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Articles 1 - 7 of 7
Full-Text Articles in Law
The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez
The Head-On Collision Of Gasperini And The Derailment Of Erie: Exposing The Futility Of The Accommodation Doctrine, Armando Gustavo Hernandez
Armando G. Hernandez
A simple truism we all learned in our childhood was that the square pegs did not fit into the circular shaped cut-outs. Greek philosophers often struggled with this very same conundrum of squaring the circle. In 1996, the Supreme Court decided Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The case required application of the Court's Erie jurisprudence. Many commentators hailed the case as the ideal moment to clarify the Court's esoteric body of law. However, writing for a six vote majority, Justice Ginsburg held that state law (the square) and federal law (the circle) could be accommodated. …
Painting Preemption With The Wrong Brush: The Misapplication Of The Preemption Doctrines In Von Saher V. Norton Simon Museum Of Art, Alexis H. Rossman
Painting Preemption With The Wrong Brush: The Misapplication Of The Preemption Doctrines In Von Saher V. Norton Simon Museum Of Art, Alexis H. Rossman
Alexis H. Rossman
Adolf Hitler and the Nazis looted thousands of works of art throughout World War II. After the war, many pieces were not returned to the rightful owners but instead remained in public and private collections throughout the United States and abroad. California enacted California Code of Civil Procedure Section 354.3 in response to difficulties encountered by plaintiffs seeking to recover these pieces. The statute created a forum in California courts for plaintiffs to bring claims as rightful owners of Holocaust-era artwork. The Ninth Circuit recently found that this statute was preempted by the federal government’s exclusive power to conduct foreign …
Close Enough For Government Work: The Committee Rulemaking Game, Paul J. Stancil
Close Enough For Government Work: The Committee Rulemaking Game, Paul J. Stancil
Paul J Stancil
Procedural rules in U.S. courts often have predictable and systemic substantive consequences. Yet the vast majority of procedural rules are drafted, debated, and ultimately enacted by a committee rulemaking process substantially removed from significant legislative or executive supervision. This Article explores the dynamics of the committee rulemaking process through a game-theoretical lens. The model reveals that inferior players in the committee rulemaking game—advisory committees, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court—are sometimes able to arbitrage Congressional transaction costs to obtain results at odds with the results Congress would prefer in a …
The Eye Of The Beholder: A Defendant-Reliant Approach To Valuing Injunctive Relief For The Purposes Of The Amount In Controversy Requirement, Jason Schwalm
Jason E Schwalm
This article examines a long standing Circuit court split concerning the valuation of injunctive relief for the purposes of diversity jurisdiction. Specifically, the note argues that the Sixth Circuit, as the last court to weigh in on this argument, should use the experience of the other circuits in creating a defendant-reliant approach to the valuation of injunctive relief. This approach would acknowledge the defendant-focused nature of injunctive relief and in doing so would reject both sides of the Circuit court split.
Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson
Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson
Ira Steven Nathenson
Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain …
Switzerland, Samuel P. Baumgartner
Switzerland, Samuel P. Baumgartner
Samuel P. Baumgartner
Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.
There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch
There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
There’s A Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure—the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.