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‘Otro Mundo Es Posible’: Tempering the Power of Immigration Law through Activism, Advocacy, and Action
Get PDFTransformative Constitutions and the Role of Integrity Institutions in Tempering Power: The Case of Resistance to State Capture in Post-Apartheid South Africa
Get PDFThe Legislature at War: Bandits, Runaways and the Emergence of a Virginia Doctrine of Separation of Powers
Get PDFProposed New York Trust Code
Get PDFText of a proposed New York Trust Code to be submitted to the New York Legislature
When Forum Selection Clauses Meet Choice of Law Clauses
Get PDFMany contracts that contain a forum selection clause also contain a choice of law clause. This raises the issue of whether to apply the parties’ chosen law to questions of forum selection clause interpretation, such as whether the clause is mandatory or permissive and how far the scope of the clause extends. The recent trend has been for courts to apply the law selected by the parties in their choice of law clause to govern these interpretation issues. This Article argues that the law has gone in the wrong direction and that courts should apply forum law to questions of forum selection clause interpretation.
This Article challenges each of the stated rationales in favor of applying the parties’ chosen law to interpret a forum selection clause: the party autonomy argument; the intention of the parties argument; the certainty and predictability argument; the substance versus procedure argument; the “part of the contract” argument; and the forum shopping argument. None of the purported arguments in favor of applying the parties’ chosen law stand up to closer scrutiny.
Additionally, this Article examines the myriad complications presented by interpreting a forum selection clause in conjunction with a choice of law clause. Foremost among these is the sheer complexity of the exercise. Particularly when it comes to applying foreign country law, there is uncertainty over exactly what the “chosen law” is. If the parties have selected the law of a European Union country, for instance, there are a variety of possible laws that could apply: internal domestic law, the Brussels Regulation, the Hague Choice of Court Convention, or some combination thereof. Additional complications are presented by structural dynamics of the choice of law endeavor: the principle of party prosecution and the differential treatment of forum selection clauses in a contract without a choice of law clause. Finally, when one examines what courts are doing in practice, it is clear that they are not particularly adept at ascertaining and applying the parties’ chosen law to interpret a forum selection clause. The net result is a hodge-podge interpretation of mixed U.S. and foreign law.
The choice of law exercise is complicated enough. This Article suggests that we need not make it any more complicated by using the parties’ chosen law to interpret a preliminary issue. Ultimately, the responsibility is on the parties to draft forum selection clauses clearly and without ambiguity. If they do so, then none of this is an issue
Porous Bureaucracy: Legitimating the Administrative State in Taiwan
Get PDFScholars and politicians have sometimes presented bureaucracy as inherently conflicting with democracy. Notably, bureaucrats themselves are rarely consulted about that relationship. In contrast, I draw on interviews and participant observation to illuminate how government administrators understand their own place in democratic government in Taiwan, one of the few successful third-wave democracies. The administrators I work with root their own legitimacy not in separated powers or autonomous expertise, but in their ongoing collaboration with legislators and publics. They define their own accountability not just as executive legislative mandates but as producing them in the first place, and figure bureaucracy as a key site for political participation. I put these views into historical context to elucidate how bureaucracy can compete for democratic bone fides with common democratic indicators like constitutions and elections. This article contributes to scholarship on the ethnography of bureaucracy, administrative accountability networks, and the internal law of administration. In particular, I stress the importance of administrative culture as a central aspect in political legitimation
Married on Sunday, Evicted on Monday: Interpreting the Fair Housing Act\u27s Prohibition of Discrimination Because of Sex to Include Sexual Orientation and Gender Identity
Get PDFThe Right of All Children to Grow Up with a Family under International Law: Implications for Placement in Orphanages, Residential Care, and Group Homes
Get PDFThis article describes the right of all children to live and grow up in a family as it has evolved thirty years after the adoption of the U.N. Convention on the Rights of the Child (CRC) and since the 2006 adoption of the U.N. Convention on the Rights of Persons with Disabilities (CRPD). The article examines the implications of this right for the millions of children placed in orphanages, residential care, and group homes around the world.
The CRC favors the placement of children with a family, but it does allow for the placement of children in suitable institutions when families are unavailable. In General Comment No. 9, the U.N. Committee on the Rights of the Child states that institutions should be transformed into smaller residential facilities and used only as a last resort. The United Nations Guidelines on Alternative Care calls for the elimination of large institutions but also allows for long-term placement in smaller residential homes. The more recently adopted U.N. Convention on the Rights of Persons with Disabilities (CRPD) now creates stronger protections through a combination of Article 23 (respect for home and family) and Article 19 (living independently and being included in the community).
In 2017, the U.N. Committee on the Rights of Persons with Disabilities adopted General Comment No. 5, stating that, for children, the right to community integration entails a right to live and grow up with a family. The Committee stated that placement in a family-like residence and group home is not a substitute for the right to a family under the CRPD. The protections established in the CRPD are consistent with new research revealing that institutions and residential care are inherently detrimental to children. Experience shows that all children, no matter how severe their disability, can and should receive the support and protection they need to live and grow up with a family. This article makes the case that the protections recognized by the CRPD apply to all children - not just children with disabilities. To implement this right, governments are under an obligation to create the range of supports needed so that all children can live in families and not institutions, residential care, or group homes. Protections for the family under the CRC should reflect these developments in international law and knowledge about child development. Article 41 of the CRC recognizes evolving international standards for the protection of children. Thus, the Committee on the Rights of the Child should update General Comment No. 9 to comply with new legal standards that protect the right of all children to live and grow up with a family. The U.N. Guidelines for Alternative Care can be preserved, so long as they are used in a manner consistent with the requirements of the CRPD and are not used to justify permanent placement in group homes or other residential facilities
Specialized Trial Courts in Patent Litigation: A Review of the Patent Pilot Program\u27s Impact on Appellate Reversal Rates at the Five-Year Mark
Get PDFDo specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent law pilot program differ from those before non-pilot judges. I find that the types of cases heard before pilot judges differ. Pilot judges are less likely to rule in favor of the patentee and they are more likely to take cases to trial. Pilot judges also make different kinds of “mistakes” than non-pilot judges. Of the near three-hundred cases where the Federal Circuit rules on the substantive patent law issues on appeal, my results indicate that even controlling for other factors, judges that are part of the pilot program are not less likely to be overturned on appeal by the Federal Circuit. After discussing the empirical results, the Article proposes suggestions for reform. Patent law is unique in that it is one of the only areas of law where Congress delegates policymaking to the courts. The current piecemeal approach to patent reform by changing institutions in isolation to solve specific problems is misplaced. Multi-institutional reform of the patent system — focused on giving policymaking power to the bureaucracy to allow for less biased and more expert decision making — is needed in order to properly position courts as interpreters of the law rather than as being the vehicle primarily responsible for fashioning policy on an ad hoc basis
