Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 48

Full-Text Articles in Law

From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh Jan 2005

From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh

Faculty Scholarship

Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law.

Once we appreciate as much, we can begin by replacing the misleading ...


A Hydrogeological Perspective Of The Status Of Ground Water Resources Under The Un Watercourse Convention, Gabriel Eckstein Jan 2005

A Hydrogeological Perspective Of The Status Of Ground Water Resources Under The Un Watercourse Convention, Gabriel Eckstein

Faculty Scholarship

When the U.N. General Assembly adopted the Convention on the Non-Navigational Uses of International Watercourses in 1997, it took a decisive step in recognizing the important role that transboundary ground water resources play in human progress and development. In so doing, it also acknowledged the need to establish principles of law governing this "invisible" but valuable natural resource. Transboundary ground water historically has been neglected in treaties, ignored in projects with international implications, and cursorily misunderstood in much of legal discourse.

While the Convention provides substantial clarification on the status of ground water under international law, it also leaves ...


Computing Interest On Overpayments And Underpayments: How Difficult Can It Be? Very!, Mary A. Mcnulty, David H. Boucher, Joseph M. Incorvaia, Robert D. Probasco Jan 2005

Computing Interest On Overpayments And Underpayments: How Difficult Can It Be? Very!, Mary A. Mcnulty, David H. Boucher, Joseph M. Incorvaia, Robert D. Probasco

Faculty Scholarship

Taxpayers often assume that the difficult part of a tax dispute is resolving the tax liability and penalties, while interest computation is fairly straightforward. In the authors' experience, however, interest determinations are as subject to controversy and prone to error as tax liability determinations. The Article explores some of the areas that taxpayers should review carefully in the process of finalizing interest computations.

- Frequent Errors. The Article reviews twelve areas in which, even though the law is settled and the facts are usually clear, the Service's interest computations frequently include mistakes. Taxpayers need to be aware of these provisions ...


Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh Jan 2005

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Faculty Scholarship

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.


Choosing How To Regulate, Andrew P. Morriss, Bruce Yandle, Andrew Dorchak Jan 2005

Choosing How To Regulate, Andrew P. Morriss, Bruce Yandle, Andrew Dorchak

Faculty Scholarship

In this Article, the authors survey how agencies create substantive regulations through traditional rulemaking, negotiated rulemaking and litigation. Using public choice analysis, the Article relates agency choice to the agency's incentive structure. The Article also shows how the different forms of regulatory activity influence the content of agency regulations. Using a case study of EPA's regulation of heavy-duty diesel engines, the Article examines EPA's choices over thirty years as a means of testing the proposed theory. Finally, the Article concludes with a critique of allowing agencies to choose how they will regulate because the choice allows agencies ...


Rethinking Civil Rico: The Vexing Problem Of Causation In Fraud-Based Claims Under 18 U.S.C. § 1962(C), Randy D. Gordon Jan 2005

Rethinking Civil Rico: The Vexing Problem Of Causation In Fraud-Based Claims Under 18 U.S.C. § 1962(C), Randy D. Gordon

Faculty Scholarship

To recover in a private action, the three-part structure of RICO demands proof of particularized crimes at two levels and civil standing to sue for those crimes. The interpretation and application of the standing requirement — which arises from the statute’s mandate that compensable injuries be caused “by reason of” acts of racketeering — have bedeviled courts and litigants for decades. Recent developments in class action law have exacerbated the problem. As more and more courts have rendered it nearly impossible to certify classes asserting state-law claims, class plaintiffs have turned to uniform federal laws like RICO. But civil RICO claims ...


The Billable Hours Derby: Empirical Data On The Problems And Pressure Points, Susan Saab Fortney Jan 2005

The Billable Hours Derby: Empirical Data On The Problems And Pressure Points, Susan Saab Fortney

Faculty Scholarship

This article considers the consequences of law firm use of the hourly billing method and the recent increase in billable hour requirements. Part I of this article describes the rationale and methodology of an empirical study conducted in 2005 that explored attorney work-life issues and employer efforts to assist attorneys in dealing with work-life conflicts. Part II summarizes select study findings related to billable hours requirements and pressure. Part III concludes by considering what forces and players will change the current course of conduct in which law firm leaders treat increases in billable hours expectations as a necessary evil.


Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green Jan 2005

Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green

Faculty Scholarship

This paper explores the benefits of using mediation in addressing employment discrimination disputes. It highlights the difficulties for those who expect too much out of mediation by expecting it to transform relations while exposing concerns with those who limit mediation's potential by supporting mythical notions about mediators being neutral. The paper suggests that employers develop comprehensive conflict resolution systems and include mediation as a process that is case-specific and focused on the needs of all parties and not the needs of the mediator.


The Status Of Detainees From The Iraq And Afghanistan Conflicts, Srividhya Ragavan, Michael S. Mireles Jan 2005

The Status Of Detainees From The Iraq And Afghanistan Conflicts, Srividhya Ragavan, Michael S. Mireles

Faculty Scholarship

The paper is premised on the idea that the future course of international law will be impacted by the United States' ability to adhere to international treaties to which it is a signatory. Hence, the current administration bears a responsibility to avoid unwisely stretching, distorting, or avoiding the principles of international law for short-term gain in a manner that jeopardizes long-term sustainable policy. The United States should be wary of creating a dangerous precedent - not only for the world, but for itself. If the United States shirks from or misinterprets international legal principles, it leaves the forum open for other ...


An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green Jan 2005

An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green

Faculty Scholarship

Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators ...


Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes Jan 2005

Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes

Faculty Scholarship

The international community has worked toward a global law of contracts for the last century. These efforts include the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, and the Vienna Convention for the International Sales of Goods (CISG). These texts are all tremendous achievements in their own right. However, they reflect a delicate juxtaposition of the two primary legal systems of the world --- the civil law and the common law. A consequence of ...


Hélène Cixous's The Perjured City: Nonprosecution Alternatives To Collective Violence, Susan Ayres Jan 2005

Hélène Cixous's The Perjured City: Nonprosecution Alternatives To Collective Violence, Susan Ayres

Faculty Scholarship

In instances of collective violence — apartheid in South Africa, mass killings in Rwanda, and other crimes against humanity such as slavery — what response provides justice? How can justice be achieved under such a system? Legal justice through prosecution would be unjust. This opens the possibility of nonprosecution alternatives involving forgiveness. Hélène Cixous’s play about forgiveness as an alternative to criminal prosecution, The Perjured City: Or, the Awakening of the Furies, was written in response to an actual case of failed justice in France, known as the Bad Blood Scandal. The play provides a model of forgiveness and a forum ...


Protecting A Hidden Treasure: The U.N. International Law Commission And The International Law Of Transboundary Ground Water Resources, Gabriel E. Eckstein Jan 2005

Protecting A Hidden Treasure: The U.N. International Law Commission And The International Law Of Transboundary Ground Water Resources, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Given the world's considerable reliance on this precious resource, it is reasonable to assume that international attention to, and especially legal consideration of, ground water would be substantial. Nothing is further from the truth. Despite the growing dependence, legal and regulatory attention to ground water resources have long been secondary to surface water, especially among legislatures and policymakers and above all in ...


Signaling And Precedent In Federal District Court Opinions, Andrew P. Morriss, Michael Heise, Gregory C. Sisk Jan 2005

Signaling And Precedent In Federal District Court Opinions, Andrew P. Morriss, Michael Heise, Gregory C. Sisk

Faculty Scholarship

Standard economic analysis of judicial behavior, at least with respect to federal judges, has to some extent foundered on the apparent success of the Constitution's framers in designing an institution where almost the whole thrust of the rules governing compensation and other terms and conditions of judicial employment is to divorce judicial action from incentives. That is, the structure takes away the carrots and sticks and the different benefits and costs associated with different behaviors which inform human action in an economic model. Nonetheless, our earlier empirical work, as well as work by others, found significant associations between promotion ...


The Shaft: The Hadley V. Baxendale Song, Franklin G. Snyder Jan 2005

The Shaft: The Hadley V. Baxendale Song, Franklin G. Snyder

Faculty Scholarship

Professor Snyder wrote the lyrics to this song to help students learn the important points from the leading English contract law case Hadley v. Baxendale.


Hadley V. Baxendale And Other Common Law Borrowings From The Civil Law, Wayne Barnes Jan 2005

Hadley V. Baxendale And Other Common Law Borrowings From The Civil Law, Wayne Barnes

Faculty Scholarship

In 1854, the English Exchequer Court delivered the landmark case of Hadley v. Baxendale. That case provided, for the first time in the common law, a defined rule regarding the limitations on recovery of damages for breach of contract. It has been widely celebrated as a landmark in the law of contracts, and more widely as a triumph of the common law system. A little over a decade after it was decided, it had already become highly regarded, for Chief Baron Pollock stated in 1866: “[A] more extensive and accurate knowledge of decisions in our law books, and a more ...


Introduction: The Power Of Stories: Gloucester Tales, Susan Ayres Jan 2005

Introduction: The Power Of Stories: Gloucester Tales, Susan Ayres

Faculty Scholarship

For a second year, scholars made a pilgrimage to Gloucester for a three-day academic conference sponsored by Texas Wesleyan Law School, the University of Gloucestershire, and the Central Gloucester Initiative. This year's conference theme, "The Power of Stories: Intersections of Law, Culture and Literature," was inspired by the medieval folktale about Dick Whittington and his cat. While the City of Gloucester planned various events to celebrate the 400th anniversary of the folktale, such as a re-enactment of Dick Whittington's pilgrimage from Gloucester to London, conference organizers in both the United States and England planned a thought-provoking conference.

They ...


Law Firm General Counsel As Sherpa: Challenges Facing The In-Firm Lawyer's Lawyer, Susan Saab Fortney Jan 2005

Law Firm General Counsel As Sherpa: Challenges Facing The In-Firm Lawyer's Lawyer, Susan Saab Fortney

Faculty Scholarship

This article addresses the increasing trend in law firms appointing general counsel. Part I of this article provides an overview of the frequency of law firms employing the services of general counsel and the different roles general counsel may assume in law firms. Part II outlines the duties of general counsel in advising the firm on matters related to firm structure. Part III observes that general counsel may play an important role in helping law firms choose the most appropriate method to compensate its lawyers to achieve the desired results. Part IV stresses the importance of the preventative measures general ...


Inherently Dangerous: The Potential For An Internet-Specific Standard Restricting Speech That Performs A Teaching Function, H. Brian Holland Jan 2005

Inherently Dangerous: The Potential For An Internet-Specific Standard Restricting Speech That Performs A Teaching Function, H. Brian Holland

Faculty Scholarship

Real or not, we perceive the convergence of several dangers-the physical threat of terrorism, both foreign and domestic; the economic threat of recession, corporate scandal, and globalization; and the social threat of new technology that connects, informs, exposes, and overwhelms us. At this moment, certain First Amendment protections are ripe for circumscription. The question, then, is whether our constitutional right of free speech is relative and conditional. The populist answer is yes. The legal answer is much more complicated.

To that end, this Article carries three goals. The first is to highlight parallel signals from the three branches of government ...


In The Interests Of Justice: A Critique Of The Icty Trial Court's Decision To Assign Counsel To Slobodan Milosevic, Milan Markovic Jan 2005

In The Interests Of Justice: A Critique Of The Icty Trial Court's Decision To Assign Counsel To Slobodan Milosevic, Milan Markovic

Faculty Scholarship

On February 12, 2002, Slobodan Milosevic became the first head of state to be brought before an international criminal tribunal. The Milosevic trial was hailed as a momentous event for both the International Criminal Tribunal for the Former Yugoslavia ("ICTY") and international justice as a whole. As one former ICTY official said at the start of the trial, "Milosevic's transfer to the Hague is the capstone of the tribunal's somewhat improbable rise from the margins of the international arena to that of a serious international institution."

Unfortunately, the trial appears to have been more than the ICTY bargained ...


A Short And Plain Solution To The Medical Malpractice Crisis: Why Charles E. Clark Remains Prophetically Correct About Special Pleading And The Big Case, Mary Margaret Penrose, Dace A. Caldwell Jan 2005

A Short And Plain Solution To The Medical Malpractice Crisis: Why Charles E. Clark Remains Prophetically Correct About Special Pleading And The Big Case, Mary Margaret Penrose, Dace A. Caldwell

Faculty Scholarship

Antitrust. Patent infringement. Civil rights. Employment discrimination. And now, medical malpractice. The common thread among each of these categories of cases is that judges and advocates have, at one time or another, sought to elevate the pleading requirements in federal court for these so-called "big cases." To date, every such effort has failed.6 But none of the previous attempts have garnered the wide range of support now coming from such influential sources as the majority of physicians, Congress, and the President of the United States.

Our country is in the middle of a similar predicament-a medical malpractice crisis that ...


The Role Of Groups In Norm Transformation: A Dramatic Sketch, In Three Parts, Robert B. Ahdieh Jan 2005

The Role Of Groups In Norm Transformation: A Dramatic Sketch, In Three Parts, Robert B. Ahdieh

Faculty Scholarship

Legal scholars, as well as economists, have focused limited attention on the role of coordinated groups of market participants - committees, clubs, associations, and the like - in social ordering generally and in the evolution of norms particularly. One might trace this neglect to some presumptive orientation to state actors (expressive law) and autonomous individuals (norm entrepreneurs) as the sole parties of interest in social change. Yet, alternative stories of social ordering and norm change might also be told. Dramatic recent changes in the contracting practices of the sovereign debt markets offer one such story.

Using the latter by way of illustration ...


Forging A Multilayered System Of Global Governance, Charlotte Ku Jan 2005

Forging A Multilayered System Of Global Governance, Charlotte Ku

Faculty Scholarship

The world in which we find ourselves today is no longer governable entirely by resort to the classical system of international law. Even more seriously, it would seem that the purposes and principles of the United Nations Charter are no longer being served sufficiently in light of new concerns. The text adopted in 1945 does not convey the image of a world tormented by terrorists. Nor does it reflect the most pressing commitments of our time: to democratic governance, to environmental responsibility, and to a freer and more equitable system of world trade. Increasingly, the international law community acknowledges the ...


Intellectual Property And The Information Ecosystem, Peter K. Yu Jan 2005

Intellectual Property And The Information Ecosystem, Peter K. Yu

Faculty Scholarship

This short essay proceeds in two parts. The first part examines the controversy surrounding the use of the term intellectual property. It discusses the common criticisms of the term's usage, including those articulated by Richard Stallman. It also challenges the myth that intellectual property did not acquire any property attributes until the establishment of the World Intellectual Property Organization. The essay suggests that the term may remain in common usage despite its uneasy analogy to real property, and a more nuanced understanding of property law may alleviate some of the problems caused by using the term.

The second part ...


Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu Jan 2005

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Faculty Scholarship

Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in the country alone. Published as part of the U.S.-China Trade: Opportunities and Challenges Symposium, this Essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the Dispute Settlement Body of the World Trade Organization over inadequate enforcement of intellectual property rights.

The Essay begins by articulating four reasons why the administration should not do so. It then compares the ...


Chapter Report: Southwestern Association Of Law Libraries, Susan T. Phillips Jan 2005

Chapter Report: Southwestern Association Of Law Libraries, Susan T. Phillips

Faculty Scholarship

The membership of the Southwestern Association of Law Libraries converged in Little Rock, Arkansas, for the forty-seventh annual meeting on March 31-April 2, 2005, to discover and discuss issues and the latest innovations in the legal information profession for the twenty-first century. The theme was "Big Ideas Come from Little Rock." The staff of the University of Arkansas Little Rock/Pulaski County Law Library hosted the preconference program, "Basic Legal Research for the Non-Law Librarian," which broke attendance records for outside-Texas meeting locations. Successful marketing of the preconference to the Arkansas library community, including the Arkansas Documents Consortium, resulted in ...


Introduction To Transnational Law: What Is It - How Does It Differ From International Law And Comparative Law, Charlotte Ku Jan 2005

Introduction To Transnational Law: What Is It - How Does It Differ From International Law And Comparative Law, Charlotte Ku

Faculty Scholarship

Each of today's panelists has been asked to recount some of their personal educational and professional experience as a way of describing the kind of awareness that a transnational approach might provide. Each panelist has been asked to consider the content of a transnational course and how schools might draw on existing curricula and teaching staffs to teach a transnational law class. One of the most widely talked about experiences in developing such a curriculum is the approach adopted by the University of Michigan Law School by requiring a Transnational Law course for all its students starting with the ...


Tempest In A Teapot Or Tidal Wave - Cybersquatting Rights And Remedies Run Amok, H. Brian Holland Jan 2005

Tempest In A Teapot Or Tidal Wave - Cybersquatting Rights And Remedies Run Amok, H. Brian Holland

Faculty Scholarship

The conflict at the heart of cybersquatting is in many ways conceptual. To most of its early inhabitants, the Internet embodied a separate and distinct environment --a territory unto itself. As such, it was thought the online world would stand separate from existing governmental power structures premised on the idea of territorial sovereignty. This separateness placed online actors theoretically beyond the authority of established legal systems, whose validity appeared limited by territorial boundaries and the sovereign-subject relationships occurring in the off-line world. Indeed, what many envisioned was an opportunity to create a self-regulating community existing within the "territory" of the ...


Harry Potter And The Law, Jeffrey E. Thomas, James Charles Smith, Danaya Wright, Benjamin H. Barton Jan 2005

Harry Potter And The Law, Jeffrey E. Thomas, James Charles Smith, Danaya Wright, Benjamin H. Barton

Faculty Scholarship

The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories.


Relational Contracting In A Digital Age, Franklin G. Snyder Jan 2005

Relational Contracting In A Digital Age, Franklin G. Snyder

Faculty Scholarship

If, as it has sometimes been argued, changes in contract rules and theory are strongly affected by changes in economic conditions, we should note that the world has changed a good deal since the early 1960s when relational contract theory began to bloom. The economic world of 2004 is very different from the world of 1964. Modern relational contract theory was born about the same time as its great theoretical competitor, the rational choice approach of the legal economists. It came before the vast changes wrought by the information revolution and the increased globalization of the economy. What has relational ...