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Masthead, Volume 5, Number 1, 2006, Editorial Board

The University of New Hampshire Law Review

Masthead for Volume Five, Issue Number One.

Videoconferencing In Immigration Proceedings, Aaron Haas

The University of New Hampshire Law Review

[Excerpt] “When there is mention of a legal trial, a certain picture naturally comes to mind. One sees a judge in his black robe sitting on a raised bench. Lawyers are stationed at tables on either side of the courtroom, prepared to present their arguments to the court. A jury box may sit off to the side, holding a cross-section of citizens culled from the population to perform their ancient duty. The courtroom is made of fine wood and polished marble, and it is adorned with the accouterments of justice—American flags, seals, paintings of honored jurists—which let an observer know …

Masthead, Volume 6, Number 1, 2007, Editorial Board

The University of New Hampshire Law Review

Masthead for Volume Six, Issue Number One.

Gender Matters: Making The Case For Trans Inclusion, Nancy K. Knauer

The University of New Hampshire Law Review

[Excerpt] “The transgender communities are producing an important and nuanced critique of our gender system. For community members, the project is self-constitutive and, therefore, has an immediacy that also marks the efforts of other marginalized groups who have attempted to make sense of the world through description, interrogation, and ultimately a program for transformation. The transgender project also has universalizing elements because, existing within the gender system, each one of us embodies a particular gender articulation. It is through this articulation that we define ourselves in relation to the gender we were assigned at birth, the gender we choose, the …

Table Of Contents, Volume 5, Number 1, 2006, Editorial Board

The University of New Hampshire Law Review

Table of Contents for Volume Five, Issue Number One.

Protecting Parent-Child Relationships: Determining Parental Rights Of Same-Sex Parents Consistently Despite Varying Recognition Of Their Relationship, Linda S. Anderson

The University of New Hampshire Law Review

[Excerpt] “The family and parental relationship appears secure as long as the members of the family stay within the borders of the states that recognize their relationship. What happens, though, when the family ventures beyond the borders of Vermont, Massachusetts, California, and Connecticut, has yet to be determined. Legislation in almost every other state has addressed whether each state will recognize the couples’ relationship,27 but no state has determined how it will treat the legal relationship between the children of these couples and their parents.28 This article will focus on the fragile legal relationship between same-sex parents and their children …

On Conflict Of Human Rights, Xiaobing Xu, George Wilson

The University of New Hampshire Law Review

[Excerpt] “This article supports Gewirth’s view: that is, the reason why utilitarian values such as national security, public safety, public order, public health, and public morality may outweigh human rights is that they contain human rights elements. Thus, as a rule, whenever human rights clash with nonrights value considerations, we should analyze whether they contain human rights elements. If they do, they may override human rights that conflict with them. If they do not, they cannot.”

From At&T To Brand X Declining Checks And Balances In An Increasingly Complex Marketplace, Ross G. Hicks

The University of New Hampshire Law Review

When President Clinton signed the Telecommunications Act of 1996, he used the same pen that President Eisenhower used to sign legislation for the Interstate Highway system into law. It was a fitting analogy. In the same way that the interstate road system was expected to open up interstate commerce, the Internet system was expected to open up electronic commerce. In signing the 1996 legislation into law, President Clinton and Congress were updating the regulatory and legislative framework to adapt it to the new realities and opportunities provided by the Internet. The legislation noted that broadband access to the Internet was …

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

The University of New Hampshire Law Review

[Excerpt] “At first blush, donating body parts in the name of science appears to be a beautiful solution to the problem of scarce body parts for research advancements. But a closer investigation reveals an ugly fact: the philanthropic donors—referred to as “Sources” in this article—are subjected to physical and financial exploitation.

Sources play a crucial and indispensable role in biotechnology. Without human body parts, most medical discoveries would not have been possible. Handsome profits can be derived from successful discoveries. But currently in the United States, when a Source provides body parts for research purposes, the researcher, research foundation, and …

The Five Indicia Of Virtual Property, Charles Blazer

The University of New Hampshire Law Review

[Excerpt] “Many Americans use “it” every day. Although it is intangible, it may be worth thousands of dollars. Because we can both control it and prevent other people from controlling it, we assume, without much thought, that we own it. Sometimes we pay someone a monthly fee to hold it for us. Sometimes, simply by using it, we increase its value. When we finish using it, we often sell it.

“It” is virtual property, and it may take the form of an email address, a website, a bidding agent, a video game character, or any number of other intangible, digital …

Masthead, Volume 4, Number 3, 2006, Editorial Board

The University of New Hampshire Law Review

Masthead for Volume Four, Issue Number Three.

Table Of Contents, Volume 4, Number 3, 2006, Editorial Board

The University of New Hampshire Law Review

The articles in this issue are devoted to the practice of law in New Hampshire.

Revisiting The Scrap Heap: The Decline And Fall Of Smith V. F.W. Morse & Co., Parker B. Potter Jr.

The University of New Hampshire Law Review

[Excerpt] "One of the more difficult tasks facing a federal court is trying to predict how a state’s highest court would rule on a question of law it has not yet addressed. That difficulty is well illustrated by the history of Wenners v. Great State Beverages, Inc., and in particular, the interpretation of that opinion contained in Smith v. F.W. Morse & Co. [ . . . ]

This article begins with a close examination of Wenners and the two opinions on which Wenners relied for its now-canonical statement of the relationship between statutory and common law remedies. I continue …

New Hampshire Got It Right: Statutes, Case Law And Related Issues Involving Post- Secondary Education Payments And Divorced Parents, Ryan C. Leonard

The University of New Hampshire Law Review

[Excerpt] “Divorced parents in New Hampshire can rest a little easier these days. While there are a myriad of economic reasons why a divorce can become contentious, financing a child’s college education can no longer be included among those reasons. In January 2004, in a rather bold and unconventional move, the New Hampshire legislature overruled years of legal precedent and enacted a new statutory amendment that should alleviate some of the financial pressures divorced parents inevitably face. The amendment, RSA § 458:17(XI-a), is a victory for divorcees across the state because it prohibits superior court judges from issuing orders forcing …

What’S The Hang Up? The Future Of Voip Regulation And Taxation In New Hampshire, Kate Winstanley

The University of New Hampshire Law Review

Alice in Austria wishes to call her friend Bob in Boston, using a Boston area code to avoid charges for an international call. Using VoIP, Alice may initiate her call from any location in Austria where she may find Internet access. Once Alice connects to the Internet, she can transmit her call with the aid of a VoIP service provider, such as Skype. In order to hear and communicate with Bob, Alice can rely on a microphone and a headset that she can plug into her computer. Through VoIP, not only may Alice carry on a telephone conversation, but most …

Franklin Pierce Law Center: Leading The Way In Legal Education For New Hampshire, John D. Hutson

The University of New Hampshire Law Review

[Excerpt] "This issue of the Pierce Law Review is the first devoted entirely to the practice of law in New Hampshire. This venture is appropriate because the Franklin Pierce Law Center is the only law school in the State. We are truly New Hampshire’s law school. Our Trustees, faculty, staff, and students feel this responsibility profoundly. Pierce Law serves as both a state law school and a national and international school. While we send a greater percentage of our graduates out of state than any other law school in the country except one, our alumni comprise fully one-third of the …

Administrative Agencies: A Comparison Of New Hampshire And Federal Agencies’ History, Structure And Rulemaking Requirements, Scott F. Johnson

The University of New Hampshire Law Review

[Excerpt] "In this day and age it is difficult to think of anything that is not regulated in some way by a state or federal agency. State and federal agencies routinely make decisions that impact our daily lives. The air we breathe, the water we drink, the food we eat, the clothes we wear, and the places where we live and work are all regulated to some extent.

Agencies sometimes regulate things in ways that lead to strange results. For example, New Hampshire, state regulations allow anyone to own a yak, a bison, a wild boar, or an emu, but …

New Hampshire’S Claremont Case And The Separation Of Powers, Edward C. Mosca

The University of New Hampshire Law Review

[Excerpt] "Court decisions involving the adequacy of public education raise some obvious separation of powers problems. These include the institutional competency of courts to determine what level of education is adequate and how much funding is necessary to reach that level, and the authority of courts to enforce such judgments. This article will examine these problems through New Hampshire’s serial education funding litigation, the Claremont case. [. . .]

I will start by briefly reviewing the history of education funding litigation because this context is essential to understanding the Claremont case. I will then undertake a limited review of the …

Table Of Contents, Volume 4, Number 2, 2006, Editorial Board

The University of New Hampshire Law Review

Table of Contents for Volume Four, Issue Number Two.

Reply - Overruling Ins V. Chadha: Advice On Choreography, Seth Barrett Tillman

The University of New Hampshire Law Review

No abstract provided.

Conflicts Between The Massachusetts Supreme Judicial Court And The Legislature: Campaign Finance Reform And Same-Sex Marriage, Mark C. Miller

The University of New Hampshire Law Review

[Excerpt] "This article will examine recent interactions and dialogues between the Supreme Judicial Court of Massachusetts (“SJC” or “Supreme Judicial Court”) and the Massachusetts State Legislature. The interactions between courts and legislatures are often cordial, but sometimes these interactions are also highly conflictual. During the 1980s and 1990s, the relationship between the Massachusetts legislature and the Supreme Court was indeed mainly cooperative. Recently, however, in several high profile cases the Supreme Court has been willing to challenge directly the decisions of the legislature and vice versa. Among other controversies, the Court’s 2002 decision requiring that the state legislature fund the …

Fixing Fisa For Long War: Regulating Warrantless Surveillance In The Age Of Terrorism, Adam Burton

The University of New Hampshire Law Review

[Excerpt] “The English poet W.H. Auden once claimed that “Peeping Toms are never praised, like novelists or bird watchers, for the keenness of their observations.” Perhaps Auden would have modified his maxim had he lived in the age of terrorism. A certain degree of government surveillance of even intimate communications is expected, encouraged, and indeed praised when the government’s efforts lead to the prevention of catastrophe. However, it is also expected that the government will minimize these intrusions, will conduct surveillance only on legitimate targets, and will follow the procedural safeguards that the representatives of the people have enacted in …

Masthead, Volume 4, Number 2, 2006, Editorial Board

The University of New Hampshire Law Review

Masthead for Volume Four, Issue Number Two.

Legislative Delegation And Two Conceptions Of The Legislative Power, Robert C. Sarvis

The University of New Hampshire Law Review

[Excerpt] "The current federal government, with its burgeoning administrative agencies, does not embody what most Americans would recognize as the constitutional doctrine of separation of powers. This is, in part, due to the Congress’s frequent practice of delegating legislative powers to the executive branch, i.e., giving administrative agencies the power to promulgate rules regulating private behavior and having the force of law. Legislative delegation has been the subject of academic, legal, and political wrangling since the early congresses and clearly calls into question whether modern practice adheres to constitutional norms. This article discusses legislative delegation in terms of some core …

Does Changing The Definition Of Science Solve The Establishment Clause Problem For Teaching Intelligent Design As Science In Public Schools? Doing An End-Run Around The Constitution, Ann Marie Lofaso

The University of New Hampshire Law Review

[Excerpt] "When Charles Darwin published On the Origin of Species By Means of Natural Selection in 1859, it sparked some of the most contentious debates in American intellectual history, debates that continue to rage today. Although these debates have numerous political ramifications, the question posed in this paper is narrow: Does the Establishment Clause permit a particular assessment of current evolutionary theory – intelligent design (“ID”) – to be taught as science in American elementary and secondary public schools? This article shows that it does not.

To understand current disputes over whether and how to teach the origins of life …

Holmes And The Bald Man: Why Rule Of Reason Should Be The Standard In Sherman Act Section 2 Cases, William J. Michael

The University of New Hampshire Law Review

[Excerpt] "It has been argued that the antitrust laws’ legislative history supports the notion that the laws were meant to prohibit anticompetitive price cuts – regardless of whether they are below cost. Thus, predatory pricing claims used to turn simply on whether the allegedly predatory price was intended to harm rivals. In fact, liability for predatory price discrimination was found without requiring probable or actual monopolization. Yet some cases brought early under Section 2 suggest that below cost pricing was indicative of, if not proof of, the type of conduct Section 2 prohibits. The results under this old scheme were …

Unh Law Alumni Magazine, Summer 2006, University Of New Hampshire School Of Law

UNH Law Alumni Magazine

No abstract provided.

Comment - Assuring Continuity Of Government, Sanford Levinson

The University of New Hampshire Law Review

Reply to Seth Tillman's article , Comment - Assuring Continuity of Government, 4 Pierce L. Rev. 201 (2006), available at http://scholars.unh.edu/unh_lr/vol4/iss2/4

[Excerpt]”What makes Tillman’s proposal distinctive, and important, is that it presents a statutory solution to at least aspects of the problem. It is an audacious proposal well worth discussing at greater length than I have time for in preparing this brief comment. Before turning to the specifics of his proposal, though, it is worth spelling out the possible situation that underlies the concern displayed by an increasing number of thoughtful Americans about the issue of continuity in government. […] …

Model Continuity Of Congress Statute, Seth Barrett Tillman

The University of New Hampshire Law Review

[Excerpt] "Although, the reasoning of Chadha arguably extends to actions taken pursuant to this Model Statute, the facts of any litigation arising from this Model Statute are substantially different from the facts of Chadha. Unlike Chadha, all orders, resolutions, and votes made pursuant to this Model Statute are presented. Any litigation arising under this Model Statute will permit lower courts to take a fresh look at Chadha’s bicameralism rationale apart from the presentment issues, which are not at play under the terms of this statute. "

Intellectual Property Management Strategies To Accelerate The Development And Access Of Vaccines And Diagnostics: Case Studies On Pandemic Influenza, Malaria And Sars, Anatole Krattiger, Stanley P. Kowalski, Robert Eiss, Anthony Taubman

Law Faculty Scholarship

Achieving global access to vaccines, diagnostics, and pharmaceuticals remains a challenge. Throughout the developing world, intellectual property (IP) constraints complicate access to critically essential medical technologies and products. Vaccines for malaria and pandemic strains of influenza, as well as diagnostic and vaccine technologies for SARS, are not only relevant to global public health but are particularly critical to the needs of developing countries. A global access solution is urgently needed. This article offers a timely case‐by‐case analysis of preliminary patent landscape surveys and formulates options via patent pools and other forms of creative IP management to accelerate development and access. …