. An essential part of such mechanism is a clearly defined process of judgment enforcement across national boundaries. In the past several decades, the European Union (“EU”) has necessarily addressed judgment enforcement across the boundaries of its member nations (“Member States”). Citizens of the EU need to prosecute and defend their legal rights in their home and in other EU member states. Presently, the EU is, again, considering such issues …

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Ripe, Riper, Ripest - The Ninth Circuit's Decision In Addington V. U.S. Airline Pilots Association Sets A Misguided Ripeness Standard For Duty Of Fair Representation Claims, R. J. Pathroff Jan 2011

Ripe, Riper, Ripest - The Ninth Circuit's Decision In Addington V. U.S. Airline Pilots Association Sets A Misguided Ripeness Standard For Duty Of Fair Representation Claims, R. J. Pathroff

Journal of Air Law and Commerce

No abstract provided.

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Twombly And Parallel Conduct - How The Sixth Circuit Grounded In Re Travel Agent Commission Antitrust Litigation, Natalie N. Dubose Jan 2011

Twombly And Parallel Conduct - How The Sixth Circuit Grounded In Re Travel Agent Commission Antitrust Litigation, Natalie N. Dubose

Journal of Air Law and Commerce

No abstract provided.

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Flightcrew Member Duty And Rest Requirements: Does The Proposed Legislation Put To Rest The Concern Over Pilot Fatigue, Natalie N. Dubose Jan 2011

Flightcrew Member Duty And Rest Requirements: Does The Proposed Legislation Put To Rest The Concern Over Pilot Fatigue, Natalie N. Dubose

Journal of Air Law and Commerce

No abstract provided.

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Will The Ban On In-Flight Cell Phone Use Be Up In The Air Much Longer, Sarah Lopano Jan 2011

Will The Ban On In-Flight Cell Phone Use Be Up In The Air Much Longer, Sarah Lopano

Journal of Air Law and Commerce

No abstract provided.

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The 2010 Nasa Authorization Act: Legislators As Rocket Scientists And Other Implications For America's Human Spaceflight Program, Jason S. Sharp Jan 2011

The 2010 Nasa Authorization Act: Legislators As Rocket Scientists And Other Implications For America's Human Spaceflight Program, Jason S. Sharp

Journal of Air Law and Commerce

No abstract provided.

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Legal Malpractice Litigation And The Duty To Report Misconduct, Vincent R. Johnson Jan 2011

Legal Malpractice Litigation And The Duty To Report Misconduct, Vincent R. Johnson

Faculty Articles

Lawyers participating in legal malpractice litigation sometimes encounter evidence of serious disciplinary rule violations. Whether, and how soon, those lawyers are required to report this information to grievance authorities is a question that has received little attention from courts and scholars, despite the fact that most states have mandatory reporting rules. The dilemma for lawyers serving as testifying experts is particularly troublesome because nonreporting may result not only in discipline, but testimonial impeachment. The better view is that an expert in a pending case ordinarily has no mandatory obligation to report misconduct. This conclusion is supported by an analysis of …

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Credit-Monitoring Damages In Cybersecurity Tort Litigation, Vincent R. Johnson Jan 2011

Credit-Monitoring Damages In Cybersecurity Tort Litigation, Vincent R. Johnson

Faculty Articles

When someone improperly accesses or discloses an individual’s personal information, the subject of that data breach is often at an increased risk of identity theft. One way for an affected data subject to guard against this risk is to subscribe to a credit-monitoring service. Recently, potential cybersecurity defendants have provided credit-monitoring services to affected data subjects voluntarily, and courts have approved credit-monitoring compensation as part of class-action settlements. These developments demonstrate that credit-monitoring expenditures are both reasonable and necessary when a serious breach of data security occurs. Furthermore, the economic loss rule should not bar recovery of credit-monitoring damages because …

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Better Late Than Never? The Effect Of The Native American Graves Protection And Repatriation Acts' 2010 Regulations (Comment), Zoe Niesel Jan 2011

Better Late Than Never? The Effect Of The Native American Graves Protection And Repatriation Acts' 2010 Regulations (Comment), Zoe Niesel

Faculty Articles

No abstract provided.

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Winter 2011 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law Jan 2011

Winter 2011 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

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Law In The Age Of Exabytes: Some Further Thoughts On ‘Information Inflation’ And Current Issues In E-Discovery Search, Jason R. Baron Jan 2011

Law In The Age Of Exabytes: Some Further Thoughts On ‘Information Inflation’ And Current Issues In E-Discovery Search, Jason R. Baron

Richmond Journal of Law & Technology

In 2007, in the pages of this Journal, George L. Paul and I posed a question to the legal profession at large, to wit: can the legal system adapt to the new reality of an era of rapid inflation in the amount of electronically stored information (ESI) at issue in civil litigation? After surveying the history of technological innovation that led to an explosion of new data, we proceeded to discuss various legal strategies for success in our current inflationary epoch. These strategies included: consideration of new and emerging ways in which to think about search and information retrieval in …

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Federal Rule Of Evidence 502: Has It Lived Up To Its Potential?, Paul W. Grimm, Lisa Yurwit Bergstrom, Matthew P. Kraeuter Jan 2011

Federal Rule Of Evidence 502: Has It Lived Up To Its Potential?, Paul W. Grimm, Lisa Yurwit Bergstrom, Matthew P. Kraeuter

Richmond Journal of Law & Technology

Nothing causes litigators greater anxiety than the possibility of doing, or failing to do, something during a civil case that waives attorney– client privilege or work-product protection. Attend any seminar, webcast, podcast, or other continuing legal education course dealing with the discovery of electronically stored information (“ESI”) and you are sure to hear about this concern and how to mitigate it.

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Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan Jan 2011

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present the fourth issue of the 2010–2011 academic year. In this issue, we explore privacy law in the context of online social networking, online advertising and tort reform. Additionally, this issue examines mandatory disclosure of trade secrets as a component of offshore oil drilling regulation and evaluates certain criticisms levied against the Anti-Counterfeiting Trade Agreement.

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Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan Jan 2011

Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan

Richmond Journal of Law & Technology

In the Internet savvy and technology dependent world of today, it is difficult to imagine life without Google Maps. The pioneer web- mapping platform provides users with a number of free services, ranging from simple directions to high-resolution imagery of terrain. The service has revolutionized travel, providing guidance and resources to more than just the directionally challenged. Contributing to this notoriety was Google’s addition of “Street View” to the array of mapping functions in May of 2007. As its name implies, the Street View function allows users to view enhanced, 360-degree snapshots of homes, streets and other public property. According …

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Rethinking Reasonable Expectations Of Privacy In Online Social Networks, Bryce Clayton Newell Jan 2011

Rethinking Reasonable Expectations Of Privacy In Online Social Networks, Bryce Clayton Newell

Richmond Journal of Law & Technology

In 1890, Warren and Brandeis “invented” the common law right to privacy in the United States. They declared the need for a right to privacy – “to be let alone” – because technological advancements (photography) and business methods (yellow journalism) enabled the media to bring previously private details to the attention of a much larger audience. Warren and Brandeis declared, “[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” Because of …

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A Critical Look At The Anti-Counterfeiting Trade Agreement, David M. Quinn Jan 2011

A Critical Look At The Anti-Counterfeiting Trade Agreement, David M. Quinn

Richmond Journal of Law & Technology

On October 23, 2007, the United States announced an initiative to strengthen intellectual property enforcement measures within the international community via the Anti-Counterfeiting Trade Agreement (“ACTA”). During the following years, eleven rounds of negotiations among as many parties culminated in a finalized text released on December 3, 2010. The dialogue occurred outside the purview of existing bodies such as the WIPO and WTO. The ACTA now awaits acceptance following the March 31, 2011 commencement of the ratification period. It will enter into force thirty days following the sixth formal approval.

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