Digital Commons Network^™

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman

Articles

For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …

Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman

Articles

The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …

Degrees Of Freedom: Building Citizenship In The Shadow Of Slavery, Rebecca J. Scott

Articles

By seeing events in the past as part of a dynamically evolving system with a large, but not indefinite, number of degrees of freedom, we can turn our attention to the multiple possibilities for change, and to the ways in which societies that are initially similarly situated may go on to diverge very sharply. Thus it is, I will argue, with societies in the 19th century that faced the challenge of building citizenship on the ruins of slavery.

Microfinance And Financial Development, Michael S. Barr

Articles

Close to three billion people-half of the world's population-live on less than two dollars a day.' Within these poor communities, one child in five will not live to see his or her fifth birthday. To boost international development, the United Nations (UN) announced the Millennium Development Goals, aimed at eradicating poverty by 2015.? A number of countries responded at the International Conference for Financing International Development in Monterrey, Mexico, by creating action plans to begin to implement the Millennium Development Goals.4 Yet the Millennium Development Goals will prove difficult to achieve.1

Banking The Poor, Michael S. Barr

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Low-income households often lack access to banking accounts and face high costs for transacting basic financial services through check cashers and other alternative financial service providers. These families find it more difficult to save and plan financially for the future. Living paycheck to paycheck leaves them vulnerable to medical or job emergencies that may endanger their financial stability, and lack of longer-term savings undermines their ability to improve skills, purchase a home, or send their children to college. Additionally, high cost financial services and inadequate access to bank accounts may undermine widely shared societal goals of reducing poverty, moving families …

Chuck And Steve's Peccadillo (Symposium: Threats To Secured Lending And Asset Securitization), James J. White

Articles

Are investors in securitized receivables to be treated as the owners of an asset whose sale has taken it beyond the reach of the trustee in bankruptcy of their sellers? O are they to be treated as holders of a security interest in the transferred asset who have left behind an interest in the sellers' hands that would cause the asset to be subject to claims and interference by the sellers' grasping trustee? By adopting contrasting-arguably conflicting-statements in two subsections of a single section, the drafters of 1999 Article 9 have thrust this issue in the faces of courts and …

Constructive Lower Bounds On Classical Multicolor Ramsey Numbers, Xiaodong Xu, Xie Zheng, Geoffrey Exoo, Stanislaw Radziszowski

Articles

This paper studies lower bounds for classical multicolor Ramsey numbers, first by giving a short overview of past results, and then by presenting several general constructions establishing new lower bounds for many diagonal and off-diagonal multicolor Ramsey numbers. In particular, we improve several lower bounds for R_k(4) and R_k(5) for some small k, including 415 < = R_3(5), 634 < = R_4(4), 2721 < = R_4(5), 3416 < = R_5(4) and 26082 < = R_5(5). Most of the new lower bounds are consequences of general constructions.

Distracting Or Desperately Needed?, Marigold Bethany

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No abstract provided.

Collection Of Three Poems: Diatribe, Proverb Of Futility & Salve, Frank Hilbert

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No abstract provided.

The Process For Becoming A Law School Professor In The United States, Daniel H. Foote

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As the process of legal education reform in Japan, centered on the establishment of a new tier of professional graduate schools in law, moves forward, one issue that has arisen is how law professors will be trained in coming years. In that connection, I am frequently asked what the typical route is for training law school professors in the US. Based in part on an examination of the backgrounds prior to entering law teaching for over 500 law professors at eight US law schools and on personal experiences (including serving for three years on the appointments committee at the University …

Bankrupting Trademarks, Xuan-Thao Nguyen

Articles

The explosive growth of technology in the last two decades has vastly expanded intellectual property jurisprudence and elevated intellectual property to a heightened status in the marketplace. Indeed, a company's intellectual property assets may now be its most valuable corporate assets. Moreover, the property value of some trademarks is significantly greater than that of the trademark owner's physical assets.

The term “intellectual property” is commonly understood to include patents, trade secrets, copyrights, and trademarks. Yet a paradigm has been constructed and enforced over the last fifteen years wherein only patents, trade secrets, and copyrights are included. The paradigm specifically excludes …

Taxing The New Intellectual Property Right, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

Current, albeit arbitrary, rules exist governing the tax treatment of traditional forms of intellectual property, such as patents, trade secrets, copyrights, trademarks, and trade names. While tax principles exist for these traditional intellectual property and intangible rights, specific tax rules do not exist for new intellectual property rights, such as domain names, that are emerging with the arrival of global electronic commerce transactions on the Internet. This article explores the proper tax treatment of domain name registration and acquisition costs, addressing these parallel questions? Are domain names merely variations of traditional forms of intellectual property and other intangible rights to …

Capitalism And Freedom -- For Whom? Feminist Legal Theory And Progressive Corporate Law,, Kellye Y. Testy

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Beginning at least in the 1980s, the version of corporate law and governance prevailing in the U.S. (as well as widely exported to other nations) was a radically privatized one, treating the corporation as a contractual arrangement for maximizing shortterm share price in a laissez faire global marketplace. Though many robust and varied social movements, many of which were bolstered by the 1999 WTO protests in Seattle, have been and are engaged in challenging this hegemony from many angles, few have found their way into corporate law reform. That is not to say, however, that there are no progressive legal …

Getting Serious About User-Friendly Mass Market Licensing For Software, Robert W. Gomulkiewicz

Articles

Software publishers use standard form end user licenses (“EULAs”) in mass market transactions on a regular basis. Most software users find EULAs perplexing and generally ignore them. Scholars, however, have focused on them intently. In the past twenty years over a hundred scholarly articles have been written on the subject. Most of these articles criticize EULAs and argue that courts should not enforce them. In their critique of EULAs, some scholars examine the adequacy of the offer, acceptance, and consideration. Others discuss EULAs as part of the troublesome issue of standard form contracting, and whether standard forms, on balance, harm …

Cash For Kidneys? Utilizing Incentives To End America's Organ Shortage, Steve P. Calandrillo

Articles

This article addresses the growing organ shortage in America, analyzes current donation and procurement law, and explores both monetary and nonmonetary incentives aimed at eliminating the worsening crisis.

Part I details the law governing human organ donation. Under both the Uniform Anatomical Gift Act (“UAGA”) and the National Organ Transplant Act (“NOTA”), no donor of a human organ may receive “valuable consideration” for providing it. Congress’ intention was simply that the organ recipient be given the “gift” of life—not one which she had to purchase on the market. In reality, the consequences of the Act bear little resemblance to its …

Vanishing Vaccinations: Why Are So Many Americans Opting Out Of Vaccinating Their Children?, Steve P. Calandrillo

Articles

Part I of this Article details the historical development and medical achievements made possible by vaccines. From Edward Jenner to Jonas Salk to Albert Sabin, immense strides have been made in eradicating or substantially eliminating some of the worst diseases in human history. Smallpox, polio, measles, mumps, rubella, diphtheria, pertussis, tetanus, influenza, hepatitis A and B, and even the chicken pox are all now largely preventable.

Literally hundreds of millions of deaths have been avoided and many more lives markedly improved, to say nothing of the financial ramifications for the American healthcare system. All fifty states have therefore enacted compulsory …

Be Careful What You Wish For: How Accountants And Congress Created The Problem Of Auditor Independence, Sean M. O'Connor

Articles

Although corporate fraud is not held in check by our current audit process, in which auditors lack independence from the clients they inspect, numerous attempts to fix this problem have failed. This Article analyzes the history of auditing, which has been neglected in legal scholarship, to argue that the mandatory audit system created the problem of auditor independence. Accountants advocated for the system in order to gain the status of a learned profession; however, they received more than they bargained for. In particular, auditors incurred an obligation to the "investing public," but this undefined group does not actually control the …

The First Free Exercise Case, Walter J. Walsh

Articles

Part I of this Article tells the colonial history of religious freedom in New York State from a minority perspective, with specific reference to the secrecy of the confessional-the very practice that would be constitutionally tested in Philips. Part II describes the immediate social and political issues raised by the influx of Irish Catholic refugees into New York City in the wake of the failed United Irish Rebellion of 1798. Part III treats the unfriendly 1811 ruling of the federalist Chief Justice James Kent in People v. Ruggles as representative of the dominant Anglocentric constitutional legacy of imperial Protestant …

Flawed Justice: Limitation Of Parental Remedies For The Loss Of Consortium Of Adult Children, William S. Bailey

Articles

This article presents the inherent contradiction between a parent-child relationship that has steadily evolved from the early 20th Century to the present and the multitude of court decisions on damages that remain studiously ignorant of this shift.

Part I of the article will set forth the common law origins of restrictions on recovery for wrongful death within the context of a shifting view of children from economic units to objects of adoration. Part II will examine the devastating impact that the loss of an adult child has on parents both from their perspectives and from now existing research.

In the …

The History Of Seafood In Irish Cuisine And Culture, Máirtín Mac Con Iomaire

Articles

Fish is one of the most abundant wild foods available to a small island nation. Certain species of seafood have moved from being ‘poor man’s food’ to ‘luxury food’ over time. It may be said that the Irish do not behave as island people since we have little or no history of exploiting the sea compared to our European partners. Ireland was late developing its fishing industry and now suffers reduced EU fish quotas, the unfortunate but necessary result of decades of over-fishing on European waters. This paper investigates the historical role seafood has played in Irish cuisine and culture …

Child Sexual Abuse In Sub-Saharan Africa: A Literature Review, Kevin Lalor

Articles

Objective. This article reviews the English-language literature on child sexual abuse in sub-Saharan Africa (SSA). The focus is on the sexual abuse of children in the home/community, as opposed to the commercial sexual exploitation of children. Method. English language, peer-reviewed papers cited in the Social Sciences Citation Index (SSCI) are examined. Reports from international and local NGOs and UN agencies are also examined. Results. Few published studies on the sexual abuse of children have been conducted in the region, with the exception of South Africa. Samples are predominantly clinical or University based. A number of studies report that approximately five …

Copyright And Information Theory: Toward An Alternative Model Of Authorship, Alan L. Durham

Articles

Both literary scholars and students of copyright law have challenged the romantic model of authorship a model emphasizing individual genius and creation ex nihilo Authorship they argue is actually a collaborative effort Authors assemble their works from the fragments of their cultural environment transforming as much as creating Copyright law however still champions the rights of authors and it requires a coherent theory of what authorship is An alternative to the romantic model of authorship can be found in information theory a branch of mathematics dealing at a very fundamental level with all forms of communication Authorship could be defined …

Stealing Signs: Is Professional Baseball's United States-Japanese Player Contract Agreement Enough To Avoid Another Baseball War Note, Casey D. Duncan

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No abstract provided.

The Meaning Of Probability Judgments: An Essay On The Use And Misuse Of Behavioral Economics, Charles M. Yablon

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In this essay, Professor Yablon challenges the assumption that behavioral heuristics-such as the availability heuristic -constitute "biases" that necessarily lead to errors in probability judgments. He notes that there are many different concepts of probability and, in many contexts, no agreed-upon method for determining the correctness of inconsistent probability judgments. Yet many legal academics and policymakers ignore these complex aspects of probability theory, assuming that statistical or frequentist probabilities are always to be preferred over subjective judgments of probability.

Professor Yablon argues that choosing between frequentist and subjective approaches to probability judgments in policymaking can only be done with great …

Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon

Articles

The 1993 amendments to Rule 11 of the Federal Rules of Civil Procedure successfully reduced both the number of sanctions motions and the chilling effect on meritorious claims, contrary to initial concerns that weaker sanctions would increase frivolous filings. By introducing a safe harbor provision and altering the timing of Rule 11 motions, the amendments mitigated hindsight bias and encouraged the withdrawal of non-meritorious claims without penalty. Empirical evidence, including judicial surveys and a decline in sanctions motions, confirms the amendments' effectiveness in balancing deterrence of frivolous litigation with protection of legitimate claims.

Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah

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No abstract provided.

The Immense Rumor, Peter Goodrich

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The article explores the intersection of friendship and law, particularly through the lens of Jacques Derrida's theory, which posits that the concept of friendship is inherently paradoxical and shaped by legal and theological frameworks. Derrida argues that the "immense rumor" of friendship reflects a historical inability to articulate amity publicly, leading to a repression of friendship in the public sphere. This repression is rooted in the humanist tradition, which draws from Graeco-Roman and Judeo-Christian influences, emphasizing the primacy of political or communal bonds over individual friendships. The analysis reveals that legal discourses have imposed prohibitions on the role of friendship, …

Standards Of Conduct For Lawyers: An 800-Year Evolution Annual Survey Of Texas Law, Carol Rice Andrews

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No abstract provided.

Anomalies, Warts And All: Four Score Of Liberty, Privacy And Equality, Francisco Valdes

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Lawrence was decided exactly eighty years after the first liberty-privacy case, and in the midst of a fierce kulturkampf striving to roll back civil rights generally. In this Article, Professor Valdes situates Lawrence in the context formed both by these four score of liberty-privacy jurisprudence that precede it as well as by the politics of backlash that envelop it today. After canvassing the landmark rulings from Meyer in 1923 to Lawrence in 2003, in the process acknowledging both their emancipatory strengths and their traditionalist instrumentalism, Professor Valdes concludes that Lawrence is a long overdue recognition of the prior precedents and …

Protecting The Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs And General Warrants, Scott E. Sundby

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No abstract provided.