Digital Commons Network^™

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s …

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by …

Flattening The World Of Legal Services? The Ethical And Liability Minefields Of Offshoring Legal And Law-Related Services, Carole Silver, Mary C. Daly

ExpressO

This article examines offshore outsourcing of legal and law-related services as the newest twist in the international market for legal services. We consider the impact of offshore outsourcing on the profession generally and analyze the ethical issues raised by offshore outsourcing, both as it exists today and as the practice may develop in the future. The article begins by situating offshore outsourcing in the framework of relationships created in the context of delivery of legal services. This framework is used, in turn, to construct a structure of analysis for the ethical implications of offshore outsourcing. Lawyers who outsource to offshore …

Delegating Democracy - The Siphoning Of Immigration Power From Congress To The States And Administrative Agencies, And The Need For A New Approach.", Oleg S. Kobelev

ExpressO

The paper's central thesis is that a doctrine of non-delegation in conjunction with the plenary power of Congress in the area of immigration law makes it possible for Congress to escape its democratic responsibilities to the voters by allowing it to shove difficult or unpopular decisions to the administrative agencies with little oversight or accountability to the public. This paper proposes a new constitutional approach to the delegation theory in the context of immigration - a theory of explicit delegation.

Fourth Amendment Searches Of The Home In Florida: State V. Rabb: Has The Florida Fourth District Court Of Appeals Barked Up The Wrong Tree? , Anthony Michael Stella

ExpressO

The use of drug dogs in the United States began in 1970 when the United States Customs started using dog sniffs to detect the presence of contraband. This practice raised the Fourth Amendment issue of whether the use of a dog sniff required probable cause and a warrant. In United States v. Place, the United States Supreme Court found that a dog sniff is not a Fourth Amendment search because it is “less intrusive than a typical search” and because it reveals only “the presence or absence of narcotics.” Since that decision, some State courts have interpreted their constitutions to …

After The Gold Rush?: Grutter, Sander And ‘Affirmative Action’ “On The Run…” In The Twenty-First Century, Anthony Vincent Baker

ExpressO

No abstract provided.

Is It "Charitable" To Discriminate?, Nicholas A. Mirkay

ExpressO

With federal subsidies to charitable organizations exceeding $232 billion for fiscal years 2007 to 2011, the public benefit conferred by such organizations is an increasingly hot topic for Congress, the Internal Revenue Service and the entire nonprofit sector. Despite the national debate over nonprofit versus for-profit hospitals and excessive executive compensation, and the call for stricter governance and regulation, one recurring activity of charities appears to fly under the radar of reformers – discrimination. As illustrated in real-life occurrences contained in pages 3 and 4 of the article, seemingly widespread discrimination by charities exists not only with respect to employment, …

Polycephalous Anatomy Of The Ec In The Wto: An Analysis Of Law And Practice, Rafael Leal-Arcas

ExpressO

This article analyzes the unique legal position of the European Community (EC) in the world trading system. Its polycephalous anatomy derives from the fact that all 25 Member States of the EC are members of the World Trade Organization (WTO) along with the EC itself. This means that when referring to the EC, the whole as well as its parts are independent Members of the WTO. This has legal and political consequences related to the allocation of powers between the national and supranational levels that will be analyzed. The article explains what is meant by a “mixed agreement” and analyzes …

Teaching In Reverse: A Positive Approach To Analytical Errors In 1l Writing, Lesley S. Kagan, Susan E. Provenzano

ExpressO

No abstract provided.

Originalism And Parking Tickets, Lawrence Rosenthal

ExpressO

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

Is The Eli Lilly Written Description Requirement A Paper Tiger?: A Comprehensive Assessment Of The Impact Of Eli Lilly And Its Progeny In The Courts And Pto, Christopher M. Holman

ExpressO

In University of California v. Eli Lilly, decided by the Federal Circuit in 1997, the court established for the first time a new form of patent law’s written description requirement, apparently targeted specifically at biotechnology. To this day, the conventional wisdom is that the so-called Lilly written description requirement (“LWD”) exists as a biotechnology-specific “super-enablement” requirement, substantially more stringent than the enablement requirement (the conventional standard for patentability), and standing as an impediment to effective patent protection for biotechnology inventions. My objective in writing this article was to test this conventional wisdom, by conducting a comprehensive search for all LWD …

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

The Use And Misuse Of Disclosure As A Regulatory System, Paula J. Dalley

ExpressO

Over the past several decades, legislators and regulators have increasingly turned to disclosure schemes, rather than substantive regulation, to accomplish regulatory goals. Most of these schemes are either expressly or impliedly based on the disclosure-based regulatory system established by the securities acts, which is primarily intended to provide information to traders in an established market and thereby to enhance the operation of the market. A secondary purpose of the securities acts is to alter the behavior of firms and individuals through the operation of the market. Other disclosure schemes usually have similar purposes, but they rarely operate in a market …

Repairing Facade Easements: Is This The Gift That Launched A Thousand Deductions?, Martha W. Jordan

ExpressO

The Internal Revenue Code encourages owners of buildings listed on the National Register of Historic Places to protect them by donating façade easements to charities dedicated to the preservation of our built environment. The building owner is permitted to claim a charitable contribution deduction equal to the value of the easement. A façade easement is an agreement between the building owner and the charity restricting the ability of the building owner to make changes to the building’s façade. Additionally, the façade easement may require the building owner to maintain the building in a specified condition. This article discusses the impact …

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

Public Opinion Supervision - A Case Study Of Media Freedom In China, Anne Sy Cheung

ExpressO

This paper, through the study of news coverage of a housing development and relocation scandal in Hunan province, explores the scope of freedom that media enjoy in the Mainland, focusing particularly on the phenomenon of “public opinion supervision.” The case chosen involved 1100 households and 7,000 people living in the small county of Jiahe. Though relocation projects are common in China, this project involved active and direct local government intervention, with officials bending the law and harassing the residents. Despite attempts by residents to solve the problems through administrative channels and legal means throughout the year of 2003, this was …

Imagining The Law-Trained Reader: The Faulty Description Of The Audience In Legal Writing Textbooks., Jessica E. Price

ExpressO

In law schools today, first-year legal writing courses play a crucial role in helping students learn to communicate about the law. Many legal writing teachers approach legal writing education in a practical way, attempting to pass on their own experiences in law practice settings to students. Unfortunately, as other writers have observed, such reliance on personal knowledge about “what lawyers are like” may lead legal writing teachers to oversimplify a complicated matter – the needs and preferences of the audience for legal writing – and may even amount to indoctrination in stereotypes about law practice. This article offers a closer …

Legal Construct Validation: Expanding Empirical Legal Scholarship To Unobservable Concepts, David S. Goldman

ExpressO

This article contends that many of the fundamental concepts of law (such as justice, incentives, and deterrence) are not directly measurable, and have, therefore, been largely ignored by empirical legal scholarship. Fortunately, other social sciences have confronted this same obstacle and have developed methods with which to empirically assess these intangible concepts. I propose that the concept of construct validation, which has been developed in the psychology subfield of psychometrics, can be adapted to law to measure these unobservable traits. To adapt construct validation to law, empirical legal scholars must 1) develop generalized theories, 2) infer multiple hypotheses from these …

Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho

ExpressO

This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double …

Nominative Fair Use In Trademark Law: Revisited Online, But Was The Ninth Circuit's Analysis Invoked For The Lasttime?, Jeff Leung

ExpressO

No abstract provided.

Predatory Structured Finance, Christopher L. Peterson

ExpressO

Predatory lending is a real, pervasive, and destructive problem as demonstrated by record settlements, jury awards, media exposes, and a large body of empirical scholarship. Currently the national debate over predatory mortgage lending is shifting to the controversial question of who should bear liability for predatory lending practices. In today’s subprime mortgage market, originators and brokers quickly assign home loans through a complex and opaque series of transactions involving as many as a dozen different strategically organized companies. Loans are typically transferred into large pools, and then income from those loans is “structured” to appeal to different types of investors. …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

The Use And Abuse Of Human Rights Discourse: A Legitimacy Test For Ngos, Igos And Governments, Eric Heinze

ExpressO

Since the end of the Second World War, human rights have emerged as a standard for evaluating state conduct. As the stature of human rights has risen, however, the language and concepts of rights are increasingly misused. Claims are made by non-governmental organizations (NGOs), intergovernmental organizations (IGOs), or governments, who seek legitimacy for policies that are in fact highly partisan and even abusive of the values of human rights.

What counts, then, as a legitimate use of human rights discourse? Aren’t human rights policies always ‘political’? Can any meaningful distinction be drawn between a ‘human rights position’ and a ‘partisan …

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

Toward A Feminist Theory Of The Rural, Lisa R. Pruitt

ExpressO

Feminists have often criticized law’s ignorance of women’s practical, lived experiences, even as they have also sought to reveal the variety among those experiences. This article builds on both critiques to argue for greater attentiveness to a neglected aspect of women’s situation: place. Specifically, Professor Pruitt asserts that the hardships and vulnerability that mark the lives of rural women and constrain their moral agency are overlooked or discounted by a contemporary cultural presumption of urbanism.

Professor Pruitt considers judicial responses to the realities of rural women’s lives in relation to three different legal issues: domestic violence, termination of parental rights, …

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns …

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

ExpressO

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 …

Institutional Repositories And The Principle Of Open Access: Changing The Way We Think About Legal Scholarship, Carol A. Parker

ExpressO

Open access to scholarship, that is, making scholarship freely available to the public via the Internet without subscription or access fees, is a natural fit for legal scholarship given our tradition of making government and legal information available to citizens, and the many benefits that flow from freely disseminating information for its own sake. Law schools, journals and scholars should espouse the principle of open access to legal scholarship, not only for the public good, but also for the enhanced visibility it provides journals and authors. Open access can be accomplished by archiving digital works in online institutional repositories. Legal …

Power Or Prudence: Which Is It?, Lisa A. Dolak

ExpressO

In limiting patent litigants’ access to the declaratory judgment remedy, the U.S. Court of Appeals for the Federal Circuit has primarily invoked the “actual controversy” requirement imposed by the U.S. Constitution and the federal Declaratory Judgment Act. However, an examination of Federal Circuit decisions and those of the district courts reveals that the courts have often confused, or blurred the distinction between, constitutional requirements and the discretion the Act affords the federal courts to decline to exercise jurisdiction. Specifically, the courts often attribute constitutional significance to factors that instead bear on policy.

It is important to distinguish between jurisdictional limits …