Law Commons^™

The Logical Structure Of Fraudulent Transfers And Equitable Subordination, David G. Carlson

Faculty Articles

No abstract provided.

Of World Music And Sovereign States, Professors And The Formation Of Legal Norms, Justin Hughes

Faculty Articles

No abstract provided.

An Autopsy Of The Structural Reform Injunction: Oops ... It's Still Moving, Myriam E. Gilles

Faculty Articles

No abstract provided.

Factors To Be Considered In Determining A Corporation's Commercial Domicile, A. Bruce Clements

Faculty Articles

Laws can vary significantly in taxing multijurisdictional companies depending on a company's degree of corporate presence in the taxing state, the type and source of income earned, and the type of property used or held in the state. Several critical factors can determine a company's tax liability in a state, including the location of the company's commercial domicile. The US Supreme Court's decision in the Wheeling Steel case regarding commercial domicile is overriding in federal, as well as state courts. Accordingly, multistate companies and their tax advisors should consider the location of central management activities when planning to start or …

Trademarks Under The North American Free Trade Agreement (Nafta) With References To The New Trademark Law Of Spain, Effective July 31, 2002, And The Current Mexican Law, Roberto Rosas

Faculty Articles

A trademark is any distinctive sign indicating that certain products or services have been manufactured or rendered by a specific person or company. This concept is currently recognized worldwide; however, the origin of trademarks dates back to antiquity when artisans placed their signatures or “marks” on their products containing an artistic or utilitarian element. Through time, these marks have evolved to such an extent that today, a reliable and efficient system for their registration and protection has been established. Besides protecting owners of trademarks, this system also helps consumers identify and purchase goods or services, which, because of the essence …

Against A Federal Patients' Bill Of Rights, Edward A. Zelinsky

Faculty Articles

The failure of the 107th Congress to pass a "Patients' Bill of Rights" (PBR) is widely considered a major disappointment, to be remedied in the 108th Congress by the adoption of such legislation. Indeed, federal PBR proposals have achieved the proverbial motherhood-and-apple-pie status; it is virtually impossible to find anyone actively opposing a federal PBR. Many members of the 108th Congress likely feel pressure to pass PBR legislation before returning to the electorate in 2004.

I advance a contrary perspective: A federal PBR is an idea whose time is past or, to be precise, is an idea whose rationales are …

The Internet And The Persistence Of Law, Justin Hughes

Faculty Articles

Since legal commentators first confronted cyberspace, three broad stories have emerged to describe the interrelation of law and the Internet: the "no-law Internet," the "Internet as a separate jurisdiction," and Internet law as "translation" of familiar legal concepts. This Article reviews these stories, focusing on how ongoing "translation" is giving way to a growing convergence in Internet law. The Article makes the case for convergence among legal responses to cyberspace and proposes a basic taxonomy for different models of convergence. With this taxonomy, the Article examines the ways in which convergence is occurring, as well as its effects on both …

Fair Use Across Time, Justin Hughes

Faculty Articles

This Article proposes that, as a copyright work ages, the scope of fair use, especially as to derivative works and uses, should expand. This is because the "market" for a copyrighted work has a temporal dimension; the copyrighted work has a market of a fixed number of years. In considering the fourth element of § 107 fair use, courts have discussed two kinds of situations in which the market for a plaintiff's work can be adversely affected: (1) situations where a particular defendant's action adversely affected the plaintiffs market, and (2) situations where the defendant's action, if it became "widespread," …

Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley

Faculty Articles

This Article begins with an overview of the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the TRIPS Agreement process, generally, and the benefits of the Doha Declaration, in particular, in addressing multiple facets of the access to essential medicines problem. This Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to …

Patently Unconstitutional: The Geographical Limitation On Prior Art In A Small World, Margo A. Bagley

Faculty Articles

Part I of this Article provides an overview of § 102 of the Patent Act, the role of prior art in the patentability analysis, and the origin of the limitation on relevant non-patent, nonpublished art to that existing "in this country." Part II then analyzes the constitutional deficiency of the limitation in light of the express and implied purposes of the Intellectual Property Clause as informed by judicial decisions, technological changes, global contraction, and expanded notions of inventive research sources. Policy concerns are the focus of Part III, which discusses how § 102's geographical limitation facilitates forms of "biopiracy," conflicts …

Still Patently Unconstitutional: A Reply To Professor Nard, Margo A. Bagley

Faculty Articles

In Defense of Geographic Disparity is Professor Craig Nard's response to my article Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World (Patently Unconstitutional). According to Professor Nard, my article advocates "the elimination of [the] geographic disparity" of 35 U.S.C § 102 in order to "protect developing nations and indigenous peoples from Western countries' patent law regimes." Professor Nard is correct in his assertion that I seek the elimination of the geographical disparity in U.S. patent law; however, he misses the mark as to my reasons. My opposition to the geographical limitation does not derive from …

(Racial) Profiles In Courage, Or Can We Be Heroes, Too?, Robert S. Chang

Faculty Articles

This article begins with the controversy over a proposed monument based on a widely disseminated photograph of three firefighters raising the American flag over the ruins of the World Trade Center. The three firefighters were White. The proposed monument would have had one White firefighter, one Black, and one Hispanic. This article argues that the controversy over the proposed monument serves as a microcosm for the larger and more important struggle over racial and gender diversity within fire departments, generally.

Teaching Asian Americans And The Law: Struggling With History, Identity, And Politics, Robert S. Chang

Faculty Articles

In this brief article, Professor Chang explores the goals and challenges in constructing a course on Asian Americans and the Law. In his course on Asian Americans and the Law, Professor Chang tries to include in the weekly reading packets history, narratives, and cases. Professor Chang includes the narratives because he has found that the students often have a difficult time relating to the history without them. After all, narratives bring life to history, making it easier for students to relate to and/or identify with the historical persons who occupy very different subject positions with regard to race, nationality, immigration …

Syllabus: Asian Americans And The Law, Robert S. Chang

Faculty Articles

This is the accompanying syllabus to the essay by Professor Chang, “Teaching Asian Americans and the Law: Struggling with History, Identity, and Politics.” The article explores the goals and challenges in constructing a course on Asian Americans and the Law. In his course on Asian Americans and the Law, Professor Chang tries to include in the weekly reading packets history, narratives, and cases. Professor Chang includes the narratives because he has found that the students often have a difficult time relating to the history without them. After all, narratives bring life to history, making it easier for students to relate …

“Forget The Alamo”: Race Courses As A Struggle Over History And Collective Memory, Robert S. Chang

Faculty Articles

This article discusses issues related to the study and teaching of race and ethnicity. Professor Chang explains the way race is taught or not taught in law schools is reflective of the historical and factual predicates we want our students to have. Faculty diversification can have an impact on the courses that are taught. Most, if not all, of the courses on critical race theory are taught by faculty-of-color. Most of the primary courses on Latinas/os and the law are taught by Latinas/os. If more related and primary courses are going to be offered by schools, then it seems that …

Policy Choices And Model Acts: Preparing For The Next Public Health Emergency, Ken Wing

Faculty Articles

This article explores policy choices and model acts related to public health administration in the U.S. This article provides information of the general public or state policymakers concerning important policy choices, variation of the pre-existing legal structure in each state, and the principles of separation of powers in limiting legislature's ability to delegate legislative-type decisions.

Resisting Medicine/Remodeling Gender, Dean Spade

Faculty Articles

In this article, Dean Spade explores the problematic role of medicine in pushing for trans rights. Spade uses a combination of personal narrative of his own interaction with the healthcare system and his experience with legal advocacy on behalf of transgender and gender nonconforming clients. He reveals how the medicalization of trans identity, by categorizing it as a mental health disorder called Gender Identity Disorder, serves to reaffirm that everyone should either be male or female. Spade further asserts this medicalization can be problematic when advocating for the legal rights of gender nonconforming individuals. For example, he points out that …

The Sojourner’S Truth And Other Stories, Robert S. Chang

Faculty Articles

In this introductory essay to a cluster of articles on Migrations, Citizens, and Latinas/os, Professor Chang frames the work of Ruben Garcia, Camille Nelson, and Victor Romero as setting forth what might be described as truths that can be learned from the sojourner/immigrant. This essay argues that the sojourner/immigrant's contributions to U.S. society are often ignored or discounted, which may be due to a willful amnesia because we do not want to think about what we might owe the sojourner/immigrant with regard to her entry into the United States, her stay, and her departure.

Serving Pro Se Patrons: An Obligation And An Opportunity, Kerry Fitz-Gerald

Faculty Articles

Historically, non-lawyer patrons in law libraries have been viewed with discomfort, and library services, even in libraries open to the public, have been geared toward members of the legal community. However, changes in both the needs of the public and in the demographics of library patrons are challenging the traditional allocation of services in public law libraries. This article discusses the reasons for the traditional allocation of services, the cultural and economic forces that are bringing the public to law libraries in greater numbers, and new modes of service that can better meet the needs of public patrons.

Risk Avoidance, Cultural Discrimination, And Environmental Justice For Indigenous Peoples, Catherine O'Neill

Faculty Articles

This article begins with the recognition that environmental justice for Native peoples requires attention to the interrelated cultural, spiritual, social, ecological, economic, and political dimensions of environmental issues. It observes, moreover, that “environmental justice requires an appreciation of each tribe’s particular historical circumstances and contemporary understandings, including each group’s aspirations for the flourishing of its culture.” It contends that some environmental decision makers and commentators have increasingly come to embrace “risk avoidance” – strategies that call upon risk-bearers to alter their practices in order to avoid the risk of environmental harms – in lieu of risk reduction – strategies that …

Unexplainable On Grounds Other Than Race: The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren L. Hutchinson

Faculty Articles

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment’s Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the various …

Dueling Democracies: Protecting Labor Representation Elections From Governmental Interference, John W. Teeter Jr

Faculty Articles

Public officials should be free to support or oppose unionization, but we must prevent their electioneering from undermining the industrial democracy of labor representative elections. Such elections are designed to be freely held; workers decide whether they wish to be represented by a union for purposes of collective bargaining. This choice of whether to unionize is for the workers alone without any governmental favoritism or coercion.

Government officials however have repeatedly jeopardized laboratory conditions by campaigning in labor representation elections. The Board should reassure workers of their right to cast uncoerced ballots, clarify that the political officials are not declaring …

A Resource Guide To Tax Law Careers, Robert H. Hu

Faculty Articles

This Guide is designed to assist law students and attorneys in the pursuit of careers in tax law. It is also intended for librarians and career counselors to readily find tax law career information so that they can assist their clients effectively. It includes resources in both print (for example, books and articles) and electronic formats (for example, Web sites). Each item included has a brief annotation so that the user can quickly decide the relevancy and value of that item.

Seasons Of Resistance: Sustainable Agriculture And Food Security In Cuba, Carmen G. Gonzalez

Faculty Articles

Beginning in the mid-1990s, Cuba embarked upon a transformation of the agricultural sector that has been hailed by some observers as a model of socially equitable and ecologically sustainable agriculture. Cuba shifted from an export-oriented, chemical-intensive agricultural development strategy to one that promoted organic agriculture and encouraged production for the domestic market. This article places Cuba's agricultural reforms in historical context by examining the evolution of Cuban agriculture from the colonial period until the present through the lens of food security and ecological sustainability. The article argues that Cuba, for most of its history, was food insecure and ecologically compromised …

On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality, Lester Brickman

Faculty Articles

No abstract provided.

Spinoza's Dialectic And The Paradoxes Of Tolerance: A Foundation For Pluralism, Michel Rosenfeld

Faculty Articles

Tolerance and pluralism seem to draw on the same criterion of legitimacy. The liberal case for tolerance, however, leads to a series of paradoxes, including Popper's paradox of tolerance according to which tolerating theintolerant is self-defeating. Spinoza's defense of tolerance as it emergesfrom his Theological-Political Treatise and his Ethics is more pervasive and much more encompasssing than the liberal justification. Spinoza justifies tolerance as a private and public virtue as well as on prudential grounds. Although Spinoza's conception of tolerance appears in significant respects paradoxical and contradictory - e.g., it is puzzling why Spinoza, the philosopher of reason, should avocate …

Hate Speech In Constitutional Jurisprudence: A Comparative Analysis, Michel Rosenfeld

Faculty Articles

The United States protects much hate speech that is banned in other Western constitutional democracies and under international human rights covenants and conventions. In the United States, only hate speech that leads to "incitement to violence" can be constitutionally restricted, while under the alternative approach found elsewhere, bans properly extend to hate speech leading to "incitement to hatred." The article undertakes a comparative analysis in light of changes brought by new technologies, such as the internet, which allow for worldwide spread of protected hate speech originating in the United States. After evaluating the respective doctrines, arguments and values involved, the …

Can Lawyers Be Cured?: Eternal Recurrence And The Lacanian Death Drive, Jeanne L. Schroeder

Faculty Articles

No abstract provided.

Spinoza's Identity And Philosophy: Jewish Or Otherwise?, Suzanne Last Stone

Faculty Articles

No abstract provided.

Nietzsche And The Nazis: The Impact Of National Socialism On The Philosophy Of Nietzsche, Charles M. Yablon

Faculty Articles

No abstract provided.