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Full-Text Articles in Law

Sources Of International Law, Louis B. Sohn Dec 1995

Sources Of International Law, Louis B. Sohn

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To summarize, States can agree on international law begin made in any way they wish. Once they agree on a method, the matter is over. As I have pointed out, every few y ears we invent a new method; there is no end to ingenuity of human beings. by the year 2000, there might be one or two more methods. We are still applying the 19th century rule that international law is made by the community of states, but in every generation the community has been able to invent new methods for crystallizing international law. We finally have accepted the ...


Reflections On Regional Human Rights Law, Gabriel M. Wilner Dec 1995

Reflections On Regional Human Rights Law, Gabriel M. Wilner

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The principal purpose of the Colloquium, as can be seen from the great attention given to the papers presented by the second panel, was to discuss the uses of customary international human rights law in the defense of human rights before national courts. More generally, these discussions focused on the effectiveness of customary international human rights rules in influencing legislative and policy-making, administrative decisions and, particularly, judicial adjudication, at international and national levels. The initial and wider question of the feasibility of using custom as a source of human rights rules formed the underlying aspects of the debates in the ...


Original Intent And Article Iii, Michael L. Wells, Edward J. Larson Nov 1995

Original Intent And Article Iii, Michael L. Wells, Edward J. Larson

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Article III of the United States Constitution sets limits on the ability of the legislature to expand or contract the jurisdiction of the federal courts. The Supreme Court has generally held that Article III's restraints on the power of the legislature to restrict the jurisdiction of the federal courts are few and extremely permissive. Many scholars, however, argue that Article III imposes some strong limitations on the legislature's ability to define federal jurisdiction. Strangely, both sides of the debate rely on originalist arguments. This Article argues that reliance on the Framers' intent to resolve issues of federal courts ...


The Georgia Death Penalty Habeas Corpus Reform Act Of 1995, Donald E. Wilkes Jr. Nov 1995

The Georgia Death Penalty Habeas Corpus Reform Act Of 1995, Donald E. Wilkes Jr.

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On April 10, 1995, Gov. Zell Miller signed into law Georgia's Death Penalty Habeas Corpus Reform Act of 1995. The Act is premised upon the following findings and determinations of the General Assembly: that through direct appeal, sentence review, and habeas corpus the state now provides persons sentenced to death "adequate opportunities" to assert their constitutional rights; that habeas corpus proceedings should not be used by persons sentenced to death "solely as a delaying tactic under the guise of asserting rights;" and that "strict compliance" with habeas corpus procedures "will prevent the waste of limited resources and will eliminate ...


Idealism And The Individual Woman: Reading Bessie Head's A Question Of Power, Paul J. Heald Oct 1995

Idealism And The Individual Woman: Reading Bessie Head's A Question Of Power, Paul J. Heald

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In A Question of Power, South African exile Bessie Head graphically illustrates the relevance of gender difference to religion, political philosophy, and human rights. At first glance, the novel is a startling interior view of the psychosis that can result from constant alienation. The madness so painfully described, however, is portrayed as specific to women. And the road from madness -- the rejection of idealism, the rejection of universalism, and the rejection of power -- carries an important message to those seeking to understand the various feminist perspectives on human rights and spirituality. In Head's view, the recognition of the role ...


Customary (And Not So Customary) International Environmental Law, Daniel M. Bodansky Oct 1995

Customary (And Not So Customary) International Environmental Law, Daniel M. Bodansky

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In this article, Professor Bodansky examines the creation and importance of customary international law. He suggests that the debate over the legal status of any given norm may be misplaced. Instead, he suggests that international lawmakers should spend their time and energy incorporating norms, regardless of their true status, into "concrete treaties and actions." The author begins his discussion by providing a working definition of customary international law. He asserts that such law can be based not just on uniformities of state behavior, as is traditionally held, but also on regularities in behavior. Thus, customary international law can be formed ...


Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp Oct 1995

Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp

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The Supreme Court's 1977 decision in Complete Auto Transit, Inc. v. Brady signaled a paradigmatic shift in the Court's approach to state tax adjudication under the dormant Commerce Clause. In Complete Auto, the Court repudiated the formalistic school of interpretation that once had governed Commerce Clause analysis of state taxation because it bore ‘no relationship to economic realities.’ In its place, the Court embraced a decisional framework that ‘considered not the formal language of the tax statute but rather its practical effect.’ In furtherance of this objective, the Court suggested a four-part test to guide the constitutional analysis ...


From Legal Transplants To Legal Formats, Alan Watson Jul 1995

From Legal Transplants To Legal Formats, Alan Watson

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Most of the time rulers and governments in the Western world as a whole were little interested in making private law. Instead, the task devolved upon some group of the legal elite who became in effect subordinate law makers without having been given power to make law. Thus, Roman jurists as such were private individuals with no ties to government: they made law when their opinions came to win approval from other jurists. English judges in the Middle-Ages and later were appointed to decide cases: the tradition long was that they found the law but did not make it. Continental ...


Balancing Federalism And Free Markets: Toward Renewed Antitrust Policing, Privatization, Or A "State Supervision" Screen For Municipal Market Participant Conduct, James Ponsoldt Jul 1995

Balancing Federalism And Free Markets: Toward Renewed Antitrust Policing, Privatization, Or A "State Supervision" Screen For Municipal Market Participant Conduct, James Ponsoldt

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The past decade has witnessed an historic rejection of state control of markets in eastern Europe. Expansion of domestic antitrust immunity policy toward municipal businesses based upon federalism concerns, however, which occurred during the same period, has fostered autonomous governmental control of markets. The judicial application of the Parker doctrine to local government has tended to contradict the premise underlying several generations of U.S. foreign policy designed to support emerging competitive market economies outside the country. Academic analysis of the Parker doctrine during the 1980s was heated and creative. A number of commentators, with varying viewpoints, have addressed the ...


The Jurisprudence Of Action And Inaction In The Law Of Tort: Solving The Puzzle Of Nonfeasance And Misfeasance From The Fifteenth Through The Twentieth Centuries, Theodore Silver, Jean Elting Rowe Jul 1995

The Jurisprudence Of Action And Inaction In The Law Of Tort: Solving The Puzzle Of Nonfeasance And Misfeasance From The Fifteenth Through The Twentieth Centuries, Theodore Silver, Jean Elting Rowe

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No abstract provided.


Lawyers As Exchange Engineers In Commerce: An Empirical Overview, Sandra M. Huszagh, Fredrick W. Huszagh Apr 1995

Lawyers As Exchange Engineers In Commerce: An Empirical Overview, Sandra M. Huszagh, Fredrick W. Huszagh

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This article empirical explores the exchange relationship between lawyers and their clients with particular attention on the variables of experience and practice specialty. The lawyers' perceptions of client relationships are preliminarily analyzed in terms of their discrete or relational properties and their distribution within experience segments within the firm. Enriched understanding of these matters can assist both lawyers and their clients in crafting more efficient and effective exchange relationships here viewed as critical to commercial activities.


Positivism And Antipositivism In Federal Courts Law, Michael Wells Apr 1995

Positivism And Antipositivism In Federal Courts Law, Michael Wells

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What is the proper role of rules in federal courts law? Some scholars associated with the Legal Process assert that rules are unimportant here. They believe that the values of principled adjudication and reasoned elaboration should take precedence over the making and application of rules. The area is, in the jargon of jurisprudence, "antipositivist." Others maintain that rules do, or at any rate should, count heavily in federal courts' decisionmaking. In this Article, I argue that Legal Process scholars are right to spurn formalism in most parts of federal courts law. But the Legal Process model of federal courts law ...


Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells Mar 1995

Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells

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Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice.


Law And Literature Defining Itself, Paul J. Heald Mar 1995

Law And Literature Defining Itself, Paul J. Heald

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Earlier this spring, the University of Chicago Law School convinced Martha Nussbaum, University Professor of Philosophy, Comparative Literature, and Classics at Brown University, to join its faculty to teach law and literature. At Michigan and Duke, James B. White and Stanley Fish have long held joint appointments in their respective law schools and English departments. What use can law schools possibly have for literary critics? Although over 60 law schools, including Georgia, currently offer a class in law and literature, the focus of this interdisciplinary enterprise remains somewhat fuzzy.


Medea And The Un-Man: Literary Guidance In The Determination Of Heinousness Under Maynard V. Cartwright, Paul J. Heald Feb 1995

Medea And The Un-Man: Literary Guidance In The Determination Of Heinousness Under Maynard V. Cartwright, Paul J. Heald

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In particular, this Essay brings Dante, C.S. Lewis, and Euripides to bear on a discrete problem examined by the U.S. Supreme Court in Maynard v. Cartwright. Reading Dante's Inferno, Lewis's Perelandra, and Euripides's Medea provides guidance in responding to the Court's mandate that the state channel discretion in capital sentencing. Specifically, these works imply an ethical framework for determining what constitutes an "especially heinous, atrocious, or cruel" murder. Other literary texts are certainly relevant to Maynard. This Essay, however, is not an attempt to survey comprehensively and distill the insights provided by all relevant ...


Foreword: A New Journal Of Color In A "Colorblind" World, Frank Rudy Cooper, Jerome Mccristal Culp Jr, Lovita Tandy Jan 1995

Foreword: A New Journal Of Color In A "Colorblind" World, Frank Rudy Cooper, Jerome Mccristal Culp Jr, Lovita Tandy

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In this foreword for the inaugural issue of the African-American Law & Policy Report (ALPR), Professor Frank Rudy Cooper and his colleagues present articles, which contribute to the debate that this premier issue presents: an important discussion about race that majoritarian concerns impede. The majoritarian story basically states that race is not important or race can only be examined in a "colorblind" way or that race can only be considered if we do not upset the existing power arrangements that keep African Americans and other racial groups in their place. This journal is important to ventilate those concerns because the voices ...


Substance Above All: The Utopian Vision Of Modern Natural Law Constitutionalists, Thomas B. Mcaffee Jan 1995

Substance Above All: The Utopian Vision Of Modern Natural Law Constitutionalists, Thomas B. Mcaffee

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Modern natural law constitutionalists assert that the Constitution, properly understood, includes a kind of general trump card in the form of a moral reality which provides (or is, at any rate, thought to provide) a measure of all positive legal acts--whether framed in terms of the values of natural equality, natural rights, or “simple justice.”

This article explores why “trump card” natural law constitutionalism cannot by its nature adequately confront crucial issues of institutional design and democratic theory. In thus putting questions of moral substance ahead of crucial issues of authority, natural law constitutionalism appears to rest on a naive ...


Days Of Our Lives: The Impact Of Section 197 On The Depreciation Of Copyrights, Patents And Related Property, Mary Lafrance Jan 1995

Days Of Our Lives: The Impact Of Section 197 On The Depreciation Of Copyrights, Patents And Related Property, Mary Lafrance

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For federal income tax purposes, owners of intangible property generally must capitalize the costs of creating or acquiring that property. In the past, the tax rules for recovering these capitalized costs through depreciation deductions varied greatly according to the nature of the intangible. Certain types of acquired intangibles--notably, goodwill and going concern value--were nondepreciable. In contrast, taxpayers purchasing interests in copyrights or patents could depreciate those assets under the straight-line method or, in most cases, could opt for more rapid cost recovery under the income forecast method.

In the Omnibus Budget Reconciliation Act of 1993, Congress greatly enlarged the class ...


Critical Race Theory And Proposition 187: The Racial Politics Of Immigration Law, Ruben J. Garcia Jan 1995

Critical Race Theory And Proposition 187: The Racial Politics Of Immigration Law, Ruben J. Garcia

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Immigration law and politics have been historically intertwined with racial prejudice. Many of those who have called for immigration restrictions have also sought an end to the racial and cultural diversity brought by immigrants. With the end of legally sanctioned race discrimination in the 1960s, immigration rhetoric has lost some of its overt racist overtones. However, in the 1990s, many politicians and lawmakers have emphasized the difference between “legal” and “illegal” immigration. This change begs a central question: Have the racist motivations of past immigration law and policy been completely displaced by a concern for law and order? This Comment ...


Refusals To Deal In "Locked-In" Health Care Markets Under Section 2 Of The Sherman Act After Eastman Kodak Co. V. Image Technical Services, James F. Ponsoldt Jan 1995

Refusals To Deal In "Locked-In" Health Care Markets Under Section 2 Of The Sherman Act After Eastman Kodak Co. V. Image Technical Services, James F. Ponsoldt

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In the Kodak context, several common health care provider practices, previously challenged with varying results under traditional antitrust analysis, may be reexamined to focus upon the effect of refusals to deal in a secondary market with potential competitors in that secondary market. This Article focuses on three such practices: (1) the non-immunized revocation of hospital staff privileges for other than legitimate, quality-of-care motives; (2) the denial of hospital privileges to differentially credentialed, state-licensed providers; and (3) the closure of membership in comprehensive health care plans, such as preferred-provider organizations, combined with a refusal to deal with nonmembers. These practices should ...


The Brown Symposium – An Introduction, Thomas B. Mcaffee Jan 1995

The Brown Symposium – An Introduction, Thomas B. Mcaffee

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This article is an introduction to a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education.


Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee Jan 1995

Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee

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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless ...


Comment, The Augustan Constitution And Our Natural Rights Tradition: Is There A Conflict?, Thomas B. Mcaffee Jan 1995

Comment, The Augustan Constitution And Our Natural Rights Tradition: Is There A Conflict?, Thomas B. Mcaffee

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Professor Hoffheimer has provided us with a striking picture of two important strands of our constitutional heritage. The first, which he labels “Augustan constitutionalism,” descended from classical political thought and the English constitution. Its focus is on the governmental powers that it legitimates, and its themes relate to the forms of government; in the American context, this means that its focus is on separation of powers, checks and balances, and (in general) the problem of organizing and dividing government authority. The second, which he calls the “natural rights tradition,” roots government's legitimacy--and indeed its origin and purpose--in the protection ...


The Lawyer's Dirty Hands, Leslie C. Griffin Jan 1995

The Lawyer's Dirty Hands, Leslie C. Griffin

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No abstract provided.


Seeing The Forest And The Trees: The Proper Role Of The Bankruptcy Attorney, Nancy B. Rapoport Jan 1995

Seeing The Forest And The Trees: The Proper Role Of The Bankruptcy Attorney, Nancy B. Rapoport

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This article discusses the tension between the lawyer's duty to her client and her duty to the legal system as an officer of the court. It concludes that, in a situation in which those two duties conflict, the lawyer's duty to the system as a whole should trump the duty to the client.


Desperately Seeking Science, Francis J. Mootz Iii Jan 1995

Desperately Seeking Science, Francis J. Mootz Iii

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In this commentary I offer a lawyer’s view of what law and linguistics interdisciplinary studies might mean for legal practice, as well as a legal theorist’s view of what importance they may hold for jurisprudence. I do not pretend to have more than cursory knowledge about linguistics, and so my remarks about what linguistics scholars might gain from an interdisciplinary exchange necessarily will be brief general.


Economics As One Of The Humanities; An Ecumenical Response To Weisberg, West, And White, Paul J. Heald Jan 1995

Economics As One Of The Humanities; An Ecumenical Response To Weisberg, West, And White, Paul J. Heald

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The Law and Literature movement seems to have a deadly adversary: the Law and Economics movement. Several of the most respected literary lawyers have recently argued that economic discourse subverts the goals of humanistic scholarship. Richard Weisberg decries, for example, “the insurgency of ‘free market’ economics, a disgracefully self-serving system of ethical reductionism and human evasion [that has] attracted masses of practitioners away from the essence of their fields, away from the passions, the hopes, the reality of the world around them.” Robin West has criticized “economic man” for his “empathic impotence,” and has suggested replacing him with a more ...


The Eeoc, The Courts, And Employment Discrimination Policy: Recognizing The Agency's Leading Role In Statutory Interpretation, Rebecca White Jan 1995

The Eeoc, The Courts, And Employment Discrimination Policy: Recognizing The Agency's Leading Role In Statutory Interpretation, Rebecca White

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This Article explores whether a delegation to the EEOC of law-interpreting authority may be found under Title VII, the ADEA, or the ADA, despite the agency's lack of full enforcement authority under these statutes. If the EEOC possesses such authority, it, not the courts, will decide many of the difficult issues left unresolved by Congress under the 1991 Civil Rights Act, the ADA, and other statutes administered by the agency. I easily conclude the EEOC has been delegated law-interpreting power under both the ADEA and the ADA. The authority to issue legislative rules, in the context of these statutory ...


The End Of Roman Juristic Writing, Alan Watson Jan 1995

The End Of Roman Juristic Writing, Alan Watson

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The traditional date for the end of classical Roman law is 235 when the emperor Alexander Severus was murdered, or slightly later with the death of Modestinus, the last of the great known jurists. Thereafter, few original juristic books were written, and it is widely but not universally believed that a decline in legal standards began almost at once.

For many scholars there seems to exist a connection, sometimes simply implicit, between the failure of jurists to write new books, and a decline in legal standards. I should like to suggest there was a different reason for jurists ceasing to ...


Two Cheers For Specialization, Jeffrey W. Stempel Jan 1995

Two Cheers For Specialization, Jeffrey W. Stempel

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Professor Dreyfuss adopts what might be termed the more conservative and deferential view of the efficacy of Delaware corporate law in her paper and her presentation. This approach generally views the market as making a statement with which one should not lightly quarrel. Because Delaware continues to attract incorporations, this view posits that the state's attraction is the superiority of its corporate law compared to other states, which lack a semi-specialized Chancery Court. Consequently, in a race to the top of corporate standards, legal rules and adjudications, Delaware's success in the market suggests that Delaware's legal product ...