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2006

Washington University in St. Louis

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Articles 1 - 30 of 139

Full-Text Articles in Law

Judicial Reform: Conflicting Aims And Imperfect Models, John Owen Haley Jan 2006

Judicial Reform: Conflicting Aims And Imperfect Models, John Owen Haley

Washington University Global Studies Law Review

I wish simply to attempt to identify a few underlying problems that appear to inhibit effective reforms from achieving broadly shared goals. In so doing, I suggest a research agenda designed to develop feasible solutions.


South Africa's Criminalization Of “Hurtful” Comments: When The Protection Of Human Dignity And Equality Transforms Into The Destruction Of Freedom Of Expression, Ryan F. Haigh Jan 2006

South Africa's Criminalization Of “Hurtful” Comments: When The Protection Of Human Dignity And Equality Transforms Into The Destruction Of Freedom Of Expression, Ryan F. Haigh

Washington University Global Studies Law Review

No abstract provided.


Does Ukraine Need A Comprehensive Statute To “Control” Private Data Controllers?, Olena Dmytrenko, Cara D. Cutler Jan 2006

Does Ukraine Need A Comprehensive Statute To “Control” Private Data Controllers?, Olena Dmytrenko, Cara D. Cutler

Washington University Global Studies Law Review

This Article considers whether a European Union model of data protection, predominately in the form of a comprehensive statute, or a U.S. model of data protection, favoring industry self-regulation enhanced by sectoral legislation, would be best for Ukraine. This Article argues that a comprehensive statute may fit more easily into Ukraine's civil law culture and may prove to be a requirement necessary for the country to obtain its goal of accession to the European Union. However, until Ukraine builds a strong democratic legacy, a rapid transplant of the European Union-style comprehensive statute may be detrimental to nurturing nascent ...


Re-Shaping The “Monroe Doctrine”: United States Policy Concerns In Latin America Urgently Call For Ratification Of The International Criminal Court, Tom Madison Jan 2006

Re-Shaping The “Monroe Doctrine”: United States Policy Concerns In Latin America Urgently Call For Ratification Of The International Criminal Court, Tom Madison

Washington University Global Studies Law Review

No abstract provided.


Regulatory Takings In Canada, Bryan P. Schwartz, Melanie R. Bueckert Jan 2006

Regulatory Takings In Canada, Bryan P. Schwartz, Melanie R. Bueckert

Washington University Global Studies Law Review

Canadian law lacks a robust “regulatory takings” doctrine, a phenomenon partially explained by Canada’s unique constitutional backdrop. Some Canadian provinces have statutes that provide greater protection for certain property rights. Canada also has international trade obligations that require it to protect foreign investors’ property rights. The only indirect recognition and remuneration of regulatory takings is encompassed in a longstanding interpretive presumption in favor of compensation in situations involving expropriation. Yet, despite all of these safeguards to protect property rights from regulatory takings and despite recent developments in regulatory takings jurisprudence, property rights receive minimal protection under Canadian law.


The Nexus Between Free Trade Agreements And The Trafficking Of Human Beings, Claudine Chastain Jan 2006

The Nexus Between Free Trade Agreements And The Trafficking Of Human Beings, Claudine Chastain

Washington University Global Studies Law Review

No abstract provided.


Finding Nemo... And Eating Him: The Failure Of The United Nations To Force Internalization Of The Negative Social Costs That Result From Overfishing, Ryan Cantrell Jan 2006

Finding Nemo... And Eating Him: The Failure Of The United Nations To Force Internalization Of The Negative Social Costs That Result From Overfishing, Ryan Cantrell

Washington University Global Studies Law Review

No abstract provided.


Circumventing Shari’A: Common Law Jurisdictions’ Response To Persecuted Sexual Minorities’ Asylum Claims, Stephen Pischl Jan 2006

Circumventing Shari’A: Common Law Jurisdictions’ Response To Persecuted Sexual Minorities’ Asylum Claims, Stephen Pischl

Washington University Global Studies Law Review

No abstract provided.


Reforming The Brazilian Supreme Federal Court: A Comparative Approach, Maria Angela Jardim De Santa Cruz Oliveira Jan 2006

Reforming The Brazilian Supreme Federal Court: A Comparative Approach, Maria Angela Jardim De Santa Cruz Oliveira

Washington University Global Studies Law Review

This Article defends giving the SFC power to issue provisional measures to stay the proceedings of identical cases in lower courts when the constitutional controversy has already been presented before the SFC.


Speech And Institutional Choice, Thomas B. Nachbar Jan 2006

Speech And Institutional Choice, Thomas B. Nachbar

Washington University Journal of Law & Policy

Even if an authoritarian state cannot successfully control all of the conduits by which information crosses its borders, successfully targeting a few of the largest ones is likely to bring enough of a return to justify the effort, a point at the heart of John Palfrey and Robert Rogoyski’s Essay for this conference. What is true of states and regulation for political gain will be true of private interests and regulation for financial gain. Control over the means of creating and sharing the digital content would provide any firm substantial rents, either in the form of higher prices or ...


Statement Of Testimony: Commission On Safety And Abuse In America's Prisons, Jack Cowley Jan 2006

Statement Of Testimony: Commission On Safety And Abuse In America's Prisons, Jack Cowley

Washington University Journal of Law & Policy

I believe that we have for too long considered prisons as places to promote public safety by means of the incapacitation of offenders rather than places that promote public safety by releasing offenders who are less likely to reoffend. It is widely accepted that, nationally, approximately 67.5% of released offenders are arrested within three years of their release. It is my professional opinion, gained from my many years as a prison warden and continued work in the field, that this figure is higher than it needs to be; prisons, when used as tools of crime reduction, can be effective.


Playing Fair: Why The United States Anti-Doping Agency's Performance-Enhanced Adjudications Should Be Treated As State Action, Paul C. Mccaffrey Jan 2006

Playing Fair: Why The United States Anti-Doping Agency's Performance-Enhanced Adjudications Should Be Treated As State Action, Paul C. Mccaffrey

Washington University Journal of Law & Policy

No abstract provided.


How Are Patent Cases Resolved? An Empirical Examination Of The Adjudication And Settlement Of Patent Disputes, Jay P. Kesan, Gwendolyn G. Ball Jan 2006

How Are Patent Cases Resolved? An Empirical Examination Of The Adjudication And Settlement Of Patent Disputes, Jay P. Kesan, Gwendolyn G. Ball

Washington University Law Review

From an institutional perspective, the patent system is a two-stage bargain. At the first stage, the U.S. Patent and Trademark Office (PTO) grants patent rights to inventors after conducting an examination of the prior art and of the patent application to determine whether the requirements for patentability are met. At the next stage, in order to enforce their issued patent rights, patentees have to resort to the federal courts with an action for patent infringement. This Article is organized as follows. Part II reviews the previous literature on patent litigation. Part III describes our methodology for collecting data on ...


Language, Deals, And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham Jan 2006

Language, Deals, And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham

Washington University Law Review

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML's social and economic stakes are considerable, especially when developed for the private law of contracts. XML can not only can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. Thus reliance on spontaneous development may be sub-optimal and identification of a more formal public standard-setting model necessary. To exploit XML's advantages while minimizing risks, this Article ...


Proceed With Caution: The Implications Of The Omb Peer Review Guidelines On Precautionary Legislation, Maureen Mahon Jan 2006

Proceed With Caution: The Implications Of The Omb Peer Review Guidelines On Precautionary Legislation, Maureen Mahon

Washington University Law Review

No abstract provided.


De-Rigging Elections: Direct Democracy And The Future Of Redistricting Reform, Michael S. Kang Jan 2006

De-Rigging Elections: Direct Democracy And The Future Of Redistricting Reform, Michael S. Kang

Washington University Law Review

I propose direct democracy as the best solution, a distinctly political solution, to the problems of contemporary gerrymandering. By requiring direct democratic approval by the general electorate for passage of any statewide redistricting plan, direct democracy invites the public into civic engagement about the fundamental issues of democratic governance that a democracy ought to embrace. In Part II, I briefly describe redistricting reform efforts to transfer greater responsibility for redistricting to apolitical institutions, namely courts and independent commissions. In Part III, I argue that these efforts to insulate redistricting from politics are badly misguided. I contend that redistricting, as a ...


To Remedy Or Not To Remedy: The Availability Of Disgorgement Under Civil Rico, Andrew Kinworthy Jan 2006

To Remedy Or Not To Remedy: The Availability Of Disgorgement Under Civil Rico, Andrew Kinworthy

Washington University Law Review

No abstract provided.


Fired Up! In The Blogosphere: Internet Communications Regulation Under Federal Campaign Finance Law, Benjamin Norris Jan 2006

Fired Up! In The Blogosphere: Internet Communications Regulation Under Federal Campaign Finance Law, Benjamin Norris

Washington University Law Review

No abstract provided.


Scholarship In Action: The Power, Possibilities, And Pitfalls For Law Professor Blogs, Douglas A. Berman Jan 2006

Scholarship In Action: The Power, Possibilities, And Pitfalls For Law Professor Blogs, Douglas A. Berman

Washington University Law Review

A general debate concerning whether law blogs can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books can be legal scholarship. Blogs—like articles and books—are just a medium of communication. Like other media, blogs surely can be used to advance a scholarly mission or a range of other missions.

Looking through the debate over law blogs as legal scholarship, I see a set of bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about ...


Blog As A Bugged Water Cooler, Kate Litvak Jan 2006

Blog As A Bugged Water Cooler, Kate Litvak

Washington University Law Review

Legal academics like to think that everything they write is scholarly. There is no surer way to offend a colleague than to suggest that some of his public musings are—gasp!—not scholarship. These comments do not seek to debate whether someone’s remarks on the Enron trial, or “gotcha” comments on the quality of the New York Times reporting, or critique of a recent Michelle Malkin book, or teaching notes thinly disguised as encyclopedic entries qualify as “scholarship.” For the purpose of these remarks, “scholarship” is anything that satisfies your budget committee.

A safer (and more productive) inquiry is ...


Blogging At Blackprof, Paul Butler Jan 2006

Blogging At Blackprof, Paul Butler

Washington University Law Review

Commenting on the papers by Doug Berman Lawrence Solumn, this paper raises questions concerning the emergence of blogging and its relationship with legal scholarship. These insights suggest that blogging can reach a wider audience and introduce a new way of connecting to certain issues in a way that law reviews cannot reproduce.


Blogs And The Promotion And Tenure Letter, Ellen S. Podgor Jan 2006

Blogs And The Promotion And Tenure Letter, Ellen S. Podgor

Washington University Law Review

Writing promotion and tenure letters is an important service to the academy, albeit one that is seldom rewarded in comparison to the enormous time consumption involved. And although evaluations to date have all been premised on hard-text material, it is likely that soon the day will come that the packet of scholarship material arriving on one's doorstep will be a Website address that leads to a blog. In thinking about whether law blogs are legal scholarship, an important consideration in answering this question is how a blog should be evaluated for promotion and tenure purposes.


Are Modern Bloggers Following In The Footsteps Of Publius? (And Other Musings On Blogging By Legal Scholars . . .), Gail Heriot Jan 2006

Are Modern Bloggers Following In The Footsteps Of Publius? (And Other Musings On Blogging By Legal Scholars . . .), Gail Heriot

Washington University Law Review

Is legal blogging an antidote to the hyper-scholasticism that sometimes characterizes the legal academy today? Or is it a self-indulgence for legal scholars? It's hard to know. On the one hand, there is a proud American tradition behind the publication of concise but erudite essays aimed at a broad audience concerning the important legal issues of the day, starting with the Federalist Papers. It's hard to believe that neglecting that tradition in favor of a cloistered academic existence in which legal scholars write only for each other could be a good thing. On the other hand, even the ...


Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett Jan 2006

Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett

Washington University Law Review

While some law blogging is serious scholarship—and more could be serious scholarship than is now—almost all blogging, including most law blogging, is not serious scholarship and does not purport to be. Asserting that blogging is generally not a form of scholarship is no more an aspersion on blogging than is affirming that arguing in the Supreme Court is not scholarship. If undertaken by scholars, both activities can contribute constructively to one’s scholarship, and one might be a better advocate or blogger if one can draw upon one’s scholarly expertise. But it would be a mistake to ...


Why A Narrowly Defined Legal Scholarship Blog Is Not What I Want: An Argument In Pseudo-Blog Form, Ann Althouse Jan 2006

Why A Narrowly Defined Legal Scholarship Blog Is Not What I Want: An Argument In Pseudo-Blog Form, Ann Althouse

Washington University Law Review

Written in the form of a blog, this paper highlights the creative and communicative benefits of blogging, in particular legal blogging. This comment argues that aside from being intrinsically rewarding, blogging offers a concise scholarly model addressing a wider-ranger of topics. In this way, the paper claims that blogging has the potential for self-discovery and innovation in a way that legal scholarship might not.


Forgotten Lessons From The Common Law, The Uniform Residential Landlord And Tenant Act, And The Holdover Tenant, Christopher Wm. Sullivan Jan 2006

Forgotten Lessons From The Common Law, The Uniform Residential Landlord And Tenant Act, And The Holdover Tenant, Christopher Wm. Sullivan

Washington University Law Review

No abstract provided.


Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson Jan 2006

Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson

Washington University Law Review

This Article argues that legacy preferences in public university admissions violate the Constitution's prohibition on titles of nobility. Examining considerable evidence from the late eighteenth century, the Article argues that the Nobility Clauses were not limited to the prohibition of certain distinctive titles, such as “duke” or “earl,” but had a substantive content that included a prohibition on all hereditary privileges with respect to state institutions. The Article places special emphasis on the dispute surrounding the formation of the Society of the Cincinnati, a hereditary organization formed by officers of the Continental Army. This Society was repeatedly denounced by ...


Tax Expenditures, Principal-Agent Problems, And Redundancy, David A. Weisbach Jan 2006

Tax Expenditures, Principal-Agent Problems, And Redundancy, David A. Weisbach

Washington University Law Review

This Article considers tax expenditures from two related perspectives. First, it analyzes how the incentives on Congress to use a tax expenditure change when principal-agent problems are considered. For example, it considers whether tax expenditures can reduce moral hazard or adverse selection problems created by delegations to expert agencies. Second, it considers the condition under which tax expenditures should be expected to be redundant with direct expenditures, as many are. The two perspectives—principal-agent problems and redundancy—are related because redundancy is often seen as a solution to the principal-agent problem. The Article concludes that both principal-agent concerns and redundancy ...


The Fatal Flaw Of Standing: A Proposal For An Article I Tribunal For Environmental Claims, Timothy C. Hodits Jan 2006

The Fatal Flaw Of Standing: A Proposal For An Article I Tribunal For Environmental Claims, Timothy C. Hodits

Washington University Law Review

No abstract provided.


Can The President “Unsign” A Treaty? A Constitutional Inquiry, Luke A. Mclaurin Jan 2006

Can The President “Unsign” A Treaty? A Constitutional Inquiry, Luke A. Mclaurin

Washington University Law Review

No abstract provided.