Digital Commons Network^™

Supreme Court Amicus Brief Of Law Professors In Support Of Petitioner, Abraham V. Alpha Chi Omega, Christine Farley

Articles in Law Reviews & Other Academic Journals

The Federal Lanham Act provides that injunctive relief, the primary remedy in trademark cases, is to be granted in accordance with the principles of equity. Expressly included among such equitable principles are the defenses of acquiescence, laches, and estoppel. Naturally, these defenses have become commonplace in defending against claims of trademark infringement. In the absence of a statute of limitations courts rely on the doctrine of laches, for example, to determine when trademark infringement claims have become stale. Our informal study of the district in which this case arises shows that from 2005 to 2011, nearly two thirds of answers …

Is Financial Instability A Tax Problem With A Tax Solution?, Hilary Allen

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Financial regulation and taxation are two fields of law that are notoriously complex and specialized. Given thiscircumstance, it is perhaps not surprising that financial regulators often pay little attention to tax, and focusinstead on their own sphere of influence. Unfortunately, financial regulators ignore tax incentives at the peril offinancial stability.

Distorted And Diminished Tort Claims For Women, Jamie Abrams

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Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.

While theoretically childbirth falls within …

Searching For Solutions To The Indigent Defense Crisis In The Broader Criminal Justice Reform Agenda, Roger Fairfax

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As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, …

The Case For Drones, Kenneth Anderson

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American University, WCL Research Paper No. 2014-12Abstract:This cover story in Commentary magazine (7500 words) offers a defense of drone warfare and targeted killing against legal and ethical claims made by both the American libertarian right and the American and international left. It addresses empirical claims of "excessive" civilian casualties, as well as ethical arguments that drones make the resort to force not just easier, but "too easy," and that in order to deter "overuse" of armed force, soldiers (and implicitly civilians) need to be exposed to otherwise unnecessary risk. It explains how drone technology and targeted killing fit together in …

Fda And The Rise Of The Empowered Consumer, Lewis Grossman

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This Article traces the still-evolving view of consumers of FDA-regulated products as capable, rational, and rights-bearing decision makers. It also examines the corresponding diminution of FDA’s role as a paternalistic gatekeeper collaborating with medical and scientific experts to prevent products and manufacturer-provided information from reaching the public. Compared with their 1960s counterparts, today’s consumers of food and drugs have far greater freedom to make unmediated choices among a wider variety of products, guided by a relative deluge of labeling and advertising information. Moreover, food and drug regulation, once the exclusive domain of bureaucrats and experts, has become a focus of …

Fair Use And Education: The Way Forward, Peter Jaszi

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The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism, "for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where …

Tax Planning For Marijuana Dealers, Benjamin Leff

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In recent years, many states have legalized marijuana while the federal government continues to consider all marijuana sales and use illegal. But marijuana industry insiders consider not federal criminal law but federal tax law to be the biggest impediment to the development of a legitimate marijuana industry. State-sanctioned marijuana sellers are required to pay federal income taxes pursuant to § 280E, a formerly largely symbolic provision that Congress enacted to punish drug dealers, but which now could potentially drive legitimate marijuana sellers underground. This paper proposes a tax strategy that enables state-sanctioned marijuana sellers to avoid the impact of § …

Denial Of Territory To Terrorist Groups In Us Counterterrorism Strategy, Kenneth Anderson

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This short (1500 words) policy briefing paper describes the strategic evolution of US counterterrorism policies to incorporate "denial of territory" strategies alongside existing strategies, particularly long-term, increasingly continuous surveillance by drones, and armed drone attacks, pursued as a counter-raiding strategy against terrorist groups. It argues that US counterterrorism requires not only a counter-raiding strategy via drone strikes, but also the ability to deny territory to terrorist groups.Denial of territory means two distinct strategies, however. One is to deny safe havens to terrorist groups; safe houses, compounds, training camps and bases -- the tiny slices of territory that are usually understood …

Procedural Hurdles And Thwarted Efficiency: Immigration Relief In Wage And Hour Collective Actions, Llezlie Green

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Wage theft and its frequent exploitative companions, trafficking and involuntary servitude, have seen substantial increases in recent years. Low-wage workers often bear the brunt of these practices. Vulnerable populations, such as immigrant workers, and more specifically, undocumented workers, experience wage theft and other forms of workplace-related exploitation at alarmingly high rates. Individual adjudications of these claims are neither efficient nor, in many cases, feasible, given attorneys’ aversion to shouldering the risks and costs in cases that may yield only limited attorneys’ fees. The collective adjudication of Fair Labor Standards Act (FLSA) claims, however, largely resolves these challenges and provides an …

Exclusion As A Core Competition Concern, Jonathan Baker

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A contemporary consensus in antitrust discourse inappropriately places exclusionary conduct at the periphery of competition policy, while putting collusion at the core. Contrary to that common view, exclusion is as important as collusion as a matter of precedent, the structure of doctrinal rules, economics, and sound competition policy. Courts treat exclusionary violations as serious competitive problems. An emerging doctrinal rule for truncated condemnation of “plain” exclusionary conduct (practices foreclosing rivals that lack a plausible efficiency justification) parallels the evolving judicial approach toward “naked” collusion. Exclusion and collusion can be understood within a common economic framework that emphasizes the close relationship …

Playing To The Audience, David Spratt

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No abstract provided.

Should Congress Create A Special Category Of Ssa Aljs, Jeffrey Lubbers

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No abstract provided.

Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

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INTRODUCTION: Sexual and gender-based violence (SGBV) during conflict and periods of repression has been a problem in every region of the globe.' Historically, these crimes were rarely prosecuted, particularly when government leaders were responsible for tolerating, encouraging, or orchestrating these crimes. However, the last two decades have seen an incredible transformation in the treatment of SGBV under international law. Great strides have been made in the investigation and prosecution of sexual and gender-based crimes, particular by the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone This essay examines the way …

Should Public Buildings Be Used For Worship, Stephen Wermiel

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No abstract provided.

The Landmark That Wasn't: A First Amendment Play In Five Acts Case Study And Commentaries, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

What follows is an original case study of our First Amendment law of free expression and how it is created by the Supreme Court. Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled. In the course of this discussion, and in their examination of the evolution of the Court’s decision in Dun & Bradstreet v. Greenmoss Builders (1985), the authors describe and analyze: (1) how and to what extent …

Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives In Interspousal Torts, Fernanda Nicola

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Tort liability expanded in the twentieth century, a shift scholars generally attribute to the reorganization of tort law around the fault principle. In privileging compensation and deterrence, this reconfiguration ended various restrictions on liability, long viewed as arbitrary, including limits to the recovery for emotional harm and interspousal immunities. Tort and family law scholars alike portray the end of such immunities as a milestone for gender equality. Their elimination enables spouses and partners to secure compensation for emotional and physical abuse arising in intimate relationships. Yet, tort law is not operating in this way. On the contrary, by endorsing a …

Let's Talk About Tax, Hilary Allen

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No abstract provided.

Jury Instructions As Constitutional Education, Andrew Ferguson

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Juries are central to the constitutional structure of America. This article articulates a theory of the jury as a “constitutional teaching moment,” establishing a historical and theoretical basis for reclaiming the educative value of jury service. Its proposal is straightforward and easy to implement – use jury instructions to educate jurors about the Constitution.This article addresses the fundamental question of why, despite an unquestioned acceptance of a constitutional role of the jury, our criminal justice system does not explain this role to jurors on jury duty. The article seeks to answer the question of how we can educate jurors about …

The Jury As Constitutional Identity, Andrew Ferguson

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This article seeks to reframe how citizens see jury service in America.Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more important than the right to vote as a means to ensure a robust democratic system. During the battles for racial equality (before and after the Reconstruction Amendments) and gender equality (before and after the Nineteenth Amendment), advocates explicitly linked demands for voting and jury service as symbols of political equality. Americans fought, protested, …

"Give Us Free": Addressing Racial Disparities In Bail Determinations, Cynthia E. Jones

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This article considers racial disparities that occur nationally in the bail determination process, due in large part to the lack of uniformity, resources, and information provided to officials in bail proceedings. It argues that the almost unbridled decision making power afforded to bail officials is often influenced by improper considerations such as the defendant's financial resources or the race of the defendant. As a result of these failures, the bail determination process has resulted not only in racial inequalities in bail and pretrial detention decisions, but also in the over-incarceration of pretrial defendants and the overcrowding of jails nationwide. The …

"I Am Ronald Cotton": Teaching Wrongful Convictions In A Criminal Law Class, Cynthia E. Jones

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No abstract provided.

Remarks By Diane Orentilcher, Diane Orentlicher

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Twenty years into the contemporary era of international criminal tribunals, a large measure of consensus has developed (at least among states that fund tribunals) has developed around the notion that these courts should dispense justice only in respect of the most serious international crimes. This view is reflected in the Rome Statute of the International Criminal Court (ICC), whose preamble affirms "that the most serious crimes of concern to the international community as a whole must not go unpunished" and whose admissibility provisions direct the Court to dismiss a case on the ground that it "is not of sufficient gravity …

Lessons From Personhood's Defeat: Abortion Restrictions And Side Effects On Women's Health, Maya Manian

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State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far no personhood laws have passed. Why? This Article offers a possible explanation and draws lessons from that explanation for understanding and resisting abortion restrictions more broadly. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion may have led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, …

Remedies Reveals The Seamless Web, Candace Kovacic-Fleischer

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INTRODUCTION: Remedies is a course that consolidates many of the concepts learned in the first year of law school and some from the second. A typical Remedies course will reintroduce principles from constitutional law, compare and contrast torts and contracts, and apply criminal concepts in civil contexts. Teaching Remedies can be both challenging and rewarding. Challenging because it crosses a wide variety of subject areas. Rewarding because it weaves a variety of subject areas into the "seamless web" of the law, eliciting from students an occasional "aha." Early classes in law school tend to separate courses into discrete subject areas, …

The Ambition And Transformative Potential Of Progressive Property, Ezra Rosser

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The emerging progressive property school celebrates and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and nonowners have with property and with each other. Despite these ambitions, progressive property scholarship has so far largely confined itself to questions of exclusion and access. This Essay argues that such an emphasis glosses over race-related acquisition and distribution problems that pervade American history and property law. The modest structural changes supported by progressive property scholars fail to account for …

Pharaohs, Nubians, And Antiquities: International Law Suggests It's Time For A Change In Egypt, Angi Porter

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Part I of this Comment describes the history and structure of Egypt's antiquities laws. It also describes Egypt's relevant international obligations under the Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the United Nations Declaration on the Rights of Indigenous Peoples. In Part II, this Comment argues that the current state of Egypt's antiquities system is inconsistent with its international obligations. Part II considers whether Egypt's exclusion of the Nubians stems from Egyptological superiority narratives and analyzes which narratives Egypt could adopt without violating international law. Finally, Part …

Owning Justice And Reckoning With Its Complexity, Diane Orentlicher

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A series of developments, both doctrinal and political, seem to signify a retreat from earlier innovations in the law and practice of international justice. On closer examination, however, recent developments in international justice cannot be reduced to a single trend line. Even as various actors and processes continue to work out the ground rules for exercising jurisdiction in respect of human rights violations that international law condemns as criminal, and as international and national courts work through the inherently challenging project of redressing mass atrocities, states have increasingly internalized, owned and acted on the principle that they should ensure accountability …

A Framework For Assessing Global Economic Governance, Daniel D. Bradlow

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Increased globalization over the last twenty years has made effective global economic governance more important than ever. This period has witnessed the rise of a number of new international governance actors, such as the Group of Twenty and the Financial Stability Board. This Article proposes a five-part test to evaluate how the existing global governance actors serve the interests of all stakeholders in the global economy. The test is based on four fundamental indicators of good global governance. The Article uses the five-part test to evaluate the G20’s performance at the G20 Summit at Los Cabos, Mexico. Finally, this Article …

The Geography Of The Battlefield: A Framework For Detention And Targeting Outside The 'Hot' Conflict Zone, Jennifer Daskal

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The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state’s authority to use lethal force and to detain without charge. To date, the legal and policy discussions on this issue have resulted in a heated and intractable debate. On the one hand, the United States and its supporters argue that the conflict — and broad detention and targeting authorities — extend to wherever the alleged enemy is found, subject to a series of malleable policy constraints. On the other hand, European allies, …