Law Commons^™

Arbitration And Contract: What Are The Law Schools Teaching?, Stephen K. Huber

ExpressO

No abstract provided.

Judge Noonan's J'Accuse . . . !, Brannon P. Denning

ExpressO

This review of John Noonan’s book Narrowing the Nation’s Power: The Supreme Court Sides with the States critically evaluates the evidence Judge Noonan offers in support of his thesis that the Court's recent federalism decisions have done violence to the Constitution, and put Congress's ability to govern effectively at risk. I conclude that while one may quarrel with aspects of the Court's recent approach to federalism questions, the indictment Judge Noonan has penned fails to acknowledge reasonable arguments that contradict his thesis, and that he unfairly suggests that the Court has abandoned good faith legal analysis in favor of political …

Lawrence And Same-Sex Marriage Bans: On Constitutional Interpretation And Sophistical Rhetoric, Mark Strasser

ExpressO

No abstract provided.

“Preemptive War”: Is It Constitutional?, John B. Mitchell

ExpressO

No abstract provided.

Secularism's Laws: State Blaine Amendments And Religious Persecution, Kyle Duncan

ExpressO

The State Blaine Amendments are provisions in thirty-seven state constitutions that restrict persons’ and organizations’ access to public benefits on religious grounds. They arose largely in the mid- to late-1800s in response to bitter strife between an established Protestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools. After the failure to pass a federal constitutional amendment—the "Blaine Amendment"—that would have sealed off public school funds from "sectarian" institutions, similar provisions proliferated in state constitutions. These "State Blaines" have often been interpreted, under their plain terms, as erecting religion-sensitive barriers to the flow …

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

ExpressO

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics …

Forged Facsimile Signatures And Basic Principles Of The Law Of The Check Collection System, James S. Rogers

ExpressO

No abstract provided.

Http://Www.Companynamesucks.Com: The Horizontal Effect Of Fundamental Rights On Private Parties Within Autonomous Internet Law, Vaios Karavas, Gunther Teubner

ExpressO

Much critique has recently been raised over the role played by ICANN Panels, when they adjudicate disputes over domain names. This article deals with the highly contentious question, whether or not ICANN Panels should or may enforce fundamental rights (e.g. free speech rights) against private parties within the legal order of ICANN, understood by us as semi-autonomous. Our thesis in this regard is that ICANN Panels in fact concretise fundamental rights within Cyberspace on the basis of a fiction. They draw upon the fiction of a "common core" of globally applicable principles of law, which include even human rights. Building …

Institutional And Substantive Reform Of The Anti-Dumping And Subsidy Agreements – Lessons From The Israeli Experience, Arie Reich

ExpressO

This article proposes several amendments to the Anti-Dumping (AD) Agreement and the chapter on Countervailing Duties (CVD) of the Subsidies Agreement, drawing from the experience of the State of Israel in AD and CVD administration over more than a decade. In particular, the Article argues for the need for international regulation of the institutional settings of such administration within Member States. To this end, provisions should be added to the relevant WTO agreements that relate to the nature and composition of the national administering authorities, with the guiding principle being to ensure independence of the authorities and objectivity, fairness and …

Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler

ExpressO

My manuscript unmasks a dirty little secret of the federal government, namely, that the Internal Revenue Service is applying various tax laws in a non-uniform manner in violation of the Tax Uniformity Clause (Art. I, § 8, cl. 1) of the United States Constitution. It is indisputable that the Framers of the Constitution intended for federal taxes be applied uniformly throughout the nation; that is, residents of New York ought to pay the same tax as residents of California. The IRS’s practice, however, is quite the contrary.

Affirmative Action: More Efficient Than Color Blindness, Abraham Lee Wickelgren

ExpressO

One of the most compelling reasons against affirmative action is the principle of color blindness, that is, the idea that race is an irrelevant characteristic that should not affect higher education admissions or hiring decisions. Despite its intuitive appeal, this paper shows that adherence to this principle impedes economic efficiency when there has been past discrimination based on color. Past discrimination creates inefficiencies in the economy that persist across generations. Because of this persistence, race is not an irrelevant characteristic for firms and universities looking to hire or admit the best candidates. Affirmative action, not color-blindness, is necessary to reduce …

Technological Protection Measures In The United States, The European Union And Germany - How Much Fair Use Do We Need In The "Digital World"?, Wencke Baesler

ExpressO

This article analyzes the different approaches of the United States and the European Union in the EU Copyright Directive towards the protection of technological protection measures against circumvention. The European and German laws have a radically different approach to fair use that heretofore has not been satisfactorily examined. It is a basic principle of copyright law in the European countries not to provide for a broad fair use exception, but to enumerate specific uses that are excluded from the copyright owner’s right to intervene. However, mostly payment of a reasonable compensation is required. This system is preserved in the recently …

The Rational Exuberance Of Structuring Venture Capital Startups, Victor Fleischer

ExpressO

This Article takes the bursting of the dot com bubble as an opportunity to reevaluate the tax structure of venture capital startups. By organizing startups as corporations rather than as partnerships, investors and entrepreneurs seem to leave money on the table by failing to fully use tax losses -- especially since the vast majority of startups fail. Conventional wisdom attributes the lack of attention paid to losses to a "gambler's mentality" or optimism bias. I argue here that the use of the corporate form is, in fact, rational, or at least that there is a method to the madness.

I …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

The Trajectory Of (Corporate Law) Scholarship, Brian R. Cheffins

ExpressO

While considerable attention is devoted to legal scholarship, little has been written on the process by which academic writing on law evolves. This paper departs from the existing pattern and examines five potential trajectories for legal scholarship. One is based on the idea that knowledge “accumulates” as part of “progress” towards a better understanding of the matters under study. The second is the concept of the “paradigm”, derived from work done on the history and sociology of science. The third focuses on the idea that academic endeavor concerning law yields useful ideas since market forces are at work. The fourth …

Toward A Criminal Law For Cyberspace: Distributed Security, Susan Brenner

ExpressO

The article analyzes the structure and evolution of the current, traditional model of law enforcement and explains why this model is not an effective means of addressing computer-facilitated criminal activity. It begins by analyzing the operation of rules in collective systems composed of biological or artificial entities; it explains that every such system utilizes basic, constitutive rules to maintain both internal and external order. The article explains that intelligence has a profound effect upon a system’s ability to maintain internal order. Intelligence creates the capacity for deviant behavior, i.e., the refusal to abide by constitutive rules, and this requires the …

Adverse Selection And Moral Hazard In Forum Shopping: Conflicts Of Law As Spontaneous Order, Nita Ghei, Francesco Parisi

ExpressO

In a world with multiple, overlapping jurisdictions, any given litigation could be pursued in more than one forum. Different laws can yield different outcomes. This leads to parties selecting a forum percieved as favorable to file suit. This practice, also known as forum shopping, has been much criticized, and various reforms to the law of conflicts of law have been proposed as a way to reduce this practice. The article examines the inefficiencies associated with forum selection, and the alleged shortcomings in conflicts law as it currently exists. We argue that forum selection cannot be eliminated in a world with …

Difused Surface Water: Reasonable Use Has Become The Common Enemy, Wendy B. Davis

ExpressO

Diffused surface water, caused by precipitation, should be treated as a necessary asset to replenish aquifers used for drinking water, and not as waste to be disposed of by landowners. Groundwater aquifers were created, and can only be replenished, by precipitation that is allowed to seep underground. Ninety-nine percent of the drinking water for people in rural areas of America comes from groundwater aquifers. These aquifers are in danger of being contaminated or depleted, which could result in severe water shortages very soon. Legislators have failed to enact a comprehensive system to regulate the use of aquifers, relying instead on …

Discrimination: The Law Vs. Morality, Walter E. Williams

ExpressO

Terminology in racial literature is such that various behaviors are confused with one another making for less than rigorous analysis of racial problems. For some writers prejudice is used in a fashion signifying distaste for a particular race; others use the term suggesting the use of racial stereotypes; yet others use the term as a substitute for discrimination. Similar confusion surrounds the term segregation. Writers frequently refer to school segregation, meaning that few blacks in attendance at a predominantly white school but the same writers would never apply the term to an opera performance with few or no blacks in …

International Poverty Law: A Response To Economic Globalization, Timothy K. Kuhner

ExpressO

This paper is directed at poverty lawyers and, more generally, anyone with an interest in the relationship between poverty and globalization. In this paper, I argue that poverty law needs to expand its scope in order to encompass the international dimensions of poverty, and to thereby become responsive to the current nature of poverty. This need is evident, because wealth and poverty have been globalized, domestic issues have become international issues, and international issues have become domestic issues and produced domestic changes. After establishing these premises, I describe five areas of research and advocacy, each of which is located within …

The Secretary's Commission On Opportunity In Athletics Squandered Its Opportunity: Commercial College Sports And Why Title Ix Cannot Achieve Full Gender Equality Or Prevent The Elimination Of Minor Men's Teams, Suzanne Sangree

ExpressO

The Department of Education recently announced that it would not revise the regulations which apply Title IX to athletics, thus rejecting the recommendations of its Commission on Opportunity in Athletics. The Commission’s recommendations would have drastically undercut Title IX’s efficacy and established a Bush Administration model for turning civil rights protections on their heads. Fortunately, the Administration heeded the public critique of the Commission’s recommendations and retreated from its previously stated intention to implement them. Instead, it reiterated its support for the principles of gender equality embodied in Title IX. We thus narrowly averted a civil rights disaster. The great …

Monopoly Power In The Electronic Information Industry: Why, And So What?, Curt A. Hessler

ExpressO

This "law and economics" article diagnoses why monopoly power infects so many markets in the electronic media, communications, and information technology industries (collectively the "Industry"),and recommends changes to prevailing intellectual property and antitrust doctrines to remedy this problem.

The analysis focuses on a single "norm" -- the maximization of economic value, as defined by standard welfare economic theory. Identifying three distinct functions that operate throughout this otherwise diverse Industry -- authoring, publishing, and distribution -- the article notes that two economic peculiarities characterize most Industry markets: the technical feasibility of "non-rivalrous use" of digitized information products, and the frequent "creative …

Bounded Rationality, The Doctrine Of Impracticability, And The Governance Of Relational Contracts, Donald J. Smythe

ExpressO

This article uses a behavioral economics approach to analyze the effects of the doctrine of impracticability on “relational” contracts -- long-term contractual agreements that are typically adapted to changed circumstances and unforeseen contingencies as they arise. In contrast to conventional law and economics studies, the article concludes that the impracticability doctrine has the potential to improve the efficiency and productivity of a wide range of long-term contractual agreements, and offers normative guidelines as to how the doctrine should be applied. The article also examines and rejects various philosophical objections to the impracticability doctrine, such as the arguments that it interferes …

Used, Abused, Arrested And Deported: The Case For Extending Immigration Benefits To Protect Victims Of Trafficking And Secure Prosecution Of Traffickers, Dina F. Haynes

ExpressO

Trafficking is a hot issue, and as such, there have been a number of articles written on the issue. My article, however, is unique in many respects.

I address this article from my perspective of working directly with the governments of Bosnia, Croatia, Serbia and Montenegro to combat escalating trafficking in their countries over the course of four years in the Balkans.

This is the first article that pinpoints errors that governments continue to make in preparing legislation and anti-trafficking programs,

The first to enumerate proposals for enhancing victim protection measures,

The first to identify how enhancing victim protection will …

How The Uncharged Misconduct Rule Was Born, Thomas J. Reed

ExpressO

An examination of People v. Molineux a 1901 New York landmark case in evidence which gave rise to what is now Rule 404(b) of the Federal Rules of Evidence, the history and background of the common law uncharged misconduct rule, and a legal history of this fascinating criminal prosecution

Imf Conditionality As Investment Regulation - A Theoretical Analysis, Daniel R. Kalderimis

ExpressO

This article examines the intersection between the International Monetary Fund (“IMF”) and foreign investment. Although the IMF was not originally designed to regulate foreign investment, IMF policies have famously required capital account liberalization as a condition for access to IMF credit. This article explores the implications of such conditionality and finds it problematic. Investment conditionality is outside the IMF’s mandate, difficult to reconcile with other existing investment regulation instruments, inimical to democracy and potentially destabilizing to the debtor country, and ineffective at ensuring long-term stable change. These conclusions necessitate a reappraisal of the governance and operations of the IMF.

This Is Not Like Any Other Legal Question: A Brief History Of Nazi Law Before British And American Courts, David Fraser

ExpressO

No abstract provided.

Emerging Issues On The Internet For The Legal Profession, Rosaria Vigorito

ExpressO

The paper offers an overview of the emerging issues raised by the Internet in the legal profession. In particular, the extension of the attorney-client privilege; the application of the ethics principle of confidentiality to email communications; Internet connectivity and the security issues pertaining to it; and, general "cyberlegalethics" concerns raised by using the Internet, such as avoiding the unauthorized practice of law and verifying information found on the Web.

United States V. Amr Corp.: Non-Traditional Cost Measures And Expanding Predatory Pricing Exposure, Robert Bell, Lee Greenfield, Veronica Kayne, William Kolasky, Jim Lowe, Doug Melamed, Thomas Mueller, Ali Stoeppelwerth

Wilmer Cutler Pickering Hale and Dorr Antitrust Series

Historically, industries with low average variable costs (AVC) have been as a practical matter largely immune from predatory pricing claims. The reason is simple. Predatory pricing claims require the plaintiff to establish, among other things, that the defendant priced below an appropriate measure of cost. Because marginal costs are notoriously difficult to measure, courts have commonly compared the defendant’s prices to AVC (total costs that vary with output/units of output). Consequently, in industries where average variable costs are very low, plaintiffs are unlikely to be able to prove that defendants have priced below AVC, even when defendants have drastically slashed …

The Conviction Of Andrea Yates: A Narrative Of Denial, Sherry F. Colb

Rutgers Law School (Newark) Faculty Papers

This piece discusses the case of Andrea Yates, the woman who confessed to drowning her five children to death and was subsequently convicted of murder (though the conviction has since been overturned). In this piece, Colb contends that Andrea Yates was convicted because of the jurors’ emotional/psychological response to the possibility that post-partum psychosis could cause an otherwise decent person to commit such brutal acts. As a symptom of denial, Colb argues, the jury rejected the insanity defense and thereby reassured itself that only evil people could do what Yates did. If that were the case, then it would be …