Digital Commons Network^™

Religion And Politics In The United States, Marci A. Hamilton

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No abstract provided.

Why Lawyers Are Unhappy, Martin E.P. Seligman, Paul R. Verkuil, Terry H. Kang

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[According to the authors of this article, the growing unhappiness of lawyers, particularly young lawyers, stems from three causes: (1) Lawyers are selected for their pessimism (or "prudence") and this generalizes to the rest of their lives; (2) Young associates hold jobs that are characterized by high pressure and low decision latitude, exactly the conditions that promote poor health and poor morale; and (3) American law is to some extent a zero-sum game, and negative emotions flow from zero-sum games....

This article has been shared with practitioners as well as academics. It grows out of faculty seminars held at the …

The Intersection Of Evaluation Be Mediators And Informed Consent: Warning The Unwary, Lela P. Love, John W. Cooley

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No abstract provided.

Solving The Williams Puzzle, Kyron J. Huigens

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In the 1949 case of Williams v. New York, the United States Supreme Court approved of judicial factfinding as a feature of discretionary sentencing. The Court's more recent ban on judicial factfinding in determinate sentencing systems would seem to apply to discretionary sentencing systems as well, implying that Williams is no longer good law. If a sentencing judge may find facts in the exercise of discretionary sentencing as a matter of due process, then a legislature's attempt to introduce rule-of-law values into sentencing by creating a determinate sentencing regime hardly seems to call for constitutional limitations on judicial factfinding. And …

On Commonplace Punishment Theory, Kyron J. Huigens

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No abstract provided.

A Rejoinder To The Rejoinder To On The Theory Class's Theories Of Asbestos Litigation, Lester Brickman

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The article, authored by Lester Brickman, serves as a rebuttal to Professor Charles Silver's rejoinder, which criticized Brickman's original article on asbestos litigation. Brickman defends his assertions regarding Silver's undisclosed retention by the law firm Baron & Budd to defend the controversial Script Memo, arguing that this nondisclosure breaches academic ethics. He also clarifies his stance on the role of attorney William Skepnek and reiterates his scholarly focus on legal ethics, particularly the issues surrounding contingency fees and their potential for overcharging clients. Brickman emphasizes the importance of academic integrity and the necessity of exposing ethical abuses in the legal …

Rabbinic Legal Magic: A New Look At Honi's Circle As The Construction Of Law's Space, Suzanne Last Stone

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The article reinterprets Honi the Circle Drawer's actions as a legal performative, arguing that his act of drawing a circle constitutes the creation of a legal space rather than a magical ritual. By establishing a jurisdictional boundary, Honi compels a divine response, illustrating a sophisticated legal framework within rabbinic culture. This analysis challenges the view of early rabbinic practices as primarily magical, instead emphasizing their legal underpinnings and the use of rituals to establish jurisdiction.

Alvarez-Machain Ii: The Supreme Court's Reliance On The Non-Self-Executing Declaration In The Senate Resolution Giving Advice And Consent To The International Covenant On Civil And Political Rights, Malvina Halberstam

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No abstract provided.

Modernization Of The Hilger And Watts Guage-Block Interferometer, Michael O'Hora, Brian Bowe, Vincent Toal, Sean Peyton

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The Hilger & Watts gauge-block interferometer was designed and manufactured commercially in the 1950s. The instrument uses isotope lamps as wavelength standards to perform absolute length calibration of gauge blocks (slip gauges) up to 100 mm in length, to an accuracy of approximately 1 ppm. It is entirely manually operated. In order to make the instrument more suitable for the modern laboratory, new hardware has been added, and a customized software package developed to automate the measurement process. This paper shows how interferograms may be imaged successfully at each of the eight available wavelengths, and the critical fringe fraction measurement …

Investigation Of The Effect Of Subcutaneous Fat On Image Quality Performance Of 2d Conventional Imaging And Tissue Harmonic Imaging, Jacinta Browne, Amanda Watson, Peter Hoskins, Alex Elliott

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Tissue harmonic imaging (THI) has been reported to improve contrast resolution, tissue differentiation and overall image quality in clinical examinations. However, a study carried out previously by the authors (Browne et al. 2004) found improvements only in spatial resolution and not in contrast resolution or anechoic target detection. This result may have been due to the homogeneity of the phantom. Biologic tissues are generally inhomogeneous and THI has been reported to improve image quality in the presence of large amounts of subcutaneous fat. The aims of the study were to simulate the distortion caused by subcutaneous fat to image quality …

Reconsidering The Nondelegation Doctrine: Universal Service, The Power To Tax, And The Ratification Doctrine, Ronald J. Krotoszynski Jr.

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No abstract provided.

An Evaluation Of Federal Tax Policy Based On Judeo-Christian Ethics, Susan Pace Hamill

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This article severely criticizes the Bush Administrations tax policies under the moral principles of JudeoChristian ethics I first document that JudeoChristian ethics is the most relevant moral analysis for tax policy because almost eighty percent of Americans and well over ninety percent of the Congress including President Bush claim to adhere to the Christian or Jewish faiths I also show that evaluating federal tax policy under JudeoChristian principles not only passes constitutional muster but is also appropriate under the norms of a democracy I then provide a complete theological framework that can be applied to any tax policy structure Using …

Navigating Dangerous Constitutional Straits: A Prolegomenon On The Federal Marriage Amendment And The Disenfranchisement Of Sexual Minorities, Ronald J. Krotoszynski Jr., E. Gary Spitko

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Navigating Dangerous Constitutional Straits A Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities considers the nature of the constitutional amendment process and the Supreme Courts historical approach to incorporating new amendments into the existing constitutional text Professors Krotoszynski and Spitko argue that given the Supreme Courts consistent narrow reading of new amendments to preserve preexisting constitutional rights the Federal Marriage Amendment must be broadly written to override expressly due process and equal protection guarantees against not only sexual orientation discrimination but also gender discrimination In our view however if a proposed Federal Marriage Amendment were sufficiently …

Defamation In The Digital Age: Some Comparative Law Observations On The Difficulty Of Reconciling Free Speech And Reputation In The Emerging Global Village The Washington And Lee Law Alumni Association Student Notes Colloquium, Ronald J. Krotoszynski Jr.

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No abstract provided.

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

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The federal courts have issued two important decisions regarding non-discriminatory insurance coverage of conditions and treatments associated with sex, disability or both, such as prescription contraception and infertility treatment. Cases like Erickson and Saks are important because, as ERISA scholars know, state law mandates regarding coverage are unlikely to lead to uniform results due to the structure of ERISA's preemption provisions, and none of the federal proposals addressing infertility treatment or prescription contraception have been enacted to date.

What I would like to do is outline the impact of ERISA in this area, and offer some thoughts on one of …

Telling Stories About Health Insurance: Using New Films In The Classroom, Elizabeth Pendo

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In keeping with the theme of "The Mass Media's Influence on Health Law and Policy," this essay is designed to share my experience using clips from three recent popular films as a method of enhancing coverage and discussion of legal and policy issues surrounding the private health insurance system, and to provide some practical advice for others interested in doing the same. It builds upon a presentation that I gave along with Professors Timothy S. Hall and Ross D. Silverman at the 2004 Health Law Teachers Conference entitled "Health Law, Policy and Media," and was inspired by Professor Paul Bergman's …

Credit Where It Counts: The Community Reinvestment Act And Its Critics, Michael S. Barr

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Despite the depth and breadth of U.S. credit markets, low- and moderate-income communities and minority borrowers have not historically enjoyed full access to credit. The Community Reinvestment Act (CRA) was enacted in 1977 to help overcome barriers to credit that these groups faced. Scholars have long leveled numerous critiques against CRA as unnecessary, ineffectual, costly, and lawless. Many have argued that CRA should be eliminated. By contrast, I contend that market failures and discrimination justify governmental intervention and that CRA is a reasonable policy response to these problems. Using recent empirical evidence, I demonstrate that over the last decade CRA …

Prometheus Radio Project V. Fcc: The Persistence Of Scarcity, Aaron Perzanowski

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Part I traces the history of broadcast regulation, emphasizing the development of the scarcity doctrine and the subsequent deregulatory trend. Part II examines the FCC's 2003 rule changes and the Third Circuit's analysis of those modifications in Prometheus Radio Project v. FCC. Part III analyzes the assumptions underlying the FCC's proffered explanation for its rule changes, ultimately concluding that they lack justification, and offers suggestions for responsible ownership deregulation. Part IV calls on Congress to reassert itself as the final arbiter of media policy.

Regulation Of Companies With Publicly Listed Share Capital In The People's Republic Of China, Nicholas C. Howson

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Mr. Chairman, colleagues, and friends: It is a great honor for me to be able to address this group of experts and legislators, and many colleagues and friends, on a topic I care deeply about-the regulation of so-called public companies, both outside of China and, since the early 1990s, inside of China. First, and with many of the others invited to participate in this conference today and tomorrow, I thank the Office of Legislative Affairs ("OLA") of the State Council of the People's Republic of China ("PRC") as well as the China Securities Regulatory Commission ("CSRC") for convening this very …

Another Tocqueville, Donald J. Herzog

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Time for a true confession: I'm skeptical of predictions in social and political life. Talk of causal generalizations and Hempel's covering laws strikes me as science fiction and fantasy in drag; talk of the unfolding of the immanent logic of modernity makes me dyspeptic. I usually think that structural considerations are context, not cause, and that weird combinations of stray contingencies explain what happens. Worse, now I'm called on to predict how political theorists will be discussing democracy ten years hence. Images of herding cats and Brownian motion come to mind. Nonetheless, duty calls. I dust off my crystal ball …

Legal Durability, Omri Ben-Shahar

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This paper develops a framework to study the effects of the durability of legal allocation decisions, such as trial outcomes, regulatory enactments and property entitlements. For a party favored by the legal allocation, a more durable decision is also more costly to secure, ex-ante. Thus, it is not the greater durability of the allocation that determines whether the “winner” is better-off, but other factors that are affected by the durability attribute, such as the cost of securing a favorable outcome and the ability of contesting parties to affect this cost. The paper develops conditions under which greater durability is irrelevant, …

The Silver Lining: The International Tax Provisions Of The American Jobs Creation Act - A Reconsideration, Reuven S. Avi-Yonah

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The American Jobs Creation Act of 2004, passed by the US Congress on 12 October and signed into law by President Bush on 22 October 2004, has been greeted by general dismay by various critics. The Act has been described as overloaded with “pork” and giveaways to special interest groups like tobacco farmers. The critics contend that the only achievement of the Act, the repeal of the “extraterritorial income” (ETI) regime that was ruled by the WTO to be a prohibited export subsidy, is dwarfed by 633 pages of special interest legislation. Even the Bush Administration distanced itself from the …

The Common Law Power Of The Legislature: Insurer Conversions And Charitable Funds, Jill R. Horwitz, Marion R. Fremont-Smith

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New York's Empire Blue Ccoss and Blue Shield conversion from nonprofic cofor­ profic form has considerable legal significance. Three aspects of the conversion ma.ke checase unique: the role of the scace legislature in directing the disposicion of the conversion assets, che face chac it made itself che primary beneficiary of chose assets, and the actions of che scace attorney general defending the state rather than che public inceresc in che charitable assets. Drawing on several cenruries of common Law rejecting the Legislacive power to direct the disposition of charitable funds, chis article argues chat the legislature lacked power cocontrol che …

Credible Coercion, Oren Bar-Gill, Omri Ben-Shahar

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The ideal of individual freedom and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate "postcoercion" to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex post antiduress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible-when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party-ex post relief will only induce the strong party to execute the threatened outcome ex ante, without offering the choice to surrender, …

Learning The Value Of Drugs - Is Rofecoxib A Regulatory Success Story?, Rebecca S. Eisenberg

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Controversy over recent revelations concerning the adverse cardiovascular effects of selective cyclooxygenase- 2 (COX-2) inhibitors has generally been framed as a story of regulatory failure, in which the Food and Drug Administration (FDA) has failed in its mission to protect the public from unsafe products. But this simplistic understanding of the mission of the FDA seems to make failure all but inevitable, if the reliable observation of the risks and benefits of a drug requires rigorous long-term studies. Perhaps in an earlier era the goal of drug regulation was simply to protect the public from poisons. Today, drug regulation guides …

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

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When Congress enacted the Private Securities Litigation Reform Act in 1995 ("PSLRA"), the Act's "lead plaintiff' provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel's compensation. Congress's stated purpose in enacting the lead plaintiff provision was to encourage institutional investors-pension funds, mutual …

Procedural Incrementalism: A Model For International Bankruptcy, John A. E. Pottow

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The headline-grabbing business failures of late have brought increased attention to the relatively unresolved area of multinational bankruptcies. Parmalat, Global Crossing, and United Airlines are among the few international juggernauts that have foundered. In the financial meltdowns of these cross-border institutions, assets and creditors are dispersed throughout commercial environments that rarely end neatly at national borders. There has been heated debate, both in scholarly literature and the practical battlefield, over how best to resolve these transnational insolvencies, and there is nothing yet approaching a consensus. Reform efforts of various stripes have almost uniformly failed to gain meaningful international support. At …

The Sec At 70: Time For Retirement?, Adam C. Pritchard

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As one grows older, birthdays gradually shift from being celebratory events to more reflective occasions. One's 40th birthday is commemorated rather differently from one's 2lst, which is, in turn, celebrated quite differently from one's first. After a certain point, the individual birthdays become less important and it is the milestone years to whch we pay particular attention. Sadly for entities like the Securities and Exchange Commission, it is only the milestone years (the ones ending in five or zero, for some reason), that draw any attention at all. No one held a conference to celebrate the SEC's 67th anniversary. Clearly …

All Of A Piece Throughout: The Four Ages Of U.S. International Taxation, Reuven S. Avi-Yonah

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This paper divides up the history of U.S. international taxation into four periods, on the basis of what was the basic theoretical principle underlying the major legislative enactments made in each period. The first period lasted from the adoption of the Foreign Tax Credit in 1918 to the end of the Eisenhower Administration, and was dominated by the concept of the right to tax as flowing from benefits conferred by the taxing state. The second period lasted from 1960 until the end of the Carter Administration, and was dominated by the concept of capital export neutrality and an emphasis on …

The Cyclical Transformations Of The Corporate Form: A Historical Perspective On Corporate Social Responsibility, Reuven S. Avi-Yonah

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This article describes the transformations underwent by the corporate form from its Roman origins to the present. It shows that every time there was a shift in the role of the corporation, three theories of the corporation (the aggregate, artificial, and real entity theories) were brought forward in cyclical fashion. Every time, however, the real entity theory prevailed, and it was the dominant theory during periods ofstability in the relationship between the corporation, the shareholders, and the state. The article describes this evolution in detail, and then attempts to derive normative consequences for the legitimacy of corporate social responsibility (CSR). …