Law Commons^™

Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick

Faculty Publications

The absence of neutrality and objectivity in constitutional decision-making has vexed scholars and courts. In this Article, the author describes and analyzes "constitutional empiricism," a trend instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific conventions and processes. Courts have generally relied upon traditional sources, such as text and history, to interpret consititutional powers and rights. In its search for neutrality and objectivity, however, the Court has recently turned not only to social science and other data, which are fast becoming common sources of interpretation, but also to the precepts and …

The Situation: An Introduction To The Situational Character, Critical Realism, Power Economics, And Deep Capture, Jon Hanson, David Yosifon

Faculty Publications

Throughout most of this introductory Article, we will focus our arguments primarily on economics and law and economics. We believe, however, that the implications of our inquiry extend far beyond those domains. The tendencies we hope to elucidate find their origins in the human animal, not in any particular legal theoretic perspective. It happens that these tendencies are especially prominent in law and economics, currently the dominant theoretical paradigm for creating and analyzing legal policy. But the relevance of our thesis is not confined to one approach , or even to legal-political questions. All humans are more or less implicated, …

Human Rights And Genetic Discrimination: Protecting Genomics' Promise For Public Health, Anita Silvers, Michael Ashley Stein

Faculty Publications

No abstract provided.

Ten Things Deans Can Do With Students, R. Lawrence Dessem

Faculty Publications

A healthy relationship with students is beneficial to one's deanship, law school, and to the dean herself. An experienced provost once told me that serving as dean was the best job that he had ever had because he still had significant contact with students. Deans should take advantage of the possibilities for student interactions that their deanships afford them. What follows is my “top ten list” of ways in which deans can build a positive relationship with their students.

Using Statutes To Set Legislative Rules: Entrenchment, Separation Of Powers, And The Rules Of Proceedings Clause, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Copyrighting Facts, Michael S. Green

Faculty Publications

No abstract provided.

Rhetorically Reasonable Police Practices: Viewing The Supreme Court's Multiple Discourse Paths, Kathryn R. Urbonya

Faculty Publications

This Article analyzes the United States Supreme Court's numerous and shifting rhetorical discourse paths for declaring whether particular governmental practices constituted unreasonable searches or seizures under the Fourth Amendment to the United States Constitution. It examines how the Court has manipulated classic discourse paths arising from text, history, precedent and structure. It reveals that among and within each of these categories, the Court has created conflicting approaches. The Article argues that the Court's construction of Fourth Amendment reasonableness has depended upon which discourse paths it has selected as well as how it has characterized the values embedded within the discourse …

Envisioning A Global Legal Culture, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

W & M Law School Came First. Why Care?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.

Pay Secrecy/ Confidentiality Rules And The National Labor Relations Act, Rafael Gely, Leonard Bierman

Faculty Publications

This article seeks to provide a comprehensive account of doctrinal issues related to the use of pay secrecy/confidentiality rules (“PSC rules”) under the NLRA. In Part II, we describe what pay secrecy/confidentiality is and discuss recent survey evidence of their presence in workplaces across the United States. In Part III, we describe the current legal framework under which PSC rules are evaluated under the NLRA, while in Parts IV and V, we explore various doctrinal issues related to these rules in more detail. This leads us to Part VI, where we ponder the future of PSC rules under the NLRA …

Introduction: Rights Of Attribution, Section 43(A) Of The Lanham Act, And The Copyright Public Domain, Tyler T. Ochoa

Faculty Publications

In Dastar Corporation v. Twentieth Century Fox Film Corporation, the U.S. Supreme Court will decide whether the former owner of the copyright in a "work made for hire" has a federal right of attribution that continues to exist even after the formerly copyrighted work has entered the public domain.

Fifteen intellectual property law professors filed anamicus brief in the case in support of the Petitioner. The brief, which is reprinted following this introduction, attempts to place the Dastar case in its historical context, as merely the latest effort on the part of former copyright owners to use trademark and unfair …

A Road To No Warez: The No Electronic Theft Act And Criminal Copyright Infringement, Eric Goldman

Faculty Publications

In the second half of the 1990s, copyright owners repeatedly sought Congress's help addressing the challenges posed by the Internet and other new technologies. Congress responded with a suite of new protections, including restrictions against circumvention, longer copyright terms, increased statutory damages, and criminalization of willful non-commercial infringement.

This Article examines the latter of those changes, effectuated through the No Electronic Theft Act (the "Act" or the "NET Act"). The Act represents a significant change to copyright law be cause it subtly shifts the paradigm underlying criminal copyright infringement.

Part I of this Article discusses the Act's development, from the …

Intellectual Property And Social Needs In A Networked World, Howard C. Anawalt

Faculty Publications

Interlaced economies and silicon-based ICT (Information and Communication Technologies) have combined to produce much of what we understand as “globalization.” ICT exist because clever and innovative people figure out how to harness nature’s principles and put them to work. They invent. The inventors may be individuals or small research groups, or they may be employees of corporations or universities. In any event, what they invent creates value, value which their employers or they themselves wish to own and control.

The Rhetorical Uses Of Marbury V. Madison: The Emergence Of A "Great Case", Davison M. Douglas

Faculty Publications

Marbury v. Madison is today indisputably one of the "great cases" of American constitutional law because of its association with the principle of judicial review. But for much of its history, Marbury has not been regarded as a seminal decision. Between 1803 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision's discussion of writs of mandamus or the Supreme Court's original jurisdiction than for its discussion of judicial review. During the late nineteenth century, however, the exercise of …

International Courts And Tribunals, Nancy Amoury Combs, Daryl A. Mundis, Ucheora O. Onwuamaegbu, Mark B. Rees, Jacqueline A. Weisman

Faculty Publications

This article reviews and summarizes significant developments in 2002 involving international courts and tribunals, particularly events relating to the International Court of Justice, the United Nations Compensation Commission, the Iran-U.S. Claims Tribunal, the Claims Resolution Tribunal, and the International Commission on Holocaust Era Insurance Claims. Significant developments relating to the International Criminal Court, the International Criminal Tribunals for the former Yugoslavia and for Rwanda, proposed additional ad hoc international criminal tribunals, the International Tribunal for the Law of the Sea, the World Trade Organization dispute settlement system, and other trade dispute settlement systems are detailed in other articles in this …

Bring Back The Draft?, Neal Devins

Faculty Publications

No abstract provided.

Constitutional Decision-Making Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Review Of The Hanging Of Ephraim Wheeler : A Story Of Rape, Incest, And Justice In Early America, Michael F. Russo

Faculty Publications

No abstract provided.

Attitudes About Attitudes, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Chevron Deference And Treaty Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.

Approving Employee Retention And Severance Programs Judicial Discretion Run Amuck, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Llc Member And Limited Partner Breach Of Fiduciary Duty Claims: Direct Or Derivative Actions, James R. Burkhard

Faculty Publications

No abstract provided.

Behavioral Approach To Analyzing Corporate Failures, A. Mechele Dickerson

Faculty Publications

Recent corporate failures indicate that existing laws fail to give boards of directors adequate incentives to acknowledge that some financially troubled firms simply cannot be salvaged. Relying primarily on insights from law and behavioral science literature, this Article notes that directors have a natural tendency to underestimate risks and overestimate their ability to save an insolvent or near insolvent firm. This Article urges the imposition of a duty to file a timely bankruptcy petition because such a duty will encourage directors to consider the interests of all the firms' constituents, including workers, creditors, and the local community, when making decisions …

The Struggle For School Desegregation In Cincinnati Before 1954, Davison M. Douglas

Faculty Publications

No abstract provided.

Remembering Andrew I. Batavia, Michael Ashley Stein

Faculty Publications

No abstract provided.

Congress And The Making Of The Second Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.

The Economic Ambiguity (And Possible Irrelevance) Of Tax Transition Rules, Eric D. Chason

Faculty Publications

No abstract provided.

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …

A Challenge To The Rationale For General Economic Crime Sentence Increases Following Sarbanes-Oxley, Frank O. Bowman Iii

Faculty Publications

I am writing in response to the Commission's request for comment published in the Federal Register on January 17, 2003. I will address the question of whether the base offense level and/or the loss table of U.S.S.G. § 2B1.1 should be further modified to provide across-the-board sentence increases for economic crime offenders at virtually all loss levels. In my view, no case for doing so has yet been made.

Editor's Observations: The Sarbanes-Oxley Act And What Came After, Frank O. Bowman Iii

Faculty Publications

On December 2, 2001, the Enron Corporation filed the largest bankruptcy petition in U.S. history. Losses to investors, creditors, employees, and pensioners were in the billions. Criminal investigations are ongoing. On May 1, 2003, the U.S. Sentencing Commission passed a set of amendments to the U.S. Sentencing Guidelines that will, among other things, prevent a federal district judge from awarding a sentence of straight probation to a defendant convicted at trial of an $11,000 mail fraud. This Issue of FSR tells the story of how the first of these apparently unrelated events led to the second. Put another way, this …