A split in authority has developed over the enforceability of forum and venue selection clauses in Jones Act claims. While some courts hold such restrictions of a seaman's choice of forum or venue invalid and unenforceable, others find forum and venue selection clauses presumptively valid. Confusing the issue further, several courts have held that while a seaman's choice of forum is protected, and cannot be limited by a forum selection clause, the seaman's choice of venue merits no such protection. This Comment suggests that the last of these approaches—under which a seaman's choice of forum is protected, but choice of venue can be limited by contract—best embodies the congressional intent behind the Jones Act.
Tracing the Origins of Fairly Traceable: The Black Hole of Private Climate Change Litigation
[O]ur emerging problems of the environment and ecological unbalance are worrisome problems indeed, and I am distressed that our law is so inflexible that we find ourselves helpless procedurally to meet these new problems.
-- Justice Harry Blackmun
Convergence in Contort: Landlord Liability for Defective Premises in Comparative Perspective
The relatively recent transformation of landlord-tenant law has imported into the common law landlord-tenant relationship a number of obligations that have been recognized in civil law leases for centuries.Thus the common law's embrace of an implied warranty of habitability closed a long-existing gulf between the two legal traditions' approaches to the obligations of residential landlords. In both traditions today, breach of the landlord's obligation to provide a safe and habitable dwelling gives rise to traditional contractual remedies, including termination of the lease and damages.However, the treatment of personal injuries, property damage, and nonpecuniary losses continues to differ across jurisdictional lines. While American tenants who suffer such losses are largely restricted to a tort theory of recovery, civil law tenants have both contractual and tort theories at their disposal. This Article turns to the civilian tradition to determine whether this concurrent approach to landlord liability better allocates the risk of harm between residential landlords and their tenants.
A Uniform Framework for Patent Eligibility
There is a need to clarify patent law so as to advance resolution of its most fundamental question--delineating the categories of subject matter that are eligible for patent protection. Coupled with the active role the Supreme Court has taken in examining this precise issue, individuals and nonprofit organizations have galvanized a public discourse through constitutional challenges to the issuance of various biotechnology patents. Despite a statutory framework that has remained constant since 1793, courts have been unable to create a comprehensive test for determining patent-eligible subject matter that accurately embodies the foundational principles that underlie the federal grant of patents. I argue that the proximate cause of the lack of an appropriate framework is the failure of courts to clearly define the statutory categories and the absence of a technology-agnostic method of analyzing whether an invention claims ownership over a “product of nature.” This Article sets forth a uniform framework that addresses patent-eligible subject matter through the creation of a practical methodology that focuses on these two principles. The advantages of the proposed framework are highlighted through the application of the framework to traditional inventions and emerging biotechnologies.
"Sports Law": Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution
In this Article, we observe that legal regulation of national and international sports competition has become extremely complex and has entered a new era, which provides fertile ground for the creation and evolution of broader legal jurisprudence with potentially widespread influence and application. Our principal aim is to draw these developments to the attention of legal scholars and attorneys not necessarily familiar with sports law. Specifically, the evolving law of sports is having a significant influence on the development of international and national laws, is establishing a body of substantive legal doctrine ripe for analysis from a comparative law perspective, and has important implications for global dispute resolution. For example, the global processes used to establish an international sports antidoping code and to resolve a broad range of Olympic and international sports disputes (which is rapidly creating a body of global private law) provide paradigms of international cooperation and global lawmaking. In addition, judicial resolution of sports-related cases may develop jurisprudence with new applications and influence. Our objective is to generate greater awareness of the importance of sports, not only as a worldwide cultural phenomenon and a significant part of the twenty-first-century global economy, but as a rich source of international and national public and private laws that provide models for establishing, implementing, and enforcing global legal norms.
The Rome II Regulation: A Comparative Perspective on Federalizing Choice of Law
This Article analyzes the Rome II Regulation, which entered into effect on January 11, 2009, and established uniform choice-of-law rules for noncontractual obligations in the European Union. Rome II is of particular interest to U.S. scholars because its federal and international character and nearly comprehensive scope make it a potential model for a new U.S. Restatement or federal statute. Beginning with its text, context, and legislative history, this Article examines Rome II in the comparative light of state-level codifications in the United States and the general theory of state-interest analysis developed during the American “conflicts revolution.” The Article tests the new EU regulation against the facts of influential conflicts cases of the New York Court of Appeals and argues that it performs well by an interest-analysis standard. An assessment of Rome II as a model for a U.S. codification concludes the Article.
Saving Civil Justice: Judging Civil Justice By Hazel Glenn
Asking the right question can be as important as giving the right answer. In her book Judging Civil Justice, Dame Hazel Genn forcefully argues that the right question about the civil justice system is not “[h]ow much justice can we afford” but “how much justice can we afford to forego.”Genn has spent her professional lifetime studying methods for resolving civil disputes. A pioneer in empirical legal studies, she has for thirty years interviewed litigants, lawyers, and judges and studied courts, tribunals, and ADR methods. Genn is a clear-eyed observer, deeply sympathetic to the plight of modern courts but unwilling to ignore the politics that underlie the rhetoric of court reform today.. . .
Breathing Life into the Dead Zone: Can the Federal Common Law of Nuisance Be Used to Control Nonpoint Source Water Pollution?
This Comment posits the argument that the federal common law of nuisance could be used to control agricultural nonpoint source water pollution that causes the environmental problem known as the Gulf of Mexico “Dead Zone.” The primary obstacle to such a suit is that the United States Supreme Court, in two cases dealing with interstate water pollution from point sources, has held that the Clean Water Act entirely displaced the need for the federal common law of nuisance to abate interstate water pollution. However, the United States Court of Appeals for the Second Circuit's recent decision in Connecticut v. American Electric Power Co., a case dealing with the use of the federal common law of nuisance to control greenhouse gas emissions that contribute to climate change, has arguably refined the standard for federal displacement, requiring that the statute “actually regulate” the nuisance at issue. While the Clean Water Act actually regulates point source pollution, it fails to actually regulate nonpoint source pollution, thus leaving open the possibility that Louisiana or affected citizens could bring a claim under the federal common law of nuisance against states and agricultural industries that do not control the nonpoint source pollution that causes the Dead Zone.
Foolish Revenge or Shrewd Regulation? Financial-Industry Tax Law Reforms Proposed in the Wake of the Financial Crisis
This Comment evaluates four recent proposals to reform tax laws affecting the financial industry. After introducing the proposals, the author provides a theoretical framework for evaluating them and then relies on this framework to explore the benefits and drawbacks of each. Ultimately, the author rejects two proposals that call for imposing financial-transactions taxes and argues that lawmakers should instead focus on plans to either (1) permit cost-of-equity tax deductions or (2) tax the debt held by major financial institutions.
The Qur'an and the Constitution
And this Qur'an is not such as could ever be devised by anyone save God; it is a confirmation of what was [revealed] before and an exposition of Divine Text— Therein is no doubt—from the Sustainer of the Worlds. Many have noted the sacredness surrounding the U.S. Constitution, and comparisons with the Bible are often made.