Law Commons^™

Presidential Powers Revisited: An Analysis Of The Constitutional Powers Of The Executive And Legislative Branches Over The Reorganization And Conduct Of The Executive Branch, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Presidential Powers Revisited: An Analysis of the Constitutional Powers of the Executive and Legislative Branches Over the Reorganization and Conduct of the Executive Branch.

Alexandra R. Harrington, Esq.

Two hundred eighteen years after George Washington was elected to serve as the first President of the United States, the Constitutional Framers would likely be heartened to know that over a dozen people are vying for the right to run as their party’s presidential candidate in the upcoming 2008 presidential election. However, these same Framers would likely be severely disheartened to learn that the powers and responsibilities assigned to the executive …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

The Case For The Genetic Parent: Stanley, Quilloin, Caban, Lehr, And Michael H. Revisited, Anthony Miller

Anthony Miller

Does a genetic parent have a right to exercise the fundamental rights which the United States Constitution affords parents? If a lesbian couple has a child with one woman donating the ova, which is artificially inseminated and implanted in the other woman, is the donor woman a mother under the Constitution? If sometime in the future a heterosexual couple has a child through the process if in vitro fertilization and through the use of an artificial womb, would the woman and man be the child's mother and father for constitutional purposes? While the United States Supreme Court has recognized that …

Worldwide Corporate Governance Convergence Within A Pluralistic Business Legal Order---Company Law And Independent Director System In Contemporary China , Chi-Wei Huang

Chi-Wei Huang

Worldwide Corporate Governance Convergence within A Pluralistic Business Legal Order—Company Law and Independent Director System in Contemporary China

Chi-Wei Huang, S.J.D. University of Pennsylvania Law School March 29, 2007

Abstract:

A deeper tendency across developed market jurisdictions has been a convergence toward a single, standard corporate structure. The essential legal features of a shareholder-oriented ideology are well established among those developed market jurisdictions and noticeably dominate the development of worldwide corporate forms. Striving to increase long-term shareholder value has become the most competitive corporate governance theory among developed economies. A series of examinations of worldwide corporate governance and ownership have …

The Asylum Law Of The Particular Social Group, Matthew Paul Nickson

Matthew Paul Nickson

No abstract provided.

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

The Rehnquist Court And The Pollution Control Cases: Anti-Environmental And Pro-Business?, Mark A. Latham

Mark A. Latham

In this Article I address whether the assertions made by a number of commentators criticizing the Rehnquist Court as a pro-business and anti-environmental Court are accurate. To answer this question, I specifically focus on the cases arising under the so-called “pollution control” statutes during the tenure of William H. Rehnquist as Chief Justice. The pollution control statutes collectively regulate a wide spectrum of businesses and industries, and an analysis of the cases arising under these statutes should, consequently, reflect the bias that is claimed to have existed in the Court’s environmental jurisprudence under the leadership of Chief Justice Rehnquist. Contrary …

Upholding Human Rights In The Hemisphere: Casting Down Impunity Through The Inter-American Court Of Human Rights , Morse Tan

Morse Tan Esq.

This article further fills the lacuna in the scholarly literature regarding compliance theory and the Inter-American Court of Human Rights. It builds upon a previous publication by this same author titled “Member State Compliance with the Judgments of the Inter-American Court of Human Rights”. As with its predecessor, this article explores various prominent theoretical models including the managerial model, fairness and legitimacy, transnational legal process, and self-interest. Harmonizing aspects of these distinctive theoretical models as an analytical base, this article proposes a new, hybrid model which suggests that many of the central tenets of the previous theories reflect reconcilable dimensions …

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning, Andrew J. Morris

Andrew J Morris

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning

Although scholars have discussed legal pragmatism for several decades, the literature does not contain a systematic analysis of the characteristic elements of pragmatic decisionmaking. This article tries to add that analytical perspective. It attempts to make sense of the extensive literature by identifying specific characteristics of pragmatic reasoning, then conducting a methodical comparison of distinctively pragmatic reasoning to more principled reasoning. I identify principled reasoning with legal form: as reasoning that gives some normative force to formal legal reasons. The criteria on which I compare the two modes …

High Speed Rail Transit: Developing The Case For Alternative Transportation Schemes In The Context Of Innovative And Sustainable Global Transportation Law And Policy , Kamaal Zaidi

Kamaal Zaidi

This paper examines high-speed rail transit in the context of global transportation law and policy. Given increasing traffic congestion and rising pollution from existing forms of transportation, the author argues that high-speed rail transit is gaining popularity, and is quickly becoming a part of the transportation sector in several nations. The rise of this form of alternative has much to do with a strong commitment from legislators, and from growing partnerships between public and private entities. This commitment comes in the form of funding mechanisms, technological research and development, and application of environmental measures designed to reduce the impact of …

Patchwork Solution To A Complicated Problem: How The Current Healthcare Legislation Is Failing To Address The Difficulties Created By Undocumented Immigrants., Daniel O. King

Daniel O King

No abstract provided.

“Cultural Treatment” And “Most-Favoured-Culture” Principles To Promote Trade Related Cultural Diversity, Christophe Roy Germann

Christophe Roy Germann

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions approved by the General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) on 20 October 2005 entered into force on 18 March 2007. This paper focuses on the policy goal of “cultural diversity” for “international trade related cultural goods and services”, and on strategies and means to achieve this goal for countries that cannot afford substantial subsidies for these purposes. It proposes to explore and discuss an innovative legal approach beyond the new UNESCO Convention on cultural diversity in order to materialize cultural diversity …

To Mark Or Not To Mark: Application Of The Patent Marking Statute To Websites And The Internet , Eugene Goryunov, Mark V. Polyakov

Mark V Polyakov

The Marking Statute expressly limits the patent owner’s recovery of damages if the patent owner itself, anyone making, offering for sale, or selling failed to mark its patented invention, sold within the United States, with the associated patent number. In these cases, damages must be limited to those that accrue after the infringer is provided actual notice of infringement. The authors suggest that, in light of relevant jurisprudence and the purpose of the Marking Statute, owners of patents that are directed to any business activities on the Internet should mark their own websites, and require their licensees to mark their …

“Exporting U.S. Anti-Terrorism Legislation And Policies To The International Law Arena, A Comparative Study: The Effect On Other Countries' Legal Systems”, Olga Kallergi

Olga Kallergi

Abstract

The terrorist attack on the World Trade Center in New York on 9/11 set in motion a new era all over the world: an era of a world uniting against a common enemy, but also an era of insecurity and fear. Laws have been changed worldwide, nations have united against a common threat, legal theories and belies of centuries have been questioned, and civil liberties have been replaced by a need for national safety. Has this worldwide effort worked? Is our world a better place not that we are all fighting the same enemy? Did we learn from our …

"Drug Treatment Courts In The 21st Century: Improving The Criminal Justice System's Response To Drug Offenses", Peggy Fulton Hora, Theodore Stalcup

Peggy Hora

The article demonstrates that the traditional criminal justice system’s response to drug offenses – arrest, trial and incarceration and re-arrest, re-trial and re-incarceration of 70% of offenders within three years – wastes vast economic and human resources. Drug treatment courts, on the other hand, have proven to be strong alternatives to incarceration as well as effective mechanisms for dealing with America’s drug problem. The article addresses criticism of drug treatment courts, including resistance to the disease model of addiction, disputes over efficacy of treatment, legal issues related to purported coercion of treatment, concern over unbridled judicial discretion and ethical issues …

Legal Construct Validation: Expanding Empirical Legal Scholarship To Unobservable Concepts , David S. Goldman

David S Goldman

This article proposes a system with which to empirically study unobservable legal concepts. Although empirical legal scholarship is becoming an increasingly important component of legal studies, its usefulness has so far been confined to topics that are directly observable, such as court decisions or crime rates. This limitation has unfortunately prevented the study of many of law’s foundational concepts, such as deterrence, incentives, or freedom, because they are not directly measurable. But this obstacle can be overcome by looking to social sciences, particularly psychology, that have developed mechanisms for assessing concepts like happiness or depression that cannot be directly measured. …

Legal Construct Validation: Expanding Empirical Legal Scholarship To Unobservable Concepts, David S. Goldman

David S Goldman

This article proposes a system with which to empirically study unobservable legal concepts. Although empirical legal scholarship is becoming an increasingly important component of legal studies, its usefulness has so far been confined to topics that are directly observable, such as court decisions or crime rates. This limitation has unfortunately prevented the study of many of law’s foundational concepts, such as deterrence, incentives, or freedom, because they are not directly measurable. But this obstacle can be overcome by looking to social sciences, particularly psychology, that have developed mechanisms for assessing concepts like happiness or depression that cannot be directly measured. …

Mandated Informed Consent For Medical Procedures: Has Government Gone Too Far, Linda P. Mckenzie

Linda P. McKenzie

In 2003, President George W. Bush signed legislation targeted at preventing what lawmakers said was a single, specific abortion procedure. The bill banned a method that is known outside of the medical community as "partial birth abortion." Lower courts, however, struck down the law as a violation of the Supreme Court's requirement that state limits on abortion must include an exception for the life or health of the pregnant woman. The lower courts were upheld by the three circuit courts who reviewed the Partial Birth Abortion Ban Act of 2003. The U.S. Supreme Court accepted certiorari and recently heard oral …

Arms Embargoes And The Right Of Self-Defense In International Law, Matthew D. Vandermyde

Matthew D. Vandermyde

Matthew D. Vandermyde, Arms Embargoes and the Right to Self-Defense in International Law. This article answers the question: Does a mandatory arms embargo violate a nation’s right to self-defense? In other words, if a country has been given the right to use force in self-defense, but has then been denied access to weapons, does it really have a right to self-defense at all?

Over the past few decades, a number of nations have argued that the mandatory arms embargoes imposed against them violated their right to use force in self-defense. In some cases the Security Council has responded by adjusting …

Reform Of The Arizona State Bar’S Rules Of Professional Conduct: From Zealous Advocacy To Honorable Representation, Zach Rawling

Zach Rawling

In 2003, the Arizona Supreme Court announced “a historic and significant change” to the State Bar’s Rules of Professional Conduct, eliminating the obligation of attorneys to be “zealous” advocates of their clients in favor of a duty to “act honorably” to further their clients’ interests. Chief Justice Charles E. Jones described the change as “a significant foundational change in the Rules of the Court, and one that is designed to send a distinct message to attorneys.” The principal impetus for the amendment was an increase in the number of attorneys improperly citing zealous advocacy as a defense for “unprofessional and …

Federally Mandated Informed Consent: Has Government Gone Too Far?, Linda P. Mckenzie

Linda P. McKenzie

In 2003, President George W. Bush signed legislation targeted at preventing what lawmakers said was a single, specific abortion procedure. The bill banned a method that is known outside of the medical community as "partial birth abortion." Lower courts, however, struck down the law as a violation of the Supreme Court's requirement that state limits on abortion must include an exception for the life or health of the pregnant woman. The lower courts were upheld by the three circuit courts who reviewed the Partial Birth Abortion Ban Act of 2003. The U.S. Supreme Court accepted certiorari and recently heard oral …

Credit Card Interchange Fees: Three Decades Of Antitrust Uncertainty, Steven Semeraro

Steven Semeraro

This article re-examines the historical, economic, and legal analyses of credit card interchange fees, rejecting the standard assumptions that (1) collectively set interchange fees are unlikely to harm consumers and (2) these fees cannot feasibly be set in a competitive fashion. Through a new historical assessment and consideration of the most recent economic learning, this article shows that under current market conditions collusively set interchange fees are likely to harm consumers and thus violate the antitrust laws. In addition, a competitive remedy is feasible. The six largest Visa and MasterCard issuers, which are larger than the Discover Card System and …

Do Rules Of Evidence Apply (Only) In The Courtroom? Deceptive Interrogations In The United States And Germany, Jacqueline E. Ross

Jacqueline E Ross

Scholars who compare common law and civil law countries have long argued that civil law legal systems like Germany do not employ formal rules of evidence comparable to those which govern American courtrooms. The complex and restrictive nature of American evidentiary rules is said to be an artifact of the adversarial process and lay juries, which the legal system does not trust to evaluate evidence dispassionately. Civil law systems that commit fact-finding to mixed panels of lay and professional judges are said to have less need for formal rules of evidence that withhold information from decision-makers.

My essay challenges this …

Credit Card Interchange Fees: Three Decades Of Antitrust Uncertainty, Steven Semeraro

Steven Semeraro

This article re-examines the historical, economic, and legal analyses of credit card interchange fees, rejecting the standard assumptions that (1) collectively set interchange fees are unlikely to harm consumers and (2) these fees cannot feasibly be set in a competitive fashion. Through a new historical assessment and consideration of the most recent economic learning, this article shows that under current market conditions collusively set interchange fees are likely to harm consumers and thus violate the antitrust laws. In addition, a competitive remedy is feasible. The six largest Visa and MasterCard issuers, which are larger than the Discover Card System and …

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean A. Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

The Geography Of Climate Change Litigation Part 2: Narratives Of Nation-States And Thirdspace, Hari M. Osofsky

Hari Osofsky

This article aims to interweave two current crises for law and policy in the United States: (1) the extent of our commitment to international law and (2) the approach we will take to regulating global climate change. It argues that achieving progress on both fronts requires interrogating the geographic assumptions in major conceptual approaches to international legal theory and the implications of those assumptions for their narratives of climate change litigation. To that end, it develops a taxonomy of international legal theory based on how those approaches view nation-state spaces—Westphalian, modified Westphalian, pluralist, and critical—and considers how a law and …

Potential Implications Of In Re Seagate, Kristy J. Downing

Kristy J Downing

Recently the United States Court of Appeals for the Federal Circuit granted a writ of mandamus to answer the two questions: should voluntary waiver of privilege by relying upon the advice of counsel defense extend to communications with trial counsel and if so, what effect should the waiver have on work product immunity? Seagate provides the Court with an opportunity to address this issue head on. In determining the scope of the waiver, it is important to ascertain the issue at hand and how it relates to the desired client communications. One school of thought is that if an infringement …

Asylum And Voluntary Repatriation Applied To The Sub-Saharan African Legal Context: Are They Two Viable Solutions For Refugees?," , Cristiano D'Orsi

Cristiano d'orsi

This article deals with two aspects bound to the legal conditions of refugees in the African continent, namely asylum and voluntary repatriation. The first is considered like the “traditional” solution for people, either individuals or groups, obliged to flee from their own countries. On the contrary, the second is the solution traditionally invoked as the preferable one either by States or by institutions, like the United Nations High Commissioner for Refugees , to put an end to the precarious condition of refugees. In this work, we will also examine the principle of non-refoulement, cornerstone of the legal protection of refugees …

Of Marriage And Monarchy: Why John Locke Would Support Same-Sex Marriage, William B. Turner

William B Turner

Arguments about discrimination based on sexual orientation generally rest on interpretations of the equal protection clause of the Fourteenth Amendment or about rights to autonomy rooted in modern substantive due process doctrine. Such theories typically presuppose a government that remains neutral among competing moral claims. This Article, by contrast, develops an account of rights against sexual orientation discrimination—including recognition of same-sex marriage—that does not depend on a thin moral conception of the liberal state. Instead, I situate lesbian/gay rights within a Lockean political theory of consent. John Locke’s theory of government, which was highly influential for the Founders of the …