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Articles 121 - 146 of 146
Full-Text Articles in Law
Martha Stewart Saved! Insider Violations Of Rule 10b-5 For Misrepresented Or Undisclosed Personal Facts, Joan M. Heminway
Martha Stewart Saved! Insider Violations Of Rule 10b-5 For Misrepresented Or Undisclosed Personal Facts, Joan M. Heminway
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This article analyses the criminal securities fraud charges brought against Martha Stewart. Stewart was acquitted of these charges by a federal district court judge in February 2004. Specifically, the article initially focuses on whether the securities fraud charges brought against Stewart were valid as a matter of prosecutorial discretion and substantive law and whether the court was correct in granting Stewart's motion for acquittal before handing the rest of her case to the jury for deliberation. The article then offers substantive and procedural observations about Rule 10b-5 cases like the one brought against Stewart.
The Detention Of Material Witnesses And The Fourth Amendment, Joseph G. Cook
The Detention Of Material Witnesses And The Fourth Amendment, Joseph G. Cook
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No abstract provided.
Harry Potter And The Law, Benjamin H. Barton
Harry Potter And The Law, Benjamin H. Barton
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The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings …
Intersectionality And Identity: Revisiting A Wrinkle In Title Vii, Bradley A. Areheart
Intersectionality And Identity: Revisiting A Wrinkle In Title Vii, Bradley A. Areheart
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This article revisits intersectionality, a way of postulating legal identity. Simply put, intersectionality acknowledges that one person's identity can never be reduced to solely one characteristic, such as religion or sex. Rather, each person's identity is constructed of the various intersections of ways one might describe oneself.
In the legal context, intersectionality has typically arisen in cases of employment discrimination, where those who theoretically could file a claim under more than protected category are forced to choose only one for their claim - for example, parsing one's identity as either race or sex, even though a statute like Title VII …
Does Power Grow Out Of The Barrel Of A Modem? Some Thoughts On Jack Goldsmith And Tim Wu's 'Who Controls The Internet?', Glenn Harlan Reynolds
Does Power Grow Out Of The Barrel Of A Modem? Some Thoughts On Jack Goldsmith And Tim Wu's 'Who Controls The Internet?', Glenn Harlan Reynolds
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This review of Jack Goldsmith and Tim Wu's Who Controls the Internet? Illusions of a Borderless World, notes that Goldsmith and Wu are correct in concluding that events in recent years undercut cyber-utopian theories of an Internet that is beyond the reach of national sovereignty. It argues, however, that the failure to achieve such goals does not mean that the Internet is unimportant as a source of expanded freedom and power on the part of ordinary people, and suggests that this trend of individual empowerment is likely to continue.
In Booker's Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie Wilson
In Booker's Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie Wilson
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This article explores the question left unanswered by the Supreme Court's January, 2005, decision in United States v. Booker. Specifically, it looks at whether the Mandatory Victims Restitution Act of 1996 (MVRA), which governs restitution in federal criminal cases, violates the Sixth Amendment. The MVRA expressly requires that judges, rather than juries, decide issues of restitution. The process mandated by the MVRA often results in orders of restitution that are much harsher than a defendant could have reasonably predicted from the indictment, the evidence presented at trial, and/or the defendant's admission of guilt. This article concludes that such unexpected consequences …
Protecting Children From The Dark Side Of The Internet, Anne Dupre, John Dayton, Christine Kiracofe
Protecting Children From The Dark Side Of The Internet, Anne Dupre, John Dayton, Christine Kiracofe
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This article examines the history of judicial and legislative responses to the issue of consumption of pornography and other harmful materials over the Internet by children. The article begins by giving a brief overview of free speech law in the US. Next, summaries of relevant U.S. legislation and corresponding litigation on Internet free speech are given. Highlighted are: 1) the Communications Decency Act (CDA) and the U.S. Supreme Court’s response in Reno v. ACLU; 2) The Child Pornography Prevention Act (CPPA) and Ashcroft v. Free Speech Coalition; 3) the Children’s Internet Protection Act (CIPA) and United States v. American …
Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner
Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner
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The Delaware General Corporation Law was amended in 1986 to permit shareholder-approved exculpatory charter provisions shielding corporate directors from monetary liability for certain fiduciary duty breaches not including (among other things) breaches of the duty of loyalty and acts not in good faith. This article examines the development of corporate fiduciary duty doctrine in Delaware leading up to and following this statutory amendment, focusing particularly on the Delaware courts' evolving conception of the meaning anddoctrinal status of the good faith concept employed in recent cases to permit a non-exculpable cause ofaction for conscious nonfeasance.
The article argues that Delaware's good …
A Negative Proof Of International Law, Peter J. Spiro
A Negative Proof Of International Law, Peter J. Spiro
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Important legal scholars have launched assaults against both the consequence and legitimacy of international law. These challenges are useful by way of testing international law's theoretical underpinnings, which, in the modern period at least, have never been very secure. With THE LIMITS OF INTERNATIONAL LAW, Jack Goldsmith and Eric Posner have done a service to those who put more faith in international law as a meaningful quantity. Especially in these the field's early renaissance years, understandings of international law should be considerably strengthened by the attack. Though I doubt the authors would thus conceive of their project, THE LIMITS OF …
Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton
Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton
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This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive …
The Law Of Yards, James C. Smith
The Law Of Yards, James C. Smith
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Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First …
Staffing For Law School Computing Services, Second Edition, Ann Puckett
Staffing For Law School Computing Services, Second Edition, Ann Puckett
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Report summarizing survey responses from 158 of 191 law schools, reporting on fundamental questions pertaining to computing services within the law school.
Origin, Scope, And Irrevocability Of The Manifest Disregard Of The Law Doctrine: Second Circuit Views, Christian Turner, Joshua Ratner
Origin, Scope, And Irrevocability Of The Manifest Disregard Of The Law Doctrine: Second Circuit Views, Christian Turner, Joshua Ratner
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After arbitration has occurred, parties may seek judicial enforcement of the arbitral award, converting the private determination into an enforceable judgment. Parties that did not prevail in the arbitration may, at the same time, seek to have the arbitral award vacated. This article concerns the doctrine that permits courts to vacate an arbitral award when the arbitrators “manifestly disregarded” the law, focusing on recent developments in the Second Circuit. Despite the exceedingly deferential scope of this doctrine, the Second Circuit has actually vacated a handful of arbitrations on grounds of manifest disregard, and the doctrine is routinely raised by litigants. …
Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen
Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen
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In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how …
The Effect Of Forum Selection Clauses On District Courts’ Authority To Compel Arbitration, Thomas V. Burch, John W. Hinchey
The Effect Of Forum Selection Clauses On District Courts’ Authority To Compel Arbitration, Thomas V. Burch, John W. Hinchey
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This is a short piece written for the AAA's Dispute Resolution Journal on two competing provisions in Section 4 of the FAA. One provision tells district courts to compel arbitration in accordance with the parties' agreement, including any forum selection clause. The other says that the court can compel arbitration only within its own territory. This, of course, creates a problem when the forum selection clause calls for arbitration in another jurisdiction. This short article addresses the conflict, showing how courts tend to rule on the issue (as of 2006).
Foreword: Why Open Access To Scholarship Matters, Joe Miller
Foreword: Why Open Access To Scholarship Matters, Joe Miller
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On March 10, 2006, the Lewis & Clark Law Review sponsored a day-long symposium entitled Open Access Publishing and the Future of Legal Scholarship. That gathering led to eight papers that are forthcoming in Volume 10, Issue No. 4, of the Lewis & Clark Law Review. In this short Foreword, I offer some thoughts about why all law professors should take an interest in the movement promoting open access to scholarship. The principal reason, based in current circumstances, is the way that using an open access platform extends one's reach. The aspirational reason is that open access platforms enable us …
Environmental Law, Eleventh Circuit Survey, Travis M. Trimble
Environmental Law, Eleventh Circuit Survey, Travis M. Trimble
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In 2005 the Eleventh Circuit courts addressed issues of regulatory interpretation of the Clean Air Act (“CAA”); compliance with the National Environmental Policy Act (“NEPA”) in connection with the development of wetlands; and a conflict between the Federal Emergency Management Agency’s (“FEMA”) coastal flood insurance program and the Endangered Species Act (“ESA”). First, the Eleventh Circuit Court of Appeals invalidated a rule of the Alabama Department of Environmental Management that exempted certain stack emissions that otherwise violated the State Implementation Plan under the CAA. Also, the United States District Court for the Northern District of Alabama heard one of several …
The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto
The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto
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The Sentencing Reform Act of 1984 provided that the trial court "shall impose a sentence of the kind, and within the range" set forth in the United States Sentencing Guidelines ("Guidelines") issued by the Sentencing Commission. With that one phrase, the Act created a system of guidelines that was binding upon judges, rather than simply advisory. Concerns about excessive disparity and undue leniency in sentencing unquestionably drove the political coalition that passed the Act. It is not clear, however, why Congress believed that mandatory-as opposed to advisory-guidelines were necessary to address those concerns. With the benefit of hindsight, it is …
Lord Mansfield; Judicial Integrity Or Its Lack; Somerset's Case, Alan Watson
Lord Mansfield; Judicial Integrity Or Its Lack; Somerset's Case, Alan Watson
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I write this after re-reading Steven M Wise's Though the Heavens May Fall. My argument, if convincing, undermines the basis of the book. Probably the most famous decision in English law is that of Lord Mansfield in Somerset v. Stewart in 1772. It is very short and very dramatic; indeed, it is so rhetorical that much of what is vital is overlooked -- as it was meant to be. Somerset was Stewart's slave in Virginia and was brought to England by his owner. Somerset travelled extensively in the service of his master, to Bristol and Edinburgh, for example. But two …
Jesus And The Samaritan Woman: A Coda, Alan Watson
Jesus And The Samaritan Woman: A Coda, Alan Watson
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For the final examination in my 'Law and the Gospels' class at the University of Georgia Law School, fall semester in 2004, I set essay questions, one of which was about law in the encounter between Jesus and the Samaritan woman in John 4. Several students chose that option. I had already published on the subject, claiming that the episode involved a sexual 'come-on' by the woman. 'Bucket' was a hidden -- not too hidden -- word for 'penis', 'well' likewise for 'vagina', and 'living water' for 'semen'. In antiquity, as in the modern Western world (until recently), women were …
A Monk's Musings: A Coda, Alan Watson
A Monk's Musings: A Coda, Alan Watson
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I have set out this coda by my close relative and colleague with some reluctance. My reluctance has nothing to do with the quality of the peace. But Sandy is insistent. He is keen on advancement within his law school. Publications are needed. But no law review would be interested in this; it is too short, and has not enough footnotes.
My reluctance to deal with Sandy's coda increased because it contains no law. Yet, it is precisely that which brings out the importance of the episode of Jesus and the Samaritan woman in the Gospel of John. For the …
Cuno And Congress: An Analysis Of Proposed Federal Legislation Authorizing State Economic Development Incentives, Walter Hellerstein
Cuno And Congress: An Analysis Of Proposed Federal Legislation Authorizing State Economic Development Incentives, Walter Hellerstein
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If anything is clear about Cuno and the controversy the opinion has spawned, it is that Congress has the last word on the matter. Whether Congress will speak to the issues Cuno has raised is currently an open question, although in one narrow respect Congress already has. Broader legislation, however, has been introduced into Congress as the "Economic Development Act of 2005," and debate over the efficacy and wisdom of this proposal is as intense as the debate over the defensibility of Cuno itself. My purpose here is not to join that debate, although I am already on record as …
Does One Need To Be An International Lawyer To Be An International Environmental Lawyer?, Daniel M. Bodansky
Does One Need To Be An International Lawyer To Be An International Environmental Lawyer?, Daniel M. Bodansky
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The question I want to address is whether one can now say that IEL [International Environmental Law] represents a distinct field. Of course, it is a distinct field in the sense that it addresses a distinct set of problems and has developed a wide body of primary rules in response. However, is it a distinct field in the stronger sense of having its own characteristic methodologies and techniques?
Federal Constitutional Restraints On Tax Competition Among The American States, Walter Hellerstein
Federal Constitutional Restraints On Tax Competition Among The American States, Walter Hellerstein
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This article examines the judicially developed rules limiting interstate tax competition in the United States and the constitutional framework out of which they arise.
Repraesentatio In Classical Latin, Alan Watson
Repraesentatio In Classical Latin, Alan Watson
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The Romans knew well the twin concepts of representation and representatives in law suits and in the relationships between father and son, and owner and slave. But for these concepts they did not use the terms repraesentare or any cognate.
To Tertullian, it seems, goes the credit of first using repraesentare and repraesentator in their modern senses of <> and <>. That his context is theological probably should not surprise since he is, above all, a theologian.
Thus he uses repraesentare to mean that the one larger and more important may represent the many and less important. This usage had a …
Women In Corporate Law Teaching: A Tale Of Two Generations, Margaret V. Sachs
Women In Corporate Law Teaching: A Tale Of Two Generations, Margaret V. Sachs
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This Article is divided into three parts. Part I focuses on [Margaret Harris] Amsler and Part II addresses the second generation. Part III explores a question that was prompted by the second generation and that goes to the heart of this Symposium: Do women corporations professors damage their standing in the academic community by examining the interface between corporate law and gender?