Digital Commons Network^™

Human Shields, Homicides, And House Fires: How A Domestic Law Analogy Can Guide International Law Regarding Human Shield Tactics In Armed Conflict, Douglas H. Fischer

American University Law Review

No abstract provided.

Of Protection And Sovereignty: Applying The Computer Fraud And Abuse Act Extraterritorially To Protect Embedded Software Outsourced To China , Carrie Greenplate

American University Law Review

No abstract provided.

The Constitutional Right To Watch Television: Analyzing The Digital Switchover In The Context Of The First Amendment , Eugene Ho

American University Law Review

No abstract provided.

Envisioning The Constitution , Thomas P. Crocker

American University Law Review

If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution …

In Memory Of Professor Janet R. Spragens, Nancy J. Altman

American University Law Review

A eulogy for Professor Janet R. Spragens given by her sister, Nancy Altman. “Janet died much too young, before she had time to express all the laughter, love, happiness, and contribution to public service she had within her. Rather than dwell on what might have been, though, I choose to celebrate her life—her wonderful, vibrant, and unique qualities and the gifts she bestowed not only on her friends and family but on countless others who never knew her.”

Professor Janet Spragens: In Memory Of A Friend, In Celebration Of An Idea, Nancy S. Abramowitz

American University Law Review

Professor Nancy Abramowitz discusses the effect of Professor Janet Spragens’ life’s work and her commitment to legal tax clinics and how her model is proliferated in law schools around the country.

Thinking About Conflicting Gravitational Pulls - Litcs: The Academy And The Irs, Nancy S. Abramowitz

American University Law Review

Professor Nancy Abramowitz examines the tensions between the work of the tax clinics in providing tax services to low-income populations and the underlying educational goals.

Final Salute To Lost Soldiers: Preserving The Freedom Of Speech At Military Funerals, Andrea Cornwell

American University Law Review

This Comment argues that RAFHA, as currently written, cannot stand in light of First Amendment jurisprudence. Part I reviews the history and development of relevant free speech case law and restrictions on expression, including the recent trend in the states of passing legislation similar to RAFHA. Part II assesses the Act’s constitutionality against this background. First, Part II contends that the statute is a content-based restriction of free speech and is thus subject to strict scrutiny. Second, even if deemed content neutral, the Act could not survive the courts’ intermediate scrutiny. Finally, this Comment reasons that even if able to …

Constitutional Review And Tax Law: An Analytical Framework , Yoseph Edrey

American University Law Review

This Article offers a more comprehensive and substantial approach to constitutional review of the general power to tax and the way tax laws should comply with constitutional rights and principles. The power of Congress to levy taxes is not confined to income taxes; it is broader and much more general. Article I, Section 8 of the Constitution describes the general power of Congress in terms of tax laws as follows: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United …

Social Security And The Low-Income Worker , Nancy J. Altman

American University Law Review

Social Security is important to all Americans, but, particularly, to low-income workers and their families. Financing the program partly through earmarked deductions from employees’ wages is an integral and vital part of Social Security’s design, and has been an important reason for Social Security’s success and broad public support over the program’s seventy-year life. At the same time, these contributions are harder to bear for those with lower wages. Just as the EITC has eased the burden of these contributions without undermining the basic structure and philosophy of Social Security, so the program’s long-range deficit, if eliminated properly, can help …

Welfare By Any Other Name: Tax Transfers And The Eitc, Dennis Ventry

American University Law Review

Tax credits, particularly refundable tax credits, are viewed increasingly as a social policymaking magic bullet. Indeed, the tax instrument can be a particularly effective and efficient mechanism for delivering social welfare benefits. However, deploying uniform refundable credits or universal tax subsidies will not solve all anti-poverty woes. In particular, over-reliance on the tax instrument blinds policymakers to a more fundamental conundrum that has plagued government transfers for over thirty years: What exactly is the government trying to accomplish by delivering social welfare benefits through the tax system? The Article explores this systemic question, and poses two further questions. First, what …

Freakonomics And The Tax Gap: An Applied Perspective , Leslie Book

American University Law Review

Over the past thirty years, a significant amount of research from a variety of social science disciplines has considered tax compliance. Economists, psychologists, and sociologists have contributed to the discussion, offering research and, at times, conflicting explanations regarding whether a person is likely to comply with his obligation to file an accurate tax return. The unifying theme among this research is a search for explanatory reasons which are the factors that lead to non-compliance. In broad terms, the economic models of tax compliance assume rational behavior, and that people will coldly consider compliance from the perspective as to whether the …

No Wealthy Parent Left Behind: An Analysis Of Tax Subsidies For Higher Education , Andrew D. Pike

American University Law Review

This Article will examine whether the tax provisions constitute a sensible portion of the federal financial aid expenditure programs. Part I of this Article discusses the principal tax provisions that provide subsidies for higher education and analyzes provisions constitute a sensible component of the federal financial aid expenditure programs. Part I of this Article discusses the principal tax provisions that provide subsidies for higher education and analyzes the allocation of benefits that arise from these provisions. Part II evaluates these provisions from a tax policy perspective. Part III contains conclusions and policy recommendations.

Cruelty To The Mentally Ill: An Eighth Amendment Challenge To The Abolition Of The Insanity Defense, Stephen M. Leblanc

American University Law Review

This Comment addresses the present gap in insanity-defense laws

created by the defense’s abolition and offers an Eighth Amendment

based remedy. Part I reviews the history and evolution of the insanity

defense in Anglo-American law. It then describes how four states

have statutorily abolished the defense. It concludes with a discussion

of Clark v. Arizona, the Court’s most recent decision on the

constitutionality of the insanity defense. Part II turns to the Eighth

Amendment, examining its historical understanding and the

contemporary evolving-standards-of-decency analysis, through which

the Court assesses the constitutionality of modern-day punishments.

Part II concludes with a discussion of …

Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations , Asmara Tekle Johnson

American University Law Review

In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court’s decision in …

Price Of Popularity: The Court Of Appeals For The Federal Circuit 2007, Jay S. Plager

American University Law Review

This year marked the twenty-fifth anniversary of the establishment of the Court of Appeals for the Federal Circuit. The anniversary was acknowledged with appropriate ceremony, including an en banc session of the court on April 2 attended by various luminaries in the judicial and political branches of the United States. The somewhat tongue-in-cheek title of this essay is intended to suggest an important idea about the court today: with increased visibility, significance, and impact have come consequences, some desirable, some not. This essay undertook a brief review of how the court got where it is, and a look at what …

Survey Of The Federal Circuit's Patent Law Decisions In 2006: A New Chapter In The Ongoing Dialogue With The Supreme Court, Gregory A. Castanias, Lawrence D. Rosenberg, Michael S. Fried, Todd R. Geremia

American University Law Review

In 2006, the Federal Circuit decided only one portion of one patent case en banc, and that was done mainly as a procedural matter (the entire case was not argued to an en banc court) in order to reconcile prior conflicting precedent on the issue of induced patent infringement with the recent Supreme Court decision in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., involving induced copyright infringement. But in light of the Supreme Court’s much more muscular review of the Federal Circuit’s patent cases—which may not even reflect the full extent of the Court’s interest in the Federal Circuit’s patent decisions—the …

2006 Government Contract Decisions Of The Federal Circuit, David W. Burgett, William F. Ferreira, Allison D. Pugsley, Deborah A. Raviv

American University Law Review

In 2006, the Federal Circuit issued over two hundred and fifty precedential opinions and orders. This article discusses sixteen precedent-setting opinions involving government contract law issues, setting forth the relevant facts, the Federal Circuit’s analysis, and key points for practitioners to glean from each case. This article also includes a discussion of the Federal Circuit’s September 2006 opinion regarding the TRICARE Pharmacy Benefits Program (“TPBP”) refund program, a case that the pharmaceutical industry watched closely. The decisions have been grouped into the following categories: jurisdiction, contract interpretation, costs, contract termination, bid protests, and patent rights.

The Trademark Jurisprudence Of Judge Rich, Jeffrey M. Samuels, Linda B. Samuels

American University Law Review

For nearly forty-three years, Giles Sutherland Rich served as a member of the U.S. Court of Customs and Patent Appeals (C.C.P.A.) and its successor court, the U.S. Court of Appeals for the Federal Circuit. Judge Rich is widely regarded as one of the most influential jurists in the area of patent law—and rightfully so. Less well known is that Judge Rich also authored many significant decisions in the area of trademark law. Judge Rich’s opinions in the area of trademarks span the spectrum of trademark registrability issues and explore important issues of public policy. This Article reviews a number of …

Rejecting Reasonableness: A New Look At Title Vii's Anti-Retaliation Provision, Briane J. Gorod

American University Law Review

This Article argues that the “reasonableness” requirement of Title VII should be rejected. Under this approach, a plaintiff’s complaint would be protected unless the defendant could establish that the plaintiff was acting in bad faith at the time she made the complaint. Such a standard would offer employers some protection from retaliation suits based on frivolous complaints without compromising the significant goals the retaliation provision can serve. Part I provides background on Title VII and the anti-retaliation provision, particularly the “opposition” clause, explains why the anti-retaliation provision is necessary and how courts have interpreted the scope of the conduct it …

Tom Delay, Robert Torricelli, And Political Party Maneuvering: Why The First Amendment Associational Rights Of Political Parties Should Be Extended To Include Candidate Replacement , Kevin M. Baker

American University Law Review

This Comment analyzes whether the First Amendment

associational rights of the major political parties should include

candidate replacement and argues that the rights of parties to define

who votes in the primary logically should be extended to include a

right to replace candidates on the ballot after a withdrawal. Based on

the more recent Supreme Court cases finding greater freedom of

association for political parties, this Comment will focus on the 2002

replacement of Robert Torricelli in the New Jersey U.S. Senate

election and the 2006 failure to replace Tom DeLay in the Texas

22nd Congressional District U.S. House of …

On Mock Funerals, Banners, And Giant Rat Balloons: Why Current Interpretation Of Section 8(B)(4)(Ii)(B) Of The National Labor Relations Act Unconstitutionality Burdens Union Speech, Kate L. Racokzy

American University Law Review

This Comment discusses whether the government may prohibit unions from engaging in types of secondary protest like mock funerals. Since 1959, § 8(b)(4)(ii)(B) of the National Labor Relations Act (“NLRA” or “the Act”) has made it illegal for unions to “threaten, coerce, or restrain” secondary employers into severing their business ties with primary employers. Precisely what forms of protest this provision outlaws, however, is unclear. On one end of the spectrum, courts almost always find that picketing secondary employers constitutes illegal coercion, for courts see pickets as having a unique power to induce automatic action. On the other end, the …

A Proposal To Rescue New York Times V. Sullivan By Promoting A Responsible Press, Benjamin Barron

American University Law Review

No abstract provided.

Comparative Evidence Or Common Experience: When Does "Substantial Limitation" Require Proof Under The Americans With Disabilities Act?, Cheryl L. Anderson

American University Law Review

No abstract provided.

International Trade Decisions Of The Federal Circuit: 2006 Cases And Highlights Of 2003-2005, Alexandra E.P. Baj

American University Law Review

Over the past four years, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has, as it has done since its establishment in 1982, exercised its jurisdiction under 28 U.S.C. § 1295(a)(5) to review decisions of the United States Court of International Trade (“CIT”) regarding U.S. regulation of international trade. While trade cases currently make up only about six percent of the docket of the Federal Circuit, decisions in these cases can have a significant discernable impact on the day-to-day investigation and regulation of trade matters of the three U.S. agencies featured most prominently in the trade …

Gender Curve: An Analysis Of Colleges' Use Of Affirmative Action Policies To Benefit Male Applicants, Debra Franzese

American University Law Review

This comment evaluates the constitutionality of affirmative action policies that benefit male students. Part I sets out background information about potential causes of action and remedies for female students who challenge affirmative action policies that benefit male students. Section A discusses the Equal Protection Clause of the Fourteenth Amendment and the development of the law regarding universities’ use of racial affirmative action policies. Section B discusses potential remedies under Title IX of the Education Amendments of 1972 (“Title IX”) and the similarity between Title IX and Title VI of the Civil Rights Act (“Title VI”). Section C discusses state remedies …

Title Iii Of The Bioterrorism Act: Sacrificing U.S. Trade Relations In The Name Of Food Security, Claire S. Boisen

American University Law Review

Part I examines in detail the two conflicting laws that are the basis of this Comment—Title III of the Bioterrorism Act and the SPS Agreement—focusing on those portions of Title III that adversely impact international trade. Part I also presents the WTO case EC Measures Concerning Meat and Meat Products (Hormones), the first food regulation case disputed in the WTO system for a violation of the SPS Agreement. This case clarified the two major principles of the SPS Agreement that are explored in this Comment: the prohibition on discrimination and the obligation to support trade–restrictive measures with an analytical risk …

The Sunset Of "Quality Control" In Modern Trademark Licensing, Irene Calboli

American University Law Review

Historically, based on the premise that trademark protection is about consumer welfare, trademark law has allowed trademark licensing only as long as licensors control the quality of the products bearing the licensed marks. Ever since its adoption, however, this rule has been difficult to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legal context: quality control. Unsurprisingly, the consequence has been inconsistent case law and much uncertainty as to what represents valid licensing. In addition, in the past decades, courts have proven increasingly reticent to strictly apply this rule and have declared …

What Hedge Funds Can Teach Corporate America: A Roadmap For Achieving Institutional Investor Oversight, Robert C. Illig

American University Law Review

Hedge funds and other private equity funds are aggressive monitors of corporate America. Their investment strategies are designed to squeeze agency costs and other inefficiencies out of under performing companies. Mutual funds and public pension funds, by contrast, have remained relentlessly passive despite their many resources. Rather than seek to improve the performance of their portfolio companies, they generally prefer to exit any investments that turn sour. Why the difference? In this Article, I compare the business environments and regulatory regimes affecting different types of institutional investors. I conclude that the primary reason that most institutional investors do not better …

Conference: Reparations In The Inter-American System: A Comparative Approach Conference, Ignacio Alvarez, Carlos Ayala, David Baluarte, Agustina Del Campo, Santiago A. Canton, Dean Claudio Grossman, Darren Hutchinson, Pablo Jacoby, Viviana Krsticevic, Elizabeth Abi-Mershed, Fernanda Nicola, Diego Rodríguez-Pinzón, Francisco Quintana, Sergio Garcia Ramirez, Alice Riener, Frank La Rue, Dinah Shelton, Ingrid Nifosi Sutton, Armstrong Wiggins

American University Law Review

This publication will enhance the understanding of what we call the law of reparations, developed in the Inter-American Court and Commission of Human Rights. Reparations have a special meaning for the victims of human rights violations and, in particular, the victims of mass and gross violations that took place in this hemisphere during the twentieth century. For those victims and their family members, reestablishing the rights as if no violation had occurred is not possible. Accordingly, to them, avoiding the repetition of those violations in the future is of paramount importance. In achieving that goal, what the victims want is …