Legal Studies Commons^™

Globalization And Law: Law Beyond The State, Ralf Michaels

Faculty Scholarship

The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …

The Lawyer's Toolbox: Teaching Students About Risk Allocation, Dana Malkus, Scott Stevenson, Eric J. Gouvin, Usha Rodrigues

All Faculty Scholarship

This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panel focuses on techniques for teaching risk allocation as part of transactional skills classes. The panelists describe their approaches to teaching risk allocation, from syllabus design to final evaluations. How can a professor help students to understand the basic concepts of risk, the role risk plays in business and legal decisions, and how they can help clients manage risk. The techniques for teaching risk allocation include hypotheticals, visual aids, and hands-on assignments. The panelists each take their students down a different path …

Why Eu Work-Family Reconciliation Policies Fail In Italy: A Feminist Legal Analysis, Chrystal Orozco

Master's Theses

Following the establishment of the European Parental Leave Directive (96/34/EC), the female employment rate in Italy is still ranked the third lowest in the European Union (EU) and Italian women continue to do twice as much household work as Italian men. Parents, especially women, struggle to find a balance between professional work and their family lives in a society that encourages the traditional gendered roles of the housewife and the breadwinner. The following study is a theoretical analysis of the Parental Leave Directive and the potential domestic influences that may prevent Italy from progressing socially towards gender equality. This study …

A Lockean Theory Of Intellectual Property Revisited, Adam D. Moore

San Diego Law Review

The primary, and perhaps sole, function of government according to Locke was to secure and protect the lives, liberties, and property of individuals who consented, explicitly or tacitly, to a specific political union. The question that I will address in this Article, and one that I took up over fifteen years ago, is: should we consider intellectual works to be the proper subjects of Lockean property claims? My answer then and now is “yes,” with the acknowledgement that such a view may require substantial revisions to Anglo-American systems of intellectual property. I will argue that intellectual property rights are no …

The Relationship Between Foundations And Principles In Ip Law, Robert P. Merges

San Diego Law Review

In my book Justifying Intellectual Property (JIP), I wrote about what I call the “foundations” of the field of intellectual property (IP) law. I tried to distinguish between a foundational level of discourse and another level, the level of basic principles. In the San Diego conference at which my book was discussed—and in several other settings as well—the most frequent and persistent line of questioning about my book centered on the relationship between these two levels. That is what this brief Article is about.

Managing The Intellectual Property Sprawl, Shubha Ghosh

San Diego Law Review

Professor Merges, despite the centrality of creative persons to his argument, organizes a set of ideas that are conducive to refocusing intellectual property law on users. I present this user-focused argument in this Article through the following five Parts. Part II explains my suggested approach to questions about the design of intellectual property law—an approach based on the new institutional economics and the work of Ronald Coase. Part II also addresses objections to this approach. Part III identifies the user in Professor Merges’s high-level principles grounded in Locke, Kant, and Rawls. Part IV follows this argument with a closer examination …

Transition Relief For Tax Reform’S Third Rail: Reforming The Home Mortgage Interest Deduction After The Housing Market Crash, Nicholaus W. Norvell

San Diego Law Review

This Comment argues that Congress should—in this order of preference—eliminate the mortgage interest deduction, replace it with a credit, or substantially modify it, and that Congress can adopt any of these policies without substantial short-term fallout in the housing market. Part II of this Comment examines how the mortgage interest deduction works, its history, and its intended benefits. Part III scrutinizes the deduction’s inability to achieve its primary objective—increasing homeownership—and examines its negative effects on housing prices, household indebtedness, the environment, and wealth disparity. Accordingly, this Part argues that Congress should reform the deduction, discusses three basic options available for …

Toward A Lockean Moral Justification Of Legal Protection Of Intellectual Property, Kenneth Einar Himma

San Diego Law Review

This Article attempts to provide the beginnings of a viable moral justification for recognizing and providing legal protection of intellectual property. The argument follows a line of arguments that is fairly characterized as “inspired” by John Locke’s attempt to justify legal protection of what he took to be a natural, objective, moral right to material property. That is to say, it is Lockean in spirit in the following sense: Locke grounds his argument for original acquisition in the idea that a person is justified in acquiring something from the commons in virtue of an investment he makes of something that …

Traditional Knowledge, Cultural Expression, And The Siren’S Call Of Property, Justin Hughes

San Diego Law Review

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.

Attica State Correctional Facility: The Causes And Fallout Of The Riot Of 1971, Kathleen E. Slade

The Exposition

Everyone has heard the rallying cry “Attica! Attica!” These are words shouted in protest by many in the 1970s including John Lennon in his song “Attica State” in 1971 and Al Pacino in the movie “Dog day Afternoon” in 1975. But what happened at Attica State Correctional Facility in the rural town of Attica, NY in 1971 to cause the bloodiest day in American history up to that time? A prison built to be escape proof and virtually riot proof in 1931 exploded just forty years later in a violent four day riot that ended in a bloody massacre of …

The Judicialization Of International Atrocity Crimes: The Kharkov Trial Of 1943, Michael J. Bazyler, Kellyanne Rose Gold

San Diego International Law Journal

This Article analyzes the Kharkov trial, the first trial of Nazi war criminals undertaken by any Allied Power, as well as the first trial of the Holocaust. It is written on the occasion of the 70th anniversary of the Kharkov trial. Part II, as background, describes the Holocaust as experienced in Kharkov, Ukraine. Part III discusses the trial that took place in Kharkov: the defendants, the prosecution, the setting, and the testimony. Part IV looks at the Kharkov trial as a typical Stalinist “show trial,” where guilt has been predetermined and a trial is used merely as a show to …

Interpretation And Construction In Altering Rules, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This essay is a response to Ian Ayres's, "Regulating Opt-Out: An Economic Theory of Altering Rules," 121 Yale L.J. 2032 (2012). Ayres identifies an important question: How does the law decide when parties have opted-out of a contractual default? Unfortunately, his article tells only half of the story about such altering rules. Ayres cares about rules designed to instruct parties on how to get the terms that they want. By focusing on such rules he ignores altering rules designed instead to interpret the nonlegal meaning of the parties' acts or agreement. This limited vision is characteristic of economic approaches to …

Nebraska Transcript (University Of Nebraska College Of Law), Volume 45, Number 2, Fall 2012

Nebraska Transcript

Dean’s Message 2

Faculty Updates

Profile: Rob Denicola 4

Potuto Gives Chancellor’s Distinguished Lecture 6

Faculty Notes 8

Berger Receives Tenure 15

Schutz Granted Tenure 21

Shoemaker Joins Faculty 28

Stohs Opens Entrepreneurship Clinic 29

Thimmesch Joins Faculty 30

Feature: Client Counseling Competition Champions 31

Around the College

Bresel Experiences on Capitol Hill 38

Externships 39

Department of Defense Externship 42

Hilgers Joins Career Services 44

Big Ten Law Deans Meet at College 45

Karlan Delivers Lane Lecture 46

Laurin Lectures on Roberts Court 48

Admissions Report 50

Baughman Joins Admissions Office 52

Student Accolades 53

Students Volunteer at Voices …

Foreword: Academic Influence On The Court, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a …

Chasing Until The Wheels Fall Off: Developing A Typology Of High-Risk Police Pursuits In Georgia, Lee Miller Wade

Dissertations

The goal of this research project was to examine the potential variables associated with high-risk police pursuits in the state of Georgia. The objectives of the research project were to develop a typology of high-risk pursuits, ascertain the usage of pursuit termination techniques, and inform on the current status of pursuits amongst accredited agencies in the state of Georgia. The Georgia Association of Chiefs of Police (GACP) initiated data collection of pursuits among accredited agencies as a result of the decision in Scott v. Harris 2007. A sample of 2,155 pursuit reports from 2007 to 2009 was analyzed using descriptive …

The Cultural Complex Of Innocence: An Examination Of Media And Social Construction Of Missing White Woman Syndrome, Sarah Land Stein

Dissertations

This study examined the etiology and promulgation of the sociological phenomenon known as missing white woman syndrome. It was hypothesized that missing white woman syndrome may not be entirely attributable to racial disparity as has been claimed in the past. Rather, citing the work of Dr. Carl Jung, the researcher believed that missing white woman syndrome may be partially explained by a concept known as a cultural complex. The cultural complex that was hypothesized for purposes of this study is one related to innocence: That is, as a western society, we have been culturally overexposed to the blonde, Caucasian female …

Juvenile Delinquency: An Investigation Of Risk Factors And Solutions., Lauren Cardoso

Pell Scholars and Senior Theses

This article proposes that educational and community based programs can help juveniles stay away from crime and prevent recidivism. A presentation of federal and state statistics, along with an analysis of the risk factors for delinquency, will be provided in order to illustrate the important areas that should be addressed in successful programs. Testimonies, including personal interviews with those who have experience working at the RI Training School, DCYF, Boys' Town, Child and Family Services will be shared as evidence of the research found. Finally, recommendations based on the findings will be proposed.

Perceptual Framing Of Homeland Security, Linda Kiltz, James D. Ramsay

Security Studies & International Affairs - Daytona Beach

This article analyzes the phenomenon of homeland security through the development of four conceptual lenses that were created out of the existing literatures in criminal justice, public administration, organization behavior, risk management, international relations, and the overlap between them. Using terrorism as a proxy for the homeland security enterprise, these conceptual lenses include: (1) homeland security as a criminal justice problem which views terrorism as a crime; (2) homeland security as a international relations problem which views terrorism as a war; (3) homeland security as an organization design problem which views terrorism as a network of sub-state transnational actors; and …

Development And Dissemination Of Clean Cookstoves: A Model Law For Developing Countries, Lakshman Guruswamy Ed.

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

24 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado." Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 331 (2013).

Development And Dissemination Of Clean Cookstoves: A Model Law For Developed Countries, Scott Miller

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

21 pages.

"This model law was developed at a legislative drafting workshop on July 12-13, 2012, entitled Drafting Model Laws on Indoor Pollution for Developing and Developed Nations, which was sponsored by the Center for Energy & Environmental Security and the Colorado Natural Resources, Energy & Environmental Law Review at the University of Colorado Law School in Boulder, Colorado."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 355 (2013).

"Scott Miller ed."

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

Identifying And Attributing Similar Traces With Greatest Common Factor Analysis, Fred Cohen

Journal of Digital Forensics, Security and Law

This paper presents an algorithm for comparing large numbers of traces to each other and identifying and presenting groups of traces with similar features. It is applied to forensic analysis in which groups of similar traces are automatically identified and presented so that attribution and other related claims may be asserted, and independently confirmed or refuted. The approach of this paper is to identify an approximate algorithm that will find a large subset of greatest common factor similar groups of arbitrary factors in far less time and space than an exact algorithm using examiner-provided selection criteria for factor definition.

Racial Disparities In Sentencing In The U.S. And Georgia, Kamal Rattray, Nicole Lee

Georgia Journal of Public Policy

Incarceration represents the ultimate use of coercive power, and in the state of Georgia, that power is being disproportionately levied upon people of color, particularly African Americans.1 According to 2011 statistics from the Georgia Department of Corrections, the total prison population statewide was approximately 53,341 inmates. The majority of that number were Blacks (33,069 inmates), followed by Whites (17,752 inmates), Hispanics (2,306 inmates) and other ethnic groups.

Real World Computer Forensics, Jessica Riccio

Liberal Arts and Engineering Studies

No abstract provided.

Clarifying The Normative Dimension Of Legal Realism: The Example Of Holmes's The Path Of The Law, Edmund Ursin

San Diego Law Review

In a recently published article, I examined the Legal Realism found in Leon Green's and Karl Llewellyn's tort scholarship. Brian Leiter had previously presented an insightful "philosophical reconstruction" of Legal Realism. In articulating what he sees as the descriptive and normative aspects of Legal Realism, Leiter drew most of his examples from the field of commercial law, which was the main focus of Llewellyn's scholarship. In this context he wrote that most Legal Realists made a descriptive claim about judicial decisions or, more specifically, decisions of appellate courts. Stated in its most succinct form, this descriptive claim was that judicial …

Digital Evidence Education In Schools Of Law, Aaron Alva, Barbara Endicott-Popovsky

Annual ADFSL Conference on Digital Forensics, Security and Law

An examination of State of Connecticut v. Julie Amero provides insight into how a general lack of understanding of digital evidence can cause an innocent defendant to be wrongfully convicted. By contrast, the 101-page opinion in Lorraine v. Markel American Insurance Co. provides legal precedence and a detailed consideration for the admission of digital evidence. An analysis of both cases leads the authors to recommend additions to Law School curricula designed to raise the awareness of the legal community to ensure such travesties of justice, as in the Amero case, don’t occur in the future. Work underway at the University …

A Case Study Of The Challenges Of Cyber Forensics Analysis Of Digital Evidence In A Child Pornography Trial, Richard Boddington

Annual ADFSL Conference on Digital Forensics, Security and Law

Perfunctory case analysis, lack of evidence validation, and an inability or unwillingness to present understandable analysis reports adversely affect the outcome course of legal trials reliant on digital evidence. These issues have serious consequences for defendants facing heavy penalties or imprisonment yet expect their defence counsel to have clear understanding of the evidence. Poorly reasoned, validated and presented digital evidence can result in conviction of the innocent as well as acquittal of the guilty. A possession of child pornography Case Study highlights the issues that appear to plague case analysis and presentation of digital evidence relied on in these odious …

After Five Years Of E-Discovery Missteps: Sanctions Or Safe Harbor?, Milton Luoma, Vicki Luoma

Annual ADFSL Conference on Digital Forensics, Security and Law

In 2003 the Zubulake case became the catalyst of change in the world of e-discovery. In that case Judge Shira Scheindlin of the United States District Court for the Southern District of New York set guidelines for e-discovery that served as the basis for amending the Federal Rules of Civil Procedure (FRCP) in December 2006. The amendments incorporated a number of concepts that were described by Judge Scheindlin in the Zubulake case. ( Zubulake v. UBS Warburg LLC, 2003) Since the Zubulake case and the FRCP amendments, numerous cases have interpreted these rules changes, but one of the main points …

Multi-Parameter Sensitivity Analysis Of A Bayesian Network From A Digital Forensic Investigation, Richard E. Overill, Echo P. Zhang, Kam-Pui Chow

Annual ADFSL Conference on Digital Forensics, Security and Law

A multi-parameter sensitivity analysis of a Bayesian network (BN) used in the digital forensic investigation of the Yahoo! email case has been performed using the principle of ‘steepest gradient’ in the parameter space of the conditional probabilities. This procedure delivers a more reliable result for the dependence of the posterior probability of the BN on the values used to populate the conditional probability tables (CPTs) of the BN. As such, this work extends our previous studies using singleparameter sensitivity analyses of BNs, with the overall aim of more deeply understanding the indicative use of BNs within the digital forensic and …