Law Commons^™

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …

In Memoriam: Robert R. Merhige, Jr., Ronald J. Bacigal

Law Faculty Publications

It is difficult to write about Judge Merhige in an academic journal. His greatness lay not in formulating abstract legal doctrine, but in applying the law to real life situations. When I began researching his biography in 1986, the most pleasant part of the process was personal interviews with the Judge spanning two and a half years and filling some fifty audio tapes. Unfortunately, I was never able to capture his humanity in print and may have done him a disservice by writing his biography the way a law professor does-focusing on the intellectual aspects of his famous cases, rather …

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

Google's (Fair) Use Of Copyrighted Work, James Gibson

Law Faculty Publications

Letters to the Editor on Google's (Fair) Use of Copyrighted Work

From The Treasurer: Aall Current Reserve Fund Restored, Joyce Manna Janto

Law Faculty Publications

This article reports on the fiscal health of the American Association of Law Libraries in 2005, including a comparative statement of revenues and expenses.

The Supreme Court: A Unique Institution, John Paul Jones

Law Faculty Publications

Established by the U.S. Constitution in 1789, the Supreme Court is both the final arbiter of significant legal cases and the prevailing authority on the constitutionality of individual laws. While the Constitution specifies the Court's original jurisdiction, it does not spell out how the Court should conduct its business, or even the number of justices who should serve on the Court or what their qualifications should be. Thus, the Founding Fathers provided a High Court for the nation with the adaptability to respond to the needs of its citizens.

The Limits Of Multiple Rights And Remedies: A Call For Revisiting The Law Of The Workplace, Ann C. Hodges

Law Faculty Publications

The IBM decision illustrates two major problems with current workplace regulation. First, there are two distinct but overlapping systems - the individual and the collective - which often collide. The result is, at best, an imperfect realization of rights under both systems, and perhaps more often, the sacrifice of rights under one to rights under the other. Second, the multitude of forums available for litigation results in multiple claims arising out of the same action, as well as tribunals deciding issues outside their expertise. After analyzing the IBM decision, I will consider the costs and benefits of the current regulatory …

The Lost Jurisprudence Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost …

The Prerogative Of The Sovereign In Virginia: Royal Law In A Republic, William Hamilton Bryson

Law Faculty Publications

The history of the prerogative of the sovereign, the lex prerogativa, in Anglo American jurisprudence is long and complicated. It has exercised the minds of jurists and political philosophers for many centuries, and there has not been universal agreement as to its nature and scope. The purpose of this essay, as prompted by the two quotations just given, is to describe the prerogative law and trace its development from medieval England to modem Virginia.

Recapturing Summary Adjudication Principles In Disparate Treatment Cases, Henry L. Chambers, Jr.

Law Faculty Publications

In the last decade, just as Title VII jury trials have become common, the Supreme Court has given judges more latitude to dispose of both weak and fairly strong disparate treatment cases through summary adjudication, even when Title VII liability is plausible pursuant to the McDonnell Douglas test. 11 This article explains how the Court's disparate treatment jurisprudence results in the abandonment of the summary adjudication principle that weak but winnable cases should be tried before a jury and suggests that the Court correct its mistake. Part I of this article discusses the Supreme Court's summary adjudication doctrine. Part II …

Success, Status, And The Goals Of A Law School, Jay Conison

Law Faculty Publications

We all want to be successful, even if we can’t quite articulate what “success” means. Some of us measure success by wealth—a bumper sticker reads, “Whoever dies with the most toys, wins.” Some measure success by power. Others measure it by positive influence on the lives of others—hence, the many who choose public service, or teaching, or a career in one of the helping professions. Still others—the Aristotelians among us—measure success synoptically, by the ability to look back on a fulfilled and moral life.

Recent Developments In Animal Law, Rebecca J. Huss

Law Faculty Publications

This article focuses on recent developments in litigation and legislation involving the injury or death of animals. The article first discusses recent veterinary malpractice cases where the central issue was not related to damages. Next, the article analyzes recent cases that have focused on the appropriate way to value animals that have been injured or killed due to the tortious acts of another. Finally, this article highlights recent legislative efforts that allow for civil suits based on the injury or death of an animal.

The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Superimposing Title Vii's Adverse Action Requirement On First Amendment Retaliation Claims: A Chilling Prospect For Government Employee Speech, Rosalie Berger Levinson

Law Faculty Publications

No abstract provided.

Against Sustainable Development Grand Theory: A Plea For Pragmatism In Resolving Disputes Involving International Trade And The Environment, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Congressional Oversight Of Counterterrorism And Its Reform, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

Re-Enchanting Torts, Robert F. Blomquist

Law Faculty Publications

No abstract provided.

La Vida Considerada Como Cosa: Un Error Norteamericano Fundamental, Richard Stith

Law Faculty Publications

El autor explica un error fundamental que puede subyacer a la aprobación, por el Tribunal Supremo norteamericano en el año 2000, del aborto durante el parto. Este error consiste en concebir la vida física como una mera cosa, como algo que puede existir sin que haya un ser humano que la viva. En cuanto al aborto, el error radica en la confusión entre desarrollo y construcción (del feto), confusión debida en parte a ciertas creencias medievales ya superadas por la ciencia moderna. En la segunda mitad del artículo, el autor sostiene que un error semejante puede proporcionar fácilmente un argumento …

Patterns In A Complex System: An Empirical Study Of Valuation In Business Bankruptcy Cases, Bernard Trujillo

Law Faculty Publications

This Article applies complex systems research methods to explore the characteristics of the bankruptcy legal system. It presents the results of an empirical study of twenty years of bankruptcy court valuation doctrine in business cramdown cases. The data provide solid descriptions of how courts exercise their discretion in valuing firms and assets.

This Article has two objectives: First, using scientific methodology, it explains the content of bankruptcy valuation doctrine. Second, the Article uses doctrine as a variable to explore the system dynamics that govern the processes of change over time.

Significant findings include: (1) Courts tend to split the difference …

The Negative Effects Of Capital Jury Selection, Andrea Lyon

Law Faculty Publications

No abstract provided.

When The Bough Breaks: Traumatic Paralysis-- An Affirmative Defense For Battered Mothers, Geneva O. Brown

Law Faculty Publications

No abstract provided.

Imperio Del Derecho Versus Imperio De Los Jueces, Richard Stith

Law Faculty Publications

¿Es posible el imperio del derecho (rule of law)? El derecho, para imperar, debe ser impuesto. Pero cuando es impuesto, puede no ser el derecho mismo sino aquellos que lo imponen quienes imperen. Para sujetar estas autoridades firmemente al derecho, ellas también tendrían que estar sometidas no sólo al derecho mismo sino a una fuerza aún más poderosa que podría ser igualmente arbitraria. De este modo, el sólo esfuerzo por asegurar el imperio del derecho conduce a la creación de potenciales tiranos cada vez más poderosos.

Dicho de otro modo: si se suprimen la policía y los tribunales de justicia, …

The Political Value Of Knowledge And The Elite Schools' Curricula: To Ignore Or Not To Ignore Marxism?, Dana Neacsu

Law Faculty Publications

This article focuses on the content of elite law schools' curricula. Like all such debates, this one also reflects the author's political and social concerns, which at this time are questioning the impact such curricula have on the graduates' abilities to deliberate "upon the full range of issues which might appear directly or indirectly on a less impoverished [contemporary] political agenda." Elite law schools, which are usually associated with elite universities, are expected to offer liberal legal education. Elite law schools are the fountain of legal scholarship. They are also the place where many of this nation's leaders acquire both …

Bork Was The Beginning: Constitutional Moralism And The Politics Of Judicial Selection, Gary L. Mcdowell

Law Faculty Publications

On October 23, 1987, the United States Senate committed what many considered then-and what many still consider today-to be an unforgivable political and constitutional sin. Wielding its power to advise and consent on nominations to the Supreme Court of the United States, the upper house voted 58-42 not to confirm Judge Robert H. Bork. The vote, which was the largest margin of defeat in history for a nominee to the Supreme Court, concluded one of the most tumultuous political battles in the history of the republic, a battle that would transform the process of judicial selection for years to come.

A Time To Preserve: A Call For Formal Private-Party Rights In Perpetual Conservation Easements, Carol N. Brown

Law Faculty Publications

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs. My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they …

Casting Lots: The Illusion Of Justice And Accountability In Property Allocation, Carol N. Brown

Law Faculty Publications

When does resorting to random selection by casting lots produce a just distribution or allocation of property? Some argue generally in support of casting lots, asserting that it is a viable substitute for equal distribution of property. Others argue against casting lots, contending that it undermines distributive justice. This article considers instances of casting lots from the nineteenth century to the present and explains why the latter view is the better view.

The Antelope is one of the earliest United States Supreme Court cases addressing distribution of property by casting lots. It chronicles a dispute over the allocation of captured …

Entrance Ramps, Tolls, And Express Lanes – Proposals For Decreasing Traffic Congestion In The Patent Office, Kristen Jakobsen Osenga

Law Faculty Publications

This Article proposes implementing a multitier patent system by the creation of two additional "roads" or routes that a patent application may follow. Because many patents are not sought with the intention of pursuing the traditional patent reward of commercialization or profit through access control, that is, the exercise of the limited patent monopoly, there is no reason for every single application to follow the current route. The creation of an auxiliary, or "side road," would decrease crowding on the current patent grant highway while still allowing the nontraditional applications to enter and traverse the patent grant system with different …

The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen

Law Faculty Publications

In this Article, I will address environmental issues in the context of our rapidly evolving understanding of "restructuring." The market for electricity is fast becoming a series of regional marketplaces for wholesale transactions, operating on bid-based systems that move power at the lowest cost. There are plenty of states where power is still delivered as it has been for decades: by "bundled" service provided by vertically integrated utilities. However, the trend is toward regionalization, where independent entities control the transmission grid and play a major role in determining how power is delivered. These market participants, confusingly, have been known by …

Regulatory Linearity, Commerce Clause Brinksmanship, And Retrenchment In Electric Utility Deregulation, Joel B. Eisen

Law Faculty Publications

The point of this Article is that if an agency has reached this point in the lifetime of its reinvention efforts by being "linear," then the experiment should end. In the case of restructuring, that is not the case, but two aspects of the situation make it exquisitely difficult to see this: an agency that is trying the same ideas repeatedly (FERC) and a complex set of variables that has hampered restructuring activity. Through this fog, the final point to be made is that if moving beyond the current stasis requires change, this should be contemplated. This industry is famously …

The Blackout Of 2003: What Is Next?, Joel B. Eisen

Law Faculty Publications

The blackout of August 2003 was a massive dislocation of American life, with millions of people in eight states and Canada losing power and a cost estimated in billions of dollars. As many as fifty million people were affected by the blackout. While the ultimate cause of the blackout is still being investigated, the implications for national policy may not be fully known for decades. The blackout was a wake up call and a watershed event that calls for reevaluation of just about every facet of the electric utility industry. We tend to think of a "wakeup call" as something …