Law Commons^™

The British Unregistered Design Right: Will It Survive Its New Community Counterpart To Influence Future European Case Law?, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Libro De Consulta N° 2: "Sistema Interamericano De Derechos Humanos. Aspectos Institucionales Y Procesales", David A. Ortiz Gaspar

Prof. David Aníbal Ortiz Gaspar.

No abstract provided.

Acquisition Of Living Things By Specification, Ernest Metzger

Ernest Metzger

Ownership of the product of living things, such as human tissue or cultures developed from human cells, is difficult for the law to determine. Civilian jurisdictions, with their legal heritage grounded in Roman law, offer one solution. Civilian jurisdictions would resolve such cases under the rules of specification. A recent case from the Outer House of the Scottish Court of Session (Kinloch Damph Ltd v Nordvik Salmon Farms Ltd) addresses the problem. The case was properly decided, though the grounds of the decision could be improved. Specifically, on civil law principles, civilian courts ought to award ownership of a living …

Roman Judges, Case Law, And Principles Of Procedure, Ernest Metzger

Ernest Metzger

Roman law has been admired for a long time. Its admirers, in their enthusiasm, have sometimes borrowed ideas from their own time and attributed them to the Romans, thereby filling some gap or fixing some anomaly. Roman private law is a well known victim of this. Roman civil procedure has been a victim as well, and the way Roman judges are treated in the older literature provides an example. For a long time it has been accepted, and rightly so, that the decision of a Roman judge did not make law. But the related, empirical question, whether Roman judges ever …

Regulating Electronic Contracts: Comparing The European And North American Approaches, Andrew D. Murray

Professor Andrew D Murray

The development of on-line retailing (or e-tailing) is an essential element of the commercial development of Cyberspace and has provided the foundation of a flourishing online business community. The ability to enter into and perform contracts online is at the heart of this development. Without the certainty offered by a legal obligation to supply goods or services consumers may feel exposed, leading to faltering consumer confidence in electronic commerce with potentially harmful economic consequences. This paper compares how the two leading e-commerce trade blocs, the European Union and the United States have dealt with these challenges. It will highlight the …

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan’S Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Carlo A. Pedrioli

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

A New Image In The Looking Glass: Faculty Mentoring, Invitational Rhetoric, And The Second-Class Status Of Women In U.S. Academia, Carlo A. Pedrioli

Carlo A. Pedrioli

This article maintains that because Title VII alone does not have the ability to further the progress women have made in academic hiring, retention, and promotion, looking to remedies in addition to Title VII will be advantageous in helping to improve the status of women in U.S. academia. The article suggests as an additional remedy the implementation of faculty mentoring opportunities for junior female faculty members. A key way of initiating and furthering such mentoring opportunities is a type of discourse called invitational rhetoric, which is “an invitation to understanding as a means to create...relationship[s] rooted in equality, immanent value, …

False Advertising, Animals, And Ethical Consumption, Carter Dillard

Carter Dillard

In light of the fact that today's consumers often want their products to be created in the most environmentally, globally, and animal friendly ways possible, unethical sellers sometimes succumb to the incentive to persuade consumers that goods were created more ethically than they actually were. False advertising law represents a rare, albeit roundabout, legal opening for animal advocates to deal with issues of animal mistreatment, regardless of legislative and executive branch disregard of the importance of animal protection. Whether there is a beneficial change in the law or not, current opportunities in the market for these cases should be sought …

Statutes Of Limitations In Securities Arbitrations: Who Decides?, Barry R. Temkin

Barry R. Temkin

The U. S. Supreme Court has decided that NASD arbitrators must decide the applicability of the 6 year eligibility rule in the NASD Code of Arbitration Procedure. But who decides the applicability of substantive statutes of limitation in underlying claims, the courts or arbitrators? A New York statute allows a court to determine a substantive statute of limitations, while federal precedents are not in complete accord. Note that recent developments in the law and the adoption in 2007 of the new NASD Customer Code has superseded some of the precedents described in this unpublished article.

El Surgimiento De Un Poder Judicial Efectivo En México: Gobierno Dividido Y Toma De Decisiones En La Suprema Corte De Justicia, 1994-2002, Julio Ríos-Figueroa

Julio Ríos-Figueroa

No abstract provided.

Vergelding: Een Kernbegrip Van Het Strafrecht ?’, [Retribution: A Fundamental Concept Of Criminal Law ?], Serge Gutwirth, Paul De Hert

Serge Gutwirth

Waarom zou vergelding evident zijn als grondslag voor het strafrecht ?

Droit Et Cosmopolitique. Notes Sur La Contribution De Bruno Latour À La Pensée Du Droit, Laurent De Sutter, Serge Gutwirth

Serge Gutwirth

Dans La fabrique du droit, l’anthropologue et philosophe Bruno Latour opère un déplacement considérable des catégories de la pensée juridique, lequel entraîne aussi une révision importante de la place qu’occupe le droit au sein de la philosophie politique des démocraties occidentales. Rendu à son constructivisme et à la modestie des petits liens qu’il tisse dans la multiplication des passages qui construisent une affaire, le droit devient une pratique capable de mettre de côté les questions de norme et de justice, de morale et de deuil pour prendre en charge la construction de ce par quoi il est ordinairement expliqué : …

La Sociedad De Gananciales Y Las Uniones De Hecho En El Perú, Olga Maria Castro Perez Treviño

Olga Maria Castro Perez Treviño

Como punto de partida nos parece pertinente señalar que en la comunidad internacional, a nivel social, en la doctrina jurídica e incluso en la legislación, las uniones extramatrimoniales heterosexuales se consideran un tipo de familia cada vez más extendido en la que los dos miembros asumen una voluntad de continuidad en una relación afectiva y sexual con el objeto de alcanzar finalidades y cumplir deberes semejantes a los del matrimonio bajo ciertas condiciones: cohabitación, exclusividad, estabilidad, vocación de perdurabilidad y publicidad en la convivencia. Respecto a las uniones homosexuales el panorama no es uniforme, pues la consideración de familia a …

Divisão De Assistência Judiciária Da Faculdade De Direito Da Ufmg: Ações Para Mais Cidadania, Rafael De Oliveira Alves, Danilo Castro, Délia Carvalho, Edílson Lima, Júlio Zini

Rafael de Oliveira Alves

No abstract provided.

Is Transnational Litigation Different?, Samuel P. Baumgartner

Samuel P. Baumgartner

During the last fifteen years, there has been a growing interest in litigation transcending national borders. Yet, both in the United States and in Europe, where this interest is much older, a comprehensive intellectual framework to deal with this type of litigation is hard to find. In fact, courts and procedural law reformers still approach transnational cases in the same fashion as purely domestic ones, adjusting the concepts of domestic law where they believe it necessary. This has created significant problems both for litigants seeking justice in transnational cases and for lawmakers fashioning policy specifically for the transnational setting.

In …

Virtual Child Pornography - A United States Update, Susan Duncan

Susan Duncan

This article summarizes United States' legislation up to 2004 which sought to regulate child pornography.

Race, Corporate Law, And Shareholder Value, Thomas W. Joo

Thomas W Joo

Racial justice is becoming a taboo subject, which often has to be explained and justified in nominally “race-neutral” terms. The rhetorical strategy of linking diversity to the bottom line is potentially powerful in the current political and cultural climate. But the strategy also has limitations and costs. It is not clear that diversity and improved corporate performance always go hand in hand. Furthermore, as a matter of corporate law doctrine, even strong evidence of a correlation between the two would not necessarily constitute a basis to compel corporations to take any action to further racial justice. Finally, there is a …

Extraterritorial Jurisdiction: Can Rico Protect Human Rights? A Computer Analysis Of A Semi-Determinate Legal Question, Eric A. Engle

Eric A. Engle

Uses AI to model RICO racketeering law to examine an uncertain area of law: Whether RICO gives a private right to damages for extraterritorial wrongs.

An Introduction To Artificial Intelligence And Legal Reasoning: Using Xtalk To Model The Alien Tort Claims Act And Torture Victim Protection Act, Eric A. Engle

Eric A. Engle

This paper presents an introduction to artificial intelligence for legal scholars and includes a computer program that determines the existence of jurisdiction, defences, and applicability of the Alien Tort Claims Act and Torture Victims Protection Act. The paper includes a discussion of the limits and implications of computer programming in formal representations of the law. Concluding that formalization of the law reveals implicit weaknesses in reductionist legal theories, this paper emphasizes the limitations in practice of such theories.

The Torture Victim's Protection Act, The Alien Tort Claims Act, And Foucault's Archaeology Of Knowledge, Eric A. Engle

Eric A. Engle

Outilnes the procedural obstacles to Alien Tort Statute Claims and discusses how to surmount them. Relates ATS to Foucaults power-knowledge and power-body discourses.

Extract From W.J. Stewart's "Collins Dictionary Of Law" Defining "Order Resolution Or Vote", Seth Barrett Tillman

Seth Barrett Tillman

This is an extract from W.J. Stewart's Collins Dictionary of Law. The entry for "order resolution or vote" can be found under "Download the Paper." The preface can be found below under "Related Files."

See W.J. Stewart, Collins Dictionary of Law, at i & 317 (Glasgow, HarperCollins 3d ed. 2006).

[August 5, 2010]

Intimidated Victims & Witnesses: Treated With Hostility, Saumya Uma

Saumya Uma

This article advances the need for an Indian legal regime for protecting the interests of victims and witnesses. It draws from international standards and experiences of other countries, grounding the same in the contemporary Indian context.

'Moral Rights And Their Application To Australia: A Book Review' (2004) 32 (2) The Federal Law Review 331-336, Matthew Rimmer

Matthew Rimmer

In Moral Rights and Their Application in Australia, Maree Sainsbury offers a summary of the new moral rights regime established in Australia in 2000. It is a decent guide and handbook to moral rights for legal practitioners, the authors of copyright work, and the users of copyright material. As the author notes:

"The Australian moral rights legislation impacts on the rights and obligations of many people in diverse circumstances, from the creator of a highly unique work of art to the designer of a web site incorporating factual information or graphics which someone else has created. Any person creating or …

Still Part Of The Clan: Representing Elders In The Family Law Practice, Sy Moskowitz

Seymour H. Moskowitz

No abstract provided.

Self-Organizing Legal Systems: Precedent And Variation In Bankruptcy, Bernard Trujillo

Bernard Trujillo

Models of legal ordering are frequently hierarchical. These models do not explain two prominent realities: (1) variation in the content of a legal system, and (2) patterns of non-hierarchical ordering that we observe. As a supplement to hierarchical explanations of legal order, this Article, drawing from physical and social science research on complex systems, offers a self-organizing model. The self-organizing model focuses on variation in the content of legal systems and attempts to explain the relationship between that variation and patterns of ordering. The self-organizing model demonstrates that variation and ordering are not opposite categories, but rather constitute one continuous …

Valuation In Veterinary Malpractice, Rebecca J. Huss

Rebecca J. Huss

This article begins with a description of veterinarians and the status of veterinary malpractice. Next, the article considers the elements and key issues involved in veterinary malpractice. The article then analyzes the current law relating to damages available in veterinary malpractice suits. Finally this paper considers whether the way current damage calculations are being made is apprpriate and advocates the the adoption of statutory provisions allowing capped non-economic damages in these cases.

Jurisprudential Revolution Unlocking Human Potential In Lawrence And Grutter, Wilson R. Huhn

Wilson R. Huhn

The decisions of the Supreme Court in Lawrence v. Texas and Grutter v. Bollinger, stripped to their bare holdings, have little immediate effect on existing law. After Grutter, colleges and graduate schools will continue to take race into account in admitting students to enroll a diverse student body, just as they have done for the past quarter century in conformity with Justice Lewis Powell's opinion in Regents of the University of California v. Bakke. After Lawrence, laws against gay sex may no longer be enforced, but only a handful of states still had these laws on the books at the …

Scienter, Causation, And Harm: The Right-Hand Side Of The Constitutional Calculus, Wilson R. Huhn

Wilson R. Huhn

But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.

Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional. Instead, to determine the constitutionality of laws restricting expression, the Court has …

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Wilson R. Huhn

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul …