DigitalCommons@UM Carey Law

Can He Legally Do That? Does the President Have Directive Authority Over Agency Regulatory Decisions?

Robert V. Percival — Fri, 11 May 2012 13:01:08 PDT

Redeeming and Living with Evil

Mark A. Graber — Thu, 10 May 2012 11:12:47 PDT

Teaching Law Students to Be Policymakers: The Health and Science Policy Workshop on Genomic Research

Benjamin E. Berkman et al. — Wed, 09 May 2012 12:02:06 PDT

Competing Paradigms? The Use of DNA Powers in Youth Justice

Liz Campbell — Wed, 09 May 2012 08:35:33 PDT

Collecting deoxyribonucleic acid (DNA) from crime scenes and individuals is now regarded as a critical element of effective criminal investigation and prosecution. Numerous benefits are said to accrue from the gathering and comparison of DNA evidence: suspects may be speedily identified, innocent parties ruled out, the wrongfully convicted exonerated and some would-be criminal actors deterred. Retention of DNA in state controlled databases allows for speculative searching to identify subsequent offending and to provide leads for unsolved crimes. The collection and retention of convicted adults’ DNA has been held by European and US courts to be a proportionate incursion on human rights given the need to tackle crime effectively, although the law relating to un-convicted persons is more contentious (Campbell, 2010a). The application of DNA powers to young people in the youth justice system has received less attention.

This article considers the application and expansion of DNA powers in the youth justice system, and identifies the ‘competing paradigms’ at play. New Zealand and Scotland, often cited as having progressive and sensitive approaches to youth justice, are used to illustrate the tension between the perceived need for expanded powers of investigation and prosecution of crime and the rights and interests of young people.² Both jurisdictions are recognised for their established emphasis on diversionary and non-stigmatising processes in youth justice but more recently, are experiencing broader trends away from a rights-oriented paradigm towards a more populist and punitive model. This article examines the recent expansion of DNA powers in both countries which illustrates a comparable trajectory away from conventional youth justice precepts. It assesses the safeguards, if any, that have been introduced to mitigate this ‘ratcheting up’ of crime control, which is particularly problematic in the context of young people. In doing so, we draw on our respective work on DNA and human rights (Campbell, 2011; 2010a; 2010b; 2010c) and the rights of young people in the youth justice system (Lynch, 2007; 2008; 2010a; 2010b). Our analysis of legislative developments has a wider application as many jurisdictions have adopted elements of the New Zealand and Scottish approaches to youth justice, and can also contribute to a wider discussion about compliance with international standards for youth justice in the context of DNA collection and storage.

Penalty and Proportionality in Deportation for Crimes

Maureen A. Sweeney et al. — Wed, 09 May 2012 07:33:25 PDT

Legal Impediments to the Diffusion of Telemedicine

Diane E. Hoffmann et al. — Tue, 17 Apr 2012 11:41:30 PDT

The Constitutional Bounding of Adjudication: A Fuller(ian) Explanation for the Supreme Court's Mass Tort Jurisprudence

Donald G. Gifford — Mon, 16 Apr 2012 05:07:27 PDT

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of tort litigation echoed the public law models of Abram Chayes and Owen Fiss that, a generation ago, described public interest litigation in areas such as civil rights. In rejecting public law tort litigation, the Court constitutionally imposes a more traditional model of adjudication, a model advocated by mid-twentieth century legal philosopher Lon Fuller but regarded as archaic by most contemporary scholars. I then evaluate the Court’s model on the basis of factors including the limits of judicial competence, the need to legitimize the judicial role in a democracy, and the related impact of constitutional separation of powers. I weigh these factors against arguments that unbounded adjudication is necessary both to compensate mass torts victims who otherwise would be denied recovery and to regulate corporate misconduct in the face of regulatory dysfunction. I conclude that a presumptive model of bounded adjudication would restrain unprincipled adjudication without imposing an institutional straightjacket.

Reception in Memory of Svitlana Kravchenko

Thu, 05 Jul 2012 14:30:00 PDT

Buses depart from Law School for World Bank

Thu, 05 Jul 2012 12:30:00 PDT

Lunch

Thu, 05 Jul 2012 11:45:00 PDT

Box lunch for attendees who did not go to the Patuxent Wildlife Research Center.

Buses Depart Patuxent Wildlife Research Center

Thu, 05 Jul 2012 13:00:00 PDT

Patuxent Wildlife Research Center

Thu, 05 Jul 2012 10:00:00 PDT

Field trip to Patuxent Wildlife Research Center

Thu, 05 Jul 2012 08:30:00 PDT

Coffee & Tea

Thu, 05 Jul 2012 08:00:00 PDT

Protective Orders in the Bankruptcy Court: The Congressional Mandate of Bankruptcy Code Section 107 and Its Constitutional Implications

Michelle M. Harner et al. — Fri, 13 Apr 2012 06:26:18 PDT

The Denial of Future Tort Claims in In re Piper Aircraft: Will the Court's Quick-Fix Solution Keep the Debtor Flying High or Bring It Crashing Down?

Michelle M. Harner — Fri, 13 Apr 2012 05:59:28 PDT

Federalist or Friends of Adams: The Marshall Court and Party Politics

Mark A. Graber — Thu, 12 Apr 2012 05:30:18 PDT

The Right to Strike in Essential Services under United States Labor Law

Marley S. Weiss — Tue, 10 Apr 2012 10:06:18 PDT

SUMMARY: I. Introduction. II. A Brief History of U.S. Collective Labor Relations Laws. III. The Structure of Labor-Management Relations in The U.S. IV. The Right to Strike. V. Private Sector “Essential Services” Provisions: LMRA National. VI. Conclusion.

Regulation of the Work Performance Relationship: Independent Contractors, Labor Subcontractors, and Joint Control over an Employment-Like Relationship

Marley S. Weiss — Tue, 10 Apr 2012 09:38:04 PDT

I. Introduction. II. Who is covered and who is excluded from the protective scope of labor law, and the legal consequences for those excluded as independent contractors or owners. III. Benefits and burdens of the “employment relationship” characterization compared to a contract for services. IV. Speculations about solutions to the work relationship problem.

The Temporally-Flawed Concept of Binding Promises in American Collective Bargaining and Employee Benefits Law: A Source of the Concurrent Crises in the U.S. Industrial Relations, Retirement, and Health Care Systems

Marley S. Weiss — Tue, 10 Apr 2012 07:59:11 PDT

The American collective bargaining system is in serious trouble, as is the employee benefits system providing pensions and health care benefits for millions of non-union as well as unionized workers and retirees. The portion of the labor force covered by collective bargaining has dropped so low that one can barely refer to it as a system. Simultaneously, the American private employer-based pension system is moving towards a crisis. Large employers with the finest pension plans, covering thousands of workers and retirees, in industry after industry, are terminating their pension plans, or replacing them with cheaper, weaker retirement programs, often while reorganizing under the American bankruptcy system. Pension benefits upon which retirees and their families have relied are suddenly, often dramatically, cut, as the expense and liability are transferred to the federal government pension benefit guaranty program, a back-up scheme which only covers specified portions of the original benefits. The health care system, too, largely employer-based, is beginning to stagger under the weight of employer reductions in coverage, for retirees as well as employees. These changes are all in the nature of broken promises, whether or not a contract technically has been breached: broken promises to individual workers and retirees, broken promises to trade unions, and on a grand scale, the broken promise of the American social contract.

This paper will sketch out, in comparative perspective, some flaws in American labor law regarding the nature of the collective bargaining agreement (CBA), trade union representation in negotiating and enforcing CBAs, and treatment of long-term benefits promises to employees and retirees. It will suggest that the cumulative effect of these doctrinal contradictions has made possible the thwarting of the bargained-for, relied upon, expectations of workers and retirees, and has led to massive difficulties in the employee benefits system as well as in the collective bargaining regime. These aspects of both collective labor law and employee benefits law must be reconsidered if the system is to function soundly in the future. The American situation also may have implications for the pensions and health care systems of many other countries.