Law Commons^™

Legitimacy As An Assessment Of Existing Legal Standards: The Case Of The 2003 Iraq War, Charlotte Ku

Faculty Scholarship

The Iraq war was a multiple assault on the foundations and rules of the existing UN-centered world order. It called into question the adequacy of the existing institutions for articulating global norms and enforcing compliance with the demands of the international community. It highlighted also the unwillingness of some key countries to wait until definitive proof before acting to meet the danger of the world's most destructive weapons falling into the hands of the world's most dangerous regimes. It was simultaneously a test of the UN's willingness and ability to deal with brutal dictatorships and a searching scrutiny of the …

Comparativa Entre Les Reformes Dels Estatuts D'Autonomia De Catalunya I D'Andalusia [Comparative Analysis Of The Reforms Of The Charters Of Autonomy Of Catalonia And Andalucía], Albert Lamarca-Marquès, Vanessa Casado-Pérez

Faculty Scholarship

En els ordenaments jurídics continentals europeus no és habitual l’admissió d’escrits acadèmics independents adreçats als tribunals de justícia en el marc de procediments de gran importància. En els països del Common Law, especialment en les jurisdiccions nordamericanes, mitjançant el procediment anomenat d’Amicus Curiae es permet d’adreçar aquesta mena d’escrits als tribunals de justícia, que hauran de decidir si els tenen o no en compte. A través de les pàgines d’InDret, hem volgut oferir aquest document de comparació d’ambdós Estatuts per contribuir al debat jurídic en el marc del procés de reforma dels Estatuts d’Autonomia a l’Estat i en relació als …

Surviving Irs Examinations And Appeals, Emily A. Parker, Robert D. Probasco

Faculty Scholarship

This article summarizes the statutory, regulatory and administrative rules and procedures that apply to IRS civil tax examinations and Appeals proceedings, including alternative dispute resolution procedures. The focus of this paper is on field examinations, rather than service center examinations, correspondence examinations, or office examinations. In addition, it attempts to answer some of the basic questions that taxpayers often ask their advisors and representatives when they are the subject of an IRS civil tax examination:

• Why was I selected by the IRS for audit?
• How long will this audit take?
• Why do the agents want all this information, documents, data, …

Enron’S Houdini – How They (Almost) Mastered The Illusion Of Prosperity And Profitability, Neal F. Newman

Faculty Scholarship

No abstract provided.

Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes

Faculty Scholarship

When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …

Post-Acquisition Harassment And The Scope Of The Fair Housing Act, Aric Short

Faculty Scholarship

Because Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n creates a split of circuit authority and threatens established civil rights protections, the Seventh Circuit’s decision provides a useful opportunity to reconsider the proper scope of the FHA. The subject of housing harassment, in general, has received significant scholarly attention in the recent past; however, no commentator has focused on the concept of post-acquisition harassment or evaluated the validity of the underlying assumption that the FHA does, in fact, protect against harassment occurring after housing has been secured. With the current schism in federal case law as a backdrop, …

Access To Justice, Costs, And Legal Aid, James P. George

Faculty Scholarship

If the ideal of justice is not pervasive in the United States, the issue of justice is-not so much in its rendition, but in its penetration of news, politics and entertainment. Current media issues include the death penalty--erroneous convictions and the lack of lawyers for appeals; tort reform--conflicting data on medical malpractice litigation and a perceived abuse of class actions; and the judiciary itself--judicial selection, political attacks on so-called "activist judges," and the sometimes hidden issue of court budgets. Within this fascination, the multiple problems in accessing justice are lost.

This article is excerpted from a report done for the …

Anticircumvention And Anti-Anticircumvention, Peter K. Yu

Faculty Scholarship

In today's debate on digital rights management systems, there is a considerable divide between the rights holders, their investors and representatives on the one hand and academics, consumer advocates, and civil libertarians on the other. These two groups often talk past each other, concocting their own doomsday scenarios while arguing for laws and policies that vindicate their positions. Unfortunately, neither side has sufficient empirical evidence to either support its position or disprove its rivals'. As the digital economy grows, the debate intensifies, and the divide between the two sides widens. Today, there has emerged an urgent need to find the …

Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon

Faculty Scholarship

Arbitration is the preferred method of resolving disputes arising out of international commercial transactions. It stands outside national legal systems because contracting parties agree in advance that they want neutral arbitrators — not local judges and juries — deciding who is at fault when a commercial relationship breaks down. But arbitration nevertheless butts up against litigation from time to time, often because one party attempts to arbitrate a matter that has been litigated to conclusion or vice versa. This article examines — through a contextual approach — questions of preclusion that thereby arise and ultimately suggests that res judicata and …

A History Of Miranda And Why It Remains Vital Today, Roscoe C. Howard Jr, Lisa A. Rich

Faculty Scholarship

Custodial interrogations and how they are conducted in light of Miranda and its progeny are an integral part of the American criminal justice process and a necessary tool for criminal law enforcement, not merely a source of catchy phrases for today's popular television shows, for a very simple reason: The warnings set the ground rules for custodial interrogations and ensure that the interrogator and suspect are on a level playing field. A review of the case law surrounding the Miranda decision reveals that Miranda is a case that has encapsulated the nation's beliefs and, while subject to the ebbs and …

Conflict Of Laws (2006), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2004 through November 31, 2005. The Article excludes cases involving federal-state conflicts, intrastate issues such as subject-matter jurisdiction and venue, and conflicts in time such as the applicability of prior or subsequent law within a state. State and federal cases are …

Precious, Worthless, Or Immeasurable: The Value And Ethic Of Water, Gabriel Eckstein

Faculty Scholarship

This Article introduces and briefly explores some of the topics related to the value and ethics of water that were considered at the symposium, Precious, Worthless, or Immeasurable: The Value and Ethic of Water, which took place November 2-4, 2006, at the Texas Tech University School of Law. The purpose of the Symposium was to consider how this precious liquid is valued, assessed, and perceived with regard to law and regulations, economics and commerce, people and communities, culture and religion, and others aspects of society that are impacted by water. While far from a comprehensive analysis of the subject matter, …

The Constitutional Right Not To Cooperate - Local Sovereignty And The Federal Immigration Power, Huyen Pham

Faculty Scholarship

This article examines an important but up to now, still unexplored area in the federalism debate: May the federal government require local governments to cooperate with the enforcement of immigration law or other federal scheme? Or may local governments constitutionally refuse to provide that cooperation?

I use immigration law enforcement as a case study to argue that the current legal framework, which allows the federal government to mandate local cooperation, ignores the significant federalism harms that federal cooperation laws impose. And these federalism harms are not simply limited to the immigration field. In other areas where federal and local governments …

Dialectical Regulation, Robert B. Ahdieh

Faculty Scholarship

While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.

Such patterns of regulatory engagement are increasingly evident, across …

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua Graff Zivin, Nathaniel B. Chase

Faculty Scholarship

The Article distinguishes and explores three categories of information use: Helping patients understand and participate in their care; Improving patient safety, including analyzing medical errors and identifying unsafe health care providers and practices; and Assessing the performance of the medical liability system in its many dimensions including deterrence, compensation, justice, administrative efficiency, and stability.

For each category, the Article comments on existing laws or programs for information reporting or disclosure, points out major tensions or ambiguities, and suggests pragmatic improvements.

Late Night Thoughts On Blogging While Reading Duncan Kennedy's Legal Education And The Reproduction Of Hierarchy In An Arkansas Motel Room, Franklin G. Snyder

Faculty Scholarship

It has been more than twenty years since Duncan Kennedy published his seminal 'Legal Education and the Reproduction of Hierarchy'. In it he called for a radical assault on the hierarchies embedded in American law schools. But that assault failed. Over the past two decades, the hierarchies of legal education have, if anything, become even more fixed, insular, and status-driven, even while the elites of the practicing bar have changed dramatically and become more open to outsiders. It is vastly easier for the graduate of a fourth-tier law school to become a partner at an elite law firm than it …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Faculty Scholarship

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

Filling In The Gaps: Extrasystemic Mechanisms For Addressing Imbalances Between The International Legal Operating System And The Normative System, Charlotte Ku, Paul F. Diehl

Faculty Scholarship

What happens when there is an imbalance between the operating and normative systems of international law? One obvious outcome is nothing; the imbalance remains, and the norms of the system are not given full effect. For example, human rights provisions abound, but they can be widely ignored in the absence of enforcement mechanisms. In this article, we identify several other possibilities. Our contention is that adaptations occur that compensate for, or at least mitigate, the effects of the operating-normative systems imbalance. Specifically, we explore four kinds of extrasystemic (at least from the perspective of the international legal system) adaptations: (1) …

From Pirates To Partners (Episode Ii): Protecting Intellectual Property In Post-Wto China, Peter K. Yu

Faculty Scholarship

In "From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century," I criticized the ineffectiveness and short-sightedness of the American foreign intellectual property policy toward China. As I argued, the coercive approach taken by the U.S. administrations created a "cycle of futility" in which China and the United States repeatedly threatened each other with trade wars, only to back down in the eleventh hour with a compromise that did not provide sustained improvements in intellectual property protection.

Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its …

Expanding The Protection Of Geographical Indications Of Origin Under Trips: Old Debate Or New Opportunity, Irene Calboli

Faculty Scholarship

Geographical indications of origin (GI), their definition, and rationale for protection have historically been the subject of heated debates in the international community. Countries have long quarreled about the extent of protection of "their" GI, that is, the names they used to identify products grown or manufactured on their soil. Fierce defenders of GI protection, European countries have traditionally advocated that GI should not be used by unrelated parties because GI identify the unique qualities, characteristics, and reputation of the products to which they are affixed; thus, should others use GI improperly, consumers would be confused as to the origin …

Trips And Its Discontents, Peter K. Yu

Faculty Scholarship

The TRIPs Agreement was established at the ministerial meeting in Marrakesh in April 1994. Since its establishment, many less developed countries have become dissatisfied with the international intellectual property system. From their perspective, the system fails to take into consideration their needs, interests, and local conditions. The strong protection mandated by the Agreement also threatens their much-needed access to information, knowledge, and essential medicines.

This year marks the tenth anniversary of the TRIPs Agreement. It provides an excellent opportunity to assess the Agreement's achievements and shortfalls, in particular its impact on the international community as well as on other areas …

Miranda, Please Report To The Principal's Office, Meg Penrose

Faculty Scholarship

The age of an alleged criminal offender undoubtedly affects his or her ability to appreciate the consequences of confessing to criminal behavior. Courts have long accepted that youth and inexperience impact an individual's ability to make a voluntary confession. Accordingly, this Article addresses whether Miranda v. Arizona--the seminal Fifth Amendment decision providing procedural rights to those enduring custodial interrogation--should apply to students interrogated by school officials during school hours. To answer this difficult question, this Article first provides a brief overview of the law of minors and confessions. Next, it considers the increasing law enforcement presence on our school …

The Strategy Of Boilerplate, Robert B. Ahdieh

Faculty Scholarship

Boilerplate can be exciting. It is this, perhaps hard-to-swallow, proposition that the present analysis attempts to convey. Particularly in invoking the work of Thomas Schelling on the role of focal points in coordination games, it offers what can be characterized as a "strategic" theory of boilerplate, in which boilerplate plays an active, even aggressive, role.

Contrary to the relatively inert quality of boilerplate implied by conventional treatments in the legal literature, boilerplate may serve essential signaling and coordination functions in contract bargaining. In appropriate circumstances, its proposed usage may be a valuable weapon in the arsenal of a bargaining party, …

Of The Inequals Of The Uruguay Round, Srividhya Ragavan

Faculty Scholarship

Ten years ago, the TRIPs Agreement set a distinct tone in international law by requiring members to prioritize international trade obligations as a means to achieve national goals. Within the next five years, the AIDS crisis highlighted that compromising pressing national responsibilities - like a looming public health crisis - to fulfill international obligations may, in fact, detrimentally affect international trade. Meanwhile, access to medication continues to be an unresolved issue even as we celebrate the tenth anniversary of TRIPs and the end of the transitional period. This Article suggests that the success of TRIPs depends on its ability to …

Of Monks, Medieval Scribes, And Middlemen, Peter K. Yu

Faculty Scholarship

Today's copyright debate has generally focused on the digital dilemma created by Internet and new media technologies. Threats created by emerging communications technologies, however, are not new. Throughout history, there have been remarkable similarities between the threats created by new technologies and those posed by older ones.

During the oral argument in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., Justice Stephen Breyer questioned whether the petitioners' counsel would apply the test proposed for the new technology to some once-new technologies, such as the photocopying machine, the videocassette recorder, the iPod, and the printing press. When the counsel quickly responded in the …

Understanding The Ex Parte Communications Ban In Employment Disputes, Michael Z. Green

Faculty Scholarship

One of the biggest issues with ex parte communications in the employment setting involves the question of whether a plaintiff's attorney may have ex parte communications with employees of a defendant corporate entity without violating ethical rules. See generally Ellen J. Messing & James S. Weliky, Contacting Employees of an Adverse Corporate Party: A Plaintiff's Attorney's View," 19 Lab. Law. 353 (2004). However, this article focuses on the situation in which the employee or employer, as clients of an attorney in a legal dispute, attempt to contact adverse represented parties or persons.

Ethical Incentives For Employers In Adopting Legal Service Plans To Handle Employment Disputes, Michael Z. Green

Faculty Scholarship

Given the difficulties for employees in finding a lawyer to handle an employment dispute and with the growth of ADR, this article asserts that employers should adopt legal service plans as an employee benefit. It might seem counterintuitive for employers to provide their employees with a legal service benefit that may be used against them in employment disputes. However, comprehensive dispute resolution systems employ fair mechanisms that allow employees to resolve their disputes as soon as possible. Having sound legal counsel can become a major component of an employer's dispute resolution system because it offers a distinct human resource advantage …

A Strategic Interpretation Of Legal Transplants, Nuno Garoupa, Anthony Ogus

Faculty Scholarship

In this Paper, we provide a strategic explanation for the spontaneous convergence of legal rules, which nevertheless falls short of harmonization across jurisdictions. We identify a free-riding problem and discuss its implications for legal culture, integration, and harmonization. It is argued that harmonization of legal rules by a central authority in order to generate a uniform legal culture could be the response to a coordination failure. It could also be a serious policy mistake, however, leaving everybody worse off. The result depends crucially on the relative benefits and costs of importing and integrating different legal orders.

Thinking About Economics As Religion, Andrew P. Morriss

Faculty Scholarship

Four years ago, the Case Western Reserve Law Review conducted a paper-only symposium on Bjom Lomborg's The Skeptical Environmentalist. That symposium was so successful that the editors decided to repeat the experience. Seeking a book that could approximate Lomborg's in its ability to inspire controversy, I suggested Robert H. Nelson's Economics as Religion: From Samuelson to Chicago and Beyond after Professor Nelson gave a well-received lecture here on environmentalism as a religion. The editors agreed. As before, the Review has assembled an impressive group to comment on Nelson's book. The group includes economists who take a wide range of …

State Action Antitrust Exemption Collides With Deregulation: Rehabilitating The Foreseeability Doctrine, Elizabeth Trujillo

Faculty Scholarship

The state action antitrust exemption, also known as the state action immunity doctrine, is used by antitrust defendants to shield themselves against antitrust liability in instances where their anticompetitive conduct, if not under the aegis of state policy, would have been deemed a violation of federal antitrust law. Under the Midcal test, a court may grant state action immunity to a defendant if it is proven that the alleged anticompetitive conduct is pursuant to a clearly-articulated state policy and has been actively supervised by the state.

This paper evaluates the role, function, and definition of the state action exemption in …