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2005

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Institution
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Articles 1 - 30 of 144

Full-Text Articles in Law

Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah Dec 2005

Passport To Toledo: Cuno, The World Trade Organization, And The European Court Of Justice, Reuven S. Avi-Yonah

Articles

The purpose of this article is to try to place the debate about Cuno v. DaimlerChrysler in a broader perspective by connecting it with the overall discussion of harmful tax competition. It discusses two hypothetical scenarios under which the city of Toledo, Ohio, is (a) a separate country and (b) a member state of the European Union. If the first hypothetical were true, the tax incentives offered by Toledo would violate the rules of the World Trade Organization; if the second hypothetical were true, the tax incentives would also violate the Treaty of Rome, as interpreted by the European Court ...


Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine Sep 2005

Offshore Outsourcing And Workers Rights, Theodore J. St. Antoine

Articles

No abstract provided.


A Government Of Limited Powers, Carl E. Schneider Jul 2005

A Government Of Limited Powers, Carl E. Schneider

Articles

Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal ...


Hard Cases And The Politics Of Righteousness, Carl E. Schneider May 2005

Hard Cases And The Politics Of Righteousness, Carl E. Schneider

Articles

The law of bioethics has been the law of cases. Interpreting the common law and the Constitution, judges have written the law of informed consent, abortion, and assisted suicide. Reacting to causes célèbres, legislatures have written the law of advance directives and end of life decisions. The long, sad death of Terri Schiavo eclipsed even the long, sad deaths of Karen Ann Quinlan and Nancy Beth Cruzan in the duration and strength of the attention and passions it evoked. What are Schiavo’s lessons? Hard cases, lawyers say, make bad law. Why? First, hard cases are atypical cases. They present ...


Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin Jan 2005

Guaranteed Payments Made In Kind By A Partnership, Douglas A. Kahn, Faith Cuenin

Articles

Guaranteed payments are payments made by a partnership to a partner for services performed in his partnership capacity or for the use of capital to the extent that the amount of the payment is not determined by reference to the partnership's income. In addition, some distributions made by a partnership in liquidation of a partner's interest in the partnership are treated as guaranteed payments. A guaranteed payment constitutes ordinary income to the partner, and the partnership is allowed a deduction for the payment unless it constitutes a capital expenditure. While guaranteed payments typically are made in cash, it ...


Contracting Around Finality: Transforming Price V. Neal From Dictate To Default, Christopher M. Grengs, Edward S. Adams Jan 2005

Contracting Around Finality: Transforming Price V. Neal From Dictate To Default, Christopher M. Grengs, Edward S. Adams

Articles

Arguably the most important and problematic area within the entire field of negotiable instruments law is the law relating to forgery, especially the allocation of losses that result from forgery. Forgery is central to negotiable instrument law because a signature typically authenticates the orders and promises to pay on which the entire system is based. Unfortunately, forgery continues to cause substantial losses to American banks and the national economy. "Despite the significance of this problem, many of the legal doctrines governing forgery loss allocation remain quite problematic, even after nearly three centuries of development." To combat the problem of negotiable ...


From "Predominance" To "Resolvability": A New Approach To Regulating Class Actions, Allan Erbsen Jan 2005

From "Predominance" To "Resolvability": A New Approach To Regulating Class Actions, Allan Erbsen

Articles

This Article develops normative and doctrinal innovations to cope with a pivotal yet undertheorized question in most proposed class actions: assuming that a class has adequate representatives, how much variance among class members' circumstances should courts tolerate? Class actions seeking monetary damages would be much less controversial if all class members were identically situated. In an imagined world of perfect homogeneity, shifting from an individualized to an aggregative mode of adjudication would promote efficiency, mitigate collective action problems, and counterbalance defendants' inherent economies-of-scale without sacrificing accuracy or redistributing entitlements among class members. In the real world, however, most classes encompass ...


Synergy And Serendipity, Joan Howland Jan 2005

Synergy And Serendipity, Joan Howland

Articles

Great events rarely occur without the fortuitous intersection of synergy and serendipity. One of the earliest documented examples of this dynamic is the Greek mathematician Archimedes' (287 B.C.-212 B.C.) discovery of the principle of buoyancy while he was soaking in a hot bath, inspiring him to jump up and run naked through the streets of Syracuse shouting "Eureka!" 3 This serendipitous discovery may easily have been eclipsed by the public outcry surrounding Archimedes' unconventional behavior. Coincidentally, however, his close friend King Hieron of Syracuse had just been cheated by a goldsmith and was able to use the ...


The Dynamics Of Child Sexual Abuse Prosecution: Two Florida Case Studies, Robert Levy Jan 2005

The Dynamics Of Child Sexual Abuse Prosecution: Two Florida Case Studies, Robert Levy

Articles

Criminal justice scholars agree that the process cannot adequately be captured simply by reporting guilty pleas, jury acquittals and convictions. Rather, one must imagine a giant cornucopia, the large end representing the huge mass of unreported and uncleared crimes, the small end representing the small number of convicted felons sentenced to prison. Between these terminal points can be found all those criminals the police decide not to arrest or refer for prosecution, all those cases prosecutors decide not to prosecute, the cases prosecutors decide to dismiss (or "nolle prosequi," often referred to as "nol pros") after they have been filed ...


Cross-National Measures Of Punitiveness, Alfred Blumstein, Michael Tonry, Asheley Van Ness Jan 2005

Cross-National Measures Of Punitiveness, Alfred Blumstein, Michael Tonry, Asheley Van Ness

Articles

No abstract provided.


State Sentencing Guidelines: Diversity, Consensus, And Unresolved Policy Issues, Richard Frase Jan 2005

State Sentencing Guidelines: Diversity, Consensus, And Unresolved Policy Issues, Richard Frase

Articles

No abstract provided.


Segregation And Environmental Justice, Myron Orfield Jan 2005

Segregation And Environmental Justice, Myron Orfield

Articles

No abstract provided.


The Functions Of Sentencing And Sentencing Reform, Michael Tonry Jan 2005

The Functions Of Sentencing And Sentencing Reform, Michael Tonry

Articles

No abstract provided.


The Warren Court's Missed Opportunities In Substantive Criminal Law, Richard Frase Jan 2005

The Warren Court's Missed Opportunities In Substantive Criminal Law, Richard Frase

Articles

No abstract provided.


A Reprise Of A Classic: Gorman & Finkin's Basic Text On Labor Law: Unionization And Collective Bargaining, Stephen F. Befort Jan 2005

A Reprise Of A Classic: Gorman & Finkin's Basic Text On Labor Law: Unionization And Collective Bargaining, Stephen F. Befort

Articles

No abstract provided.


Excessive Prison Sentences, Punishment Goals, And The Eighth Amendment: "Proportionality" Relative To What?, Richard Frase Jan 2005

Excessive Prison Sentences, Punishment Goals, And The Eighth Amendment: "Proportionality" Relative To What?, Richard Frase

Articles

No abstract provided.


Book Review—Mercy On Trial: What It Means To Stop An Execution, Janeanne Murray Jan 2005

Book Review—Mercy On Trial: What It Means To Stop An Execution, Janeanne Murray

Articles

No abstract provided.


Viewing September 11 Through The Lens Of History, Carol L. Chomsky Jan 2005

Viewing September 11 Through The Lens Of History, Carol L. Chomsky

Articles

No abstract provided.


Shareholder Bylaws, Shareholder Nominations, And Poison Pills, Brett Mcdonnell Jan 2005

Shareholder Bylaws, Shareholder Nominations, And Poison Pills, Brett Mcdonnell

Articles

Shareholder bylaws limiting or directing board action raise a tough and fascinating question of statutory interpretation under state law as well as an important policy question. In particular, over the last decade shareholders have sought to use bylaws to limit poison pills and to grant shareholders access to the corporate proxy materials to nominate directors. This paper argues that an expansive, although not unlimited, shareholder power to enact bylaws is both a plausible interpretation of Delaware's statutory scheme and desirable as a policy matter. Shareholder bylaws that set general rules of corporate governance and procedure should be valid unless ...


Intimacy And Economic Exchange, Jill Elaine Hasday Jan 2005

Intimacy And Economic Exchange, Jill Elaine Hasday

Articles

The current legal debate about the regulation of economic exchange between intimates mistakenly assumes that the law does not countenance such exchange to any notable extent. This assumption is so widely held that it unites otherwise disparate anticommodification and pro-market scholars. Both groups agree that the law maintains a strict boundary between economic exchange and intimacy, and disagree only on whether to applaud or criticize that boundary. Both overlook or underemphasize the degree to which the law already permits economic exchange within intimate relationships. The current debate's focus on whether the law should enforce economic exchanges between intimates misses ...


State Interests In Marriage, Interstate Recognition, And Choice Of Law, Brian H. Bix Jan 2005

State Interests In Marriage, Interstate Recognition, And Choice Of Law, Brian H. Bix

Articles

One of the great complications of the current marriage debates is the way that federalism and conflict of law issues interact - both at the level of principle and constitutional doctrine - in the area of marriage and divorce. This article begins by looking at federalism in the context of domestic relations at a general level. It then considers how current family law rules and constitutional constraints complicate the analysis. Finally, it considers the way in which recognizing party choice of law might respond to some, but by no means all, of the problems in the area.


Bad Arguments Against Gay Marriage, Dale Carpenter Jan 2005

Bad Arguments Against Gay Marriage, Dale Carpenter

Articles

This article claims that three common arguments against gay marriage - the definitional, procreation, and slippery-slope arguments - are quite bad, the worst of the lot. The definitional argument asserts that marriage just is the union of one man and one woman, and that the definition alone is a sufficient defense against claims for gay marriage. The procreation argument claims that marriage's central public purpose is to encourage procreation, and so the exclusion of same-sex couples is justified. The slippery-slope argument claims that the acceptance of same-sex marriage logically entails the acceptance of other public policy changes - notably the acceptance of ...


Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron Wright Jan 2005

Rendered Impracticable: Behavioral Economics And The Impracticability Doctrine, Aaron Wright

Articles

No abstract provided.


20 Years (Or 2000?) Of Story-Telling On The Law: Is Justice Detectable?, Richard H. Weisberg Jan 2005

20 Years (Or 2000?) Of Story-Telling On The Law: Is Justice Detectable?, Richard H. Weisberg

Articles

This paper was offered as the keynote address at a conference in April of 2004 at the Cardozo Law School upon the 20th anniversary of the publication of Richard Weisberg's The Failure of the Word: the Protagonist as Lawyer in Modern Fiction (New Haven: Yale U Press, 1984). Weisberg first gives an account of the critical reception of his book, both in literary and legal circles and then situates the book - via a reading of Derrida's Force of Law - as inevitably troubling both to liberal readers such as Brook Thomas and more conservative ones such as Richard Posner ...


Abandoning Recess Appointments?: A Comment On Hartnett (And Others), Michael Herz Jan 2005

Abandoning Recess Appointments?: A Comment On Hartnett (And Others), Michael Herz

Articles

No abstract provided.


Introduction: Un Cygne Noir, Peter Goodrich Jan 2005

Introduction: Un Cygne Noir, Peter Goodrich

Articles

No abstract provided.


Authority: An Hommage To Jacques Derrida And Mary Quaintance, Arthur J. Jacobson Jan 2005

Authority: An Hommage To Jacques Derrida And Mary Quaintance, Arthur J. Jacobson

Articles

This essay, in a symposium celebrating the publication 25 years ago of Jacques Derrida's "Force of Law: The 'Mystical Foundation of Authority,'" traces the themes of that work through the struggle between Derrida and his translator, Mary Quaintance, for authority over the translation. In the end, neither wins the struggle: Authorship of the translation - authority - must be ceded to a third. Derrida reacts to this loss of authority by signing the translation, taking responsibility for the translation even when it is the product of forces beyond his control and of decisions he only imperfectly understands. He thus enacts in ...


An Analysis Of The Financial Impact Of S.852: The Fairness In Asbestos Injury Resolution Act Of 2005, Lester Brickman Jan 2005

An Analysis Of The Financial Impact Of S.852: The Fairness In Asbestos Injury Resolution Act Of 2005, Lester Brickman

Articles

Nearly 30 years ago, the first of a series of bills to remove asbestos litigation from the tort system by creating an industry-funded mechanism to administratively pay asbestos claims was introduced into Congress. The need for a legislative fix of asbestos litigation has long been manifest. After many unsuccessful efforts to resolve the asbestos litigation crisis, the Senate is poised to take up consideration of S.852, The Fairness In Asbestos Injury Resolution Act of 2005. This essay is a preliminary effort to present some context for discussion of certain aspects of S.852 and to estimate the costs that ...


J.D., Peter Goodrich Jan 2005

J.D., Peter Goodrich

Articles

No abstract provided.


International Environmental Law: 2005 Annual Report, Vail T. Thorne, Lakshman Guruswamy, Kevin L. Doran Jan 2005

International Environmental Law: 2005 Annual Report, Vail T. Thorne, Lakshman Guruswamy, Kevin L. Doran

Articles

No abstract provided.