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Articles 1 - 30 of 50
Full-Text Articles in Law
Reverse Nullification And Executive Discretion, Michael T. Morley
Reverse Nullification And Executive Discretion, Michael T. Morley
Faculty Scholarship
No abstract provided.
Filing Status And Today's Families, Erik Baines
Filing Status And Today's Families, Erik Baines
Law Student Publications
Section I of this comment considers the early income tax code, its focus on individual filing, and how early decisions of the Supreme Court of the United States led Congress to adopt optional joint filing for married couples. Section II analyzes the joint return, tax norms, and arguments of proponents and opponents of the joint return. Section III analyzes structural issues raised by a return to an individual filing system, as well as why an individual filing system is superior to a joint filing system given the changes in American society. It also discusses a proposal to resolve an inequity …
A Distinction Without A Difference? An Examination Of The Legal And Ethical Difference Between Asset Protection And Fraudulent Transfers Under Virginia Law, Elizabeth Southall
A Distinction Without A Difference? An Examination Of The Legal And Ethical Difference Between Asset Protection And Fraudulent Transfers Under Virginia Law, Elizabeth Southall
Law Student Publications
“A distinction without a difference”—a colloquial expression employed by one wishing to recognize that while a linguistic or conceptual distinction exists between any number of options, any such distinction lacks substantive practical effect. To allege that a situation presents “a distinction without a difference” is to suggest that any difference between a given set of options is a logical fallacy—purely a creature of erroneous perception. When it comes to concepts of asset protection planning and fraudulent transfer law, one must ask whether the law draws a distinction where there is no difference....This essay identifies these distinctions. Part II provides a …
Lifting The Fog: Ending Felony Disenfranchisement In Virginia, Dori Elizabeth Martin
Lifting The Fog: Ending Felony Disenfranchisement In Virginia, Dori Elizabeth Martin
Law Student Publications
This comment explores how Virginia's disenfranchisement law originated, how it has managed to survive throughout Virginia's history, and whether it may be vulnerable to various legal challenges. Part II outlines the history of felony disenfranchisement in Virginia. Part III analyzes common policy justifications for the current law and discusses the widely held beliefs about the role of race in the law's inception. Part IV examines legal challenges to similar laws in the federal courts and evaluates the potential for success of comparable challenges in Virginia. Part V looks to recent attempts at enacting solutions at the state level. Part VI …
Opportunistic Discipline: Using Eurasian Integration To Improve Sanctions Against Belarus, Ilya Zlatkin
Opportunistic Discipline: Using Eurasian Integration To Improve Sanctions Against Belarus, Ilya Zlatkin
Law Student Publications
This comment does not condemn or condone the Lukashenko regime's policies. Instead, it evaluates the effectiveness of the U.S. sanctions and provides some feasible alternatives. Also, this comment avoids normative arguments against sanctions, concentrating more on the probable economic and political effects. Part II supplies background information on the political developments within Belarus since the Soviet Union's collapse, including prior sanctions that the West imposed. Part III explains why the United States can legally institute sanctions. Parts IV and V discuss how American sanctions facilitate appropriation of significant Belarusian state assets by Russia and China, respectively. Part VI posits that …
Genes 101: Are Human Genes Patentable Subject Matter?, Andrew Bowman
Genes 101: Are Human Genes Patentable Subject Matter?, Andrew Bowman
Law Student Publications
This comment proposes a totality-of-the-circumstances approach to analyzing biological molecules under § 101 such that both the structure and its information is examined. Part II of this note reviews relevant precedent in patent law. Part III analyzes the Federal Circuit's Myriad decision, and Part IV explains the potential effects of the recent Supreme Court decision Mayo Collaborative Services v. Prometheus Laboratories. Finally, in Part V, the patent eligibility of human genes is examined. Analyzing this issue under the proposed totality-of-the-circumstances approach, this article concludes that isolated human genes are not patentable.
The Ncaa And The Student-Athlete: Reform Is On The Horizon, Mary Grace Miller
The Ncaa And The Student-Athlete: Reform Is On The Horizon, Mary Grace Miller
Law Student Publications
This comment examines the NCAA's rules and regulations of student-athletes and explores the possibility that the NCAA's existence, under its current bylaws and manual, is at least immoral and likely unlawful. Additionally, this comment analyzes the idea that the NCAA needs not only internal restructuring but judicial and possibly congressional intervention in order to truly protect young athletes' financial, academic, and basic human interests. Part II of this comment explores the historical development of the NCAA and the current relationship between the NCAA and the student-athlete. Part III discusses the fundamental unfairness in the NCAA's bylaws, which results in the …
It's About Time, David Frisch
It's About Time, David Frisch
Law Faculty Publications
This Article critically evaluates the view widely held by courts that contract claims for lost leisure or personal time do not justify compensation. The thesis of this Article is that while the conventional judicial wisdom may be correct about some forms of nonpecuniary loss, it is entirely wrong regarding lost time. After setting aside assumptions, I show that traditional arguments against this form of recovery are deeply flawed Most importantly, I rely on the recognition of hedonic damages by forensic economists to debunk the myth that loss of time is no more than an everyday aspect of life not worthy …
Virtual Adultery: No Physical Harm, No Foul?, Kathryn Pfeiffer
Virtual Adultery: No Physical Harm, No Foul?, Kathryn Pfeiffer
Law Student Publications
New forms of social media and virtual communication are changing the ways in which we meet new people and develop meaningful relationships. In today's world, you can skype a long-distance significant other or join an Internet chat room to find others who share a similar interest. While, in many ways, the Internet has facilitated our ability to interact with others unencumbered by geographical location or time zone, its unfettered reach has proved to be problematic for one relationship in particular-the marital unit. Studies show that more marriages are ending because of "virtual infidelity," the term used to describe nonphysical behavior …
I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett
I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett
Law Student Publications
First, this paper describes the interests behind the presumption of patent validity and the historical treatment of the burden of proof required to overcome that presumption. While precedent does not bind the Supreme Court, it is important to consider how and why a particular standard has been applied in addition to Congress’s inaction in implementing a new standard. Second, this paper examines arguments in support of maintaining the status quo, changing to a preponderance of the evidence standard, and adopting a dual standard where some evidence must rise to the level of clear and convincing evidence while other evidence need …
When Responsive Legislation Ignores The Forest For The Trees, Matthew G. Curtis
When Responsive Legislation Ignores The Forest For The Trees, Matthew G. Curtis
Law Student Publications
Large-scale financial disasters have resulted in equally large-scale overhauls of the system responsible for financial industry regulation. Choice over responding parties to these disasters is minimal, and the public inevitably looks to the government for assistance and explanation. The increasingly globalized economy causes any nationwide financial regulation in the U.S. to be felt throughout international markets. U.S. environmental regulation, while not felt immediately abroad, can have drastic impacts on business planning, environmental risk-management, and human rights in the developing world.
History Repeats Itself: The Post-Furman Return To Arbitrariness In Capital Punishment, Lindsey S. Vann
History Repeats Itself: The Post-Furman Return To Arbitrariness In Capital Punishment, Lindsey S. Vann
Law Student Publications
Part I of this comment provides a brief review of Furman and the circumstances leading to the decision. Part II discusses the factors indicating current arbitrariness and other recurring fac-tors surrounding the American death penalty. Part III examines the development of the Cruel and Unusual Punishments Clause since Furman. Finally, Part IV discusses how the Supreme Court should apply its contemporary Eighth Amendment doctrine to the current circumstances surrounding the imposition of the death penalty.
The Silver Lining In The Red Giant: China’S Residential Mortgage Laws Promote Temperance Among The Surging Middle Class, Clayton D. Laforge
The Silver Lining In The Red Giant: China’S Residential Mortgage Laws Promote Temperance Among The Surging Middle Class, Clayton D. Laforge
Law Student Publications
This comment examines the rise of China‘s middle class and proactive governance to protect its economy from a housing bubble during the global downturn. An analysis of recently enacted Chinese labor and corporate laws demonstrates how the government facilitated the rise of the middle class. The comment dis-cusses the ramifications of strict domestic residential mortgage regulations and how China‘s tempered investment structure secured its domestic housing market. Part II of this comment examines China‘s investment and consumption patterns compared to domestic growth. Part III discusses how the surging middle class grew to seek investment opportunities in the real estate market …
A Critical Look At The Anti-Counterfeiting Trade Agreement, David M. Quinn
A Critical Look At The Anti-Counterfeiting Trade Agreement, David M. Quinn
Law Student Publications
This Article examines two of the more credible criticisms leveled against the ACTA and evaluates the credibility of each. First, some allege that the agreement is a treaty masquerading as an executive agreement. The distinction is significant because treaties may modify U.S. law and require congressional approval, while executive agreements must accord with existing law and require only presidential approval. The second criticism is the systemic lack of transparency throughout the negotiation process. Though these are not the only criticisms – far from it – they are the two most significant and stand on the most solid ground.
Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan
Re-Mapping Privacy Law: How The Google Maps Scandal Requires Tort Law Reform, Lindsey A. Strachan
Law Student Publications
This Comment explores how the law should handle such privacy claims. In analyzing both the photographic privacy claims as well as the Wi-Fi data privacy claims, this paper argues that current tort law is inadequate for such technologically advanced legal issues. Section II explores the background of Google Maps Street View and current privacy law, while Section III looks at the holes in current privacy torts in the context of the images displayed on Street View. Section IV examines the privacy implications surrounding the Wi-Fi scandal, and finally, Section V reviews the solution and provides a conclusion.
Were The Framers - And The Writers Who Influenced Them - Unable To Foresee The Extent Of Secularization That Could Result From The Separation Of Church And State?, Teresa M. Blake
Campbell Law Review
While the United States is filled with religious sects, denominations, worshippers, and even fanatics, the truth is that American society has become largely secular.' When analyzing society's trend toward secularization from a legal perspective, it is only natural to begin with the Establishment Clause of the First Amendment 2-the clause responsible for the separation of church and state. But is today's secular society really the brainchild of the Framers of the Constitution? Or is it an unintended result that was far beyond their realm of foreseeability? This Comment addresses these questions by surveying the writings of several influential Constitutional Framers. …
Pakistan's Failed Commitment: How Pakistan's Institutionalized Persecution Of The Ahmadiyya Muslim Community Violates The International Covenant On Civil And Political Rights, Qasim Rashid
Law Student Publications
The United Nations (“UN”) adopted the International Covenant on Civil and Political Rights (“ICCPR”) in 1966 and officially implemented it in 1976 to ensure, among other guarantees, that no human is denied his or her right to equal voting, freedom of political association, due process of law, freedom of life, freedom of religion, freedom of speech, and freedom of assembly. The Islamic Republic of Pakistan is among 166 nations that have signed and ratified the ICCPR. Since signing the ICCPR in 2008 and ratifying it in 2010, however, Pakistan has perpetuated state-sanctioned and violent persecution of religious minority groups such …
Is Modern Legal Liberalism Still Compatible With Free Exercise Of Religion?, Donald R. Mcconnell
Is Modern Legal Liberalism Still Compatible With Free Exercise Of Religion?, Donald R. Mcconnell
Campbell Law Review
Classic liberal legal thought has clearly been shaped by the influence of Christianity. But in recent years, the movement, like ancient Gnosticism, has some Christian elements, but has become a decidedly anti-Christian force in the courts. This comparison tracks well with the analysis of other parallel modern intellectual movements by the political scientist Eric Voegelin. It is also supported by current events such as the recent Federal District Court opinion by Chief Judge Vaughn Walker in Perry v. Schwartzenegger. Liberalism has transformed from an attempt at neutrality, to an established religion that not only promotes its own perverse version of …
Between Liberalism And Theocracy, John D. Inazu
Between Liberalism And Theocracy, John D. Inazu
Campbell Law Review
Our symposium conveners have focused us on "the relationship between liberalism and Christianity and their influence on American constitutionalism."' My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for navigating the relationship between church and state.' By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), I hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are …
From Rosenberger To Martinez: Why The Rise Of Hyper-Modernism Is A Bad Thing For Religious Freedom, Timothy P. Lendino
From Rosenberger To Martinez: Why The Rise Of Hyper-Modernism Is A Bad Thing For Religious Freedom, Timothy P. Lendino
Campbell Law Review
This Comment will argue that what has been flying under the banner of "postmodernism" is actually an intensification of modem paradigms. Moreover, hyper-modernism is not a friend to religious freedom. Instead, the Court held in Martinez that the ideologies of "diversity," "non-discrimination," and "non-commitment" trump religious freedom.' Postmodernists and Christians alike should find this objectionable. Additionally, the Martinez decision raises serious questions about the socalled rise of postmodern thought and its impact, at least in the minds of all nine Supreme Court justices. This decision may only mark the beginning of a rise in hyper-modern Religion Clause jurisprudence. At the …
Fool Me Once, Shame On Me; Fool Me Again And You’Re Gonna Pay For It: An Analysis Of Medicare’S New Reporting Requirements For Primary Payers And The Stiff Penalties Associated With Noncompliance, Monica A. Stahly
Law Student Publications
This article discusses the new requirements and the issues that currently face insurers, claimants, and attorneys in cases involving Medicare-eligible beneficiaries.
Reforming Fairness: The Need For Legal Pragmatism In The Wto Dispute Settlement Process, Webb Mcarthur
Reforming Fairness: The Need For Legal Pragmatism In The Wto Dispute Settlement Process, Webb Mcarthur
Law Student Publications
The World Trade Organization (“WTO”) dispute settlement system is intended to be the central pillar of the international trade system by which trade disputes involving WTO member states are adjudicated, whether regarding trade in goods, services, or in intellectual property rights. However, an innocuous statement such as this, when closely considered, indicates potential problems for the system.
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Law Faculty Publications
First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …
Cleaning Up The Mess: The Economic, Environmental, And Cultural Impact Of U.S. Military Base Closures On Surrounding, Elizabeth M. Myers
Cleaning Up The Mess: The Economic, Environmental, And Cultural Impact Of U.S. Military Base Closures On Surrounding, Elizabeth M. Myers
Law Student Publications
Military base closings, and the numerous laws and regulations that apply to them, have a great impact on neighboring communities. This comment addresses the economic, environmental, and cultural effects of military base closures, both domestic and overseas, and offers some ideas for the future. Section I tells the stories of two former military bases, one in America and one overseas, and an American military base currently in the process of closing. Section II details the economic effects of military base closure under BRAC, while looking at the process itself in more detail. Section III examines the environmental effects, arising from …
Why Should International Law Be Concerned About State Failure?, Chiara Giorgetti
Why Should International Law Be Concerned About State Failure?, Chiara Giorgetti
Law Faculty Publications
In the last fifty years, the international community has undergone a transformation, as social, economic, and political dynamics have been altered. In fact, the international power structure has shifted towards a more complex structure, economies have been largely liberalized, new powerful international actors have emerged, and security threats have altered significantly. These transformations impacted all nation States. Indeed, a new standard of governance emerged that resulted in increased responsibility to each State's nationals. Similarly, States have become increasingly interindependent and have additional (both in numbers and substance) obligations towards each other and the international community in general. Certain States, however, …
Obama's First Trade War: The Us-Mexico Cross-Border Trucking Dispute And The Implications Of Strategic Cross-Sector Retaliation On U.S. Compliance Under Nafta, Bryan J. Soukup
Law Student Publications
Mexico's recent decision to employ strategic cross-sector retaliation against the US in response to the US suspension of the 2007 Cross-Border Trucking Development pilot program is a significant development in NAFTA relations. Never before has a NAFTA member imposed sanctions in this way to pressure a fellow member to comply with its NAFTA obligations. To date, this remedy has been utilized only in two WTO cases. In both these asymmetric disputes, the larger stat either withdrew the offending trade measure or modified its commitments to avoid the political fallout of targeted sanctions back home in unrelated industry sectors. The WTO's …
Lessons From The Laboratory: The Polar Opposites On The Public Sector Labor Law Spectrum, Ann C. Hodges
Lessons From The Laboratory: The Polar Opposites On The Public Sector Labor Law Spectrum, Ann C. Hodges
Law Faculty Publications
Section I analyzes the legal framework and history of collective bargaining in Illinois, and Section II follows with a similar analysis for Virginia. Each section includes current data about public sector employees and union activity in the two states. Section III follows with a discussion of possible explanations for the differences in the law of the two states. Section IV looks at the lessons from this analysis for state and federal lawmakers, unions, employers, and labor relations advocacy groups.
Is The Family A Federal Question?, Meredith Johnson Harbach
Is The Family A Federal Question?, Meredith Johnson Harbach
Law Faculty Publications
There has long been conflict over the relationship between the states and the federal system vis-i-vis the family. The traditional account of domestic relations describes family law as the exclusive domain of the states, and federal courts have credited this account in the "domestic relations exception." Although scholars have analyzed and critiqued the exception's applicability to diversity jurisdiction, the intersection of federal question jurisdiction and this exception remains largely unexplored. This Article describes and critiques, on both instrumental and deeper normative terms, federal courts' willingness to expand the "domestic relations exception" to include federal question cases. The Article proceeds in …
"It Is Much Easier To Find Fault With Others, Than To Be Faultless Ourselves": Contributory Negligence As A Bar To A Claim For Breach Of The Implied Warranty Of Merchantability, William B. L. Little
"It Is Much Easier To Find Fault With Others, Than To Be Faultless Ourselves": Contributory Negligence As A Bar To A Claim For Breach Of The Implied Warranty Of Merchantability, William B. L. Little
Campbell Law Review
To better understand the policy underpinnings of the statutory bar of certain implied warranty merchantability claims, this Article first reviews the origins and the continued vibrancy of the doctrine of contributory negligence in North Carolina. The doctrine is then examined in the context of North Carolina's enactment of the Products Liability Act and the doctrine's applicability to the implied warranty of merchantability.
Strategies For Combating Sexual Harassment: The Role Of Labor Unions, Ann C. Hodges
Strategies For Combating Sexual Harassment: The Role Of Labor Unions, Ann C. Hodges
Law Faculty Publications
This article will discuss the role that unions do play and the role that they can play in eliminating workplace harassment. First, the article will discuss the problem of harassment in the workplace, documenting its frequency and analyzing its forms. Section II will include an examination of harassment in the unionized workplace. Section III will propose a number of reasons that unions should take the lead in addressing workplace harassment, some focused on workers' rights and others on union selfinterest. Finally, in Section IV, the article will recommend several approaches for unions that desire to be in the vanguard of …