Law Commons^™

Insider Trading: Incoherent In Theory, Inefficient In Practice, Eric A. Engle

Eric A. Engle

Insider trading: The words alone evoke conflicting feelings of jealousy and greed. But what is wrong with insider trading? Nothing. In fact, insider trading is good for the economy. Insider trading results in an efficient allocation of capital and thus makes the world wealthier.

Two Good Men, One Good Campaign, Aaron J. Shuler

Aaron J Shuler

No abstract provided.

Ebay And The Blackberry®: A Media Coverage Case Study, Lisa A. Dolak, Blaine T. Bettinger

Lisa A Dolak

Patent owners, potential infringers, and the courts will continue to work through the implications of the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C. for some time. We look back, however, at media coverage relating to injunctions, “trolls,” and the U.S. patent system generally, in the months preceding the Court’s decision. We show that although eBay featured prominently in news and editorial coverage while it was pending at the Court, it could not compete in the media with another patent case pending at the same time: the case that threatened to darken the Blackberry®. Further, we note that …

Space Settlements, Property Rights, And International Law: Could A Lunar Settlement Claim The Lunar Real Estate It Needs To Survive?, Alan Wasser, Douglas Jobes

Alan Wasser

The settlement of space and the expansion of the habitat of humanity beyond Earth will benefit all mankind but will be astronomically expensive. Private enterprise would do it if there were a sufficient profit potential, something only Lunar and Martian real estate is valuable enough to provide. Utilization of this tremendous potential value as an incentive has been prevented by the mistaken assumption that the 1967 Outer Space Treaty's prohibition of "national appropriation" and requirement of national supervision of private activities prohibit private property in space. This paper attempts to demonstrate, by expert legal consensus, that the 1967 Outer Space …

Chapter 04: Social Norms, Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. The issue of social norms, well-known in moral theory, has not yet been much discussed in cultural anthropology. Chapter 4 develops a theory of social norms by identifying them with the fora on which humans can be held responsible.

Chapter 12: Torts, Crimes, Sanctions. Witchcraft And Related Issues (The Anthropology Of Compensatory Or Retributive Justice), Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Chapter 12 on torts and other wrongdoings will treat, along with the traditionally well researched basic concepts of this field of legtal anthropology (to which only brief attention will be given) a recently again debated alleged contrast between shame and guilt societies, the phenomenon of knowledge as witchcraft, and a short report on the growth and institutionalization of international criminal law. Early cultures do not distinguish between torts and crimes. They speak of wrongdoings. A designation of the person who commits the the tort or crime, is a “perpetrator” who is the defendant in civil and …

Chapter 03: Basic Concepts, Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Dealing with basic concepts of legal anthropology in Chapter 3, the presently much discussed (and practically important, see Chapter 13 V.1.), a focus is on the issue of ethnicity and cultural identity. Furthermore, Chapter 3 offers a freshly organized presentation of what may be called the issue of civilizational stages, in preparation of Chapter 9 where correlations between organizational, economical, religious and thought-modal traits are discussed. In Chapter 3, definitorial and functional aspects of basic concepts of anthropology are separated. For example, big man society, lineage, ramage, and clan structures are presented as such, and not …

Chapter 07: Biological Anthropology In Its Relation To The Anthropology Of Law, Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Systematically, anthropology c an be divided in cultural and biologocal (=physical, physiological) anthropology. Historically, in all stages of its development, anthropology has its period-specific relationship between its cultural and biological side. The following four examples may illustrate this: The cultural-anthropological evolutionists were strongly influenced by the biologist Charles Darwin. Bronislaw Malinowski’s functionalism focused on behavioral and psychological side of human society. Later anthropological studies included biological data in their ethnographic, materialist, or structuralist studies. The biological-anthropological research on – apparently - innate universals such as incest avoidance, hierarchy, possession, and liberty to act pose legal issues. …

Chapter 06: Analyses In Cultural Anthropology, Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Chapter 6, on anthropological analyses, starts with a criticism of ethnocentrism by using some contemporary examples, including the much debated “export of democracy”, in connection with Immanuel Kant’s theory of “eternal peace” through democracy. Chapter 6 also introduces the new idea of using synepeia analysis, as developed for the cultural anthropology of the modes of thoughts, as useful for other issues of cultural anthropology as well. This adds a new dimension to the much debated emic-etic discussion. It will be shown that a solution to this discussion might be the replacement of the traditional inside-outside approach …

Chapter 16: Applied Anthropology Of Law, Postscript - Update Apr09-Jan10, Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Chapter 16 focuses on applied anthropology and contains a renewed appeal, directed to the younger generation, to become engaged in culture-pertinent legal work. Currently much debated issues are ethnocentrism, modes of thought, identity, inalienable rights, problems related to the US, Europe, and Islam, as well as multicultural, ecumenical, foreign aid, and comparative issues. Applied anthropology is the use of anthropology in a prescriptive sense. Anthropologists are sometimes asked to prepare economic or political steps to be taken by international organizations, national governments, non-governmental organizations (NGOs), foreign aid groups, military planners, environmental expert teams, trade unions, etc. …

Chapter 10: Reciprocity, Exchange, Gifts, Contracting, Trust (The Anthropology Of Commutative Justice), Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. The anthropology of law borders at the anthropologies of religion and of economics. Interdisciplinary work in these three fields is essential. In the anthropology of economics, this raises the issue whether to approach the overlapping areas from the economic or the anthropological side. This chapter argues in favor of the latter, reporting on (I.). an overview of the mainstream results and ensuing remarks and, (II.) because of their special importance for modern political tasks, the anthropology of the market and of competition, including the anthropologies of giving thanks and corruption. As in all chapters, a bibliography …

American Indian Law Codes: Pragmatic Law And Tribal Identity, Wolfgang Fikentscher, Robert Cooter

Wolfgang Fikentscher

No abstract provided.

Chapter 13: Jurisdiction. Procedure And Dispute Settlement. Conflicts Of Law (The Anthropology Of Jurisdictional Justice, Of Procedural Justice, And Of Conflicts Justice), Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. As mentioned in the foreword, Chapter 13, in addition to presenting general aspects of procedure, deals with the legal anthropology of conflict of laws as a novelty that will be discussed at greater detail using Native American material for sake of illustration. Comments concerning, heuristic law finding, culture-specific maxims of legal procedure, and the context of material, substantive procedural, and jurisdictional law, are also included.

Chapter 01: Anthropology Of Law As A Science - Prefatory Materials, Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Chapter 1 redefines the position of legal anthropology within the social sciences. A new definition of law for anthropological purposes is sought, and in this context authority as an indispensable conceptional element of law is discussed in a new light. The relationship of law and justice will appear in a new light. Legal pluralism willo show two separable dimensions. Among the social science aspects of anthropology, empirical thinking and guidance by models are being contrasted and related to Pre-socratic, Platonic and Kantian epistemology.

Chapter 09: Societal Order, Personhood, And Human Rights (The Anthropology Of Constitutional Justice), Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Next to family and kinship, society is the closest framework and mark of orientation to a “higher mammal” such as the human being (cf. Chapter 7; and I., below). Chapter 9 deals with societal and social ordering of human life and thus represent the “public side” of personhood. This gives rise to a simultaneous discussion of the concept of personhood in anthropology. Johann Wolfgang Goethe once remarked in his drama “Dr. Faustus”: “It’s in their gods that humans paint themselves” (In seinen Göttern malt sich der Mensch). Similarly, Goethe could have said: “In his companionships man …

Chapter 17: Illustrations, Wolfgang Fikentscher

Wolfgang Fikentscher

Illustrations

Bargaining In The Shadow Of Violence: The Npt, Iaea, And Nuclear Non-Proliferation Negotiations, Arsalan M. Suleman

Arsalan Suleman

The NPT non-proliferation regime is both a multilateral treaty of international law and a dispute system designed to manage conflict over the use of nuclear technology. The system seeks to balance the competing desires of member-states to have access to peaceful nuclear technology and to provide national security. In the course of implementation, the system must handle disputes over alleged violations of the NPT and IAEA safeguards agreements. Negotiations, crucial to the functioning of the NPT dispute system, are undertaken in the shadow of the law and the shadow of violence. The NPT and any relevant agreement signed with the …

Do R&D Programs Of Different Government Levels Overlap In The European Union?, Andrea Fernandez-Ribas, Isabel Busom

Andrea Fernandez-Ribas

Multiple levels of government currently design and implement research and innovation programs both in the US and in Europe. Empirical analysis of interdependencies among programs has not been fully explored, however. Our contribution is a first step in understanding potential complementarities across R&D programs. Using a sample of Spanish manufacturing firms, we study the determinants of firms’ participation in national and in European level research programs and test for differences across programs. Our results suggest that firms’ participation in European and national R&D programs is largely driven by different factors. We interpret these results as suggesting that, ex-post, there is …

Can A Person Subject To Islamic Law Make A Will In Nigeria?: Ajibaiye V Ajibaiye And Mr. Dadem’S Wild Goose Chase, Abdulmumini A. Oba

Abdulmumini A Oba

Subsequent to the controversial case of Yunusa v Adesubokan (1971) where Supreme Court which held that a Muslim can make will under the Wills Act even if the terms of the will are inconsistent with inheritance laws under Islamic law, the Wills Act and the various State Wills Laws were amended by making them subject to Islamic law and customary law. While the amendments have been upheld severally by the Supreme Court in relation to customary law, the Court of Appeal case of Ajibaiye v Ajibaiye (2007) is the first reported case in relation to Islamic law. Mr. Dadem in …

The Fire Next Time: Land Use Planning In The Wildland/Urban Interface, Jamison E. Colburn

Jamison E. Colburn

Wildfire is a growing threat to suburban and exurban communities, in part because fires have grown more severe and frequent as a result of land use and climatic influences and in part because more people are living in fire prone areas. The so-called Healthy Forest Restoration Act (HFRA), the federal government’s response to this crisis, is a deeply flawed statute that will likely exacerbate wildfire risks at the same time it makes real ecological restoration even harder. While HFRA took halting, partial steps toward the integration of broad and small scale land use planning, it was clearly still the outgrowth …

Climate Change And Freshwater Resources, Noah D. Hall, Bret B. Stuntz, Robert H. Abrams

Noah D Hall

The Earth’s climate is warming. This is the unequivocal conclusion of climate scientists. Despite the complexities of climatology, certain consistent trends emerge with implications for water availability: as the world gets warmer, it will experience increased regional variability in precipitation, with more frequent heavy precipitation events and more susceptibility to drought. These simple facts will have a profound impact on freshwater resources throughout the United States, as the warmer climate will reduce available water supplies and increase water demand. Unfortunately, current water law and policy are not up to the new challenges of climate change and resulting pressures on freshwater …

Climate Change And Great Lakes Waters Resources: Avoiding Future Conflicts With Conservation, Noah D. Hall

Noah D Hall

Despite the complexities of climatology, certain consistent themes emerge with implications for water availability: as the world gets warmer, it will experience increased regional variability in precipitation, more frequent heavy precipitation events, becoming more susceptible to drought. This article focuses on how climate change will impact Great Lakes water resources. It explores what a changing climate will mean for the Great Lakes, including possible lowering of lake levels, impacts on fisheries and wildlife, changes in Great Lakes shorelines, and reduction of groundwater supplies. Climate change will also reduce water supplies in other parts of the country, creating increased pressure to …

Charge Movement And Theories Of Prosecutors, Ronald F. Wright, Rodney L. Engen

Ronald F. Wright

The charges filed at the start of a criminal case often move down to less serious charges that form the basis for a guilty plea and conviction. In this symposium essay, we build on our earlier work on charge movement based on data from North Carolina. After noting that charges move at different rates for different crimes, we explain the differences among crimes by looking to the structure of the substantive criminal law. Groups of crimes that offer deeper options to the negotiators (such as the many versions of assault) produce more frequent charge movement.

Assuming that the structure of …

Proportionality In The Criminal Law: The Differing American Versus Canadian Approaches To Punishment, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

The focus of this Article shall be upon the Eighth Amendment of the United States Constitution and s. 12 of the Canadian Charter of Rights and Freedoms, both of which prohibit “cruel and unusual punishment”; and their effect on mandatory criminal sentencing (via penal statute) in the two countries. The Article shall begin by briefly explain the differences between the jurisdictional application of criminal justice in the United States and Canada. The Article will next present and explain the American Eighth Amendment approach to the constitutionality of mandatory criminal sentencing and contrast this to the Canadian s. 12 approach to …

Racial Formation In Quebec: A Legal Retospective, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

This Article shall use the experience of the Quebecois in Canada to survey the linkage between cultural formation and race in Quebecois racial identity, and then map out these linkages and their relations to the political and legal discourse that has emerged in Canada on the place of the Quebecois in the country. Cultural formation and racial formation are unmistakably linked. Specific social and linguistic separatism can over time crystallize into racial formation, especially if aided by official government recognition and legal codification. As this Article shall demonstrate, the verification of this idea can be clearly seen the experience of …

Lies, Damn Lies And Statistics: Developing A Clearer Assessment, Rob M. Frieden

Rob Frieden

Depending on the source one can conclude that United States consumers enjoy access to a robustly competitive and nearly ubiquitous marketplace for inexpensive broadband Internet access, or they suffer the consequences of a tightly concentrated industry offering inferior service at high rates. On one hand, the Federal Communications Commission (“FCC”), the National Telecommunications and Information Administration (“NTIA”) and some sponsored researchers offer a quite sanguine outlook, possibly influenced by their appreciation for the political and public relations dividends in compiling positive results. On the other hand, other statistical compilations and interpretations show the U.S. behind in terms of market penetration …

On-Line Social Decision Making And Antisocial Behavior: Some Essential But Neglected Issues, Reid G. Fontaine

Reid G. Fontaine

The last quarter century has witnessed considerable progress in the scientific study of social information processing (SIP) and aggressive behavior in children. SIP research has shown that social decision making in youth is particularly predictive of antisocial behavior, especially as children enter and progress through adolescence. In furtherance of this research, more sophisticated, elaborate models of on-line social decision making have been developed, by which various domains of evaluative judgment are hypothesized to account for both responsive decision making and behavior, as well as self-initiated, instrumental functioning. However, discussions of these models have neglected a number of key issues. In …

Social Information Processing And Cardiac Predictors Of Adolescent Antisocial Behavior, Reid G. Fontaine

Reid G. Fontaine

The relations among social information processing (SIP), cardiac activity, and antisocial behavior were investigated in adolescents over a 3-year period (from ages 16 to 18) in a community sample of 585 (48% female, 17% African American) participants. Antisocial behavior was assessed in all 3 years. Cardiac and SIP measures were collected between the first and second behavioral assessments. Cardiac measures assessed resting heart rate (RHR) and heart rate reactivity (HRR) as participants imagined themselves being victimized in hypothetical provocation situations portrayed via video vignettes. The findings were moderated by gender and supported a multiprocess model in which antisocial behavior is …

Assuming Bosnia: Democracy After Srebrenica, Timothy W. Waters

Timothy W Waters

Assuming Bosnia: Democracy after Srebrenica Timothy William Waters Associate Professor, Indiana University School of Law (Bloomington) This essay is a reflection on democracy, justice and intervention. It focuses on the Bosnian experience, which requires one to consider several actors: Bosnia as a state, Bosnians as a people or peoples, and the international community. For since Dayton, the indispensable context for reform in Bosnia has been the international protectorate, which is to say the deliberate abrogation of autonomous, democratic, domestic processes for some defined, and hopefully higher, set of purposes. These purposes are expressed in the Dayton Accords, though increasingly the …

Assuming Bosnia: Taking The Polity Seriously In Ethnically Divided Societies, Timothy W. Waters

Timothy W Waters

This essay is a reflection on democracy, justice and intervention. It focuses on the Bosnian experience, where since the Dayton Accords the indispensable context for reform has been the international protectorate. This essay examines the assumptions used by the international community to govern Bosnia, which suggest a policy premised upon resistance to the fragmentation of the state under any circumstances, and a belief that the international intervention is simultaneously morally justified and a purely technical process for increasing efficiency. How necessary – indeed, how related at all – are those commitments to the dictates of justice? What is their relationship …