Law Commons^™

Paul V. The Clintons, Et Al: Fec Complicity And A Plea For Real And Present Campaign Finance Reform, Ellis Washington

Ellis Washington

This Article is an analysis of current legislation, case law and election law policy regarding campaign finance disclosure rules and the need for a truly independent Federal Election Commission to efficiently enforce existing election laws. Admittedly, this article isn’t as theoretical as other scholarly works on this subject, however, since campaign finance reform is a rather complex subject, I didn’t want to get caught up in the endless minutiae of legislative and court opinion other than a general review in the context of the case at bar as well as the present state of campaign finance reform policy. I also …

White Women In Peril On Broadcast And Cable Television News, Prof. Leonard M. Baynes

Prof. Leonard M. Baynes

Abstract White Women in Peril on Broadcast and Cable Television News By Leonard M. Baynes It has been approximately forty years since the U.S. Supreme Court found the Fairness Doctrine constitutional and approximately twenty years since the Federal Communications Commission (the “FCC”) eliminated it. The Fairness Doctrine provided that the broadcasters were required to air important issues and to make sure that the other side of the issue was also covered. In 1969 in Red Lion, the U.S. States Supreme Court found the Fairness Doctrine constitutional under the First Amendment. In the late 1980s, the FCC decided that because of …

Penn Central For Tomorrow: Making Regulatory Takings Predictable, Kenneth S. Miller

Kenneth S Miller

No abstract provided.

Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski

Adam J. Sulkowski

This article makes a critical contribution to the fields of environmental and corporate law. It explains a problem in the citizen enforcement of environmental statutes: the issue of how to establish and secure standing to sue. The article then recommends a novel solution based in corporate law: the application of ultra vires statutes. The article significantly contributes to the scholarly literature on ultra vires statutes by: (1) examining thoroughly the history of the ultra vires doctrine, especially in early American history, (2) clarifying that scholars and practitioners should now cite ultra vires statutes rather than the doctrine, (3) reviewing recent …

The St. Thomas Effect: Law School Mission And The Formation Of Professional Identity, Jennifer Wright

Jennifer Wright

The legal profession has long been criticized for declining standards of professionalism. Recent studies have pointed to the crucial role of legal education in forming the professional identity of lawyers. Law schools must take seriously their duty to intentionally and thoughtfully shape their students’ sense of what it means to be a lawyer and of how their professional identities will align and coexist with their other personal and ethical commitments. In this article, I examine a case study of one law school, the University of St. Thomas School of Law, whose self-proclaimed raison d’etre is to produce a “different kind …

People As Crops, Evelyn L. Wilson

Evelyn L. Wilson

In 1807, Congress passed a law prohibiting the importation of slaves. The South began to feel the effect of labor shortages and prices escalated. To meet this demand, farmers in the upper south states, especially Virginia, began the systematic breeding of slaves for sale to the southwest. Through the use of statements from Virginia statesmen and from some of Virginia’s former slaves, my paper discusses slave breeding, first as a consequence of slavery, as an added benefit to the labor obtained from the slave.

My father was born in Virginia, as was his father, as was his father, as was …

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Lumen N. Mulligan

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court’s section 1331 jurisprudence in terms of the contemporary judicial usage of “right” (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

If They Could Only Eat Efficiency: How Airline Deregulation And The Bankruptcy Code Joined Forces To Undermine Airline Workers And What Can Be Done About It, Ashton S. Phillips

Ashton S. Phillips `

As a species of mass transportation, the airline industry is incapable of making a sustained profit in an unregulated economy. Without regulation, easy access to reorganization and government subsidies only facilitate bloated supply in the air travel market. Bloated supply leads to decreased market price of airfare. This decrease helps consumers, but it doesn't help airlines achieve profitability. Under the current legal scheme, if airlines can't achieve profitability, airline workers will continue to subsidize the industry with radically decreased pay and lost retirement benefits. If Congress increases airline workers' rights in bankruptcy and merger contexts, their positions will be temporarily …

Happy To Be Equal, Shay Gurion

Shay Gurion

The public discourses regarding happiness are burgeoning in current times, especially in the fields of positive psychology and philosophy. However, policy oriented disciplines, such as economics and law, seem to almost suspiciously, avoid this discussion, leaving one of life's most important aspects, academically and politically, unexplored. This paper tries to fill this void by offering an explanation to why humans beings are equally happy and how does this provide us with a rational basis for human equality and a corresponding perception of human rights. The explanation offered in this paper of why people are equally happy lies greatly on the …

The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Levin

Hillel Levin

Based on a true story, this brief Essay begins with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), and others--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

The piece is meant to demonstrate the following:

* We all regularly use the basic tools and modes of statutory interpretation;

* When we interpret pronouncements in real life, …

The Pot Of Gold At The End Of The Class Action Lawsuit: Can States Claim It As Unclaimed Property?, Ethan Millar, John Coalson

Ethan Millar

This article analyzes the potential application of state unclaimed property laws to unclaimed settlement proceeds in a state or federal court class action. This article concludes that, in a federal court class action, federal law rather than state law should apply to the disposition of unclaimed settlement proceeds under Federal Rule of Civil Procedure 23, the Erie doctrine, and other authorities. Thus, since federal law grants the district court broad discretion to approve settlements and determine the manner of disposing of unclaimed settlement proceeds, the court is not bound by state unclaimed property laws which may otherwise require those proceeds …

The Insanity Of Genius: Criminal Culpability And Right-Tail Psychometrics, James C. Oleson

James C Oleson

The article bridges criminology, criminal law, and penology by relating what little is known about the crimes of genius to the 2002 case Atkins v. Virginia. Noting that the IQ of the borderline genius is precisely as far from the mean as the IQ of the person with borderline mental retardation, it asks whether there are penological implications to high IQ. The article first asks whether geniuses should be punished like everyone else, then asks whether they should be punished more than others, and finally asks whether they should be punished less than others.

Most geniuses, I suggest, should be …

A Troubled House Of Cards: Examining How The “Housing And Economic Recovery Act Of 2008” Fails To Resolve The Foreclosure Crisis, Chad Emerson

Chad Emerson

No abstract provided.

Dumping Emtala: Restoring The Fiduciary Ethic, Improving Community Care, And Increasing Efficiency Through The Membership Model, Joseph A. Gonzalez

Joseph A Gonzalez

The U.S. healthcare system is breaking. Hospital emergency departments ("EDs") disproportionately bear this burden. EMTALA, the federal law that mandates treatment in an emergency, is responsible. By forcing a hospital to provide medical treatment, despite a patient's inability to pay, EMTALA has altered treatment standards for the worse. In this note, I suggest that repealing EMTALA will allow the market to capture the treatment values that motivated EMTALA's passage. Permitting EDs to base treatment on a patient's pre-existing hospital membership encourages better treatment than EMTALA. A market driven ED will succeed where EMTALA has failed.

Do You Want To Be An Attorney Or A Mother? Arguing For A Feminist Solution To The Problem Of Double Binds In Employment And Family Responsibilities Discrimination, Heather Bennett Stanford

Heather P Bennett

This article is a research paper analyzing and proffering solutions to family responsibilities discrimination in the workplace. The article centers around a case filed in the United States District Court for the Western District of Pennsylvania. This case was filed by a female partner at the law firm Dickie, McCamey & Chilcote claiming discrimination based on family responsibilities. I chose this topic because I feel that it is an increasingly important and emerging area of employment discrimination law. This article introduces the background of the case and analyzes possible outcomes in light of caselaw involving employment discrimination in various contexts. …

United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy

Debora L. Threedy

This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …

Suicide, Law And Morality, Edward Rubin

Edward Rubin

Dear Editors,

The enclosed article argues that blanket prohibitions against assisted suicide are unconstitutional. This position has been advanced by a number of commentators, who have generally based their argument on the so-called right to die. From a constitutional perspective, however, this right can only be grounded on either substantive due process or the right of privacy, that is, the penumbra of the first eight amendments. While the argument isn’t necessarily wrong, it suffers from its reliance on aggressive and controversial interpretations of the constitutional text.

The position this article advances is that prohibitions against assisted suicide violate the First …

Nudging For Liberty: Values In Libertarian Paternalism, Michael S. Mcpherson, Matthew A. Smith

Michael S. McPherson

In their recent book, Nudge, Richard Thaler and Cass Sunstein argue persuasively that default rules, framing effects, etc., can be used to promote people's welfare. Through a range of empirical examples, we show that it is possible and often preferable to promote values other than welfare. For example, in certain situations default rules can be used to promote people’s exercise of liberty, the equality between citizens, or any other number of values. The core of the paper is showing that these examples do not devolve into welfare, and thereby enhancing the range of options open to policy makers.

Implications Of The Uk Companies Act 2006 For Institutional Investors And The Corporate Social Responsibility Movement, Gordon L. Clark, Eric R. W. Knight

Eric R Knight

Non-governmental organisations, activists, and the public-at-large hold large firms accountable on many issues including their environmental footprints and the social standards of their suppliers around the world. For those coming from European social democratic traditions, stakeholders have a legitimate voice in the affairs of the corporation especially in two-tiered governance regimes that separate supervision from management. Notwithstanding attempts to re-write their proper roles and responsibilities, the Anglo-American corporation is widely believed to be the medium for the accumulation of shareholder value.

Recently, however, a counter-argument has emerged suggesting that the UK Companies Act 2006 broke with this tradition to embrace …

Judicial Independence And Nonpartisan Elections, Brandice Canes-Wrone, Tom S. Clark

Brandice Canes-Wrone

This Article argues against the conventional wisdom about nonpartisan judicial elections. In contrast to the claims of policy advocates and the scholarly literature, we suggest that nonpartisan elections do not necessarily encourage greater judicial independence than partisan elections do. Instead, nonpartisan elections create the incentive for judges to cater to public opinion, and this pressure will be particularly strong for the types of issues that attract attention from interest groups, the media, and voters. After developing this argument, we support it with new empirical evidence. Specifically, we examine patterns of judicial decisions on abortion-related cases heard by state courts of …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Jacqueline D Lipton

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Restorative Justice: Sketching A New Legal Discourse, Frank D. Hill

Frank D Hill

Restorative justice has emerged as an increasingly accepted approach to criminal law around the world over the last 30 years or so. Unlike the traditional theories of justice – Kantian justice and utilitarian efficiency – restorative justice focuses on the private rather than the public effects of crime. Restorativists emphasize the needs of primary stakeholders, namely victims and offenders, over the needs of society at large when considering how the criminal justice system should respond to crime. This Article argues this difference in focus is reflected in the various theories’ conceptions of human nature and subjectivity. While the traditional theories …

Book Review Of "How Judges Think" By Richard Posner, Charles D. Kelso, R. Randall Kelso

charles D. Kelso

This book review summarizes Judge Posner's presentation of how judges think and adds an evaluation.

Soldiers Of Fortune - Holding Private Security Contractors Accountable: The Alien Tort Claims Act And Its Potential Application To Abtan V. Blackwater Usa, Matthew C. Dahl

Matthew C. Dahl

This article examines the Alien Tort Claims Act and how it can be applied to private security contractors in Iraq, specifically to the case of Abtan v. Blackwater USA.

The Medium Of Exchange Paradigm: A Fresh Look At Compensated Live-Organ Donation, Dean Lhospital

Dean Lhospital

For over twenty years, human live-organ sales have been banned in the United States and most of the rest of the world. Observations and data arising from black market transactions and the few legal markets for organs suggest that permitting and regulating organ sales leads to more humane conditions than outlawing sales. Despite the data, opponents of organ sales still argue that selling human organs devalues human life. This article examines the panoply of organ markets – white, grey, and black – and identifies the source of this cognitive dissonance. Recognizing that there is a fundamental paradox in ethical objections, …

The Demise Of The Law-Finding Jury In America And The Birth Of American Legal Science: History And Its Challenge For Contemporary Society, Jonathan R. Lahn

Jonathan R Lahn

Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early …

Preparing Law Students For Disappointing Exam Results: Lessons From "Casey At The Bat", Grant H. Morris

Grant H Morris

It is a statistical fact of life that two-thirds of the law students who enter law school will not graduate in the upper one-third of their law school class. Typically, those students are disappointed in their examination grade results and in their class standing. Nowhere does this disappointment manifest itself more than in their attitude toward their classes. As students begin law school, they are eager, excited, and willing to participate in class discussion. But after they receive their first semester grade results, many students withdraw from the learning process; they are depressed and disengaged. They suffer a significant loss …

The Problematic Nature Of Contractionist Statutory Interpretations, Brian G. Slocum

Brian G. Slocum

The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging …

Are Florida's Bullying Laws Overreaching?, Steven Zakharyayev Esq.

Steven Zakharyayev Esq.

In light of several highly publicized suicides caused by bullying, state legislatures have been pressured to enact tougher bullying laws to quell this pervasive problem. Remedies to this problem, however, are designed with the intent of regulating student expression, which can lead to vague and overbroad laws. Moreover, it is common amongst legislatures to enact laws that stretch the bounds of constitutionality when protecting children is the motivation. Part one of this paper will discuss the scope of permissible regulations schools may impose on student expression. Part two will discuss schools’ affirmative duty as federal recipients to ensure no student …

The Trademark Trap, Aneta Ferguson

Aneta Ferguson

The currently existing scheme of two filing systems for recordation of security interests in trademarks causes a lot of legal uncertainty and numerous problems for lenders and trademark owners. The uncertainty about the rules of perfection and priorities increases costs associated with financing transactions involving trademarks and contributes to the complexity of those transactions. The empirical study of the security interests in trademarks shows that fifteen percent of creditors failed to fulfill the requirements of the currently existing dual filing system and as a consequence are left in a position of unsecured creditors. Legislative reform is very urgently needed in …