Law Commons^™

Harry Potter & The Law: Status, Rules, And The Enslavement Of The House-Elves, James C. Smith

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Is elfin bondage morally justified, or is it as evil as the human institution of slavery? Rowling shows Hermione as a crusader, as an abolitionist. Yet as narrator Rowling does not interject a moral judgment. The reader is left to decide whether Hermione's cause has great merit, is half-cocked, or is somewhere in between.

Harry Potter & The Law: Family Life And Moral Character, James C. Smith

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Harry Potter's mistreatment by his Muggle family does not amount to a legal wrong. Notice that Dumbledore did not threaten the Dursleys with legal proceedings, either in Muggle or Wizard tribunals. The ethic of equitable treatment is societal and lacks a legal basis in Anglo-American family law. Family law has many facets; it is an amalgam of legal rules and principles. My focus is the lens of property law -- in particular, family property norms -- although it is also plain that the Dursleys have not violated non-property based family law norms.

The Limitation On Undocumented Workers’ Lost Earnings After Balbuena And Sanango: Crafting A Fair And Principled Balance Of Immigration Policy And New York State Labor Law § 240 Safety Goals, Meredith R. Miller

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In December 2004, in a pair of cases, the Appellate

Division, First Department, held that under state labor

and tort laws, injured workers who are not legally permitted

to be present or employed in the United States

are only entitled to receive lost earnings reflecting what

they could have earned in their country of origin. This

article explores these First Department decisions by first

discussing the federal statutory and decisional backdrop

against which the cases arose. This article then

provides a discussion of the First Department cases and

the competing economic incentives they implicate.

Finally, this article posits that a …

Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge

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This paper addresses the fairness of securities arbitrations in the United States. A few decades ago, such a topic would have been relegated to the academic hinterlands. For the first fifty years following the enactment of the nation's securities laws, pre-dispute arbitration agreements between investors and the securities industry were not enforceable. In a series of decisions in the late 1980s, the Supreme Court reversed course and held that such disputes were indeed arbitrable. Following those decisions, arbitration quickly became the preferred method of dispute resolution for cases arising under the nation's securities laws, especially disputes between investors and broker-dealers. …

Introduction: Assessing The Future Of The Legal Profession Symposium, Alex B. Long

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No abstract provided.

The Hidden Costs Of Contracting: Barriers To Justice In The Law Of Contracts, Teri Dobbins Baxter

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No abstract provided.

U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin

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No abstract provided.

The Feminist Pervasion: How Gender-Based Scholarship Informs Law And Law Teaching, Joan Macleod Heminway, Ann Bartow, F. Carolyn Graglia, Deseriee A. Kennedy

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This is an edited, annotated transcript of a conference panel discussion on feminism, sex, and gender in law, legal education, and legal scholarship. The transcript reflects widely divergent views of the place of feminism, sex, and gender in the law and legal scholarship. Moreover, the panelists differ as to the role feminism has played in the lives of women as law students and practicing attorneys. In the latter part of the transcript, the panelists' remarks focus in on hotly debated issues surrounding possible gender (or sex) and racial bias in LSAT testing and the innate abilities of women and men …

U.S.-China Textile Trade: An Introduction, C. Donald Johnson

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In the spring of 1999, the Office of United States Trade Representative (USTR) in the Clinton administration was heavily engaged in completing the negotiations on the terms of China's accession agreement to becoming a member of the World Trade Organization (WTO). The Chinese Premier at the time, Zhu Rongji, was scheduled to visit Washington in April, which created an "action forcing event" to complete the agreement for a signing ceremony with President Bill Clinton. After nearly fifteen years of negotiations the end appeared to be near, but several critical issues remained unresolved--including the highly-charged political issue of textiles.

Regulating Section 527 Organizations, Gregg D. Polsky, Guy-Uriel E. Charles

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In this Essay, we consider whether the Federal Election Commission (FEC) has the authority to regulate independent 527 organizations (e.g., Swiftboat Veterans for Truth, Moveon.org, etc.) as political committees under the Federal Election Campaign Act. This issue, which was hotly debated during the last election cycle when it was considered and ultimately tabled by the FEC, is an extremely complex one that requires a deep understanding of election, tax, administrative, and constitutional law. After considering how these areas of law intersect, we conclude that the FEC lacks the authority to regulate independent 527 organizations as political committees.

Effective Disaster Mitigation Depends Upon Well-Coordinated Local Land Use Planning And Zoning, Patricia E. Salkin

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No abstract provided.

Plea Bargaining At The Hague, Julian A. Cook

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Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …

Torts In Verse: The Foundational Cases, R. Perry Sentell Jr.

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This Article contains a "verse," "rhyme," or "poem" for each of the truly foundational cases ordinarily studied in first year Torts. The arrangement assumes a typical Torts casebook's order of presentation, but is fairly flexible. Each entry initially sketches the selected case's significance to the body of Tort law and then follows with the verse. The "rhymes" themselves are admittedly (indeed, intentionally) contrived and pedantic, seeking to elicit groans--but hopefully groans of recognition and familiarity. Ideally, the student will most "enjoy" a verse while reading and studying the case itself; indeed, some verse references make little sense otherwise.

Miranda And Reasonableness, Peter B. Rutledge

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Last term's decisions in Yarborough v. Alvarado and Missouri v. Seibert shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its “custody” determination was not “contrary to” or an “unreasonable application of” clearly established Supreme Court case law. In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at the outset of a …

Affiliated And Related Corporations, Don Leatherman

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No abstract provided.

International Space Law In Transformation: Some Observations, Glenn Harlan Reynolds

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No abstract provided.

Abu Ghraib, Diane Marie Amann

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This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

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This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

International Income Allocation In The Twenty-First Century: The Case For Formulary Apportionment, Walter Hellerstein

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From an international perspective, formulary apportionment has traditionally been viewed as little more than transfer pricing’s “poor relation” as a division-of-income methodology. It receives only grudging recognition as a method of attributing the profits to a permanent establishment under Article 7 of the OECD Model Tax Convention; it receives no mention at all in Article 9 as a method for distributing the profits of associated enterprises among the contracting states in which they conduct their activities; and it was assailed by the international business community and by the EU Member States as out of step with internationally excepted norms in …

Donor Standing To Enforce Charitable Gifts: Civil Society Vs. Donor Empowerment, Iris Goodwin

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Philanthropy has a dirty little secret -- that a gift to public charity restricted to a specific purpose is often used in ways not intended by the donor. In most states, the attorney general is the agent for enforcement of such gifts. Attorney general offices are beset with difficulties that make it impossible to monitor how each charity administers restricted gifts. Donors are increasingly aware that their restrictions are ignored and, frustrated by lax enforcement, they are pursuing standing to enforce restrictions.

In Smithers v. St. Luke's/Roosevelt Hospital, the donor's widow succeeded in obtaining standing, even after the attorney general …

Book Review: A Strike Like No Other Strike: Law And Resistance During The Pittston Coal Strike Of 1989 - 1990, Fran Ansley

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No abstract provided.

What Do Flexible Road Signs, Children's Clothes And The Allied Campaign In Europe During Wwii Have In Common? The Public Domain And The Supreme Court's Intellectual Property Jurisprudence, David E. Shipley

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Part I of this article discusses the impact of the Sears, Compco and Bonito Boats, and the uncertainty over whether the principles of federal intellectual property announced in these decisions serve as limitations on the scope of protection that can be afforded under trademark legislation enacted by Congress under its Commerce Clause power. Part II presents the Supreme Court's reaffirmation of fundamental principles intellectual property policy in a series of cases decided in the last decade: Qualitex, Wal-Mart, TrafFix, Mosley and Dastar. Part III summarizes some of the common themes emerging from these decisions …

Watch Out For Whistleblowers, Leslie C. Griffin

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No abstract provided.

The Proven Key: Roles And Rules For Dictionaries In The Patent Office And The Courts, Joseph Scott Miller, James A. Hilsenteger

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The U.S. Court of Appeals for the Federal Circuit, in its continuing effort to develop a patent claim construction jurisprudence that yields predictable results, has turned to dictionaries, encyclopedias, and similar sources with increasing frequency. This paper explores, from both an empirical and a normative perspective, the Federal Circuit's effort to shift claim construction to a dictionary-based approach. In the empirical part, we present data showing that the Federal Circuit has, since its own in banc Markman decision in April 1995, used reference works such as dictionaries to construe claim terms with steadily increasing frequency. In addition, and contrary to …

Enhancing Patent Disclosure For Faithful Claim Construction, Joe Miller

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Claim construction jurisprudence is in disarray. The U.S. Court of Appeals for the Federal Circuit reverses trial court claim construction decisions at a worryingly high rate. The proportion of Federal Circuit claim construction opinions that include separate concurrences or dissents continues to grow. And the muddled mix of issues the Federal Circuit framed for en banc review in the Phillips case suggests that the court is having trouble reaching consensus on what the central questions are, much less on how to answer them. Perhaps the path to adequately predictable claim construction is continued tinkering with the analytical constructs internal to …

Taxing The Promise To Pay, Gregg D. Polsky, Brant J. Hellwig

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The IRS recently disclosed that it has identified more than 100 executives at 42 leading public corporations that participated in a tax shelter designed to defer the recognition of income from the exercise of stock options. While the agency thus far has identified approximately $700 million in unreported gains from these shelters, it predicts that the revenue loss to the government will ultimately exceed $1 billion. Compared to most tax shelters, this particular transaction (commonly known as the "Executive Compensation Strategy" or "ECS") is remarkably simple. Rather than exercise the options individually, a participating executive instead transfers the options to …

American Corporate Copyright: A Brilliant, Uncoordinated Plan, Paul J. Heald

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At first glance, American copyright law and policy seem to be dictated entirely by a monolithic block of corporate rightsholders. Over the last twenty years, powerful interests including Disney, the American Society of Composers, Authors, and Publishers (ASCAP), Microsoft, and the American Motion Picture Association (AMPA), have successfully lobbied Congress for copyright term extensions, copyright restoration, software anticircumvention legislation, protection against audio bootlegging, and a series of bilateral and international agreements designed to increase protection for American copyright owners overseas. Even the failure to protect databases in America, widely touted as a victory for the public interest, has been driven …

Losing Faith: Extracting The Implied Covenant Of Good Faith From (Some) Contracts, Teri Dobbins Baxter

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No abstract provided.

Live Long - And Prosper?, Glenn Harlan Reynolds

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No abstract provided.

Attorney Liability For Tortious Interference: Interference With Contractual Relations Or Interference With The Practice Of Law?, Alex B. Long

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Allowing individuals to bring tortious interference claims against opposing attorneys for conduct occurring during the representation of a client and that lies close to the core of what it means to practice law presents courts with particularly challenging policy choices. The defendant-attorney's conduct in such cases may involve the filing of a lawsuit, pre-trial settlement strategy, the use of the rules regarding conflicts of interest to disqualify opposing counsel, and questionable trial tactics. The primary concern with permitting interference claims in this context is the potential for such claims to chill legitimate advocacy. However, if properly defined, interference claims, and …