Law Commons^™

The Power Of The Treasury: Racial Discrimination, Public Policy And "Charity" In Contemporary Society, David A. Brennen

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The Treasury Department is empowered to enforce “established public policy” with respect to tax-exempt charities. Under this public policy power, the Treasury has revoked the tax-exempt charitable status of organizations that discriminated against blacks, organizations whose members engaged in civil disobedience against war, and organizations involved in illegal activity. The Treasury interprets its public policy power as applying to any activity that violates clear public policy. Thus, presumably, the Treasury could use this power to deny tax-exempt charitable status to an organization that engages in conduct that violates assisted suicide laws, anti-abortion laws, or other sufficiently “established” public policies.

The …

Appropriation & Transculturation In The Creation Of Community, Deborah W. Post

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No abstract provided.

Dismantling Democracy: Common Sense And The Contract Jurisprudence Of Frank Easterbrook, Deborah W. Post

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No abstract provided.

Recent Supreme Court Employment Law Developments, Douglas D. Scherer, Olati Johnson

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No abstract provided.

Marketing Goods, Marketing Images: The Impact Of Advertising On Race, Deseriee A. Kennedy

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No abstract provided.

Capital Punishment And Religious Arguments: An Intermediate Approach, Samuel J. Levine

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Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …

Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman

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In the Supreme Court's 1997 Term, the Supreme Court had decided a record number of statutory discrimination cases. However, that record was exceeded in the Supreme Court's 1998 Term with the Court addressing issues arising under Title VII, which covers discrimination in employment; Title IX, which covers discrimination in schools; and most significantly, the Americans with Disabilities Act, which prohibits discrimination based on disability. Overall, the term scored significant victories for employers who were given considerable latitude to set their own physical characteristic standards and who were, to a large extent, immunized from liability for punitive damages. There was an …

Muddy Waters, Blue Skies: Civil Liability Under The Mississippi Securities Act, Keith A. Rowley

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The decade of the 1990s produced a series of actions by the United States Supreme Court and by Congress that, collectively, reduced the number of avenues by which plaintiffs relying on federal law may pursue alleged wrongdoers for securities fraud; imposed significant additional requirements on plaintiffs suing under federal securities law; preempted state registration requirements for several classes of securities; and curbed the availability of state courts as an alternative forum in which plaintiffs may pursue securities fraud claims. And yet, in spite of these changes, “Congress, the courts, and the SEC have made explicit that federal regulation was not …

Suburban Sprawl: Not Just An Environmental Issue, Michael Lewyn

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Many conservatives believe that (1) sprawl is merely the result of the free market at work; (2) even if sprawl has negative effects, it cannot be limited without implementation of the liberal/environmentalist agenda of larger and more intrusive government; therefore, (3) conservatives should do nothing to fight sprawl. This article rejects all three propositions. Specifically, I argue that: (1) sprawl is in large part a result of runaway statism rather than the free market; (2) sprawl threatens conservative values such as consumer choice, the work ethic, and social stability, and (3) free-market, anti-spending solutions can limit sprawl and revitalize cities.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

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No abstract provided.

Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman

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No abstract provided.

Liability Issues Facing Online Businesses, David E. Shipley

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Online businesses are confronted by a wide variety of liability issues covering almost the full range of the standard law school curriculum. The liability problems that face a small business in Vidalia, Georgia, which is selling Vidalia onion products at specialty stores, through print advertising, and by mail, do not go away when the business starts marketing through a Web site. In fact, there might be more exposure doing business online, and there are variations depending upon the nature of the business in question. For example, as discussed below, an Internet Service Provider ("ISP") like America Online has worries that …

Fox Hunting, Pheasant Shooting And Comparative Law, Alan Watson, Khaled Abou El Fadl

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The Roman jurists, ancient rabbis and Muslim jurists were very different people. Above all, the rabbis and Muslim jurists were engaged on a search for law as truth. And the Roman jurists were much more obviously upper-class gentlemen.91 But the similarities are great. All three had a passion for legal interpretation. They delighted in discussing hypothetical cases. They chased after solutions by ways of reasoning devised by themselves. Practical utility, while present, was in the background. At times, to outsiders, their opinions seem outr6, even callous, remote from reality. They have little interest in what actually happens in court: their …

State Taxation Of Electronic Commerce: Perspectives On Proposals For Change And Their Constitutionality, Kendall L. Houghton, Walter Hellerstein

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Over the past few years, an enormous amount of attention has been devoted to the problems raised by state taxation of electronic commerce, possible solutions to those problems, and, more recently, the question of whether there is a ‘problem‘ at all. We have both been, and continue to be, deeply involved in the debate over these issues -- a debate that has sometimes generated more heat than light. We view this forum as furnishing us an opportunity to take a step back from the fray and to offer our views not only on the critical issues that are dominating the …

Foreword: The Many Passions Of Teaching Corporations, Charles R.T. O'Kelley

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This Symposium belies such skeptical views of the Corporations course and those of us who teach it. The 1999 Teaching Corporate Law Conference was organized around teachers' self-identified passions in teaching Corporations--the themes, insights, skills or puzzles about which they are most intrigued or enthused. Thirty-seven professors made presentations at the Conference; twenty-eight have converted their presentations into the essays in this Symposium edition, which have been grouped substantively rather than in the exact order presented at the Conference.

Delaware Corporation Law And Transaction Cost Engineering, Charles R.T. O'Kelley

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I have a passionate belief that a very good way to teach Corporations is to structure the course around a core goal--to teach Delaware corporate law systematically--not just bits and pieces of it, but the entire system, much the way we approach the teaching of constitutional law. This Essay is an elaboration of my reasoning and strategies, organized as a presentation and discussion of the core rationales for organizing the course in this way. The first justification flows axiomatically from the following proposition: we create value for many of our students, and harm none, by giving them an opportunity to …

Implied Limits On The Legislative Power: The Intellectual Property Clause As An Absolute Constraint On Congress, Paul J. Heald, Suzanna Sherry

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Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress's legislative power under certain circumstances. Their analysis begins by looking at other limits on the legislative power that the Court has found in the Bankruptcy Clause, the Eleventh Amendment, the Tenth Amendment, and Article III. Then by examining the history and structure of the Intellectual Property Clause and relevant precedent, they distill four principles of constitutional weight--the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle. These principles inform the Court's …

Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, And Freedom Of Speech, Michael L. Wells

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Mt. Healthy City School District Board of Education v. Doyle is among the most important, and least discussed, cases in constitutional tort law. It stands for the abstract principle that the "but-for" rule of causation, which is the usual test in common-law torts, applies in constitutional torts as well. Doyle, a nontenured school teacher, quarreled with another teacher, with school employees, and with students. Two specific incidents deserve mention. First, on one occasion he "made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor." Second, after the principal …

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

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This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

A Reflective Rhetorical Model: The Legal Writing Teacher As Reader And Writer, Linda L. Berger

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Like most writing teachers, the legal writing teacher believes that his reading and response to student work is the most important thing he does, an importance that is underscored by the amount of time it takes. Yet, despite its importance and the hours it consumes, the rhetoric of teacher reading and writing remains relatively unexplored. This article proposes that we begin to apply what we have learned about student reading and writing to our own reading and writing. Our process of reading and responding to student work should be as reflective and rhetorical as the reading and writing process that …

"We Do Not Preach, We Teach.": Religion Professors And The First Amendment, Leslie C. Griffin

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No abstract provided.

The Tenth Amendment Among The Shadows: On Reading The Constitution In Plato's Cave, Jay S. Bybee

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In Plato's Allegory of the Cave, he describes a cavernous chamber in which men are imprisoned. Although a large fire lights the cave, the prisoners cannot see the light source. Instead, they can only make out figures that dance and parade in front of them illuminated by the fire. The prisoners cannot even see the figures directly, only their shadows. Everything that the prisoners know about reality they have learned from the distorted shapes of the shadows dancing about the cave's walls. Socrates wonders, if a prisoner were suddenly freed and could see the objects themselves and not merely their …

Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee

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There are few cases that contrast more starkly than Justice Robert Jackson's opinion for the Court in West Virginia State Board of Education v. Barnette and Justice Antonin Scalia's majority opinion in Employment Division v. Smith. Although we praise Barnette for its soaring defense of the Free Speech Clause and excoriate Smith for its crabbed reading of the Free Exercise Clause, in fact, Justice Jackson and Justice Scalia are not so far apart. When we read Barnette and Smith in context, we will find that Justice Jackson and Justice Scalia treaded common ground with respect to the First Amendment. …

Supreme Court Of Nevada, Administrative Office Of The Courts, Nevada Domestic Violence Resource Manual, Mary E. Berkheiser

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No abstract provided.

Human Rights And Wrongs In Our Own Backyard: Incorporating International Human Rights Protections Under Domestic Civil Rights Law---A Case Study Of Women In The United States Prisons, Martin A. Geer

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An urgent human rights crisis at home is under close scrutiny by diverse groups including the United Nations, non-governmental organizations, the U.S. Department of Justice, and public interest lawyers. Within the context of a prison population explosion that dwarfs that of the rest of the world, the undeveloped status of international human rights in U.S. domestic jurisprudence becomes more evident. Within prison populations, increasing numbers of women’s lives are reduced to half-lives under the tortuous effects of sexual abuse by corrections officials. This dire situation presents the question: Can women prisoners continue to be denied the protections of international human …

Critical Race Theory And Autobiography: Can A Popular Genre Make A Serious Academic Contribution?, Sylvia R. Lazos

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This Essay reviews “Notes of a Racial Caste Baby, Colorblindness and the End of Affirmative Action” by Bryan K. Fair, “How Did You Get to Be a Mexican? a White/Brown Man's Search for Identity” by Kevin R. Johnson, and “To be an American: Cultural Pluralism and the Rhetoric of Assimilation” by Bill Ong Hing. This Essay examines the potential contributions each book makes to legal scholarship and the popular press. The Essay first describes how each author uses the autobiographical narrative and what these narratives accomplish. The Essay examines each book's legal agenda and assesses how well each author achieves …

Forum Non Conveniens In Federal Statutory Cases, Keith A. Rowley, Lonny Sheinkopf Hoffman

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This article, previously published in Volume 49 of the Emory Law Journal, examines the federal doctrine of forum non conveniens in cases in which the plaintiff asserts a right to relief under federal law. The arguments we advance - particularly our claim that the federal doctrine of forum non conveniens can be better understood not as turning on matters of convenience, as the formal doctrine suggests, but on an assessment of the relative sovereign interests in adjudicating the dispute - remain relevant to an understanding of the federal doctrine. The paper, thus, may be of interest to practitioners, academics and …

First Amendment Freedoms And The Encryption Export Battle: Deciphering The Importance Of Bernstein V. United States Department Of Justice, 176 F.3d 1132 (9th Cir. 1999), David Mcclure

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For many years, a battle has raged over export restrictions on strong encryption products. Encryption ensures confidential and secure communications among individuals, and the Commerce Department and the State Department have long restricted its export because of national security concerns. Industry and privacy groups have fought against the restrictions for various reasons, ranging from the desire to sell encryption software in new markets to preventing government from accessing personal communications between individuals. Daniel Bernstein, a computer science graduate student, challenged these restrictions in 1996, placing himself in the center of this ongoing battle. In 1999, the Ninth Circuit Court of …

Book Annotations, Leah Chan Grinvald

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No abstract provided.

Recent Case Developments, Jeffrey W. Stempel

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Recent case developments in Insurance Law in the years 1999 and 2000.