Law Claims Research Articles

The Time of Engagement, Zaman al-ishtibak

This commentary examines two relationships between law and revolutions. In the first, international law collapses revolutions into military warfare, and in the second, state law endows itself with revolutionary powers. What are the meanings of revolution these two relationships articulate and the other meanings they foreclose? Both relationships fail to capture revolution as struggle; instead, they subject revolutions to the measures of violence and change. Against revolutionary struggles, contemporary modern law claims revolutionary capacities for itself. But revolutionary struggles persist precisely because the law knows how to relate to revolutions only through the measures of violence and change, thereby failing to appreciate the peculiar practice of struggle – that of clashing engagement.

Table of Contents

Abstract Cover Story Take preventive action now to help prevent scandals, abuse Law firm report reveals system‐wide failures behind Penn State scandal Follow experts' strategies to prevent abuse on your campus Review lessons learned from failing to implement reforms Briefs Hookah use grows among college women Protect students from ID theft Students' money woes impact academics Prevention barriers can reduce suicides Assessment Advice Clearly state purpose to generate alumni response Generating Opportunities Promote sustainability, trim budget via campus events GO! Grant Watch Resources/Managing Your Office Avoid mistakes during interviews Resources Resources help undocumented students New midterm report reviews access goals Education center reviews retention trends You Be The Judge Was college liable for sexual harassment by equestrian coach? Law & Campus STUDENT CONDUCT Claim of discrimination doesn't negate misconduct ENROLLMENT MANAGEMENT Student convicted of financial crimes denied MBA HOUSING Apartments for the elderly may be ‘educational project’ FRATERNITY/SORORITY LIFE Response to hazing incident opens door for claims Leaders & Innovators TIM GRIFFIN, VP OF STUDENT SERVICES AND DEAN OF STUDENTS, GRAND CANYON UNIVERSITY Develop ‘real’ relationships with staff members, students Word of Advice Establish leadership strategy based on strong relationships

Carol Jacobs, Skirting the EthicalSkirting the Ethical. Carol Jacobs. Stanford, CA: Stanford University Press, 2008. Pp. xxii+223.

<i>Carol Jacobs</i>, Skirting the Ethical<i>Skirting the Ethical</i>. Carol Jacobs. Stanford, CA: Stanford University Press, 2008. Pp. xxii+223.

Introduction

AbstractThis issue aims to assess the state of claims over intangible forms of property, which have been expanding in recent decades enabled by Trade-Related Aspects of Intellectual Property and other international conventions. The articles examine the nature and limitations of intellectual property law and related property-like claims over intangible products and expressions, and present cases from the expanding margins of intangible property provisions including analyses of how these trends are playing out in the Global South and in areas outside of intellectual property law. The contributors show how both expansions of intangible property provisions and resistances to these expansions increase the terrain of experience that is enclosed by proprietary claims and suggest alternative strategies for responding to the contemporary intangible property regime.

European Air Law Association 8th Munich Liability Seminar Liability, Insurance and Claims Handling in the Air Transport, Aerospace, Ground Handling and Aircraft Finance Industries

European Air Law Association 8th Munich Liability Seminar Liability, Insurance and Claims Handling in the Air Transport, Aerospace, Ground Handling and Aircraft Finance Industries

From Raz’sNexusto Legal Normativity

This is a Critical Notice ofFrom Normativity to Responsibility, Joseph Raz’s brilliant treatment of the nature of normativity and reasons. Building on the thought that the law claims to give reasons to its subjects, I consider the application of Raz’s views about reasons to some questions in legal philosophy. I concentrate on what I take to be the central idea of the book, Raz’s “normative/explanatorynexus”, according to which a consideration cannot be a (normative) reason for an agent to perform an action unless the agent could follow the consideration in performing the action. I show (briefly) how thenexuscan explain some of the Fullerian principles of legality. And I examine (at somewhat greater length) the implications of thenexusfor our understanding of the psychology of legal obligation; here I suggest that thenexusmight cause trouble for Raz’s own well-known exclusionary reasons account of legal obligation.

KONTRIBUSI HASAN HANAFI DALAM KAJIAN USHUL FIQH

Hasan Hanafi is an expert on Islamic law who had the idea of reconstruction usul fiqh. Min Al-Nash ila Al-Waqi, written by him as the reconstruction effort, continuing the spirit of creativity, Al-Risala, Al-Mushtashfā and Al-Muwāfaqāt. Min Al-Nash ila Al-Waqi' written to undermine the claims of Islamic law to disappear the public good (al-mashāliħ al-' ammah). The entire reconstruction project of Hanafi had been referred as a result of application of the phenomenological method. Hanafi called tahlil manhaj al-khabarāt, comparable to manāhij al-ta'wil, manāhij al-nazhar, manāhij al-żauq, manāhij al-tahlil al-lughawī and other methods of classical Islamic creations. Through the philosophy of phenomenology, hermeneutics Gadamerian, Hanafi appreciate the application of the themes and traditions of thought, but in the context of Al-Quran and Al-Sunnah. Hanafi recommends usul fiqh as sacra hermeneutica, the specific case of general hermeneutics. Hanafi, divides methodological-epistemological consciousness of usul fiqh into three-dimensional consciousness; historical consciousness (la conscience historique), eidetic consciousness (la conscience eidetique), and the active awareness (la conscience active). Hanafi finds methodological shift that can be read from configuration changes chapter and logical structure of usul fiqh texts shift. This changes was seen in Al-Mustashfa, work of al-Ghazali (d. 505 H) and Al-Muwāfaqā,t work of Al-Syatibi (d. 790 H).

Don't Touch that Dial! You Don't Know What You are Doing - Contractions in the Birth of a New World Order

Practical Procedural Focus: First world parent corporations create thinly capitalized third world subsidiary corporations and outsource to sub-contractors in order to externalize costs of doing business (pollution, accidents, defective products) onto third world populations. When and how may first world courts attribute liability to main-offices for the extraterritorial torts of their subsidiaries? Substantive Law Exposed: Laws in the EU and Member States which are similar to the U.S. Alien Tort Statute (e.g., Brussels Regulation I) and the U.S. Torture Victims Protection Act (e.g. Convention Against Torture). Synopsis: Universal civil jurisdiction is lawful under international law because States may do all things within their powers which are not prohibited by their treaty obligations or customary law to which they have not persistently objected ab initio. International law (CAT) and EU law (Brussels Regulation) as well as contemporary Romanist law (Actio Popularis, action civile, Adhasionsverfahren) permit civil claims for violations of various jus cogens rules. Describes the rise of private enforcement of individual human rights under international law. International human rights, initially purely hortatory norms, which were applicable - if at all - only to states have since become binding rules of international law which often entail private law claims, whether through direct effect or indirect horizontal (third party) effect (Drittwirkung). Contextualizes human rights rise as a needed reaction to the abuse of human rights as cause and pretext for war under the pre-war system of only mediate enforcement by states (usually through diplomatic protection and self help remedies). Describes currently valid rules of national, E.U., and public international law (C.A.T.) which entail, or can entail, private law enforcement of human rights. Reiterates the black letter U.S. common law of procedural defenses to extraterritorial jurisdiction and the rules U.S. common law rules of piercing the corporate veil.

Institutions and Financial System Performance in Africa

Empirical studies on global and African samples have found positive correlations between the explanatory variables: quality of creditor rights institutions, institutional enforcement quality, and the quality of credit information infrastructure, and financial system performance (FSP). But to our knowledge, there is no empirical study focused on Africa of the interaction effect between creditor rights institutions and credit information infrastructure; and the interaction effect between creditor rights institutions and institutional enforcement on FSP as proposed by the law and finance theory. Using a sample of 50 African countries and FSP data of 2004 to 2010, we find no empirical support for the interaction effects among these explanatory variables on FSP in our panel estimation. Moreover, seemingly contrary to extant literature, we find a negative association between the quality of credit information infrastructure and FSP in our panel estimation. The findings here support and qualify some claims in law and finance theory and extant empirical literature and have implications for work on institutional reforms to increase FSP in regions with weak institutional structures.

A short history of international human rights law

The phrase “human rights” may be used in an abstract and philosophical sense, either as denoting a special category of moral claim that all humans may invoke or, more pragmatically, as the manifestation of these claims in positive law, for example, as constitutional guarantees to hold Governments accountable under national legal processes. While the first understanding of the phrase may be referred to as “human rights”, the second is described herein as “human rights law”.

Civil litigation and procedure – Equitable remedies for negligence by solicitors

Paul Smith (One Hare Court, Temple, London, EC4) considers the role and merits of equitable remedies and common law claims against solicitors. Note published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

AEP's Tipping Point: Implied Preemption of Climate-Change Common Law Claims

Constitutional Limits to Creative Common-Lawmaking. This article challenges the thesis of Yale Law Professor Douglas Kysar and Benjamin Ewing in ‘Prods and Pleas’: Limited Government in An Era of Unlimited Harm, who urge courts to entertain climate change tort claims as a means to “prod and plea” Congress to enact comprehensive Greenhouse Gas emissions standards. In response to this attack on limited government, Ms. Duncan and Mr. Massey explore the constitutional constraints on the judicial role in the context of climate change, an inherently international and systemic issue, which entails cost-benefit and distributional decisions that only the political branches can make. Functional Reasoning to Reject Climate-Change Common Law Claims.A striking feature of the Supreme Court’s AEP decision is Justice Ginsburg’s functional reasoning regarding the limits on the judicial role. The opinion rejects “parallel tort tracks” and instead endorses judicial review of administrative rule-making petitions as the constitutionally more appropriate “prod and plea.” Implied Preemption Presumption for Global Problems Like Climate-Change. Although the Supreme Court ‘s AEP decision expressly reserved ruling on whether state common-law climate change claims are preempted by federal law, the opinion outlines the basis for a presumption in favor of preemption when an issue necessarily requires a uniform, national approach. Judicial Activism vs Restraint in Climate-Change Policy-Making. Ms. Duncan and Mr. Massey express concern that the “political theater” approach advocated by Kysar/Ewing would trigger charges of “judicial activism” and violate the limits of Article III. The Kysar/Ewing proposal is particularly alarming in light of proposals in state legislatures to circumscribe judicial independence. The proposal imperils the legitimacy of judicial decision-making and risks eroding popular support for the courts at a time when the Judiciary can ill afford such attacks.

Genital Autonomy, Children’s Rights, and Competing Rights Claims in International Human Rights Law

Claims that genital autonomy should be considered a human right call into question medically unnecessary genital alterations, including genital cutting of both boy and girl children, the forced or coerced circumcision of adults, and surgical alterations performed on the genitals of intersex children prior to the age of consent. To date, global norms suggest only a narrow applicability of any right to genital autonomy. International organizations, states, and non-governmental organizations increasingly condemn genital cutting of girls and women but generally tolerate both the genital cutting of boys and men and the surgical alteration of the genitals of intersex children. In examining assertions that genital autonomy should be considered a human right, the article considers competing rights claims, including religious and cultural rights, parental rights, and contending perspectives on health rights. Ultimately, this article highlights the limitations of international human rights law as a tool for promoting a right to genital autonomy.

The Weber-Fechner Law and Public Expenditures Impact to the Win-Margins at Parliamentary Elections

This paper discusses the electoral implications of psychological motivation on voting functions. We tested a claim of the Weber-Fechner law as applied to electoral behaviour - specifically, that an expanded public sector leads politicians to make more significant, opportunistic distortions of public expenditures than the distortions observed when the public sector is diminished. We employed a system of simultaneous equations to test this hypothesis for cases observed in more than sixty democracies since 1960. We gave a special focus to the cases of Central and Eastern European countries. Our results confirm the main implications of the Weber-Fechner law. Years in incumbency, running for re-election, higher unemployment and higher inflation rates tend to generate negative moods, feelings and affects in the electorate; thus, these factors tend to approximate the vote share of the most voted party to the remaining vote share of the challenger political forces.

STEFANO BERTEA, Law and Practical Reason – The Normative Claim of Law

STEFANO BERTEA, <i>Law and Practical Reason – The Normative Claim of Law</i>

Constitutional Colorblindness and the Family

Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including most notably affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents. This paper, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has—over the last 40 years—had numerous opportunities to address the growing divide. Nevertheless the Court (and particularly its most ardent affirmative action detractors) has been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided taking up cases involving the use of race in family law—and taken other steps to limit the reach of its doctrine in the family law arena—based on a normative perception that remaining instantiations of race in family law are, at their core, benign. This history has profound implications for the Court’s broader race law jurisprudence. Supreme Court doctrine has—on its face—rejected the possibility of a role for normative judgments about the “benign” or “invidious” nature of particular race-based classifications in its Equal Protection doctrine. But the history of the Court’s approach to family law suggests strongly that the Court itself does in fact weigh such factors sub rosa in its approach to taking up and adjudicating race law claims. This Article suggests that there are serious process, legitimacy, and substantive concerns raised by such a divergence, and discusses alternatives for bringing the Court’s doctrine into greater alignment with its practice. 2 COLORBLINDNESS AND THE FAMILY [DRAFT] CONSTITUTIONAL COLORBLINDNESS AND THE FAMILY

Complete Preemption and Copyright: Toward a Successive Analysis

District courts in most circuits face a problem: does the so-called “complete preemption” doctrine apply to the Copyright Act — that is, does the complete preemption doctrine allow a defendant to remove a case that states only state law claims from state court to federal court if the Copyright Act seems to cover the subject matter of the claims? This Article proposes that courts and practitioners need to start arguing the merits of both the complete preemption doctrine and the tests that apply to the doctrine — the congressional intent test, the exclusive federal cause of action test, and the extra element test.Commentators and courts disagree on the merits of using the complete preemption doctrine in context of the Copyright Act. Plaintiffs prefer state courts, and defendants prefer federal courts. Therefore, defendants often remove cases to federal courts, and plaintiffs move to remand cases to state courts. In cases that involve copyrights, sometimes plaintiffs file cases in state courts and omit claims of copyright infringement to avoid federal court jurisdiction, while defendants increasingly assert that causes of action of breach of contract claims and other claims that involve copyrights relate to the Copyright Act. Thus, the complete preemption doctrine allows the defendant to remove the case to federal court. The competing views of commentators and courts inform plaintiffs and defendants sufficiently to allow them to argue the merits of each step of the analysis.

Formalism without a Foundation: Stern v Marshall

In Stern v. Marshall (2011), the Supreme Court held that it violated Article III of the Constitution for a bankruptcy court to issue a final judgment as to a state law counterclaim. Although Chief Justice Roberts’ majority opinion is predicated on the need to have judges with life tenure to ensure judicial independence, it is difficult to see why this should matter for state law claims. Stern v. Marshall can be understood only as an exercise in formalism, rather than a functional approach to determining what can be decided by non-Article III judges. The formalistic reasoning of the Court is unsatisfying, especially in an area where the Court throughout American history has allowed non-Article III courts for functional reasons. Stern v. Marshall, if followed by the Court, could have enormous implications for the authority of the bankruptcy courts and more generally for federal jurisdiction.

Losing Their Voice: How Recent Supreme Court Precedent Limits Employee Rights and Prevents Employment Law Claims from Being Brought in Federal Court

Traditionally, employees rely on federal law and federal courts to protect their rights in the workplace. However, recent Supreme Court decisions have limited the ability of employees to bring employment law claims in federal court by erecting judicially constructed procedural barriers to having claims heard. This paper will examine recent Supreme Court precedent and analyze the impact those claims have on employment law and the legal rights of employees. By exploring the issues decided by the Court in Pyett, Ledbetter, Gross, Dukes, and Hosanna-Tabor, this paper will conclude that a clear trend has emerged that will limit the effectiveness of federal employment law and keep employment law claims out of the federal courthouse.

EU COMPETITION LAW ENFORCEMENT: IS BRUSSELS I SUITED TO DEALING WITH ALL THE CHALLENGES?

AbstractThere are arguments indicating that Brussels I could be applicable to cross-border competition law proceedings before a National Competition Authority located in one Member State and private EU competition law proceedings before another Member State court. However, an analysis of the current private international law framework appears to indicate that Brussels I is not well suited to deal with the difficulties that could arise in this context. Given the fact that, in the new proposal for a regulation on jurisdiction and the recognition and enforcement of judgments there is no indication that special jurisdictional bases for competition law actions in the successor to Brussels I are on anyone's agenda, an option for a reform may be setting up a new and special regulation to be applicable with regard to EU competition law claims only.