Law Commons^™

West Lynn Creamery And The Constitutionality Of State Tax Incentives, Walter Hellerstein

Scholarly Works

One of the more perplexing questions that has surfaced from time to time in the state tax field is how a constitutionally benign tax incentive program designed to attract industry to a state is to be distinguished from an unconstitutionally discriminatory taxing scheme that “forecloses tax-neutral decisions” and “provides a direct commercial advantage to local business.” On one hand, the U.S. Supreme Court has expressed the view that its decisions do “not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry.” On the other hand, the Court has frequently invalidated …

Brief Amicus Curiae Of Eleven Copyright Law Professors In Princeton University Press V. Michigan Document Services, Inc., L. Ray Patterson

Scholarly Works

The issue dealt with in this amici curiae brief is the judicial ability (or inability) to take away rights granted by Congress in 17 U.S.C. S 107, the fair use doctrine.

On June 9, 1994, the United States District Court for the Eastern District of Michigan, Southern Division, issued an opinion in Princeton University Press v. Michigan Document Services, Inc., granting several publishers a permanent injunction prohibiting a commercial copying service from photocopying excerpts from copyrighted works chosen by professors and compiled as course packets to be used by university students in class. The court held that such photocopying was …

Implementation And Impact Of The Patient Self-Determination Act, Denise C. Park, Thomas A. Eaton, Edward J. Larson, Helen T. Palmer

Scholarly Works

The Patient Self-Determination Act became effective in December 1991 and mandates that patients be given information about legal rights regarding living wills and durable powers of attorney for health care. We investigated the impact this law has had on hospitals, medical personnel, and patients. We conducted a survey of all hospitals in the state of Georgia, collecting data regarding implementation and knowledge of the law, as well as effects of the law and beliefs about it. The data indicated that hospitals relied primarily on the Georgia Hospital Association for implementation policy, that "minimalist" implementation of the law occurs in most …

Freedom Of Contract: The Trojan Horse Of Rule 10b-5, Margaret V. Sachs

Scholarly Works

Before the late 1980s, traditional contract law played virtually no role in private litigation under section 10(b) of the Securities Exchange Act of 1934 and rule 10b-5. The reason was perceived incompatibility. The 1934 Act is regulation intended to supersede “the philosophy of caveat emptor,” whereas traditional contract law promotes bargaining free of regulation. In the late 1980s, however, the tide turned. Since that time, private rule 10b-5 litigation has become riddled with the vocabulary of traditional contract jurisprudence – the statute of frauds, merger clauses, attorneys' fees clauses, choice of law clauses, releases, and the formation of an agreement. …

Payment Demands For Spurious Copyrights: Four Causes Of Action, Paul J. Heald

Scholarly Works

“COPYING IS ILLEGAL” declares the final page of the chorus from the Bach cantata lying to the right of my computer. The slogan is ingeniously printed in gray across the entire page so that it will show up clearly if any photocopies are made. The first page of the text contains the copyright symbol and the name and address of the “sole selling agent” of the putative copyright owner. Apparently, the copyright claimant would prefer to sell additional copies of the music rather than receive royalties for copying done by users. “ALL COPYING IS ILLEGAL” states the edition of Shakespeare's …

Forward: Understanding The Place Of Limited Liability Companies In The Spectrum Of Business Forms, Charles R.T. O'Kelley

Scholarly Works

This Symposium presents an array of articles addressing the Oregon Limited Liability Company Act. The articles are designed to give both practitioners and policymakers insight into both Oregon's version of the LLC and its cousins in other jurisdictions.

International Responsibility Of Public International Organizations And Their Member States, Christian R. Pitschas

LLM Theses and Essays

A public international organization is formed by international agreement made by states or other international organizations. This thesis examines the different types of international organizations and the requirements that must be met for the international organization to act under international law. When an international organization receives international rights and obligations, the international organization becomes an international person. This personality is analyzed and differentiated from that of a state. The granting of rights and obligations to an international organization also means that the organization will be liable for its actions and those of its organs for breaches international law. Member states …

Liability For Injurious Consequences To The Global Climate, Sudha Rp Rao

LLM Theses and Essays

Preservation of the environment is a major concern in the modern era. This paper explains the scientific basis of the global warning theory and the potential impacts of climate change on the environment. When regulating the causes of global warming, accountability and liability arise in the areas of both prevention of future emissions of green house gases into the atmosphere and remedial measures to clean up the damage that has already occurred. The responsibility for the costs in these areas are examined as well as the International Law Commission’s work on “Liability for Injurious Consequences Arising out of Acts not …

The Global Loss Of Biological Diversity: A Perspective, In The Context Of The Controversy Over Intellectual Property Rights, Ajay K. Sharma

LLM Theses and Essays

All nations have a stake in preserving biodiversity for ethical, medical, and economic reasons. This thesis discusses objections to the Convention on Biological Diversity and argues for establishing international agreements that set conservation standards to which all parties can be held accountable. These agreements should also include internationally accepted standards for the protection of intellectual property rights.

Legal Foundations And Institutional Framework Of The Monetary Union In Europe And In The United States, Johan Van Den Cruijce

LLM Theses and Essays

An economic and monetary union (EMU) is an area where there is complete freedom of movement of persons, goods, services, and capital. The financial markets in an EMU are completely integrated while the national currencies are conventional and have fixed exchange rates. Ultimately the national currencies may be replaced by a common currency and there will be one monetary policy. The EMU is considered to be the highest form of economic integration. This paper examines two examples of a monetary union; the first part focuses on the blueprint for a European monetary union as laid out in the Treaty on …

Liberalization Of India’S Trade And Investment Policies: Pitfalls And Advantages For U.S. Firms Doing Business In India, Sanjiv Verma

LLM Theses and Essays

A rich history of trade and commerce ties America to India. This paper examines the contemporary trade issues between America and India, particularly in light of recent economic reforms in India. It inquires into and analyzes the various advantages India can provide for US businesses as a foreign investment destination. Various barriers to trade between these two nations are identified, such as tariff and nontariff barriers, quota restrictions, and infrastructural and social barriers. This paper gives a brief overview of some of the recent economic policy changes in India, suggests legislative and policy improvements required to attract more US investments …

"In The Twinkling Of An Eye": A Proporsal For The Standard Of Legality To Be Applied In Hospital Staff Privileges Cases, Sarah Bartholomew Ellerbee

LLM Theses and Essays

This paper addresses one of the most troublesome aspects of antitrust jurisprudence. What standard of legality governs cases dealing with medical staff privileges decisions? Heretofore, it was generally thought that only two options existed. The most frequently used standard of legality for this type of case is the rule of reason. In using this analysis, the court looks at the restraint of trade of the reasonableness of its nature, and its purpose and effect. The pro-competitive aspects of the conduct are weighed against the restraints that the conduct imposes on the competition. In health care cases, courts have looked at …

U.S. Intellectual Property Protection In China: Legal Framework And Dynamics, Yun Xu

LLM Theses and Essays

This thesis explores the complex landscape of intellectual property protection in the context of the U.S-China trade relations. U.S. intellectual property protection in China has emerged as a critical issue in the U.S.-China trade relations, impacting tensions and becoming a critical point. The thesis examines the challenges posed by China’s historical attitudes towards intellectual property rights. China’s historical lack of respect for intellectual property rights, compounded by the Communist political culture, has led to widespread piracy, particularly as China pursues the market-driven economics of U.S. intellectual property protection in China. The Agreements on Trade Related Aspects of Intellectual Property Rights …

Bankruptcy Judges, United States Trustees, And Family Farmer Bankruptcy Act Of 1986, Moussa Ismael Abojhanim

LLM Theses and Essays

The Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986, enacted as Public Law No. 99-554, introduced Chapter 12 to the Bankruptcy Code specifically aimed at providing debt relief to family farmers. This thesis explores providing debt relief to family farmers. It also explores the background leading to the enactment of Chapter 12, including the economic challenges faced by American family farmers in 1970s and 1980s. Additionally, it discusses the legislative history, congressional response, and the provisions of Chapter 12, noting its advantages over chapter 11 and 13 for family farmers in reorganizing their finances and maintaining …

Introduction: Symposium On Native American Law, Milner S. Ball

Scholarly Works

The Symposium gathered here is a wonderfully illuminating core sample of contemporary legal scholarship on the relationship between the American government and Native Americans.

The Importance Of 'Nutshells', Alan Watson

Scholarly Works

In modern legal systems, common law and civil law alike, and their spread over many territories in several continents, are inconceivable without the input of Nutshells often written in far-off times and in far-away places. I also want to show that the history of Nutshells vividly illumines themes that I have pressed for decades.3 First, they demonstrate the easy transmissibility of legal rules, institutions, concepts and structures from one society to other, very different, ones. Second, they indicate the frequent longevity of such rules, institutions, concepts and structures. Third, their very success is attributable to the lack of interest by …

French And American Judicial Opinions, Michael Wells

Scholarly Works

In this Article, I examine the foundations of American judicial form, in particular the proposition that powerful instrumental considerations support the issuance of reasoned opinions. This project proceeds from the belief that the form of judicial opinions deserves serious scholarly attention despite the broad consensus about its value, because it frames the terms of debate on every issue courts confront. My analysis is built on the view that critical insights into the nature of one's own legal system can be gleaned only by "understand[ing] what [one's] system is not," a task that requires putting aside the internal perspective of a …

Ethical Considerations In Medicaid Estate Planning: An Analysis Of The Aba Model Rules Of Professional Conduct, Eleanor Crosby Lanier, Ira M. Leff

Scholarly Works

The purpose of this article is to provide a starting point for discussion of ethical issues related to the practice of Medicaid estate planning. The authors explore the history of attorney involvement in planning and financing long-term care. They also analyze how the ABA Model Rules of Professional Conduct address the ethical dilemmas that arise in practice, using a case study to illustrate some of these issues. The individual authors' perspectives on this practice differ with respect to certain issues. One is a former Legal Services lawyer, and the other has a private practice which focuses on Medicaid estate planning.

Responsibility Of The Individual Under International Law For Crimes Committed In The Context Of Armed Conflicts, Michael Reiffenstuel

LLM Theses and Essays

In areas throughout the world, citizens have been subject to torture and murder during civil wars and other armed conflicts. Many perpetrators of these atrocities are unlikely to be prosecuted on national level; thus if justice is sought, international law must be utilized. To provide further guidance in this area, the International Law Commission submitted a draft in 1991 of its work on a Code that creates new laws, reiterates existing conventional law, and codifies customary international law. This thesis analyzes individual responsibility and the scope ratione personae, which crimes are covered, the process of enforcement and in what …

"Snitching" For The Common Good: In Search Of A Response To The Legal Problems Posed By Environmental Whistleblowing, Stefan Ruetzel

LLM Theses and Essays

Despite the increase in public awareness of diminishing natural resources, mounting waste, and pollution and more comprehensive environmental regulations since the 1970’s, non-compliance with environmental laws and non-enforcement by government authorities is still a major problem in the United States. Disclosure of violations of environmental regulations by an employee of a private polluter, or whistleblowing, is an effective tool in enforcing the law and thereby protecting the environment. After examining the current whistleblowing law that has evolved in various jurisdictions across the country, this thesis proposes that a uniform state statute should be enacted to encourage employees to report violations …

The French First Demand Guarantee And The Standby Credit: A Comparative Study, Muriel Charreton

LLM Theses and Essays

Since World War II new security devices have evolved in both France and the United States. In France, the new device is known as the first demand guarantee. In the United States, it is called standby letter of credit. The underlying market forces which caused these devices to be developed are the same. But the label applied to the devices and the bodies of existing doctrine with respect to which they are formulated is different. In the French view, the difference between the two instruments is just a matter of different labels. But in the American view, the distinction between …