Law Commons^™

Refugee Solution, Or Solutions To Refugeehood?, James C. Hathaway

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This is the text of a lecture delivered by James C. Hathaway in London in October 2006 to mark the twenty-fifth anniversary of the founding of Jesuit Refugee Service. The lecture was sponsored jointly by the Centre for the Study of Human Rights, London School of Economics; the Heythrop Institute for Religion, Ethics, and Public Life; and Jesuit Refugee Service (UK).

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

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Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …

Why Sudan? Ambiguous Identities Forge Persistent Conflict, Laura Nyantung Beny

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The following essay is excerpted from the prospectus for Perspectives on Genocide and Genocidal Violence in the Sudan, edited by Law School Assistant Professor Laura N. Beny, Sondra Hale of UCLA, and Lako Tongun of Claremont Colleges, California. The book is under advance contract for publication by the University of Michigan Press. Its 14 chapters, written by prominent historians, anthropologists, social scientists, political leaders, and others, “tell overlapping stories about the social constructions of race, gender, culture, and religious and political loyalties, each of which underlies the longstanding conflict” in Sudan, according to Beny, whose essay in the book is …

Branch Rickey, '11: Much More Than Pioneering Baseball Leader, Richard D. Friedman

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Branch Rickey is best known as the president and general manager of the Brooklyn Dodgers who brought Jackie Robinson into big league baseball in 1947, thus integrating a major American institution seven years before Brown v. Board of Education. Even apart from this heroic step, Rickey would probably be known as the most significant baseball executive ever, primarily for his work with the Dodgers and, earlier, the St. Louis Cardinals; the modern farm system and extensive spring training facilities are chief among his many innovations. Less well known is the fact that Rickey was a 1911 graduate of the University …

Moderator's Report: Legal Experts' Workshop On The Future Global Legal Order, Craig H. Allen

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In late 2006, as part of its multifaceted effort to help the Chief of Naval Operations develop a new, contemporary maritime strategy for the nation, the Naval War College convened a “Delphi group” of experts—in this case, in international law—to provide the maritime strategy development team a candid assessment of the probable state of the global legal order in 2020. The workshop, chaired by Craig H. Allen, the Charles H. Stockton Professor of International Law, was held 31 October–1 November 2006 in the College’s Decision Support Center (equipped with an advanced World Wide Web–based group collaboration and decision-support system), in …

Reviving The Right To Vote, Ellen D. Katz

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Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …

The Word And The Law, James Boyd White

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In this Article I shall first give a brief account of Milner Ball's book, The Word and the Law, saying something about the interesting and important way in which it connects theology, literature, and law. I shall then give a little more content to what I say about this achievement by engaging in a kind of reading of two texts, one theological and one literary, connecting both to the law. I mean this reading simultaneously to be my own and to reflect something of what I have learned from Milner. Another way to put this is to say that …

Can China Promote Electronic Commerce Through Law Reform? Some Preliminary Case Study Evidence, Jane K. Winn, Song Yuping

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The government of the People’s Republic of China (P.R.C.) has announced its intention to make China a global leader in innovation by 2020. Many Chinese business leaders share this goal. The primary focus of this national strategy is to transform China into an exporter of high-technology products based on Chinese designs rather than merely a low cost, high volume manufacturer of products based on technology developed in other countries.

This paper will examine the implications for this strategy with regard to the use of computerized management information systems by Chinese businesses, and its relationship to recent law reform efforts intended …

Collateralizing Intellectual Property, Xuan-Thao Nguyen

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This Article identifies and critiques the collateralization of intellectual property, revealing the complexity of intersecting secured transaction law, namely Article 9 of the Uniform Commercial Code, and doctrinal intellectual property laws such as patent law, copyright law, and trademark law. The inquiry challenges the silence surrounding the pervasive use of intellectual property as collateral in secured financing and suggests changes to the existing framework on secured financing law.

The Article proceeds as follows: Part II discusses the normative intellectual property rights for patents, copyrights, and trademarks and how such rights are utilized as corporate assets. Part III describes different forms …

A Hidden History Of Affirmative Obligation, Patrick O. Gudridge

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No abstract provided.

Breaking Free Of Chevron's Constraints: Zuni Public School District No. 89 V. U.S. Department Of Education, Osamudia R. James

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No abstract provided.

Divorce Reform: Rights Protections In The New Swaziland, Tamar Ezer, Aisha Glasford, Elizabeth Hollander, Lakeisha Poole, Grant Rabenn, Alexandria Tindall

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No abstract provided.

Hedge Funds And Governance Targets, William Wilson Bratton

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Corporate governance interventions by hedge fund shareholders are triggering debates between advocates of management empowerment and advocates of aggressive monitoring by actors in the capital markets. This Article intervenes with an empirical question: What, based on the record so far have the hedge funds actually done to their targets? Information has been collected on 130 domestic firms identified in the business press since 2002 as targets of activist hedge funds, including the funds' demands, their tactics, and the results of their interventions for the targets' governance and finance. The survey results show that the hedge funds have an enviable record …

Guantanamo Forever: United States Sovereignty And The Unending State Of Exception, Mary Anne Franks

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No abstract provided.

Pro Se Executors—Unauthorized Practice Of Law, Or Not?, Michael Hatfield

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This Article clarifies why under Texas law an individual named as executor in a will has the right to offer the will for probate and otherwise appear in a probate court without hiring a lawyer. This Article first provides an overview of the independent administration provisions of the Texas probate code before reviewing the unauthorized practice of law prohibition and the pro se exception. After establishing that executors qualify for the pro se exception in Texas because executors appearing in court are exercising their own management rights—rather than the rights of "the estate" or the beneficiaries—the Article explores suggestions of …

Rebuilding The Profession: Recommendations For Librarians Interested In Becoming Academic Law Library Directors, Barbara A. Bintliff, Laura N. Gasaway, Penny A. Hazelton, Frank G. Houdek, Janis L. Johnston, Martha Dragich Pearson, Charles Ten Brink, Michelle Wu

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Based on papers presented at a 2005 workshop for individuals interested in becoming academic law library directors, this article begins by exploring the duties of academic director jobs—administrative skills and faculty responsibilities—before examining how to build credentials in preparation for such jobs. It concludes by focusing on the skills and knowledge needed to interview for director jobs.

Islamic Law In The Jurisprudence Of The International Court Of Justice: An Analysis, Clark B. Lombardi

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This Article asks whether ICJ opinions to date suggest that judicial consideration of Islamic legal norms has played, can play, or should play a role in the ICJ's resolution of international legal disputes or in establishing the legitimacy of the results that it has reached. It is structured as follows. Part II gives an initial overview of the ICJ to help us understand how and why judges on the ICJ have reached the answers they have. Part III describes how the ICJ's enabling statute permits the Court, at least in theory, to look at Islamic legal norms. As I will …

The Immigration-Terrorism Illusory Correlation And Heuristic Mistake, Mary De Ming Fan

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The national broil over immigration reform is fermenting an illusory correlation and mistaken heuristic. Two events illustrate the involvement of legislators in the manufacture and mplification of this heuristic mistake. A controversial bill passed by the House of Representatives in December 2005 explicitly and extensively packaged immigration control with antiterrorism.' During his term as a congressman, J. D. Hayworth published a book claiming that inflows of people over the U.S.-Mexico border pose a "terrorist threat," that the nation has witnessed an "illegal alien crime spree," and that high immigration rates from Mexico threaten social instability.[para] Such pronouncements by legislators generate …

The Incoherence Of Dormant Commerce Clause Nondiscrimination: A Rejoinder To Professor Denning, Edward A. Zelinsky

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A sound intuition animates Professor Denning's defense of the doctrinal status quo under the dormant commerce clause: the courts should not lightly abandon well-established constitutional canons. I nevertheless remain unconvinced by Professor Denning's effort to justify the long-standing interpretation of the dormant commerce clause as forbidding taxes which discriminate against interstate commerce. Whatever the historical justification for this constitutional precept, its past utility, or its visceral appeal, dormant commerce clause nondiscrimination is today doctrinally incoherent in tax contexts. The problem is not one of borderlines and close cases. Rather, at its core, the notion of dormant commerce clause tax nondiscrimination …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

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In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by litigation screenings. In that report, she documented in great detail the existence of a fraudulent scheme to create bogus medical evidence that lead her to conclude that it is apparent that truth and justice had very little to do with these diagnoses. . . . [Indeed] it is clear that lawyers, doctors and screening companies were all willing participants in a scheme to manufacture. . . [diagnoses] …

More Stories Of Jurisdiction-Stripping And Executive Power: Interpreting The Prison Litigation Reform Act (Plra), Johanna Kalb

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No abstract provided.

Loud Rules, Wendy Gerwick Couture

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No abstract provided.

Policy Formulation Versus Policy Implementation Under The Magnuson-Stevens Fishery Conservation And Management Act: Crab Rationalization, Richard Henry Seamon

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The Magnuson-Stevens Fishery Conservation and Management Act (MSA) governs management of fisheries located three to 200 miles off the coast of the United States. The MSA is unique in administrative law in that it devolves policy formulation to eight Regional Fishery Management Councils rather than to a federal agency. That agency, the National Marine Fisheries Service (NMFS), is relegated primarily to developing regulations that implement the councils' policies. NMFS can review the councils' policies only to ensure that they are consistent with existing laws. NMFS has no authority to revise policy to suit its own preferences, or to write regulations …

Exciting Initiatives In Environment And Natural Resources Law At The University Of Idaho College Of Law, Barbara Cosens

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No abstract provided.

University Of Idaho Weighs Future Options In Statewide Legal Education, Donald L. Burnett Jr.

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No abstract provided.

A Cancer On The Republic: The Assault Upon Impartiality Of State Courts And The Challenge To Judicial Selection, Donald L. Burnett Jr.

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No abstract provided.

Chevron's Demise: A Survey Of Chevron From Infancy To Senescence, Linda Jellum

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No abstract provided.

Recent Reforms To The Japanese Judiciary: Real Change Or Mere Appearance?, Daniel H. Foote

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In June 2001, the Justice System Reform Council ("Reform Council" or "Council") issued its final report. The Council's recommendations included several proposed reforms to the judiciary, intended to insure the judiciary would "meet the expectations of the people." This essay examines a number of those recommendations and the resulting reforms.

The single reform to the judiciary that has received the most publicity is the introduction of the saiban'in system, through which ordinary citizens will participate directly in judging serious crim:inal cases and thus will have the opportunity to express their views directly in the deliberation of those cases. That system, …

Alaska Native Rights, Statehood, And Unfinished Business, Robert T. Anderson

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Alaska Native aboriginal rights to land and associated resources were never dealt with in a comprehensive fashion until 1971, when Congress passed the Alaska Native Lands Claims Settlement Act (ANILCA). Although general principles of federal Indian law provided strong support for the proposition that Alaska's Native people held aboriginal title to much of the new state, the Alaska Statehood Act itself carefully disclaimed any effect on aboriginal title. This approach was in keeping with the Congress's past dealings with Alaska Native property rights. This article outlines the history of Alaska Native aboriginal rights through the Statehood Act along with their …

Mission Accomplished?, Ellen D. Katz

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My study of voting rights violations nationwide suggests that voting problems are more prevalent in places “covered” by the Act than elsewhere. Professor Persily’s careful and measured defense of the renewed statute posits that this evidence is the best available to support reauthorization. The evidence matters because if, as critics charge, the regional provisions of the Voting Rights Act (VRA) are no longer needed, minority voters should confront fewer obstacles to political participation in places where additional federal safeguards protect minority interests than in places where these safeguards do not operate. In fact, minority voters confront more.