Law Commons^™

The Provenance Of The Federal Courts Improvement Act Of 1982, Richard Henry Seamon

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Unfair Evictions: Where Fair Housing And Landlord-Tenant Law Intersect, Geoffrey Heeren

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A New Approach In Water Management Or Business As Usual? The Milk River, Montana, Barbara Cosens

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The Usa Patriot Act: The Devil Is In The Details, Elizabeth Brandt

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Voluntary Impoverishment To Obtain Government Benefits, John A. Miller

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Not Our Grandparents' Partnership Statute, Mark Anderson

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University Of Idaho College Of Law's Seventh Annual Northwest Institute For Dispute Resolution Scheduled For May 19-23, 2003, Maureen Laflin

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The Digital Trademark Right: The Troubling New Extraterritorial Reach Of National Law, Xuan-Thao Nguyen

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The Anticybersquatting Consumer Protection Act authorizes the development of the digital trademark right. Under this new right, a trademark owner can petition a domestic court to transfer a foreign registrant's domain name to the trademark owner. The trademark owner does not need to travel to the foreign land for the litigation or to petition a foreign court for enforcement of the domestic court's decision. The property transfer order has a global effect, enjoining the foreign registrant from further use of its property in its home country. Is such extraterritorial extension of national law permissible? Does the new digital trademark right …

Substantially Limited Justice?: The Possibilities And Limits Of A New Rawlsian Analysis Of Disability-Based Discrimination, Elizabeth Pendo

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John Rawls has been called the most significant and influential moral philosopher of the twentieth century, and his ideas have deeply influenced discussions of social, political, and economic justice across disciplines including law, philosophy, and political science. Given his preeminence, does Rawls's theory of justice as fairness fail in either of the two ways described above or is it a promising analysis for achieving justice for people with disabilities?

In its most recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act of 1990 (the ADA). In several significant decisions, it has grappled with …

Empirical Studies: How Do Discrimination Cases Fare In Court? Proceedings Of The 2003 Annual Meeting Of The Association Of American Law Schools, Section On Employment Discrimination, Monique C. Lillard

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Secession, Constitutionalism, And American Experience, Mark Brandon

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Is There A Role For Lawyers In Preventing Future Enrons?, Kenneth M. Rosen, Jill E. Fisch

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Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer's role by requiring covered attorneys to "report up" evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to "report up" subjects a lawyer to liability under federal law.

This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …

What Were They Thinking? Fourth Amendment Unreasonableness In Atwater V. City Of Lago Vista, Richard Frase

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In Atwater v. City of Lago Vista the Supreme Court upheld the arrest and jailing of a woman for a seat belt violation even though her offense was punishable only with a small fine, and there was no reason why the police officer could not have simply issued a citation. Atwater thus permits, and indeed encourages, unnecessary and disproportionate arrests (along with the various searches and other hardships which routinely accompany an arrest). The extremely broad arrest power recognized by the Court also creates a grave potential for abuse in light of the breadth of modern traffic laws (almost every …

Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel

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Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …

Shareholder Value And Auditor Independence, William Wilson Bratton

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This Article questions the practice of framing problems concerning auditors' professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal's control and cannot act independently. For the same reason, auditors' duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …

Inquiry And Advocacy, Fallibilism And Finality: Culture And Inference In Science And The Law, Susan Haack

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Piney Run: The Permits Are Not What They Seem, Jessica Owley

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In 2001, the Fourth Circuit addressed the permit shield provision of the Clean Water Act and found it to provide broad-scale protection for polluters. In Piney Run Preservation Association v. County Commissioners of Carroll County, the Fourth Circuit held that facilities with discharge permits are protected from lawsuits even when discharging pollutants not contained within their permits. Under this ruling, permit holders may discharge, without fear of penalty, any disclosed pollutant within the reasonable expectation of the permitting authority. This decision is worrisome because it does not protect the goals of the Clean Water Act and deprives the public …

Hard Law, Soft Law, And Non-Law In Multilateral Arms Control: Some Compliance Hypotheses, Richard L. Williamson Jr.

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Retrying Race, Anthony V. Alfieri

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Addressing Domestic Violence Through A Strategy Of Economic Rights, Donna Coker

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Targeting Exemption For Charitable Efficiency: Designing A Nondiversion Constraint, Frances R. Hill

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For Ira Ellman: One More Reason 'Why Making Family Law Is Hard', David L. Chambers

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Kate Bartlett and Ira worked together as reporters on the ALI project. I was merely one of nearly thirty advisors to the reporters. The advisors had no responsibility for drafting, no responsibility for coming up with original proposals. Our sole job was to come once a year to a meeting in Philadelphia and take potshots at the drafts that Ira, Kate, and Grace Blumberg sent to us. At the meetings, the reporters would sit on a platform and listen to our comments as we moved section by section through a draft. Ira became a master of reportership. He would nod …

The Lawyer As Legal Scholar, Michael J. Madison

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I review Eugene Volokh's recent book, Academic Legal Writing. The book is nominally directed to law students and those who teach them (and for those audiences, it is outstanding), but it also contains a number of valuable lessons for published scholars. The book is more than a writing manual, however. I argue that Professor Volokh suggests implicitly that scholarship is underappreciated as a dimension of the legal profession. A well-trained lawyer, in other words, should have experience as a scholar. The argument sheds new light on ongoing discussions about the character of law schools.

Enron - When All Systems Fail: Creative Destruction Or Roadmap To Corporate Governance Reform?, Douglas M. Branson

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This article raises the unthinkable proposition (for academics at least) that Enron may have been an aberration. The Enron debacle may have been the rare case in which nine, ten or more sets of monitors and gatekeepers failed. Alternatively, as with Tyco, WorldCom, Adelphia, Rite Aid or other celebrated corporate "busts," Enron may be the handiwork of one or two well placed wrongdoers, in this case, CFO Andrew Fastow. Enron then may not be the pathway to meaningful reform at all.

The article next proceeds to a critical review of Sarbanes-Oxley's principal provisions. The conclusion reached is that by and …

Can Fingerprints Lie?: Re-Weighing Fingerprint Evidence In Criminal Jury Trials, Tamara F. Lawson

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This article discusses fingerprint evidence and its use in criminal jury trials. It is commonly thought that fingerprints "never lie"; however, this article reveals the little known fact that the "science" of fingerprint identification has never been empirically tested or proven to be reliable. It further exposes the seldom-discussed issue of fingerprint misidentification and latent print examiner error. The article explains the importance of fingerprint evidence and its extensive use in all phases of the criminal justice system. Specifically, the article plays out the dramatic courtroom scenario of incriminating fingerprints being found at a crime scene and matching the accused …

Community Acequias In Colorado's Rio Culebra Watershed: A Customary Commons In The Domain Of Prior Appropriation, Gregory A. Hicks, Devon G. Peña

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This article presents an account of the landscape and water institutions of the acequia communities of Colorado's Rio Culebra watershed. The physical and social landscape of the Culebra watershed, a product of water institutions introduced by Hispano settlers in the years immediately following the Mexican War, and the persistence of those institutions after the introduction of the system of prior appropriation, offers an instance of a successful engagement of community water institutions in the creation of a sustainable and resource-rich watershed landscape. The ultimate goals of this article are threefold. First, the article describes the acequialandscape and its social, …

Introduction, The Osceola After 100 Years: Its Meaning And Effect On Maritime Personal Injury Law In The United States, Craig Allen

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A century ago the United States Supreme Court issued its decision in The Osceola [189 U.S. 158 (1903)], announcing four legal propositions that controlled personal injury claims by seamen at the time. On the 100th anniversary of the Court's decision, the four admiralty law professors contributing to this symposium take the opportunity to critically examine the Court's renowned decision, Congress' responses to the decision, and the effect of both The Osceola's four propositions and the responsive legislation on the remedies available to injured maritime workers in the 21st century.

In the first of the three articles that follow, Professor …

Icann And Antitrust, A. Michael Froomkin

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National identification ("ID") cards appear increasingly inevitable. National ID cards have the potential to be repressive and privacy destroying, but it is also possible to design a system that captures more benefits than costs. Because the United States currently lacks a single, reliable credential, private businesses have trouble authenticating their customers and matching data among distributed databases. This Article argues that the desire for reliable ID creates a window of opportunity for the federal government to strike a bargain: offer private businesses the use of a reliable credential in the form of a national ID card, on the condition that …

Agora (Continued): Future Implications Of The Iraq Conflict Editors' Note, Lori Fisler Damrosh, Bernard H. Oxman

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Subject Unrest, Jerome M. Culp Jr., Angela P. Harris, Francisco Valdes

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