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Articles 1 - 25 of 25
Full-Text Articles in Law
Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein
Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein
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The states' provision of tax incentives designed to encourage economic development within their borders has long been a feature of the American legislative landscape. Today every state provides tax incentives as an inducement to local industrial location and expansion. Indeed, scarcely a day goes by without some state offering yet another tax incentive to spur economic development, often in an effort to attract a particular enterprise to the state.
The debate over the efficacy and wisdom of state tax and other business incentives is intense and important, as other articles in this Symposium plainly reveal. My purpose here, however, is …
A Response To Mr. Y'Barro's Reply, L. Ray Patterson
A Response To Mr. Y'Barro's Reply, L. Ray Patterson
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Copyrightists would do themselves -- and the law -- a great favor by joining in the search for the proper solution without focussing on how to use copyright law to enhance guaranteed profits, even though the effort entails the abuse of constitutional rights and corruption of the learning process. They should accept the fact that first amendment protections are not embedded in copyright law; that the public interest is an important component of copyright law; and that the consumer/competitor distinction is important for the proper administration of copyright law.
Modern Discrimination Theory And The National Labor Relations Act, Rebecca H. White
Modern Discrimination Theory And The National Labor Relations Act, Rebecca H. White
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This Article explores the concept of discrimination under the NLRA [National Labor Relations Act]. Specifically, it examines discrimination under the statute through the lens of Title VII, an approach that brings a fresh perspective to doctrine long considered settled. The purpose of this comparison is to explore the extent to which Title VII's discrimination concepts make sense under the NLRA. This analysis focuses on three specific areas. First, it examines discrimination cases under section 8(a)(1), concluding that the lower courts are wrong to apply Title VII concepts and to insist that without disparate treatment of union activities, no unlawful discrimination …
"Possessing With Intent To Distribute" Under The Schoolyard Statute, Sonja R. West
"Possessing With Intent To Distribute" Under The Schoolyard Statute, Sonja R. West
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This Comment proposes that courts should explicitly rather than implicitly distinguish the different types of defendants accused of possession with intent to distribute controlled substances within a school zone. Part I reviews the current state of the law on this issue and presents the legislative history and textual arguments involved in the debate over the mens rea requirement. Part II examines the factual circumstances at issue in the relevant cases and concludes that these factual circumstances, rather than competing statutory interpretations, lead to *1401 the different results. Finally, Part III emphasizes the need to recognize these implicit categories of offenses …
Regents Guide To Understanding Copyright And Educational Fair Use, L. Ray Patterson
Regents Guide To Understanding Copyright And Educational Fair Use, L. Ray Patterson
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The Regents Guide to Copyright and Educational Fair Use, adopted by the Regents of the University System of Georgia, is the most comprehensive statement on copyright and educational fair use ever adopted by a major university system. The purpose of this comment is to provide a brief background for readers and users of the document.
The Regents Copyright Committee, appointed by Dr. James Muyskens, Senior Vice Chancellor for Academic Affairs, University System of Georgia, continues in existence and has eight members, who represent a cross-section of the university community, and include administrators (two of whom are lawyers), faculty (two of …
Curses, Oaths, Ordeals And Tials Of Animals, Alan Watson
Curses, Oaths, Ordeals And Tials Of Animals, Alan Watson
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To the outsider, a foreign legal system may at times appear irrational, with a belief in the efficacy, usually with supernatural assistance, of curses, oaths and ordeals, and that animals may properly be punished, even restrained from anti-human behaviour, after a criminal trial. But caution must be exercised. There may be little real belief that the deity will intervene-for instance, that the ordeal will reveal guilt or innocence. Rather, the society may be faced with an intolerable problem, with no reasonable solution, and the participants may resort to extraordinary legal measures as a "Last Best Chance", or "The Second Best". …
Georgia's Professional Malpractice Affidavit Requirement, Robert D. Brussack
Georgia's Professional Malpractice Affidavit Requirement, Robert D. Brussack
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Section 9-11-9.1 of the Georgia Code might be the state's most notorious procedural statute. Enacted in 1987 to protect professionals against the harm done by groundless malpractice litigation, the statute provides that a professional malpractice claim ordinarily must be accompanied by an affidavit executed by an expert. In the affidavit, the expert must substantiate the claim by attesting that some act or omission alleged in the claim was a negligent act or omission--a departure from a professional standard of conduct. During the past decade, Georgia's appellate courts have returned again and again to the problem of what section 9-11-9.1 means, …
The Limits Of Advance Directives: A History And Assessment Of The Patient Self-Determination Act, Edward J. Larson, Thomas A. Eaton
The Limits Of Advance Directives: A History And Assessment Of The Patient Self-Determination Act, Edward J. Larson, Thomas A. Eaton
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In this article, Professors Larson and Eaton assess the merits and shortcomings of the Patient Self-Determination Act. The article first traces the legislative history and policy behind the Act. The article then traces and analyzes many of the empirical studies designed to assess the Act and the Act's effect on the use of advance directives. The authors determine that the Act has been, at best, a "modest success." They conclude that the use of advance directives will remain limited and that alternative methods of providing for health treatment decisions, such as empowering physicians to act on incompetents' behalf, will have …
The Supreme Court's Decision To Recognize A Psychotherapist Privilege In Jaffee V. Redmond, 116 S. Ct. 1923 (1996): The Meaning Of The Term 'Experience' And The Role Of 'Reason' Under Federal Rule Of Evidence 501, Diane Marie Amann, Edward J. Imwinkelried
The Supreme Court's Decision To Recognize A Psychotherapist Privilege In Jaffee V. Redmond, 116 S. Ct. 1923 (1996): The Meaning Of The Term 'Experience' And The Role Of 'Reason' Under Federal Rule Of Evidence 501, Diane Marie Amann, Edward J. Imwinkelried
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In Jaffee v. United States, 116 S. Ct. 1923 (1996), the U.S. Supreme Court recognized a testimonial privilege protecting the patient-psychotherapist relationship. Its decision is based on Rule 501 of the Federal Rules of Evidence, which permits courts to decide novel questions of privilege in the light of reason and experience. The Court held that this rule authorized not only recognition of a new privilege, but also a privilege of a broad scope, extending to relationships between patients and licensed clinical social workers. Its decision came as a mild surprise, given a widely shared assumption that Rule 501 creates a …
Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein
Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein
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This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …
Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein
Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein
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This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. the answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …
State User Fees And The Dormant Commerce Clause, Dan T. Coenen
State User Fees And The Dormant Commerce Clause, Dan T. Coenen
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This Article considers the interplay of two central tenets of the U.S. Supreme Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator." The second principle, in contrast, renders the nondiscrimination rule fully applicable to the imposition of state "user fees."
Part II of this Article shows why these doctrinal pronouncements stand in an uneasy tension. It also explains how this tension revealed itself in Oregon Waste Systems, Inc., v. Department of Environmental Quality of Oregon, when …
Taxing Electronic Commerce: Preliminary Thoughts On Model Uniform Legislation, Walter Hellerstein
Taxing Electronic Commerce: Preliminary Thoughts On Model Uniform Legislation, Walter Hellerstein
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This report on Taxing Electronic Commerce was presented at the symposium on multi-jurisdictional taxation of electronic commerce at Harvard University on April 5, 1997. This report describes the normative principles shared by most serious analyses of the problems raised by state taxation of electronic commerce. It then attempts to translate these principles into legal rules that could provide a model for uniform legislation in this area. Finally it addresses constitutional questions that will likely be encountered in any effort to implement such legislation.
State Taxation Of Electronic Commerce, Walter Hellerstein
State Taxation Of Electronic Commerce, Walter Hellerstein
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The coming of the information age has profound implications for state taxation as it does for just about everything else. The exponential growth and increasing commercialization of the Internet, along with the sweeping technological and regulatory changes that have reconfigured the telecommunications industry, pose a daunting challenge to the states’ traditional approaches to taxing business activity and the telecommunications system that facilitates it. State tax administrators and policymakers, alarmed at the prospect that their tax bases will disappear into cyberspace, are seeking means to accommodate their taxing regimes to the new technological environment. The business community, on the other hand, …
Taxation Of Telecommunications And Electronic Commerce, Walter Hellerstein
Taxation Of Telecommunications And Electronic Commerce, Walter Hellerstein
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No abstract provided.
Who's Afraid Of Henry Hart?, Michael Wells
Who's Afraid Of Henry Hart?, Michael Wells
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No law book has enjoyed greater acclaim from distinguished commentators over a sustained period than has Hart & Wechsler's The Federal Courts and the Federal System. Indeed, the praise seems to escalate from one edition to the next. Reviewing the first edition, published forty-three years ago, Philip Kurland called it "the definitive text on the subject of federal jurisdiction." Paul Mishkin added that "the analysis is of an order difficult to match anywhere." In his review of the second edition, published in 1973, Henry Monaghan began by praising the first for having "deservedly achieved a reputation that is extraordinary among …
Revisiting The Intersection Of Workers' Compensation And Product Liability: An Assessment Of A Proposed Federal Solution To An Old Problem, Thomas A. Eaton
Revisiting The Intersection Of Workers' Compensation And Product Liability: An Assessment Of A Proposed Federal Solution To An Old Problem, Thomas A. Eaton
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This article addresses a less publicized, but potentially far reaching provision of the Product Liability Legal Reform Act of 1996: the provision pertaining to the intersection of product liability and workers' compensation. The prototypical case is one in which an employee is injured on the job and the injury is caused, at least in part, by a defective product. In many instances, the employer may also be at fault. This scenario potentially calls into play both the product liability and the workers' compensation systems, raising certain relevant questions. Can the employee secure compensation benefits from the employer and tort damages …
The Origins Of The Code Noir Revisited, Alan Watson
The Origins Of The Code Noir Revisited, Alan Watson
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In a recent article, The Origins and Authors of the Code Noir, my friend Vernon Palmer graciously and courteously took me to task for claiming that the law in the Code Noir was not made "on the spot" in the Antilles, but in Paris. He also said of me and of Hans Baade, "neither author appears to have investigated the actual circumstances of the Code's redaction." I can speak only for myself, and I confess with shame that Professor Palmer is quite correct. I did not investigate the actual circumstances of the redaction of the Code Noir. And I should …
Judge Friendly And The Law Of Securities Regulation: The Creation Of A Judicial Reputation, Margaret V. Sachs
Judge Friendly And The Law Of Securities Regulation: The Creation Of A Judicial Reputation, Margaret V. Sachs
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Few judges are more revered than the late Henry J. Friendly, a member of the United States Court of Appeals for the Second Circuit from 1959 to 1986. Leading jurists and scholars have described him as "one of our wisest judges," "a legend in his own time," "the most remarkable legal mind of his generation," "the pre-eminent appellate judge of his era," and "the most distinguished judge in this country during his years on the bench."
Are great judicial reputations-like great literary and scientific reputations- also shaped by contingencies? Or does the legal profession for some reason stand apart? This …
Of Pitcairn's Island And American Constitutional Theory, Dan T. Coenen
Of Pitcairn's Island And American Constitutional Theory, Dan T. Coenen
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Few tales from human experience are more compelling than that of the mutiny on the Bounty and its extraordinary aftermath. On April 28, 1789, crew members of the Bounty, led by Fletcher Christian, seized the ship and its commanding officer, William Bligh. After being set adrift with eighteen sympathizers in the Bounty's launch, Bligh navigated to landfall across 3600 miles of ocean in "the greatest open-boat voyage in the history of the sea." Christian, in the meantime, recognized that only the gallows awaited him in England and so laid plans to start a new and hidden life in the South …
Rights Of Slaves And Other Owned-Animals, Alan Watson
Rights Of Slaves And Other Owned-Animals, Alan Watson
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Part of a number of essays which follow are written by experts from various interdisciplinary fields at the request of Animal Law.
I chose the title with deliberation. My concern in this paper is not with moral theory, but with the law that has given rights to owned-animals, and the extent to which these rights have been enforced.
I believe that there is a three-fold hierarchy as to the extent of these rights in accordance with the animal that is their object. At the top of the hierarchy are rights accorded to slaves under a legal system that is not …
Equal Protection Of The Laws: Recent Judicial Decisions And Their Implications For Public Educational Institutions, Anne Dupre, John Dayton
Equal Protection Of The Laws: Recent Judicial Decisions And Their Implications For Public Educational Institutions, Anne Dupre, John Dayton
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This article reviews recent judicial decisions concerning the Equal Protection Clause and provides an analysis of their implications for public educational institutions. The article begins by giving a brief historical overview of the Equal Protection Clause, its application to the states, and describes the three-tiered approach to challenges alleging government denial of equal protection of the laws. Recent applications of each tier are addressed by discussing Adarand v. Pena, Hopwood v. Texas, U.S. v. Virginia, and Romer v. Evans. The article concludes by noting that these recent cases have added to uncertainty concerning the Court’s interpretation of the Equal …
Muddy Waters: Infringement Analysis After "Markman" And "Warner-Jenkinson", Clyde F. Willian, Joseph S. Miller
Muddy Waters: Infringement Analysis After "Markman" And "Warner-Jenkinson", Clyde F. Willian, Joseph S. Miller
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No abstract provided.
Constitutional Torts, Common Law Torts, And Due Process Of Law, Michael L. Wells
Constitutional Torts, Common Law Torts, And Due Process Of Law, Michael L. Wells
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Government officers may harm persons in many ways. When an official inflicts a physical injury, causes emotional distress, publishes defamatory statements, or initiates a malicious prosecution, the victim's traditional recourse is a tort suit brought under common law or statutory principles. But an alternative to ordinary tort may also be available. The growth of damage remedies for constitutional violations in the decades following Monroe v. Pape has encouraged litigants to frame their cases as breaches of the Constitution. These litigants may sue for damages under 42 U.S.C. § 1983 when the offender is a state employee, or assert the damages …
Introduction: Adapting Old Rules For A New Paradigm, Thomas A. Eaton
Introduction: Adapting Old Rules For A New Paradigm, Thomas A. Eaton
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This Symposium brings together prominent practitioners and academic commentators in the field of health law. They are the authors of leading casebooks, treatises, and articles, and they craft the agreements that make "managed care" a practical reality. Collectively these authors explore a variety of cutting edge legal issues as our health system moves from a "fee-for-service" paradigm to one of managed care. These articles address such issues as tort liability for negligent care, fraud and abuse, disclosure of economic incentives to control costs, and antitrust. These seemingly disparate topics are united by a common theme: the need to adapt legal …