Law Commons^™

Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen

Mark D. Rosen

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework …

From The Dead Hand To The Living Dead: The Conundrum Of Charitable Donor Standing (Symposium), Evelyn Brody

Evelyn Brody

No abstract provided.

Supporting Children, Balancing Lives, Katharine K. Baker

Katharine K. Baker

This paper examines how U.S. child support policy validates traditional divisions of labor and thereby hinders individual attempts to achieve an acceptable work/family balance. It argues that by using the household as the relevant unit of measurement for child support purposes, family law doctrine legitimates the specialization contracts that arise within households. These specialization contracts, used most extensively in wealthy, elite households, undermine attempts to distribute caretaking and provider roles more equally between parents. The article suggest that by dispensing with the household as the relevant unit of measurement and treating all parents individually, each with a responsibility to caretake …

Confusion Over Use: Contextualism In Trademark Law (With M. Janis), Graeme B. Dinwoodie

Graeme B. Dinwoodie

This paper tackles an intellectual property theory that many scholars regard as fundamental to future policy debates over the scope of trademark protection: the trademark use theory. We argue that trademark use theory is flawed and should be rejected. The adoption of trademark use theory has immediate practical implications for disputes about the use of trademarks in online advertising, merchandising, and product design, and has long-term consequences for other trademark generally. We critique the theory both descriptively and prescriptively. We argue that trademark use theory over-extends the search costs rationale for the trademark system, and that it unhelpfully elevates formalism …

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding

Sarah K. Harding

No abstract provided.

The Lamentable Notion Of Indefeasible Presidential Powers: A Reply To Professor Prakash, Harold J. Krent

Harold J. Krent

No abstract provided.

Towards An International Framework For The Protection Of Traditional Knowledge, Graeme B. Dinwoodie

Graeme B. Dinwoodie

At a seminar organized by UNCTAD and the Government of India in 2002, participants considered how evolving national systems for the protection of traditional knowledge could be supported or augmented by international measures adopted at the regional or global level. The need for solutions on the international level has been discussed in a number of fora. Yet, the effective protection of the holders of traditional knowledge requires that these discussions move in some way toward implementation of working systems of protection.

This short paper, commissioned by UNCTAD for a conference in February 2004, and to be republished in a book …

The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen

Mark D. Rosen

Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …

The Charity In Bankruptcy And Ghosts Of Donors Past, Present, And Future (Symposium), Evelyn Brody

Evelyn Brody

The bankruptcy of a charity represents the clash of two policy regimes: charity law's willingness to preserve assets for the public purpose determined by the donor as against bankruptcy law's desire to maximize assets for distribution to creditors. As a general rule, assets will be distributed to creditors; as the courts say, 'a man must be just before he is generous.' However, when a charitable donee goes out of existence or otherwise becomes unable to perform a charitable trust or restricted gift, the courts will try to identify those charitable assets that are restricted in such a manner that they …

Charity Governance: What’S Trust Law Got To Do With It? (Symposium), Evelyn Brody

Evelyn Brody

No abstract provided.

Introduction To Symposium, Who Guards The Guardians?: Monitoring And Enforcement Of Charity Governance (With D. Reiser), Evelyn Brody

Evelyn Brody

No abstract provided.

The Continuity Principle, Administrative Constraint, And The Fourth Amendment, Harold J. Krent

Harold J. Krent

No abstract provided.

Gender And Emotion In Criminal Law, Katharine K. Baker

Katharine K. Baker

No abstract provided.

A Separate Crime Of Reckless Sex, Katharine K. Baker

Katharine K. Baker

This article attempts to make progress on both the problems of sexually transmitted disease and acquaintance rape by proposing a new crime of reckless sexual conduct. A defendant would be guilty of reckless sexual conduct if, in a first sexual encounter with another particular person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant with a preponderance of the evidence. As an empirical matter, first-encounter unprotected sex greatly increases the epidemiological force of sexually transmitted disease and a substantial proportion of acquaintance rape occurs in …

Conflicts And International Copyright Litigation: The Role Of International Norms, Graeme B. Dinwoodie

Graeme B. Dinwoodie

No abstract provided.

The Common Core Of European Private Law: The Project And Its Books, David J. Gerber

David J. Gerber

No abstract provided.

Whose Public?: Parochialism And Paternalism In State Charity Law Enforcement, Evelyn Brody

Evelyn Brody

This piece was inspired by the increasing tendency of State attorneys general – backed up by courts and legislatures – to effectively confiscate the assets of wealthy nonprofits through overreaching enforcement actions. The article develops a legal framework for ascertaining the proper State role. It reviews many case studies including, most notoriously, the thwarted diversification of the Milton Hershey School Trust out of Hershey Foods Corporation (an investment worth over $5 billion) – thereby preserving the local operations of a publicly traded company. While few state attorneys general have the funding and inclination to engage in aggressive charity enforcement, the …

Public Company Shareholders Acting As Owners: Three Reforms--Introducing The "Oversight Shareholder" (With E. Fogel & D. Addis), Edward C. Harris

Edward C. Harris

No abstract provided.

Bargaining Or Biology? The History And Future Of Paternity Law And Parental Status, Katharine K. Baker

Katharine K. Baker

In practice, paternity rulings are remarkably unimportant. With the exception of state welfare authorities pursuing mostly impoverished biological fathers, few paternity actions are brought, few mothers want to bring them and (even with state-sponsored pursuit) very few dollars get transferred to children as a result of them. In theory, however, paternity judgments are very and perniciously important because they keep alive the biological fatherhood ideal, an ideal that has never been reflected in law or fact and that is inconsistent with the emerging law of parental rights and responsibilities. This article challenges the biological fatherhood ideal and suggests that contract, …

Trademarks And Territory: Detaching Trademark Law From The Nation-State, Graeme B. Dinwoodie

Graeme B. Dinwoodie

It is an axiomatic principle of domestic and international trademark law that trademarks and trademark law are territorial. This paper critiques the principle of territoriality in four ways. First, I suggest that statements about trademark territoriality mask a variety of related propositions. In disaggregating the "principle of territoriality" into its component parts, it becomes apparent that different rules of trademark law possess a territorial character for different reasons. For example, common law trademark rights are territorial because the intrinsic purpose of trademark law suggests extending (and limiting) rights to the geographic reach of goodwill. In contrast, registration systems designed to …

Introduction: Law And Cultural Conflict (Symposium Editor), Sarah K. Harding

Sarah K. Harding

No abstract provided.

Cultural Property And The Limitations Of Preservation, Sarah K. Harding

Sarah K. Harding

No abstract provided.

Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen

Mark D. Rosen

It is commonly understood that as a matter of federal law, states' substantive policies may diverge in respect of those matters that are not violative of the United States Constitution. As a practical matter, however, what degree of political heterogeneity among states is possible vis-a-vis substantive policies that are not unconstitutional? The answer to the question turns in large part on whether states, if they so choose, can regulate their citizens even when they are out-of-state. If they cannot, citizens can bypass their home state’s laws by simply traveling to a more legally permissive state to do there what is …

Access To Justice For The Self-Represented Litigant: An Interdisciplinary Investigation By Designers And Lawyers (With P. Hannaford), Ronald W. Staudt

Ronald W Staudt

No abstract provided.

Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody

Evelyn Brody

Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights …

The Twilight Of Organizational Form For Charity: Musings On Norman Silber, A Corporate Form Of Freedom: The Emergence Of The Modern Nonprofit Sector (Book Review), Evelyn Brody

Evelyn Brody

No abstract provided.

The Rational Limits Of Trademark Law (Plus 2005 Postscript), Graeme B. Dinwoodie

Graeme B. Dinwoodie

No abstract provided.

"Touchy" "Feely" -- Is There A Constitutional Difference? The Constitutionality Of "Prepping" A Passenger's Luggage For A Human Or Canine Sniff After Bond V. United States, David S. Rudstein

David S Rudstein

No abstract provided.

Conditioning The President's Conditional Pardon Power, Harold J. Krent

Harold J. Krent

No abstract provided.

Laidlaw: Redressing The Law Of Redressability, Harold J. Krent

Harold J. Krent

No abstract provided.