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Full-Text Articles in Law

Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Mckinley Brennan Nov 2012

Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

This chapter is an invited contribution to the first English-language comparative study of subsidiarity, M. Evans and A. Zimmerman (eds.), Subsidiarity in Comparative Perspective (forthcoming Springer, 2013). The concept of subsidiarity does work in many and varied legal contexts today, but the concept originated in Catholic social doctrine. The Catholic understanding of subsidiarity (or subsidiary function) is the subject of this chapter. Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level. In Catholic social doctrine, it is neither. Subsidiarity is the fixed and immovable ontological principle ...


Financial Disability For All, T. Keith Fogg Nov 2012

Financial Disability For All, T. Keith Fogg

Working Paper Series

The Internal Revenue Code has four discreet sections that allow late filing of claims and other documents under the circumstances described in those sections. The IRS has promulgated a procedural regulation that allows it to permit late elections under prescribed circumstances. Neither the Code sections nor the Regulation cover all of the circumstances in which taxpayers have a good excuse for missing a time frame. The current provisions have developed in an ad hoc manner. More ad hoc development of this area is possible as equitable tolling litigation seeks to open up time frames under the Code despite the efforts ...


Where Do Partners Come From?, Theodore P. Seto Nov 2012

Where Do Partners Come From?, Theodore P. Seto

Journal of Legal Education

No abstract provided.


Practice Meets Theory: Using Moots As A Tool To Teach Human Rights Law, Paula Gerber, Melissa Castan Nov 2012

Practice Meets Theory: Using Moots As A Tool To Teach Human Rights Law, Paula Gerber, Melissa Castan

Journal of Legal Education

No abstract provided.


Crisis In The Classroom: Using Simulations To Enhance Decision-Making Skills, Shawn Marie Boyne Nov 2012

Crisis In The Classroom: Using Simulations To Enhance Decision-Making Skills, Shawn Marie Boyne

Journal of Legal Education

No abstract provided.


Using Fiction Workshop Techniques In First-Year Legal Writing Classes, Michelle Falkoff Nov 2012

Using Fiction Workshop Techniques In First-Year Legal Writing Classes, Michelle Falkoff

Journal of Legal Education

No abstract provided.


Book Review Of Remaking Customs: Law And Identity In The Early American Republic, By Ellen Holmes Pearson, Steven J. Macias Nov 2012

Book Review Of Remaking Customs: Law And Identity In The Early American Republic, By Ellen Holmes Pearson, Steven J. Macias

Journal of Legal Education

No abstract provided.


Outcomes-Based Education One Course At A Time: My Experiment With Estates And Trusts, Carolyn Grose Nov 2012

Outcomes-Based Education One Course At A Time: My Experiment With Estates And Trusts, Carolyn Grose

Journal of Legal Education

No abstract provided.


Book Review Of The Collapse Of American Criminal Justice, By William J. Stuntz, Andrea Roth Nov 2012

Book Review Of The Collapse Of American Criminal Justice, By William J. Stuntz, Andrea Roth

Journal of Legal Education

No abstract provided.


Teaching Prison Law, Sharon Dolovich Nov 2012

Teaching Prison Law, Sharon Dolovich

Journal of Legal Education

No abstract provided.


Encountering Attica: Documentary Filmmaking As Pedagological Tool, Teresa A. Miller Nov 2012

Encountering Attica: Documentary Filmmaking As Pedagological Tool, Teresa A. Miller

Journal of Legal Education

No abstract provided.


Taking Note Of Notes: Student Legal Scholarship In Theory And Practice, Andrew Yaphe Nov 2012

Taking Note Of Notes: Student Legal Scholarship In Theory And Practice, Andrew Yaphe

Journal of Legal Education

No abstract provided.


Welfare And Rights Before The Movement: Rights As A Language Of The State, Karen M. Tani Nov 2012

Welfare And Rights Before The Movement: Rights As A Language Of The State, Karen M. Tani

Faculty Scholarship

In conversations about government assistance, rights language often emerges as a danger: when benefits become "rights," policymakers lose flexibility, taxpayers suffer, and the poor lose their incentive to work. Absent from the discussion is an understanding of how, when, and why Americans began to talk about public benefits in rights terms. This Article addresses that lacuna by examining the rise of a vibrant language of rights within the federal social welfare bureaucracy during the 1930s and 1940s. This language is barely visible in judicial and legislative records, the traditional source base for legal-historical inquiry, but amply evidenced by previously unmined ...


The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh Nov 2012

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

Duke Law Journal

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and uantitatively significant enough—or "substantially similar"—for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright's requirement of "substantial similarity" has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright's substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the ...


Criminal Law Reform And Thepersistence Of Strict Liability, Darryl K. Brown Nov 2012

Criminal Law Reform And Thepersistence Of Strict Liability, Darryl K. Brown

Duke Law Journal

Two reform movements transformed American criminal law in the quarter century that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other had to lose. The first movement was the wave of criminal code reform inspired by the American Law Institute's Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens rea for every element of ...


The Innocence Effect, Oren Gazal-Ayal, Avishalom Tor Nov 2012

The Innocence Effect, Oren Gazal-Ayal, Avishalom Tor

Duke Law Journal

Nearly all felony convictions—about 95 percent—follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty is overstated ...


Should Moving In Mean Losing Out? Making A Case To Clarify The Legal Effect Of Cohabitation On Alimony, Emily M. May Nov 2012

Should Moving In Mean Losing Out? Making A Case To Clarify The Legal Effect Of Cohabitation On Alimony, Emily M. May

Duke Law Journal

As nonmarital cohabitation has skyrocketed over the last several decades, courts and legislatures have increasingly struggled to decide what legal effect an ex-spouse's cohabitation with a new partner should have on the receipt of alimony payments. In seeking to answer this cohabitation question, states have taken a variety of approaches. Often, however, courts' answers to the cohabitation question are not grounded in the rationale that those courts used to award alimony in the first place and may therefore lead to inconsistent or absurd results. This Note addresses the cohabitation question and argues that states should revisit their current approaches ...


Using Foreign Relations Law To Limit Extraterritorial Application Of The Foreign Corrupt Practices Act , Lauren Ann Ross Nov 2012

Using Foreign Relations Law To Limit Extraterritorial Application Of The Foreign Corrupt Practices Act , Lauren Ann Ross

Duke Law Journal

Because the Foreign Corrupt Practices Act (FCPA) can be used to regulate conduct that has but a tangential connection to the United States, the statute exemplifies the potential difficulties of applying U.S. criminal law extraterritorially. The FCPA's heightened enforcement environment and the norm of deferred-prosecution agreements that settle FCPA charges out of court combine to increase the probability that a foreign individual or firm will be prosecuted under the FCPA for bribery that occurred in and affected a foreign country. This Note proposes drawing from the presumption against extraterritoriality, a concept from foreign relations law, to find a ...


Sexual Assault On College Campuses: Seeking The Appropriate Balance Between Due Process And Victim Protection , Matthew R. Triplett Nov 2012

Sexual Assault On College Campuses: Seeking The Appropriate Balance Between Due Process And Victim Protection , Matthew R. Triplett

Duke Law Journal

Peer sexual assault is a significant problem on American college and university campuses. On April 4, 2011, the Office for Civil Rights of the Department of Education sought to address this problem by issuing a new "Dear Colleague Letter" that provided enhanced guidance on how educational institutions should adjudicate such incidents. The letter has the perverse effect of complicating matters further by blurring the already fine line between victim protection and due process for the accused, and it exposes a potential liability trap for educational institutions. This Note explains why the law surrounding victim protection and due process is difficult ...


Journal Staff Nov 2012

Journal Staff

Duke Law Journal

No abstract provided.


The Cherokee Nation: A Question Of Sovereignty, Lydia Magyar Nov 2012

The Cherokee Nation: A Question Of Sovereignty, Lydia Magyar

Senior Honors Theses

The history of the Cherokee people with the advent of white settlers in North America is a sad one. Long before Christopher Columbus set foot in the ‘new world’ the Cherokee people were free to live and conduct their relations with each other and with other tribes as they saw fit. With the emergence of foreign hegemony over Native soil followed the suppression and eventual removal of the Cherokee people from their homeland where they had resided for hundreds of years to a reserved area where they would be out of the way of white progression. This thesis proposes to ...


The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh Nov 2012

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship at Penn Law

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the ...


Towards A Communicative Theory Of International Law, Timothy L. Meyer Nov 2012

Towards A Communicative Theory Of International Law, Timothy L. Meyer

Scholarly Works

Does international law's effectiveness require a clear distinction between law and non-law? This essay, which reviews Jean d'Aspremont's Formalism and the Sources of International Law, argues the answer is no. Ambiguity about the legal nature of international instruments has important benefits. Clarity in the law may encourage states to do the minimum necessary to comply, while some uncertainty about what the law requires may induce states to take extra efforts to ensure they are in compliance. Ambiguity in the law also promotes dynamic change, an important feature in rapidly developing areas of the law such as international ...


Managerial Judging: The 9/11 Responders' Tort Litigation, Aaron D. Twerski, Judge Alvin K. Hellerstein, James A. Henderson, Jr Nov 2012

Managerial Judging: The 9/11 Responders' Tort Litigation, Aaron D. Twerski, Judge Alvin K. Hellerstein, James A. Henderson, Jr

Faculty Scholarship

No abstract provided.


The Tax Expenditure Budget Is A Zombie Accountant, Steven A. Dean Nov 2012

The Tax Expenditure Budget Is A Zombie Accountant, Steven A. Dean

Faculty Scholarship

No abstract provided.


Beneficial Ownership And The Remic Classification Rules, David J. Reiss, Bradley T. Borden Nov 2012

Beneficial Ownership And The Remic Classification Rules, David J. Reiss, Bradley T. Borden

Faculty Scholarship

No abstract provided.


Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler Nov 2012

Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler

Michigan Law Review

Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner. Meanwhile, graffiti has risen in ...


Picturing Takings, Lee Anne Fennell Nov 2012

Picturing Takings, Lee Anne Fennell

Journal Articles

Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task offinding our way through it has become more difficult, and yet more interesting, with the Supreme Court's recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.


Enriching The Vocabulary Of Law: New Legal Subject Headings, Suzanne R. Graham, George Prager Nov 2012

Enriching The Vocabulary Of Law: New Legal Subject Headings, Suzanne R. Graham, George Prager

Articles, Chapters and Online Publications

No abstract provided.


The Role Of Keyword Advertising In Competition Among Rival Brands, Elisa V. Mariscal, David S. Evans Nov 2012

The Role Of Keyword Advertising In Competition Among Rival Brands, Elisa V. Mariscal, David S. Evans

Coase-Sandor Working Paper Series in Law and Economics

This paper considers recent proposals for restricting keyword advertising using competitor brand names. Keyword advertising is similar to many other widely used and valuable methods of marketing to the customers of rivals that increase competition and facilitate entry. Queries for products or services using search engines help inform consumers about other competitive alternatives and may enable them to compare different product offerings. Economists have found overwhelmingly that this type of informative and comparative advertising benefits consumers and, conversely, that restricting such advertising harms consumers. Complainants in some recent keyword advertising cases have sought to forbid search engines from using trademarked ...