Law Commons^™

Taking Responsibility Seriously: The Best Interests Of The Child And Spousal Laws, Shahar Lifshitz

ExpressO

This article calls for a rethinking of the modern boundaries between the regulation of spousal relations and the regulation of parenthood, including joint parenthood. My main argument is that important legal rules that are currently at the core of spousal law possess a dramatic influence on children’s lives. Thus, I will critique the current legal regulation that limits the influence of the best interests of the child principle to the regime of law that is currently classified as parent law but almost completely ignores its application in regimes currently classified as spousal law.

Apart from the theoretical discussion concerning the …

Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, Judith F. Daar

ExpressO

The use and success of assisted reproductive technologies (ART) over the past decade has contributed perceptibly to family formation nationwide. Today, 3 of every 100 children born owe their existence to some form of assisted conception. Despite, or perhaps because of, its technical successes, a growing body of evidence suggests that barriers to ART are being constructed to prevent procreation among select populations. The article’s theme is one of harm, specifically the harm that befalls patients, physicians, offspring and society when fertility treatments are denied on the basis of personal characteristics, including race, marital status and sexual orientation. While ART …

Are All ‘Legal Dollars’ Created Equal?, Doron Teichman, Yuval Feldman

ExpressO

For several decades law and economic scholars have employed the tools of price theory in order to evaluate an array of legal questions ranging from criminal sanctions to contract remedies. This vast body of literature implicitly assumed that all payments made through the legal system are fungible. In other words, just as a dollar paid for a tomato is identical to a dollar paid for a cucumber, so are a dollar paid as a pollution tax to the government and a dollar paid as compensation to the party injured by the pollution. In this study we challenge this assumption, and …

The New Federal Indian Law, Matthew L.M. Fletcher

ExpressO

Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases – and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

“Every Day And In Every Way, We All Are Becoming Meta And Meta," Or, How Communitarian Bargaining Theory Conquered The World (Of Bargaining Theory), Robert J. Condlin

ExpressO

Debate over the relative merits of communitarian and adversarial theories of dispute bargaining has pre-occupied legal bargaining scholarship for at least twenty years. Seen as a negotiation, this debate makes it clear that communitarians are by far the better bargainers. In a move one might think more characteristic of adversarial bargaining, communitarians have changed the definition of bargaining effectiveness by reconstituting the world in which bargaining operates (the meta move of the title – in communitarian terms they “changed the game by changing the frame”), to make adversarial bargaining obsolete. Many of the arguments and maneuvers used in this effort …

Internet 3.0: Identifying Problems And Solutions To The Network Neutrality Debate , Robert M. Frieden

ExpressO

What Internet Service Providers (“ISPs”) can and cannot do to diversify services lies at the core of the debate over network neutrality. In prior generations ISPs had little incentive or technological capability to deviate from plain vanilla best efforts routing for content providers and from standard “all you can eat” subscription terms for consumer access to the World Wide Web. The next generation Internet has the technological capability and ISPs have the commercial motivation to offer “better than best efforts” routing and premium services for both content providers and consumers seeking higher quality of service and more reliable traffic delivery. …

Making Crime (Almost) Disappear, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

This essay sketches the outlines of a future world in which crime has been drastically reduced. The author proposes two radical approaches to achieve this crime reduction. Some crimes, like drunk driving, can be almost completely eliminated by using technology to prevent the operation of a vehicle by a driver with a blood alcohol greater than the permissible level. Other crimes, like larceny or burglary of expensive items, can be made extremely easy to solve by requiring the installation of micro chips that will, when activated, broadcast their location to police.

To the objection that it will be expensive to …

The Production Of Law (And Cinema), Amnon Reichman

ExpressO

The essay addresses the emergence of the law and cinema discourse, its methodological limits, and its intellectual and pragmatic potential. The essay suggests that current arguments within the discourse can be classified into structural arguments (referring to the manner in which cinematic and judicial practices are "structured" in society), methodological arguments (referring to law and cinema as methodological instruments for the examination of certain clashes of interests), and hermeneutic arguments (referring to law and cinema as engaged in interpretative functions that illuminate aspects of the human condition). Beyond taxonomy, the essay suggests that situating law alongside cinema is important because …

The Internet And The Project Of Communications Law, Susan P. Crawford

ExpressO

The internet offers the potential for economic growth stemming from online human communications, but recent industry and government actions have disfavored these possibilities by treating the internet like a content-delivery supply chain. This article recommends that the internet be at the center of communications policy and that laws affecting internet access be evaluated in terms of whether they further U.S. economic growth by facilitating increased emergent online diversity. It criticizes the nearly exclusive focus of communications policy on the private economic success of infrastructure and “application” providers, and suggests that communications policy be focused on facilitating communications themselves.

The Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz

ExpressO

A step into just about any state prison in the United States reveals an institution plagued by over-population, with just about every prison running at more than 100% capacity. The problem, of course, is not new but one that has received great attention. In the past decade or so the solution has been privatization of state prisons. Proponents of privatization have pushed forth the idea that private institutions are the solution to prison overcrowding. However, by looking to for-profit private institutions as a means to resolving the problems of the penal system, are legislators in fact ensuring that the problems …

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

ExpressO

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

Controlling Family Shareholders In Developing Countries: Anchoring Relational Exchange, Ronald J. Gilson

ExpressO

The Law and Finance account of the ubiquity of controlling shareholders in developing markets is based on conditions in the capital market: poor shareholder protection law prevents controlling shareholders from parting with control out of fear of exploitation by a new controlling shareholder who acquires a controlling position in the market. This explanation, however, does not address why we observe any minority shareholders in such markets, or why controlling shareholders in developing markets are most often family-based. This paper looks at the impact of “bad law” on shareholder distribution in a very different way. Developing countries typically provide not only …

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

The Structure Of The Asymmetric Tax Treaty Network: Theory And Implications , Eduardo A. Baistrocchi

ExpressO

Certain parts of the international tax system are largely unexplored from a structural perspective. One prominent example is the asymmetric tax treaty network, i.e., the network that consists of bilateral tax treaties concluded between developed and emerging countries on the basis of the OECD Model Tax Convention on Income and on Capital (OECD model). The relative size of this network is substantial. For instance, the United States´ asymmetric tax treaty network represents about 53% of its entire tax treaty network. This Article offers a structural analysis of the asymmetric tax treaty network. It answers two fundamental questions. First, it elaborates …

The Hidden Harm Of Law And Economics, Daniel I A Cohen

ExpressO

The paper deals with the adverse psychodynamic consequences to an individual and to society, immediately and in the long run, of dissolving individual responsibility for fault as in the doctrine of Law and economics.

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

Unfulfilled Expectations: An Empirical Analysis Of Why Sarbanes-Oxley Whistleblowers Rarely Win, Richard E. Moberly

ExpressO

Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases …

Intent To Benefit: Individually Enforceable Rights In Treaties, Sital Kalantry

ExpressO

Citizens of foreign countries are increasingly using international treaties to bring claims against the U.S government. As a result, U.S. courts are being asked to determine whether treaties provide litigants with individually enforceable rights. Although courts have no consistent approach to it, they often apply the textualist methodology derived from statutory interpretation in determining whether a treaty gives rise to individually enforceable rights. Resolution of this issue in favor of individually enforceable rights is particularly beneficial for human rights and humanitarian law treaties, because without individually enforceable rights, those treaties are not likely to be enforced.

Instead of using theories …

23(B)(2) Class Certification: Choosing An Approach For Certifying Civil Rights Discrimination Class Action Suits, James T. Tsai

ExpressO

The passage of the 1991 amendments to the Civil Rights Act granted injunctive as well as monetary damages for impermissible discrimination in the workplace. The Act also created a tension with the last revision of the Federal Rules of Civil Procedure in 1966. This revision prohibits the certification of a class under Rule 23(b)(2) if the damages sought are predominantly monetary in nature. On one end of this resulting tension is the desire to protect individuals rights to “opt-out” of a class action suit and maintain future individual actions. On the other end is the desire for judicial economy and …

Shooting Down Hijacked Airplanes? Sorry, We’Re Humanists. A Comment On The German Constitutional Court Decision Of 2.15.2006, Regarding The Luftsicherheitsgesetz (2005 Air Security Act), Miguel Beltran De Felipe, Jose Maria Rodriguez De Santiago

ExpressO

The article analyzes a very remarkable decision of the Constitutional Court of Germany that struck down a law (2005 Air Security Law) that expressly authorized the federal government to shoot down hijacked airplanes, in case they were likely to be crashed against a target on the ground. The Court ruled that deliberately killing innocent people on board is incompatible with the right to human dignity, as established in the Basic Law. The article focuses on some of the main issues addressed by the Court (among others, the absolutization of human dignity, which makes unconstitutional for the legislature and for the …

The Military Abortion Ban: How 10 U.S.C. Section 1093 Violates International Standards Of Reproductive Healthcare, Sabrina E. Dunlap

ExpressO

Under 10 U.S.C. Section 1093, women in the military cannot obtain abortion services in military hospitals even if they use their own funds. Women who are stationed abroad are forced to search for services elsewhere in the foreign country in which they are stationed, facing cultural barriers, language barriers, difficult travel arrangements and high costs. In the last ten years, clear standards of reproductive health emerged at an international level, with women’s health being the center of the International Conference on Population and Development, and the Fourth World Conference on Women, among others. The United States is simultaneously encouraging developing …

Claim Construction, Appeal, And The Predictability Of Interpretive Regimes, Jeffrey A. Lefstin

ExpressO

Interpretation is central to patent law, because most adjudications require association of written claims with non-linguistic subject matter. By some accounts, the lack of predictability in the law of claim interpretation has reached crisis proportions, and has prompted calls for far-reaching changes in the way patent issues are adjudicated. However, the actual evidence that questions of interpretation are more problematic than other aspects of patent law is sparser than is commonly recognized. Moreover, while the controversy over claim interpretation centers around the predictability of interpretation between trial and appeal, what is important is to be able to predict outcomes before …

Maryland Political Contribution Loopholes: History, Discussion & Options To Tackle The Llc & “Other Business Entity” Ambiguities, Jeremy D. Tunis

ExpressO

No abstract provided.

The Impact Of Specialized Courts On The Federal Judicial System 1925-1981: A Study Of Federal Circuits' Decision Of Reversal, Yu Wang

ExpressO

Today a considerable volume of federal caseload is under the jurisdiction of specialized courts at both the district level and circuit level. Ironically, neither judicial scholars nor political scientists treat this topic as a priority in their research agenda. Therefore, what the exact impact of specialized courts on the federal judicial system has not been carefully explored. The current study makes a primary effort to empirically figure out the systematic impact of specialized trial courts on the U.S. federal judicial system. By focusing on the simplest situation in history where both generalist trial courts and specialized trial courts were only …

Gender Equity In College Athletics: Women Coaches As A Case Study, Deborah L. Rhode, Christopher J. Walker

ExpressO

As Title IX celebrates its 35th anniversary, many have noted the positive impact it has had on women sports. But there is also an unintended (and oft-neglected) byproduct: as opportunities for female students have increased, opportunities for female professionals have declined. This Article focuses on the barriers that still confront women in college athletics, particularly those who seek professional positions in coaching and administration. Part I presents a brief overview of Title IX, which makes clear its limitations in securing gender equity. Part II.A discusses the declining representation and lower success rate of women coaches, while Part II.B explores the …

Judicial Review And The War On Terror, John C. Yoo

ExpressO

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial …

Hudson And Samson: The Roberts Court Confronts Privacy, Dignity, And The Fourth Amendment, John D. Castiglione

ExpressO

This article critically analyzes Samson v. California and Hudson v. Michigan, which were the Roberts Court's first major Fourth Amendment decisions. In Samson, the Court upheld a California law allowing government officials to search parolees without any suspicion of wrongdoing. In Hudson, to the surprise of almost every observer, the Court held that knock-and-announce violations do not carry with them a remedy of exclusion. What was most notable about Hudson was not only that it rejected what every state and every federal court, save one, believed to be the proper remedy for knock-and-announce violations, but that it called into question …

Making Bread From Broken Eggs: A Basic Recipe For Conflict Resolution Using Earned Sovereignty , Nathan P. Kirschner

ExpressO

Questions of state sovereignty are the cause of many conflicts today. The theory of earned sovereignty is an evolving concept. A review of recent practice in southern Sudan, Bougainville, and Aceh shows that the core elements of earned sovereignty offer a three-part roadmap for conflict resolution beginning with shared sovereignty, continuing through institution building, and ending at a determination of final status. Other parts of the theory called, “optional elements,” are tools stakeholders in a conflict situation may use in order to move from one core element to another until a final status solution is obtained. Though the optional elements …