Law Commons^™

A Theory Of Stability: John Rawls, Fetal Homicide, And Substantive Due Process, Luke Milligan

Luke Milligan

How To Use Philosophy, Economics And Psychology In Jurisprudence: The Case Of Paternalism In Contract Law, Peter Cserne

Péter Cserne

In this paper I discuss the conceptual and methodological background of an economic approach to paternalism in contract law. This should serve as a case study to a more general problem: the uses and abuses of inter- and multidisciplinary research in jurisprudence, i.e. the proper scope of the non-doctrinal analysis of legal issues. Freedom of contract and paternalism are concepts eminently important in legal theory. I will argue that to evaluate this importance, legal scholarship should take into account not only political philosophy but economics and cognitive psychology as well. In the complex interrelations of empirical research, theoretical models and …

State Habeas Relief For Federal Extrajudicial Detainees, Todd E. Pettys

Todd E. Pettys

I argue that the Court’s nineteenth-century rulings in Ableman v. Booth and Tarble’s Case marked a little-known but sharp break with state courts’ decades-long practice of granting habeas relief to federal extrajudicial detainees. I contend that the Court’s reasoning in those cases is unpersuasive, and that modern efforts to rationalize those cases’ outcomes fare no better. I also argue that the Suspension Clause bars Congress from stripping state courts of their power to grant habeas relief to persons being extrajudicially detained by federal authorities.

Can Our Community “Afford” This Bond Issue For Our School? Proposed Factors For Determining Affordability Of School Building Projects, Jeff Abbott

Jeff Abbott

This paper explores the literature of whether a community can afford a public school bond issue. This paper sets forth recommended criteria to determine community affordability of local bond issues.

The Anthropologist As Progressive Reformer: Franz Boaz And The Scientific Battle Against American Racism, Thomas J. Horton

Thomas J. Horton

This thesis discusses Franz Ur Boas's legacy as an anthropologist and progressive social reformer in battling racism in early twentieth-century America. The hypothesis affirms that Boas, " the father of American anthropology," developed the science of anthropology with the progressive goal of building scientific support for the cultural values of equal opportunity and cultural pluralism.

Lawyers And Great Expectations In Pakistan, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Post Ksr V. Teleflex: Is Anything Invented Patentable Anymore?, Adam R. Stephenson

Adam Stephenson

The Supreme Court's 2007 KSR v. Teleflex decision greatly broaded the definition of "obviousness" under 35 U.S.C. 103. The U.S. Patent and Trademark Office's expansively interpreted the case to overturn a number of key Federal Circuit cases relied heavily upon by patent practitioners. In view of the USPTO's position, can any invention be patented?

Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster

Ian Ayres

The Supreme Court’s affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of “narrow tailoring.” While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in Grutter …

Substitutes For Insider Trading, Ian Ayres, Joseph Bankman

Ian Ayres

When insider trading prohibitions limit the ability of insiders (or of a corporation itself) to use material non-public information to trade a particular firm’s stock, there may be incentive to use the information to trade instead on the stock of that firm’s rivals, suppliers, customers, or the manufacturers of complementary products. We refer to this form of trading as trading in stock substitutes. Stock substitute trading by a firm is legal. In many circumstance, substitute trading by employees is also legal. Trading in stock substitutes may be quite profitable, and there is anecdotal evidence that employees often engage in such …

The Public Enemy: Eyewitness Experts, Timothy O'Neill

Timothy P. O'Neill

Bargaining With The State: Offsets And Mitigation In Developing Land, Robert D. Cooter

Robert Cooter

According to the economic theory of bargaining, each party to a voluntary agreement must receive at least the amount that he can get on his own (“threat value”), plus a share of the surplus from the bargain. Courts frequently monitor bargains between citizens and the state. To protect citizens, the courts should focus on the fairness and efficiency of the threat points of the citizens. Unfortunately, courts often focus on the terms of the agreement, not the threat points. The wrong focus leads courts to impose rules that block bargains that would benefit both parties. I analyze an example where …

Symbolic Speech: A Message From Mind To Mind, James Mcgoldrick

James M McGoldrick Jr.

Some expressive conduct is treated as speech, and some as just conduct, but there is no clear way to tell them apart. A gesture of a middle finger thrust into the air, directed from one driver to another driver, seems to be speech at its purest form without either noise or tangible remains. The message moves effortlessly from enclosed metal and glass across lanes of traffic into the enclosed space of another, all with little difficulty, yet with great force and often psychic injury. Still, no one would think that all of the symptoms of road rage–tailgating, aggressive lane changes, …

Making Money Making Music, Alan E. Garfield

Alan E Garfield

No abstract provided.

Equal Rights For Equal Rites?: Victim Allocution, Defendant Allocution, And The Crime Victims' Rights Act, Mary Margaret Giannini

Mary Margaret Giannini

The federal Crime Victims’ Rights Act (CVRA) grants victims the right to be reasonably heard at sentencing. In the course of examining this right, courts and commentators have referenced the defendant’s analogous right of sentencing allocution as a model or benchmark for the victim’s sentencing right. However, beyond the invocation of the defendant’s corollary right, there has been little analysis of whether defendant allocution does in fact serve as a model for victim allocution. This piece examines with particularity how victim allocution under the CVRA is currently being practiced in the federal courts, and how that practice compares to defendant …

Congressional Briefing Session, J. Leonard

J. Rich Leonard

No abstract provided.

Statement Of Steven L. Chanenson Before The United States Sentencing Commission Regarding Retroactivity Of Crack Guidelines Amendments, Steven Chanenson

Steven L. Chanenson

No abstract provided.

Should Or Must? Nature Of The Obligation Of States To Use Trade Instruments For The Advancement Of Environmental, Labor, And Other Human Rights, Stephen Powell

Stephen Joseph Powell

States have been careful to couch their human rights commitments in terms that avoid binding and measurable actions to ensure the human rights either of their own citizens or those in other countries. Despite the promise of a dozen U.N. treaties, states continue to equivocate as to measures necessary to meet critical individual needs. This essay argues that, nonetheless, the question whether economically powerful states may be held to human rights observance is not solely moral in nature. Instead, through a combination of treaties, custom, and historical facts, the human rights obligation of developed states has taken on penumbral legal …

When Is Enough Too Much? The Broadcast Decency Enforcement Act Of 2005 And The Eighth Amendment’S Prohibition On Excessive Fines, Amy Sanders

Amy Kristin Sanders

A New Era For Corporate Law: Using Corporate Governance Law To Benefit All Stakeholders, Kent Greenfield

Kent Greenfield

No abstract provided.

Stakeholder Engagement Strategies For Designating New Zealand Marine Reserves: A Case Study Of The Designation Of The Auckland Islands (Motu Maha) Marine Reserve And Marine Reserves Designated Under The Fiordland (Te Moana O Atawhenua) Marine Management Act 2005, James Mize

James Mize

In recent years, marine reserves (areas of the sea where no fishing is allowed) have enjoyed increased popularity with scientists and agencies charged with management of ocean and coastal resources. Much scientific literature documents the ecological and biological rationale for marine reserves, but scholars note the most important consideration for successful establishment reserves is adequate involvement of the relevant stakeholders in their designation. Current guidance for proponents of marine reserves suggests that to be successful, reserves should be designated using “bottom-up” processes favouring cooperative management by resource-dependent stakeholders, as opposed to “top-down” approaches led by management agencies and international conservation …

Mississippi River Stories: Lessons From A Century Of Floods And Hurricanes, Sandra Zellmer, Christine Klein

Sandi Zellmer

n the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

Marisa Cianciarulo On Matter Of A-T-, 24 I. & N. Dec. 296, Marisa Cianciarulo

Marisa S. Cianciarulo

No abstract provided.

Preaching To The Uncoverted: America's Need For Skilled Foreign Workers, Michele Pistone, John Hoeffner

Michele R. Pistone

No abstract provided.

Lincoln's Second Inaugural Address: Framing The Dialogue Between Secularists And Theists In The United States Today, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

How Can We Improve Drug Safety?, Robert I. Field

Robert I. Field

No abstract provided.

Technological Convergence And Competition On The Edge - „Emerging Markets“ And Their Regulation, Andrea Stazi

Andrea Stazi

Technological convergence, on the one hand, tends to point out new roles - and sometimes also markets - for the players in the communications industry, producing the segmentation of different functions and phases in the value chain. On the other hand, technological convergence could bring forth numerous specific antitrust issues, such as an increase in the market power of the suppliers of more appealing services or contents, or a premature foreclosure of the new market due to leveraging of the power maintained by a company in another market. A topic of particular interest, till now quite neglected by legal doctrine, …

State Sponsored Armed Conflict: The Salwa Judum And The State Of Chattisgarh, Aditya Swarup

Aditya Swarup

No abstract provided.

The Massillon Academic Success Project: An Investigation Of How Disadvantaged African American Students Can Rise Above Barriers To Academic Achievement, Oscar T. Mcknight

Oscar T McKnight Ph.D.

No abstract provided.

Do's, Don'ts, And Maybes: Legal Writing Grammar—Part I, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

A Trio Of Cases Examining Collateral Review And The General Aviation Revitalization Act, Shelley A. Ewalt

Shelley A. Ewalt

The General Aviation Revitalization Act (GARA) was enacted specifically to address a severe economic downturn in the general aviation industry. It produced spectacular results and today the industry is booming. Two recent court decisions from the Pennsylvania Supreme Court and the Third Circuit examine whether defendants in GARA cases should be afforded the additional protection of granting collateral review of summary judgment motions. Collateral review has traditionally been employed in sovereign immunity and criminal cases, but these cases show courts struggling with whether collateral review should be extended to the products liability arena.