Law Commons^™

A Model Of Legal Systems As Evolutionary Networks: Normative Complexity And Self-Organization Of Clusters Of Rules, Carlo Garbarino

Carlo Garbarino

The paper draws both on legal theory and network science to explain how legal systems are structured and evolve. The basic proposition is that legal systems have a structure identifiable through a model of them in terms of networks of rules, and that their evolution is a property of their network structure. The paper is based on a model of rules which relies on the tenets of the network theory to describe how legal change unfolds within the network structure of legal systems. Section 1 presents an outline of current literature on the application of network theory to legal systems. …

Repairing Online Reputation: A New Multi-Modal Regulatory Approach, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected digital society, high profile examples of online abuses abound. Cyberbullies launch attacks on the less powerful, often significantly damaging victims’ reputations. Outside of reputational damage, online harassment, bullying and stalking has led to severe emotional distress, loss of employment, physical assault and even death. Recent scholarship has identified this phenomenon but has done little more than note that current laws are ineffective in combating abusive online behaviors. This article moves the debate forward both by suggesting specific reforms to criminal and tort laws and, more importantly, by situating those reforms within a new multi-modal framework for combating …

The United States Are But One Country: A Short History Of Grammar And Liberty, Charles R. Gardner

Charles Gardner

This legal essay traces the conversion of “the United States” from a plural to a singular noun in United States Supreme Court decisions, in presidential proclamations and inaugural addresses, in diplomatic correspondence and in public discourse. It did not happen with a bang at the end of the Civil War, but with a whimper at the beginning of the twentieth century.

Today, at the beginning of the twenty-first, the singularity of humanity, for which that conflagration was allegedly fought, still eludes us. It is that latter singularity that inspires and organizes this essay.

Not until the digital age was it …

Excuse Me, Sir, Can You Spare Some Certiorari? Why Downtown “No Panhandling” Zones Are Constitutionally Suspect, Noah J. Kores

Noah J Kores

Panhandlers are becoming increasingly prevalent in urban areas across the United States. Many cities have taken action to regulate where, when, and how panhandling may be performed. One particular trend raises many First Amendment questions: downtown panhandling bans. As panhandling is a form of free speech, the question is whether downtown bans go too far.

Under the First Amendment, many downtown bans fail both intermediate and strict scrutiny. Specifically, St. Petersburg, Florida’s ordinance fails because it places content-based restrictions on speech -- meaning it restricts speech based on what an individual is attempting to say. Panhandling bans are content-based because …

Sexting: Risky Or [F]Risky? An Examination Of The Current And Future Legal Treatment Of Sexting In The United States, Krupa A. Shah

Krupa A. Shah

No abstract provided.

The Dialectic Of The Hurricane Katrina 9-11 Fund, Omari Sinclair

Omari Sinclair

This article unravels the dialectic concerning whether there should be a 9/11 fund for Hurricane Katrina victims. Part I illustrates the 9/11 fund's unique dynamic - a hybrid of both enterprise liability and corrective justice - and why such a fund was instituted for the victims of 9/11. Part II illustrates how Hurricane Katrina's similarities to 9/11 might warrant a similiar fund structure. Part III explains the implications of establishing such a fund for Hurricane Katrina victims. And Part IV elucidates whether this is a practicable option.

Simplify, Simplify, Simplify – An Analysis Of Two Decades Of Judicial Review In The Veterans Benefits Adjudication System, Rory E. Riley

Rory E. Riley

Prior to the Veterans' Judicial Review Act, the Department of Veterans Affairs existed in "splendid isolation" - meaning that the department was insulated from judicial review by statute. After the due process revolution of the 1960's and pressure from various veterans’ organizations after the Vietnam war, Congress passed the Veterans' Judicial Review Act in 1988. The Act created the U.S. Court of Appeals for Veterans Claims, an article I court with exclusive jurisdiction over decisions by the Board of Veterans' Appeals. This article argues that 20 years after the Veterans' Judicial Review Act was implemented, the system has become more …

To Infinity And Beyond: Fcc Enforcement Limiting Broadcast Indecency From George Carlin To Cher And Into The Digital Age, Blake M. Lawrence

Blake M Lawrence

Abstract: This article argues that FCC enforcement of broadcast indecency has become severely outdated, especially with the internet revolution of the past two decades. In Fox Television Studios v. FCC, the Court insisted on upholding the analysis of In re Pacifica (from the 1970s) which limited indecent speech based on the “unique accessibility” and the “uniquely pervasive” nature of broadcast television. However, the rise of cable television and internet television (from sites such as YouTube and Hulu) has nullified that rationale. The article further argues that the FCC’s method of enforcement based on complaints does not serve the public interest …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

Tolerance and Rule of Law : - Lessons from Imperial Governance - What is the condition that can make an empire socially and politically integrated and thus prosper for a long time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

Tolerance and Rule of Law : - Lessons from Imperial Governance - What is the condition that can make an empire socially and politically integrated and thus prosper for a long time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy …

Tolerance And Rule Of Law: Lessons From Imperial Governance, Seongjo An

SEONGJO AN

What is the conditon that can make an empire socially and politically integrated and thus prosper for a logn time? It is not easy to answer quickly for this question. This paper analyzes the book “Day of Empire” written by Amy Chua three years ago which submitted an answer for this question. The core thesis of “Day of Empire” is that every world-dominant empire was by the standards of its time, extraordinarily pluralistic and tolerant during its rise to preeminence for all their enormous differences. According to Amy Chua, “indeed, in every case tolerance was indispensable to the achievement of …

Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe

Alan W Moe Jr

Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its new policy of …

Compelling The Courts To Question Gonzales V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio

Ari B Fontecchio

At its core, this article uses an original, empirical case study to argue that the Supreme Court's 2006 decision in Gonzales v. O Centro has elevated the level of scrutiny with which courts evaluate the government's compelling interest, expanding the safe harbor for harmful, religious activity. In O Centro, the Supreme Court rejected the government's compelling interest in regulating religious use of the Schedule I hallucinogenic substance hoasca. The case survey at the core of this article demonstrates that since this decision, lower courts have required the government to justify its regulation of potentially harmful activities with an almost unrealistically …

Quagmire: Is The Sec Stuck In A Misguided War Against Pipe Financing?, Douglas Hoffer

Douglas Hoffer

A popular non-traditional capital formation option is the “PIPE” deal: Private Investment in Public Equity. Over the last ten years, companies raised more than $100 billion using PIPE transactions. The Securities and Exchange Commission (“SEC”) has increased its regulatory oversight of PIPE transactions as they have become more popular. The SEC believes that some PIPE investors who take a short position in a PIPE issuer’s publicly traded shares violate Section 5 of the Securities Act by selling unregistered securities, and that PIPE investors who trade on knowledge of an impending PIPE transaction are guilty of insider trading. The purpose of …

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen

Mark A. Chinen

In this Article I consider a story from the New Testament for what it might say to international law. A woman of Syrophoenician origin, whose daughter is possessed by an evil spirit, asks Jesus for help. Jesus protests, “First let the children eat all they want, for it is not right to take the children’s bread and toss it to their dogs.” The woman replies, “Yes, Lord, but even the dogs under the table eat the children’s crumbs.” Jesus is impressed by this reply and tells the woman her daughter is well. The way in which the story unfolds is …

Deepening The Discourse Using The Legal Mind’S Eye: Lessons From Neuroscience And Psychology That Optimize Law School Learning, Hillary Burgess

Hillary Burgess

Research demonstrates that incorporating visual aids and exercises into learning environments improves learning with higher-order cognitive skills such as “thinking like a lawyer.” This article argues that because law school learning focuses on the highest order cognitive skills, professors optimize the learning environment by including visual aids and visual exercises.

This article begins by defining what higher order cognitive skills are by mapping common law school learning tasks onto a leading taxonomy of learning objectives. This article argues that the legal curriculum engages all six levels of learning by traditionally teaching the lowest four levels of learning and by traditionally …

Leveling Localism And Racial Inequality In Education Through The No Child Left Behind Act Public Choice Provision, Erika K. Wilson

Erika K. Wilson

While much attention is paid to issues of segregation and inequality in education, little attention is paid to the role that school district boundary lines play in creating segregation and inequality in education. Living on one side of a school district boundary line rather than another can mean the difference between being able to attend a high achieving resource enriched school or having to attend a low achieving, resource deprived school. Nevertheless, the federal judiciary--the institution looked upon to remedy issues of school segregation and inequality--is unable to adequately remedy segregation and inequality between school districts because it evidences a …

The Road To Nowhere: Caterpillar V. Usinor And Cisg Claims By Downstream Buyers Against Remote Sellers, Donald J. Smythe

Donald J. Smythe

The UN Convention on Contracts for the International Sale of Goods (CISG) was intended to unify international sales law and facilitate the expansion of international trade. It was, however, the product of a bargain between representatives from diverse legal systems and its rules are spare. This invites parties to international sales disputes to argue that its preemptive effect is narrow and that domestic legal rules should be used to fill the gaps. Courts are notoriously prone to the “homeward trend bias” and have frequently accepted such arguments. In Caterpillar v. Usinor the federal district court for the Northern District of …

Indecisive Reasons For Action: Socrates, Not Hercules, As Judicial Ideal, Eric J. Miller

Eric J. Miller

Ronald Dworkin famously introduces the idealized judge, Hercules, to demonstrate how to identify one right answer for any legal problem. Since judicial disagreement makes sense, according to Dworkin, against the background of plural theories of the good, Hercules solves a particular political problem: how to avoid apathy or indecisiveness in choosing among competing theories. Dworkin's judge is supposed to stand by his or her political convictions in the face of competing, plural points of view. Choosing the one right answer is thus a method of political commitment.

My claim is that Dworkin is caught between a rock and a hard …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Hearings, Mark Spottswood

Mark Spottswood

This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …

Sexual Abuse Of Power, Michal Buchhandler-Raphael

michal buchhandler-raphael

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex. The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual …

Sexual Abuse Of Power, Michal Buchhandler-Raphael

michal buchhandler-raphael

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex. The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual …

Freedom In A Slave Country: A True Story Of Race, Law, Sex, And Politics, Jason A. Gillmer

Jason A Gillmer

This Article unpacks the rich and textured story of the Ashworths, an obscure yet prosperous free family of color in the antebellum South who owned land, raised cattle, and bought and sold slaves. It is undoubtedly an unusual story; indeed in the history of the times there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which—despite legal rules and conventional thinking—life was not so black and white. Drawing on local records rather than canonical cases, and listening to the voices from the community rather than the legislatures, this Article emphasizes the …

Free To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Free To Air? Legal Protection Of Tv Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

Free To Air? – Legal Protection For Tv Program Formats, Neta-Li E. Gottlieb

Neta-li E Gottlieb

Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the …

A Million Little Takings, Dru Stevenson

Dru Stevenson

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics). IOLTA takings also highlight a …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …