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Fernanda Nicola
Book Description: At the beginning of 2015, the Court of Justice opened its archives, which created a new and challenging primary source for those studying the Court of Justice: the dossiers de procédure which contain much more than the contemporary documents published by the Court. This volume includes five chapters which analyse the activities of the Court of Justice from a highly diverse range of non-doctrinal perspectives. However, they also highlight significant new developments at the Court itself which attract attention and deserve analysis. Thus, the idea behind this volume is to make available new tools and approaches through which the activities of the Court of Justice can be studied. It shows a more intense engagement with scholars across disciplines to reflect on law and courts, with the Court of Justice as a central focus, and new methods (such as network citation analysis) and sources (such as the Court's archives) being discovered and developed. It also shows a more intense and deeply knowledgeable engagement with EU law and the Court of Justice by non-legal scholars, such as the new sociologies and histories of the Court of Justice. These and other new approaches have spawned productive and ongoing conversations across disciplines.
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Jenny Roberts
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Ann Shalleck
This book examines the roles played by narrative and culture in the construction of legal cases and their resolution. It is articulated in two parts. Part I recalls epistemological turns in legal thinking as it moves from theory to practice in order to show how facts are constructed within the legal process. By combining interdisciplinary paradigms and methods, the work analyses the evolution of facts from their expression by the client to their translation within the lawyer-client relationship and the subsequent decision of the judge, focusing on the dynamic activity of narrative construction among the key actors: client, lawyer and judge. Part II expands the scientific framework toward a law-and-culture-oriented perspective, illustrating how legal stories come about in the fabric of the authentic dimensions of everyday life. The book stresses the capacity of laypeople, who in this activity are equated with clients, to shape the law, dealing not just with formal rules, but also with implicit or customary rules, in given contexts. By including the illustration of cases concerning vulnerable clients, it lays the foundations for developing a socio-clinical research programme, whose aims including enabling lay and expert actors to meet for the purposes of improving forms of collective narrations and generating more just legal systems.
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William Snape, Susan George, and Robert Fischman
The Endangered Species Act provides a comprehensive approach to the complex problem of species extinction. With chapters written by experienced ESA practitioners from a variety of professional backgrounds, this is an authoritative yet practical guide to the ESA, its most critical sections, the twists and turns of its implementation, and the cutting-edge issues facing the protection of endangered wildlife and its habitat.
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Jonathan Baker
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Jonathan Baker
This essay provides a perspective on the role of antitrust law in protecting and fostering competition in the digital economy, with particular attention to online platforms. It highlights the danger of anti-competitive exclusionary conduct by dominant online platforms and describes ways that antitrust law can challenge and deter such conduct. The essay also identifies a number of difficulties that U.S. courts and enforcers face in challenging harmful exclusionary conduct by dominant platforms, and discusses some ways regulation can supplement antitrust law in fostering competition.
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Jennifer Daskal
I. Health Surveillance: Defining the Categories A. Aggregate Level Analysis B. Individual Level Analysis 1. Contact-Tracing a. Government Monitoring b. Contract Tracing Apps 2. Quarantine Monitoring and Other Enforcement Mechanisms 3. Screenings II. Whether to Compel? A. The Legal Issues 1. The Fourth Amendment—A Limited Constraint 2. Special Needs Searches a. The Tailoring Question b. The Degree of Intrusion 3. Targeted Surveillance 4. Voluntary Data Disclosure Regimes III. The Policy Considerations Conclusion Notes & Questions
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Jennifer Daskal
Provides a framework to better understand Global Legal Pluralism and the current international state of law.
Equips practitioners, theorists, and students with deeper insights and analytical tools to describe the conflict among legal and quasi-legal systems.Analyzes global legal pluralism in light of legal theory, constitutionalism, conflict of laws, international law, commercial transactions, and as it affects indigenous polities, religious orders, and citizenship.
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N. Jeremi Duru
The Rooney Rule story teaches the importance of the opportunity to get into the proverbial room to make one’s case, but it also teaches the importance of creative approaches to encouraging equal opportunity. While a lawsuit can be a powerful tool in this realm, various circumstances may thwart its use. An employment discrimination claim for a head coach of a professional sports club presents a unique circumstance. The nature of the National Football League (NFL) coaching employment context rendered Title VII, the United States’ bell-weather employment discrimination statute, essentially inapplicable. Like Coca-Cola, the NFL was widely regarded as a conservative organization, and like Coca-Cola, the power positions in the NFL – including head coach – were overwhelmingly white. Mehri believed diverse candidate slates were well suited to the NFL context and anticipated they could assist in diversifying the NFL’s head coaching ranks just as they had diversified Coca-Cola’s executive ranks.
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Christine Farley
What public policy objectives are contained in the subject-matter limitations of US trademark law? This question has recently taken on a renewed interest for US legal scholars. The general public policies that animate trademark law – encouraging fair competition and protecting consumers from deceptive practices – can certainly be found in some of the doctrines that constrain trademark subject matter. Some of the specific constraints found in US law, however, do not align with these traditional trademark policy goals. These instances raise fascinating questions, such as what policy goals are being advanced in these provisions, and are these policy goals appropriate within trademark law. These are the questions that lie behind the currently live question of whether the government’s denial of registration based on justifications outside the heart of trademark law is a valid restriction on speech.
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Andrew Guthrie Ferguson
This Chapter explores Fourth Amendment law and history through the lens of Xavier Cortada’s painting inspired by Florida v. Jardines. At its core, Jardines is a case about the future of Fourth Amendment interpretation and how different doctrinal theories should best protect an individual’s home from unreasonable searches and seizures. Written by Justice Antonin Scalia with his characteristic irreverence, flair, and self-confidence, Jardines is a case about fundamental questions of privacy and security that turns on the constitutional significance of a police dog sniffing outside your home.
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Susan Franck
Used for hundreds of years and adapted to a variety of contexts, arbitration is a form of adjudicative dispute settlement where parties consent to selecting third-party neutrals that resolve a specific dispute by applying the applicable law to the facts. Part of arbitration’s success involves its flexibility in adapting procedures and selecting applicable law to meet parties’ unique needs, including having some control over the appointment of an arbitrator who may have unique substantive expertise. Parties may agree to arbitration hoping to avoid the time-consuming, expensive, and complex process of litigation by streamlining or tailoring dispute mechanics. Yet, it is not empirically verifiable that arbitration always saves time and costs, as assessing relative savings requires comparison to a national court and there are over 190 national judiciaries to which arbitration could be compared, as well as nonadjudicative forms of dispute resolution like direct negotiation and mediation. As parties inevitably negotiate in the “shadow of the law,” arbitration aids the assessment of conflict management options; and, particularly internationally, arbitration remains a powerful tool that incentivizes voluntary compliance with awards and streamlines enforcement.
Despite the availability of many types of arbitration with different policy considerations, the parties’ consent to it and their agreement to arbitrate (including the applicable law) is the backbone of this form of dispute settlement. Arbitration agreements require parties to make core choices, such as deciding on the scope of agreements submitted to arbitration, the legal place of arbitration, and applicable rules. Such an agreement then provides the framework for fundamental elements of the proceedings, namely, the basis of the tribunal’s jurisdiction and power over the dispute, the standards for appointing arbitrators, the structure and rules of the proceedings, and the content and form of derivative awards. Having a valid arbitration agreement (and an arbitration proceeding conducted in accordance with those legal obligations) also influences whether courts at the place of arbitration will set the award aside and whether courts at a place of enforcement will recognize and enforce an arbitration award. In the modern era, arbitration will continue evolving to address concerns about local policy considerations (particularly in national arbitration), confidentiality and ethics, technology and cybersecurity, diversity and inclusion, and to ensure arbitration is an ongoing value proposition.
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Claudio Grossman
La pandemia actual ha cobrado un tremendo precio a la humanidad. A la fecha, más de un millón de personas han fallecido, varios millones han sido infectadas y no se vislumbra un final para las trágicas consecuencias que la COVID-19 ha infligido a las personas. La pandemia ha afectado a todas las naciones, debido a las interconexiones en numerosos campos, incluido el comercio, las inversiones y el turismo, que, como resultado de la globalización, han multiplicado los contactos entre las personas. No obstante, la pandemia ha demostrado también que las poblaciones más vulnerables son las que más sufren. Los países con sistemas de salud inexistentes o subdesarrollados tienen una capacidad limitada para adoptar medidas preventivas y/o responder con éxito a la pandemia. En general, las poblaciones vulnerables se ven más afectadas, debido a la pobreza, la falta de conocimientos sobre salud, el acceso a la tecnología o prácticas discriminatorias profundamente arraigadas. La pandemia también ha demostrado que las posibilidades internacionales para afrontar con éxito este tremendo desafío son enormemente insuficientes.
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Claudio Grossman
Book Description: Advocating Social Change through International Law, edited by Professors Daniel Bradlow and David Hunter, explores the use of hard and soft international law in advocating for social change. Using case studies rooted in inter aliahuman rights, international crimes, environmental protection, public heath, and financial regulation, the book focuses on both state and non-state actors’ strategic choices regarding the use of hard and soft international law in advocating for social change. Looking through the social change lens provides new insights into the interplay between soft and hard international law, the perceived costs and benefits associated with hard and soft international law in different contexts, and the factors affecting the effectiveness of hard and soft approaches to international law.
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Claudio Grossman
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Rebecca Hamilton
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Maya Manian
This chapter of FEMINIST JUDGMENTS: REWRITTEN FAMILY LAW OPINIONS (Rachel Rebouche, ed. 2020) provides commentary on Susan Frelich Appleton’s rewritten majority opinion in Dandridge v. Williams, 397 U.S. 471 (1970). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for family law as well as poverty law and reproductive justice. The original opinion in Dandridge v. Williams upheld Maryland’s maximum family grant regulation (or “family cap”), which limited public assistance to poor families and effectively allocated fewer dollars to larger families. Susan Frelich Appleton’s revised judgment departs from the original opinion both rhetorically and substantively in distinctly feminist ways. Appleton uses an intersectional lens in analyzing the impact of the family cap. The feminist judgment addresses not only class, but also how systematic discrimination based on race, disability, gender, and age can intersect and operate together as interlocking systems of oppression, leading to indigence for the most vulnerable groups in society. The revised opinion also brings within judicial purview poor people’s fundamental rights of procreation and family togetherness that the original opinion undermines. Finally, the revised judgment departs most dramatically from the original opinion in its approach to the Equal Protection Clause and the welfare rights thesis — reasoning that the Constitution protects positive rights to the basic necessities of life. The feminist judgment illustrates how welfare reform is a feminist, family law, and reproductive justice issue.
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Maya Manian
This chapter of Feminist Judgments: Reproductive Justice Rewritten (Kimberly Mutcherson ed., 2020) reimagines the trial court opinion in In re Madyun, a case involving a court-ordered Cesarean section on a pregnant woman. The actual court case authorized a forced C-section on the plaintiff, Ayesha Madyun, based on the attending physician’s belief that delaying surgery might lead to dangerous infections in both the patient and her unborn baby. Mrs. Madyun eventually gave birth to a healthy baby boy with no sign of infection. The feminist judgment rejects the notion that courts can order forced medical treatment upon competent adult patients solely based on pregnancy. The new opinion reasons that forced C-sections not only violate the principle of informed consent and present public health risks by deterring pregnant people from seeking medical care, but also intrude upon constitutional rights of privacy and bodily integrity. Farah Diaz-Tello’s commentary complements the rewritten opinion, providing background material and analysis of the feminist judgment.
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Fernanda Nicola
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Fernanda Giorgia Nicola Dr.
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Fernanda Giorgia Nicola Dr.
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Susana Sacouto
The International Criminal Court (ICC) is a court of global jurisdiction. Without unlimited resources, the Court cannot be present in every place where crimes within its jurisdiction may be committed. The Office of the Prosecutor (OTP) must, therefore, regularly rely on organizations on the ground that have access to witnesses, contacts, and other information that may be crucial to its investigations and/or prosecutions. The OTP's reliance on these organizations is particularly pronounced in the context of situations or cases involving sexual and gender based crimes (SGBC), as these crimes are often under-reported in situations of conflict or mass violence, making evidence collection of such crimes particularly challenging for the Court.
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