Law Commons^™

Bankruptcy And Federalism, Thomas E. Plank

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No abstract provided.

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

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Scene: The quiet hallway of a law school. A troubled young professor of Intellectual Property law stands in front of a senior colleague's office and studies a pencil sketch of Bushrod Washington taped to the door. After a moment's hesitation, he knocks and enters.

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

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The authors examine Eldred v. Ashcroft in a play setting where one of the characters plays a constitutional law professor and the other character plays an intellectual property professor.

Symposium On The Ilc's State Responsibility Articles: Introduction And Overview, Daniel M. Bodansky, John R. Crook

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In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission's longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend[ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”

The ILC articles address the fundamental questions: when does a state breach an international obligation and what are the legal consequences? Rather than attempting to define particular “primary” rules of conduct, the …

The Dmca: A Modern Version Of The Licensing Act Of 1662, L. Ray Patterson

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The thesis of this Article is that the Digital Millennium Copyright Act of 1998 (DMCA) in the United States is a modern version of the Licensing Act of 1662 in England. The English censorship statute is sufficiently obscure to merit an explanation of why the similarity and why it makes a difference. The reasons can be simply stated. The statutes are similar because they represent the same goals: the control of access to ideas. The similarities make a difference because a legal construct to control public access to ideas undermines -- and will eventually destroy -- the right of free …

Congress Misses Twice With The Community Character Act: Will Three Times Be A Charm?, Patricia E. Salkin

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No abstract provided.

Modernizing The Law Of Secured Transactions: Nonuniform Provisions Of Georgia's Revised Article 9, James C. Smith

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Article 9 of the Uniform Commercial Code governs secured transactions in personal property and fixtures. In 1990, the sponsors of the U.C.C. launched a major revision project, which culminated in Revised Article 9. Judged by the marketplace of state legislatures, the project turned out to be a remarkable success story of law reform. Between 1998 and 2001, all fifty states plus the District of Columbia enacted Revised Article 9. In Georgia, the revision process began in 1999 with the State Bar of Georgia's appointment of the Revised Article 9 Subcommittee of the Business Law Section. The seventeen-member committee, composed of …

The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen

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Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a …

Can There Be Peace In The Holy Land?, Lawrence Raful

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No abstract provided.

U.S. Supreme Court Hands Two Big Wins To Municipal Governments In 2001-2002 Term, Patricia E. Salkin

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No abstract provided.

The Invisibility Of Gender In War, Valorie K. Vojdik

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No abstract provided.

An Historical Perspective On Judicial Selection Methods In Virginia And West Virginia, Alex B. Long

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This Article explores the history of judicial selection methods in Virginia and West Virginia - two states, once joined, with distinct cultures and very different judicial selection methods. In an attempt to explain how the two states ended up with such different systems, the Article focuses on the constitutional conventions in those states between 1829 and 1902 and the debates that took place on the subject of popular election of judges versus an appointive system.

Takings In The 21st Century: Reasonable Investment-Backed Expectations After Palazzolo And Tahoe-Sierra, Gregory M. Stein

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No abstract provided.

Further Misinterpretation Of Bankruptcy Code Secion 363(F): Elevating In Rem Interests And Promoting The Use Of Property Law To Bankruptcy-Proof Real Estate Developments, George Kuney

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No abstract provided.

Secured Credit And Insolvency Law In Argentina And The U.S.: Gaining Insight From A Comparative Perspective, Guillermo A. Moglia Claps, Julian B. Mcdonnell

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It is not the purpose of this study to argue for or against changes in the secured credit or insolvency law of Argentina or the U.S. The perpetual clash of interested noted by James Madison and the contemporary pressures of the global economy are likely to assure that these areas of law will be subject to continuing scrutiny in both countries. Instead, we first urge that the law governing the creation and enforcement of security devices and the way in which insolvency laws impact these devices be considered together as part of one system of financing. The power which secured …

The Next Generation Of Planning & Zoning Enabling Acts Is On The Horizon: 2002 Growing Smart Legislative Guidebook Is A Must-Read For Land Use Practitioners, Patricia E. Salkin

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No abstract provided.

On The Importance Of Institutions: Review Of Arbitral Awards For Legal Errors, Peter B. Rutledge

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In my view, legislatures, rather than courts or parties, should decide whether (and to what extent) courts should review arbitral awards for errors of law. The optimal legislative mechanism should not be compulsory but should offer parties the choice whether to "opt-in" to this regime of expanded review by inserting language to that effect in their arbitration agreement. A legislative solution with an "opt-in" feature has a sounder doctrinal foundation, better respects the distribution of power between various branches of government, involves a lower risk of error and minimizes transaction costs. From this position, two additional conclusions follow: first, courts …

Misinterpreting Bankruptcy Code Section 363(F) And Undermining The Chapter 11 Process, George Kuney

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No abstract provided.

Congressional Power Over Presidential Elections: Lessons From The Past And Reforms For The Future, Dan T. Coenen, Edward J. Larson

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Presidential election controversies are nothing new. They have plagued our republic since 1801, when the fourth election for the office ended in a muddle that nearly deprived the rightful winner of the presidency. Each controversy has led to calls for reform. In every instance, the cryptic and troublesome constitutional text has hampered congressional efforts to correct the problems. Simply stated, the Constitution offers little explicit guidance on when and how Congress can regulate the selection of the President. In this Article, we explore the implications of this textual deficiency, looking both at what Congress has done in the past and …

Federal Guilty Pleas Under Rule 11: The Unfilled Promise Of The Post-Boykin Era, Julian A. Cook

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Rule 11 of the Federal Rules of Criminal Procedure governs perhaps the most essential and common practice in the federal criminal justice system--the guilty plea. Despite the public's focus on the excitement and drama engendered by real and fictional criminal trials, the overwhelming majority of criminal matters reach a negotiated resolution. Indeed, the importance of the guilty plea to the judiciary, prosecutors, and even defense attorneys cannot be overstated. Without guilty pleas, the criminal justice system would malfunction; the system is simply incapable of accommodating the constitutional exercise of a defendant's trial right in each instance.

The federal plea process …

Judging Judges: Securing Judicial Independence By Use Of Judicial Performance Evaluations, Penny White

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No abstract provided.

From Euclid To Growing Smart: The Transformation Of The American Local Land Use Ethic Into Local Land Use And Environmental Controls, Patricia E. Salkin

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No abstract provided.

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman

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No abstract provided.

The Intractable Problem Of Bankruptcy Ethics: Square Peg, Round Hole, Nancy B. Rapoport

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This article continues my earlier research on conflicts of interest in bankruptcy cases, particularly in chapter 11 cases. It suggests that conflicts in interest in chapter 11 bankruptcy cases should not be handled the same way that conflicts are handled under state ethics rules, and it proposes a new section of the Bankruptcy Code to cover conflicts of interest in cases filed under chapter 11.

Paradise Lost: Good News Club, Charitable Choice, And The State Of Religious Freedom, Ian C. Bartrum

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The United States Constitution's two religion clauses prohibit Congress from passing laws that establish religion or restrict its free exercise. This Note argues that James Madison and Thomas Jefferson worked to include this language in the Constitution because of their belief that citizens' religious duties were more fundamental than their civic duties. It argues that they intended the Constitution's religion clauses to form a simple dialectic: the government may not force citizens to renounce their religious duties by compelling them to support another faith, nor may it pass laws that act coercively to restrict their religious beliefs and practices. This …

Do Best Practices In Legal Education Include Emphasis On Compositional Modes Of Studying Law As A Liberal Art?, Linda L. Berger

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Reporter's Notes on "A Liberal Education in Law: Engaging the Legal Imagination through Research and Writing Beyond the Curriculum."

Should An Arbitration Provision Trump The Class Action? No: Permitting Companies To Skirt Class Actions Through Mandatory Arbitration Would Be Dangerous And Unwise, Jean R. Sternlight

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Companies are deliberately using mandatory arbitration to prevent consumers and employces from joining together in class actions. As Carroll Neesemann has explained, eliminating the class action is a "strong incentive" of those companies that impose the requirement of arbitration on consumers and employees. Mr. Neesemann defends this phenomenon, and his article offers companies and their attorneys some tips on how to effectively use arbitration to insulate themselves from the threat of class actions. By contrast, this essay argues that it is dangerous and unwise to permit companies to use mandatory arbitration to exempt themselves from class action suits.

Smart Growth And Sustainable Development: Threads Of A National Land Use Policy, Patricia E. Salkin

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No abstract provided.

Express Warranty As Contractual - The Need For A Clear Approach, Sidney Kwestel

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No abstract provided.

Sprawl, Growth Boundaries And The Rehnquist Court, Michael Lewyn

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The most stringent anti-sprawl measure adopted by any American state is Oregon's urban growth boundary (UGB) program. Urban growth boundaries are lines on maps within which high-density development is encouraged, and beyond which such development is generally forbidden. Outside the boundary, rural industries (such as logging) and open space are promoted. This Article focuses on three issues: whether UGBs are constitutional under recent Supreme Court case law, (2) whether the UGB has in fact saved Portland (Oregon's largest city) from the social problems caused by sprawl, and (3) whether the side effects of UGBs make them a cure worse than …