Law Commons^™

The Constitutionality Of The Filibuster, Michael J. Gerhardt

Faculty Publications

No abstract provided.

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

Faculty Publications

This article reviews and summarizes significant developments in 2003 concerning international courts and tribunals, particularly events relating to the International Court of Justice, the United Nations Compensation Commission, the Iran-U.S. Claims Tribunal and the Claims Resolution Tribunal. Other articles in this issue detail significant developments relating to the International Criminal Court, the International Criminal Tribunals for Rwanda and the former Yugoslavia, the 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.

Judicial Dialogue For Legal Multiculturalism, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Using "Norms" To Change International Law: Un Human Rights Laws Sneaking In Through The Back Door, Troy A. Rule

Faculty Publications

For decades, multinational businesses have self-regulated their operations with respect to human rights, largely unfettered by international law. In recent years, however, human rights groups have advocated that the United Nations (“UN”) create clear legal obligations for multinationals respecting their human rights-related conduct. At least partly due to the substantial burden such obligations could place on international businesses, these efforts by human rights proponents have proven largely fruitless--until now.On August 13, 2003, the UN Sub-commission on the Promotion and Protection of Human Rights adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human …

Book Review: Law And Colonial Cultures: Legal Regimes In World History, 1400-1900, Sam F. Halabi

Faculty Publications

Challenging scholars of both colonial history and globalization, Lauren Benton's Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems.

Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

Soon after the decision of the U.S. Supreme Court in Blakely v. Washington, which invalidated the Washington state sentencing guidelines and cast doubt on the constitutionality of the Federal Sentencing Guidelines, the Senate Judiciary Committee held a hearing on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." Witnesses from the U.S. Department of Justice, the U.S. Sentencing Commission, and the judiciary downplayed the seriousness of the situation and urged caution in any congressional action. Concerned that the situation in the courts was more dire than the institutional witnesses had been willing to admit, Professor Frank Bowman subsequently …

The Puzzle Of Comment J, David G. Owen

Faculty Publications

No abstract provided.

Memorandum Presenting A Proposal For Bringing The Federal Sentencing Guidelines Into Conformity With Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

On June 24, 2004, the U.S. Supreme Court decided Blakely v. Washington, a case that invalidated the Washington state sentencing guidelines and cast the validity of the Federal Sentencing Guidelines into grave doubt. On June 27, 2004, Professor Frank Bowman sent a memorandum to the United States Sentencing Commission analyzing the probable impact of Blakely on the federal guidelines and proposing a legislative modification of the Guidelines to render them compliant with Blakely. The proposal relies on the rule of McMillan v. Pennsylvania, 477 U.S. 79 (1986), and Harris v. United States, 536 U.S. 545 (2002), that post-conviction judicial findings …

Property Rights And Sacred Sites: Federal Regulatory Responses To American Indian Religious Claims On Public Land, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

A Politically Viable Approach To Sovereign Debt Restructuring, A. Mechele Dickerson

Faculty Publications

The failure to enact a statutory system to restructure sovereign debt suggests that the international community is still unwilling to adopt a unified global response to insolvency issues. Since nations refused to enact uniform legislation to facilitate more orderly business insolvencies within a sovereign, it is not surprising that recent attempts to create uniform legislation that addresses the insolvency of sovereigns themselves have been unsuccessful. While a comprehensive statutory approach can predictably and efficiently restructure all of a sovereign's debts, the failed experience with uniform cross-border insolvency legislation suggests that sovereigns will not accept an inflexible statutory scheme that contains …

Impact Of Stock Option Expensing On Small Businesses, Stephen F. Diamond, United States Senate, Committee On Small Business And Entrepreneurship

Faculty Publications

No abstract provided.

Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil

Faculty Publications

This Article attempts to resolve one such issue: the tax consequences of property abandonments by the bankruptcy trustee.

The Citation Of Unpublished Opinions As Precedent, Martha Dragich

Faculty Publications

Professor Dragich examines the no-citation rules of the federal courts of appeals in light of the purpose and operation of the doctrine of precedent. The article concludes that no-citation rules are fundamentally incompatible with the rule of precedent. The rules also cannot be justified on grounds of economy or efficiency. The courts of appeals cannot legitimately declare decisions to be "non-precedential," and must not continue to forbid their citation.

Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii

Faculty Publications

This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and …

The Law And Economics Of Employee Information Exchange In The Knowledge Economy, Rafael Gely, Leonard Bierman

Faculty Publications

Mr. Fowler's story illustrates nicely how, in the new economy, knowledge has become both the key production process component and an important object of exchange itself. While knowledge has always been a component of economic activity, it has become “the one factor of production” capable of increasing the productive capacity of both capital and labor. Mr. Fowler's story also reminds us that, as it was the case in years past, the interests of employers and employees do not necessarily coincide when it comes to allocating rights regarding the ownership and exchange of knowledge.Interestingly, this transition towards a “knowledge economy,” and …

What Law Schools Can Learn From Billy Beane And The Oakland Athletics , Rafael Gely, Paul L. Caron

Faculty Publications

In Moneyball, Michael Lewis writes about a story with which he fell in love, a story about professional baseball and the people that play it. A surprising number of books and articles have been written by law professors who have had long love affairs with baseball. These books and articles are a two-way street, with baseball and law each informing and enriching the other. For example, law professors versed in antitrust, labor, property, tax, and tort law have brought their legal training to bear on particular aspects of baseball. Law professors also have mined their passion for baseball in extracting …

Affirmative Refraction: Grutter V. Bollinger Through The Lens Of The Case "The Case Of The Speluncean Explorers", Rafael Gely, Paul L. Caron

Faculty Publications

What can a fifty year-old hypothetical about human cannibalism concocted by the late Lon Fuller teach us about the Supreme Court's recent foray into the affirmative action debate in twenty-first century America? Indeed, what can a tax law professor and a labor law professor add to the cacophony of voices of leading constitutional law scholars on the Court's most important pronouncement on race in a generation? We make a rather modest claim, based on teaching both of these cases in our one-week Introduction to Law classes for incoming first year students, that a helpful way to view Grutter v. Bollinger …

Train Wreck? Or Can The Federal Sentencing System Be Saved? A Plea For Rapid Reversal Of Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

In Blakely v. Washington, the Court found the Washington State Sentencing Guidelines unconstitutional, placed the validity of the Federal Sentencing Guidelines in the gravest doubt, and cast a shadow of deep uncertainty over many state sentencing systems and the entire twenty-five-year sentencing reform movement. Over the next year, legal publications will be deluged with sober analyses, exegeses, dissections, and deconstructions of the doctrinal origins and long-term effects of Blakely. If the big train wreck really happens, I expect I'll write a few myself. However, it is early for that sort of thing since so much about Blakely remains unclear. Indeed, …

Mistaking Marriage For Social Policy, Vivian E. Hamilton

Faculty Publications

This Article examines the role of marriage in society, focusing on the state's use of marriage as a proxy for desirable outcomes in social policy. Its analytical point of departure is the normative vision of modern marriage embraced by many of its proponents. From there, the idealized marriage is analyzed, not as a monolithic, opaque institution, but as one whose functional components may be identified and examined. The Article identifies the following as the primary functions of the normative marital family: expression; companionship; sex/procreation; caretaking; and economic support or redistribution. Analyzing the roles in society of each of these functions, …

The Many Faces Of Chapter 11: A Reply To Professor Baird, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye

Faculty Publications

At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding of the …

Promoting The Promise Manufactured Homes Provide For Affordable Housing, Amy J. Schmitz

Faculty Publications

This Article raises issues for HUD and other policy makers to consider with respect to MHIA programs and broader mobile home policies. It also seeks to spark public awareness about the potential that mobile homes provide for affordable housing. The time is ripe for policy makers on federal and state levels to craft safety and financing regulations that take into account the unique character and complexities of mobile home transactions and mobile home ownership. Furthermore, the MHIA should ignite mobile home manufacturers, retailers, lenders, and consumer advocates to join forces to help alleviate burdens of mobile home ownership and provide …

Toward A Better Benchmark: Assessing The Utility Of Not-At-Fault Traffic Crash Data In Racial Profiling Research, Geoffrey P. Alpert, Michael R. Smith, Roger G. Dunham

Faculty Publications

As studies on racial profiling and biased policing have begun to proliferate, researchers are debating which benchmark is most appropriate for comparison with police traffic stop data. Existing benchmark populations, which include populations estimated from census figures, licensed drivers, arrestees, reported crime suspects, and observed drivers and traffic violators, all have significant limitations. This article offers a new, alternative benchmark for police traffic stops, a benchmark that has not been previously applied or tested in a racial profiling research setting. The analysis presented compares traffic observation data, gathered at selected, high volume intersections during an ongoing racial profiling study in …

Protecting Products That Go Hollywood [Mcle Self Study], Pratheepan Gulasekaram, Robert C. Welsh

Faculty Publications

No abstract provided.

The Vienna Convention On The Law Of Treaties In U.S. Treaty Interpretation, Evan J. Criddle

Faculty Publications

No abstract provided.

Book Review Of The Home Office And The Dangerous Trades: Regulating Occupational Disease In Victorian And Edwardian Britain, Michael Ashley Stein

Faculty Publications

No abstract provided.

Nietzsche’S Place In Nineteenth Century German Philosophy, Michael S. Green

Faculty Publications

No abstract provided.

What Corporate Tax Shelters Can Teach Us About The Structure Of Subchapter C, Glenn E. Coven

Faculty Publications

Coven argues that the rules extending nonrecognition treatment to the incorporation of property never have been properly integrated with the double taxation of corporations. As a result, the duplicate burden or benefit is applied retroactively. That defect, Coven believes, has been long overlooked, but now that it has been exploited by one popular version of the loss replicating corporate tax shelter, it must be addressed. The remedy applied by Congress to the tax shelter in section 358(h) is insufficient, does not operate correctly and undermines the integrity of the code, he says.

This article proposes a more comprehensive solution that …

Sec Debarment Of Officers And Directors After Sarbanes-Oxley, Jayne W. Barnard

Faculty Publications

No abstract provided.

What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins

Faculty Publications

No abstract provided.