Digital Commons Network^™

Recent Developments In Copyright Law: Selected U.S. Supreme Court, Court Of Appeals, And District Court Opinions Between February 1, 2005 And May 1, 2006, Tyler T. Ochoa

Faculty Publications

This article highlights nine U.S. copyright law decisions handed down between February 1, 2005 and May 1, 2006. This review was originally delivered as a speech at The 50th Annual Conference of Developments in Intellectual Property Law held by The John Marshall Law School Center for Intellectual Property Law on May 26, 2006. Discussing a wide range of cases from peer-to-peer file sharing to standing, the analysis focuses on the most recent developments in copyright.

On Restructuring The Nyse: Might A Nonprofit Stock Exchange Have Been Efficient?, Stephen F. Diamond, Jennifer W. Kuan

Faculty Publications

This spring the New York Stock Exchange, Inc. (NYSE) completed an historic restructuring. On March 7, 2006, the NYSE completed its merger with Archipelago Holdings Inc. (Archipelago), a publicly traded electronic trading platform. As a result, the old NYSE itself will become the New York Stock Exchange LLC, a wholly owned subsidiary of NYSE Group, Inc. (NYSE Group). The former members, or seat holders, of the NYSE will receive one of three forms of consideration: all cash, all stock in NYSE Group, or a package of cash and stock. Then, NYSE Group will allow those former members to offer their …

Resisting Deep Capture: The Commercial Speech Doctrine And Junk-Food Advertising To Children, David Yosifon

Faculty Publications

The present Article is more precisely dedicated to analyzing, from a critical realist perspective, the wisdom and constitutional viability of one possible policy response to the obesity crisis: a ban on junk-food advertising to children.

This Article seeks not only to show that an effective junk-food advertising ban could pass constitutional scrutiny, but also to demonstrate, through the rigor of a constitutional analysis, the wisdom of such an approach to this substantial social problem. Simultaneously, my purpose is to show, in the context of a difficult First Amendment question, that the critical realist approach to legal theory is capable of …

Non-Analytical Thinking In Law Practice: Blinking In The Forest, Kandis Scott

Faculty Publications

Non-analytical thinking is indispensable to good legal representation .Despite its importance in law practice, it is devalued and neglected in the conventional law school curriculum. Even in clinical legal education, where the potential to teach students to use this mode of thinking is most obvious, the elevation of theory and analysis has stifled the impulse of clinical professors to teach students to "blink." One way law schools can counteract this trend, and thereby better train law students for practice, is to enhance clinical teachers' nonanalytical skills through more practice opportunities.

The Delphi "Bankruptcy": The Continuation Of Class War By Other Means, Stephen F. Diamond

Faculty Publications

No abstract provided.

Voting Rights Act: Evidence Of Continued Need, Angelo N. Ancheta, United States House Of Representatives, Committee On The Judiciary

Faculty Publications

Ancheta's testimony, titled "Language Accommodation and the Right to Vote", begins on p. 2451.

Justice Stevens, Judicial Power, And The Varieties Of Environmental Litigation, Kenneth A. Manaster

Faculty Publications

1970 was a big year for environmental law. The first of the major federal environmental statutes, the National Environmental Policy Act ("NEPA"), went into force. The first Earth Day was observed. The federal Clean Air Act underwent revolutionary changes, and the United States Environmental Protection Agency ("EPA") was created. Many states also passed ambitious environmental legislation and created new agencies.1970, as is often said, began the "Environmental Decade," when the basic blueprint was drawn for the building of modem environmental law.

The desire of environmental activists for ringing judicial pronouncements of environmental awareness and creative new theories and remedies for …

Aliens With Guns: Equal Protection, Federal Power, And The Second Amendment, Pratheepan Gulasekaram

Faculty Publications

The nexus between guns and alienage presents a window through which to assess the competing constitutional values embodied in the Equal Protection Clause, the federal foreign-affairs power, and the Second Amendment. This Article analyzes the application of equal-protection norms and the federal foreign-affairs power on federal and state statutes that restrict the ability of non-citizens to bear arms. Professor Gulasekaram argues that courts should evaluate alienage restrictions at both the state and federal level under a unified analytic framework that would attempt to reconcile both personhood norms, such as equality, and gate-keeping norms vindicated by reliance on federal-power doctrines. As …

The Challenge Of Treaty Structure: The Case Of Nafta And The Environment, Tseming Yang

Faculty Publications

No abstract provided.

Does Avoiding Constitutional Questions Promote Judicial Independence?, Lisa A. Kloppenberg

Faculty Publications

No abstract provided.

Judicial Deference To Executive Branch Treaty Interpretations: A Historical Perspective, David Sloss

Faculty Publications

In recent years, the Supreme Court has almost always deferred to executive branch views on treaty interpretation issues. Executive dominance was not always the norm, though. In the first fifty years of U.S. constitutional history, between 1789 and 1838, the Supreme Court decided nineteen cases in which the U.S. government was a party, at least one party raised a claim or defense on the basis of a treaty, and the Court decided the merits of that claim or defense. The U.S. government won only three of those nineteen cases. Two other cases were effectively split decisions. And the government lost …

Innocent Of A Capital Crime: Parallels Between Innocence Of A Crime And Innocence Of The Death Penalty, Ellen Kreitzberg, Linda Carter

Faculty Publications

This analysis begins with an examination of the Court's Eighth Amendment jurisprudence and how this impacts the procedures that are required in a capital trial. Then we will present a brief review of habeas corpus law and the barriers that have been imposed to restrict federal court review of claims. We will explain how AEDPA modified the ability of a petitioner to get evidentiary hearings and imposed restrictions on the filling of second or successive petitions. Then, we will look at circumstances in which claims of innocence may be raised in a petition for habeas corpus. Finally, we will compare …

Fairness In The Air: California's Air Pollution Hearing Boards, Kenneth A. Manaster

Faculty Publications

This article is an update of my earlier article, "Administrative Adjudication of Air Pollution Disputes: The Work of Air Pollution Control District Hearing Boards in California." Because basic features of the law governing California's air pollution hearing boards have remained in place over the years, the original article reportedly continues to be useful for lawyers and others. Nonetheless, some important aspects of the law have changed, and so have many of the practices hearing boards follow. Furthermore, in many parts of the state, hearing boards now often face cases of far greater technical and legal complexity, and environmental and economic …

When Do Treaties Create Individually Enforceable Rights?: The Supreme Court Ducks The Issue In Hamdan And Sanchez-Llamas, David Sloss

Faculty Publications

No abstract provided.

Using International Law To Enhance Democracy, David Sloss

Faculty Publications

This article analyzes the domestic application of international human rights law from the standpoint of John Hart Ely's political process theory. The article contends that an Elysian theory favors direct application of international human rights treaties, rather than indirect application of international law as an aid to constitutional interpretation, because direct application keeps the channels of political participation open. Moreover, there are certain areas of substantive law, such as capital punishment, where the Supreme Court functions as the primary lawmaker in the United States. From an Elysian viewpoint, in areas of law like capital punishment, where Congress takes a back …

Law, Politics, And The Appointments Process, Bradley W. Joondeph

Faculty Publications

In recent years, many commentators have called for the "depoliticization" of the judicial appointments process, arguing that politics and ideology have wrongly displaced objective merit in the selection of federal judges. In their book, Advice and Consent: The Politics of Judicial Appointments, Lee Epstein and Jeffrey Segal demonstrate why such prescriptions are misguided. Epstein and Segal are political scientists, not law professors, and thus have no normative stake in protecting constitutional law from politics, the preoccupation of many constitutional theorists. Instead, their aim is purely positive: to explain how the appointments process has actually functioned over the course of the …

Do International Norms Influence State Behavior?, David Sloss

Faculty Publications

No abstract provided.

The Effectiveness Of The Nafta Environmental Side Agreement's Citizen Submission Process: A Case Study Of Metales Y Derivados, Tseming Yang

Faculty Publications

No abstract provided.

Choice And Fraud In Racial Identification: The Dilemma Of Policing Race In Affirmative Action, The Census, And A Color-Blind Society, Tseming Yang

Faculty Publications

No abstract provided.

International Treaty Enforcement As A Public Good: Institutional Deterrent Sanctions In International Environmental Agreements, Tseming Yang

Faculty Publications

No abstract provided.

Reforming Chinese Arbitration Law And Practices In The Global Economy, Lisa A. Kloppenberg, Zhao Xiuwen

Faculty Publications

No abstract provided.

Integrating Contract Drafting Skills And Doctrine, Eric Goldman

Faculty Publications

In February 2006, I participated in the Symposium, Teaching Writing and Teaching Doctrine: A Symbiotic Relationship?, at Brooklyn Law School. I prepared some personal and unscientific observations about the challenges of concurrently teaching legal doctrine and contract drafting. Obviously, there is a rich literature on these topics that I did not try to address; instead, my goal was simply to acknowledge my first-hand experiences wrestling with these challenges and discuss some specific solutions I have tried. This brief Essay recaps my presentation.

Search Engine Bias And The Demise Of Search Engine Utopianism, Eric Goldman

Faculty Publications

Due to search engines' automated operations, people often assume that search engines display search results neutrally and without bias. However, this perception is mistaken. Like any other media company, search engines affirmatively control their users' experiences, which has the consequence of skewing search results (a phenomenon called "search engine bias"). Some commentators believe that search engine bias is a defect requiring legislative correction. Instead, this Essay argues that search engine bias is the beneficial consequence of search engines optimizing content for their users. The Essay further argues that the most problematic aspect of search engine bias, the "winner-take all" effect …

Co-Blogging Law, Eric Goldman

Faculty Publications

Abstract: Bloggers often work collaboratively with other bloggers, a phenomenon I call "co-blogging. " The decision to co-blog may seem casual, but it can have significant and unexpected legal consequences forthe co-bloggers. This essay looks at some of these consequences under partnership law, employment law, and copyright law and explains how each of these legal doctrines can lead to counterintuitive results. The essay then discusses some recommendations to mitigate the harshness of these results.

The Problem Of Maintaining Emission "Caps" Without Federal Government Involvement: A Brief Examination Of The Chicago Climate Exchange And The Northeast Regional Greenhouse Gas Initiative, Tseming Yang

Faculty Publications

No abstract provided.

Antitrust Law On The Borderland Of Language And Market Definition: Is There A Separate Spanish-Language Radio Market?, Catherine J. K. Sandoval

Faculty Publications

No abstract provided.

A Coasean Analysis Of Marketing, Eric Goldman

Faculty Publications

Consumers claim to hate marketing - mostly, because they get too much unwanted marketing. In response, regulators develop medium-by-medium marketing suppression regulations. Unfortunately, these ad hoc solutions do little to satisfy consumers, and dynamic technologies and business practices quickly render them moot. Instead of continuing this cycle, there would be some benefit to developing a cross-media marketing regulatory scheme.

However, any holistic solution must be predicated on a clear rationale for regulating marketing. The most common justification is that marketing imposes a negative externality on consumers, but this argument ignores the private and social welfare created by marketing and can …

2005: A Consumer Bankruptcy Odyssey, Gary Neustadter

Faculty Publications

Congress has concluded that the voyage of consumer bankruptcy in the United States is off course and that some of its crew - consumer bankruptcy attorneys and bankruptcy judges - no longer can be completely trusted at the helm. Following years of drama reminiscent of the 1914 silent film serial "Perils of Protection Act of 2005 ("the Act"). Save perhaps the 1938 introduction of Chapter XIII, the correction presents the most far reaching changes in consumer bankruptcy law since the adoption of the Bankruptcy Act of 1898. These changes come little more than a decade after Congress established a National …

The Constitutional Function Of Biological Paternity: Evidence Of The Biological Mother's Consent To The Biological Father's Co-Parenting Of Her Child, E. Gary Spitko

Faculty Publications

This article argues that a father's biological connection to a child is constitutionally significant principally because it evidences the consent of the biological mother to the father's parental relationship with the child. The biological mother's consent is critical because she is the initial "constitutional parent." Her constitutional parental rights arise from her role nourishing the child in her womb and enduring the pain and danger of childbirth. This labor gives her a constitutionally protected voice in the child's upbringing including a right to decide generally who else shall be allowed to develop a parental relationship with the child. Only if …

Liberalism And Ability Taxation, David M. Hasen

Faculty Publications

Recent tax scholarship has embraced the idea of individual endowment taxation, or taxation of human abilities, as an approach to ideal tax theory. Under endowment taxation, individuals are taxed according to their native ability to command resources, rather than according to any actual index of goods or expenditures, such as income, consumption or wealth, that otherwise might be thought relevant to the assignment of tax burdens. This Article argues that endowment taxation is generally incompatible with political theories that might broadly be described as "liberal," whether or not these theories authorize what is called "redistribution." The Article also suggests that …