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Full-Text Articles in Law

Once And Future Copyright, James Gibson Nov 2005

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 ...


In Memoriam: Robert R. Merhige, Jr., Ronald J. Bacigal Nov 2005

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 ...


Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass Nov 2005

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 ...


Google's (Fair) Use Of Copyrighted Work, James Gibson Oct 2005

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 May 2005

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 Limits Of Multiple Rights And Remedies: A Call For Revisiting The Law Of The Workplace, Ann C. Hodges Apr 2005

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 system for ...


The Supreme Court: A Unique Institution, John Paul Jones Apr 2005

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.


Superimposing Title Vii's Adverse Action Requirement On First Amendment Retaliation Claims: A Chilling Prospect For Government Employee Speech, Rosalie Berger Levinson Jan 2005

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.


Imperio Del Derecho Versus Imperio De Los Jueces, Richard Stith Jan 2005

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 ...


Success, Status, And The Goals Of A Law School, Jay Conison Jan 2005

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.


The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner Jan 2005

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

Law Faculty Publications

No abstract provided.


The Negative Effects Of Capital Jury Selection, Andrea Lyon Jan 2005

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 Jan 2005

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

Law Faculty Publications

No abstract provided.


Patterns In A Complex System: An Empirical Study Of Valuation In Business Bankruptcy Cases, Bernard Trujillo Jan 2005

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 ...


La Vida Considerada Como Cosa: Un Error Norteamericano Fundamental, Richard Stith Jan 2005

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 ...


Review Of David E. Bernstein's "You Can't Say That!--The Growing Threat To Civil Liberties From Antidiscrimination Laws", Ivan E. Bodensteiner Jan 2005

Review Of David E. Bernstein's "You Can't Say That!--The Growing Threat To Civil Liberties From Antidiscrimination Laws", Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.


Congressional Oversight Of Counterterrorism And Its Reform, Robert F. Blomquist Jan 2005

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

Law Faculty Publications

No abstract provided.


Jack And Jill Go To Court: Litigating A Peer Sexual Harassment Case Under Title Ix, Susan P. Stuart Jan 2005

Jack And Jill Go To Court: Litigating A Peer Sexual Harassment Case Under Title Ix, Susan P. Stuart

Law Faculty Publications

Title IX peer sexual harassment cases present challenges to litigators because of the unique educational environment in which these cases arise. This Article attempts to educate litigators on the prima facie case, evidentiary issues, and the overall presentation of peer sexual harassment cases.


Re-Enchanting Torts, Robert F. Blomquist Jan 2005

Re-Enchanting Torts, Robert F. Blomquist

Law Faculty Publications

No abstract provided.


No Pets Allowed: Housing Issues And Companion Animals, Rebecca J. Huss Jan 2005

No Pets Allowed: Housing Issues And Companion Animals, Rebecca J. Huss

Law Faculty Publications

Companionship, emotional support, assistance for disabled family members, and general health benefits are just a few examples of why people choose to keep pets in their homes. This article explores the major legal issues that arise when people desire to keep companion animals in various types of housing. The Author examines the effects of federal, state, and local laws, as well as common contracts clauses.


Recent Developments In Animal Law, Rebecca J. Huss Jan 2005

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.


Against Sustainable Development Grand Theory: A Plea For Pragmatism In Resolving Disputes Involving International Trade And The Environment, Robert F. Blomquist Jan 2005

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.


The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen Jan 2005

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 ...


Marriage And Some Troubling Issues With No-Fault Divorce, Peter N. Swisher Jan 2005

Marriage And Some Troubling Issues With No-Fault Divorce, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is to challenge these erroneous assumptions, that fault is "no longer an issue" in modem American divorce law, and that a spouse on divorce should not be compensated for his or her non-economic contributions to the marriage and to the well-being of the family.


Cool Data On A Hot Issue: Empirical Evidence That A Law School Bar Support Program Enhances Bar Performance, Emmeline Paulette Reeves Jan 2005

Cool Data On A Hot Issue: Empirical Evidence That A Law School Bar Support Program Enhances Bar Performance, Emmeline Paulette Reeves

Law Faculty Publications

Many law schools have become increasingly concerned about the bar passages rates of their graduates. Low bar passage rates may negatively impact student morale, accreditation, and future admissions. Law schools are also concerned about the emotional and financial impact on their graduates of failing the bar examination. What, if anything, can and should law schools do to improve their graduates' chances of passing the bar examination?

Many law schools are deciding that they should do something. A significant number of law schools are now offering programs "specifically designed" to improve their graduates' performance on the bar examination. And these schools ...


Health Courts: Panacea Or Palliative?, Carl W. Tobias Jan 2005

Health Courts: Panacea Or Palliative?, Carl W. Tobias

Law Faculty Publications

Professor Tobias weighs the pros and cons of legislation proposed in several states that would create "health courts" for the handling of medical malpractice cases.


Johnson V. Degrandy, Henry L. Chambers, Jr. Jan 2005

Johnson V. Degrandy, Henry L. Chambers, Jr.

Law Faculty Publications

512 U.S. 997 (1994), argued 4 OCT. 1993, decided 30 June 1994 by vote of 7 to 2 Souter for the Court, O'Connor concurring, Kennedy concurring in part and concurring in the judgment, Thomas and Scalia in dissent.


Casting Lots: The Illusion Of Justice And Accountability In Property Allocation, Carol N. Brown Jan 2005

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 ...


The Business Fallout From The Rapid Obsolescence And Plannedobsolescence Of High-Tech Products: Downsizing Of Noncompetition Agreements, Ann C. Hodges, Porcher L. Taylor Iii Jan 2005

The Business Fallout From The Rapid Obsolescence And Plannedobsolescence Of High-Tech Products: Downsizing Of Noncompetition Agreements, Ann C. Hodges, Porcher L. Taylor Iii

Law Faculty Publications

The recent rapid pace of technological change has made human capital more important, yet it has rendered the employee’s knowledge base obsolete more quickly. Employers use covenants not to compete, restricting employees from switching to work for competitors, in order to retain knowledgeable personnel. Currently, the lack of predictability in interpreting noncompete agreements allows employers to draft overly-lengthy noncompetes, encourages enforcement litigation, and curtails employees from changing jobs because of the fear of litigation. Employees should not be prevented from working for competitors for longer than is necessary to protect the employer’s legitimate interest. Use of obsolescence as ...


Does The Efficient Market Theory Help Us Do Justice In A Time Of Madness, William O. Fisher Jan 2005

Does The Efficient Market Theory Help Us Do Justice In A Time Of Madness, William O. Fisher

Law Faculty Publications

This Article questions how well the efficient market theory, as applied by event studies, works in cases originating during the Internet, high-tech, and telecommunications bubble of 1998 to 2001. In doing so, the Article discusses technical and theoretical challenges to the efficient market theory. Principally, however, this Article argues that the use of the efficient market theory-and relatedly the event study methodology-is inappropriate in bubble cases for normative reasons. The normative connection between the efficient market theory-applied through event studies-and the lOb-5 elements-reliance, materiality, loss causation, and damages-presupposes that the market acts rationally. Market professionals supposedly impose that rationality through ...