Digital Commons Network^™

The Failure Of The Rule Of Law In Cyberspace: Reorienting The Normative Debate On Borders And Territorial Sovereignty, H. Brian Holland

Faculty Scholarship

The ultimate goal of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace.

Between 1996 and 2002, over the course of several law review articles, professors David R. Johnson, David Post, and Jack L. Goldsmith engaged in a highly influential debate addressing the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. At bottom, it was a contest between internal or indigenous regulation and the imposition of existing external regimes. At its heart lay two overarching areas of disagreement: First, descriptively, whether and to what extent the …

Digital Vat And Development: D-Vat And D-Velopment, Richard Thompson Ainsworth

Faculty Scholarship

This article suggests that the time is right for developing countries to consider adopting a comprehensive, fully digital VAT, (complete with certified software and trusted third party intermediaries who could assume all of the taxpayer's VAT responsibilities) within the limited group of enterprises encompassed by the large taxpayer group.

Since the e-commerce revolution began in the 1990's, tax policy discussions in developed economies have enlisted "e-solutions" to streamline consumption tax administration, as well as to resolve technical problems.

Inspiration came from the marketplace. Policy-makers observed widespread, business-initiated e-solutions to consumption tax compliance problems in a wide spectrum of jurisdiction. There …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

Cass Sunstein has prominently and provocatively advocated a theory of judicial minimalism. He has claimed that minimalism provides both an accurate descriptive account of how the Supreme Court decides constitutional cases and a persuasive normative theory of how the Justices should exercise their power of judicial review. In fact, he has written that the October 2003 Term demonstrates the Court's commitment to judicial minimalism.

In this Article, I demonstrate a deep tension between Professor Sunstein's aspiration that minimalism serve as an empirically testable (and thus descriptively accurate) account of the Supreme Court's work, and his ambition that minimalism provide a …

Overenforcement, Alex Stein, Richard Bierschbach

Faculty Scholarship

No abstract provided.

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

The Role Of Groups In Norm Transformation: A Dramatic Sketch, In Three Parts, Robert B. Ahdieh

Faculty Scholarship

Legal scholars, as well as economists, have focused limited attention on the role of coordinated groups of market participants - committees, clubs, associations, and the like - in social ordering generally and in the evolution of norms particularly. One might trace this neglect to some presumptive orientation to state actors (expressive law) and autonomous individuals (norm entrepreneurs) as the sole parties of interest in social change. Yet, alternative stories of social ordering and norm change might also be told. Dramatic recent changes in the contracting practices of the sovereign debt markets offer one such story.

Using the latter by way …

A Tournament Of Virtue, Lawrence B. Solum

Faculty Scholarship

How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues - intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges - the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should …

Conflict Of Laws (2005), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2003 through November 31, 2004. The article excludes cases involving federal-state conflicts; intrastate issues such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

No abstract provided.

Liability For Direct Advertising Of Drugs To Consumers: An Idea Whose Time Has Not Come, Aaron Twerski

Faculty Scholarship

No abstract provided.

Judicial Deference In A Post-Deregulation World, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Privacies: Philosophical Evaluations, Linda C. Mcclain

Faculty Scholarship

This fine collection of essays on privacy crosses disciplinary and national boundaries, bringing together 13 scholars from law, philosophy, political theory, and film studies to consider “various aspects of the problematic of the private.” As the editor, Beate Rössler, explains this “problematic,” current debates about the value and limits of privacy—such as the reach of information technology or the private lives of public figures—pose afresh more fundamental philosophical questions about privacy: What is the normative grounding for a right to privacy? How does such a right relate to identity and integrity? What is the demarcation in persons’ lives between the …

Dying In America - An Examination Of Policies That Deter Adequate End-Of-Life Care In Nursing Homes, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

This article examines current health care policies and government practices that deter appropriate end-of-life care, focusing on the use of hospice services for dying nursing home patients. The authors conclude that hospice and nursing home regulations, reimbursement for hospice and nursing homes, and enforcement of the fraud and abuse rules collude to “chill” utilization of hospice by nursing homes and result in inadequate end-of-life care for many nursing home patients. They argue that these policies and practices have at their roots a number of questionable assumptions and call for a shift in existing paradigms affecting care to this group and …

Are Rights Efficient? Challenging The Managerial Critique Of Individual Rights, David A. Super

Faculty Scholarship

This Article contends that enforceable individual rights can improve the efficiency of government operations. The last decade has seen enforceable individual rights eliminated in a wide range of areas, from welfare to the treatment of immigrants and prisoners in U.S. jails to, most recently, the treatment of prisoners in Abu Ghraib and elsewhere overseas. In most instances, opponents of enforceable individual rights have quarreled little with the substantive norms underlying these rights. Instead, they have argued that enforceable legal rights would unduly burden government administration. Supporters of individual rights have tended to concede that they are inefficient, arguing instead that …

Review Essay: A Prescription For Perilous Times, Neil S. Siegel

Faculty Scholarship

It seldom happens that a scholar makes a lasting contribution both to legal history and to the most pressing constitutional issues of the day in the same work. It is more rare that an academic does so in a book accessible to a general audience. Perilous Times accomplishes that feat. For these reasons, and for another as well, the book should be regarded as a triumph.

The Ad Hoc International Criminal Tribunals And A Jurisprudence Of The Deviant, Maya Steinitz

Faculty Scholarship

This short article is a synopsis of a doctoral thesis entitled Law as Communication: A Concept of International Law. Embedded in the legal theory of philosopher Joseph Raz - who argued that "whatever else the law is, it either claims legitimate authority, is held to possess it, or both" - this analysis of international law's claim of legitimate authority is based on an ethnographic study of the International Criminal Tribunals for the former- Yugoslavia and Rwanda.

The analysis of international law's claim of legitimate authority, which uses semiotics and performance-studies perspective, is then used as a basis for an examination …

Law Firm General Counsel As Sherpa: Challenges Facing The In-Firm Lawyer's Lawyer, Susan Saab Fortney

Faculty Scholarship

This article addresses the increasing trend in law firms appointing general counsel. Part I of this article provides an overview of the frequency of law firms employing the services of general counsel and the different roles general counsel may assume in law firms. Part II outlines the duties of general counsel in advising the firm on matters related to firm structure. Part III observes that general counsel may play an important role in helping law firms choose the most appropriate method to compensate its lawyers to achieve the desired results. Part IV stresses the importance of the preventative measures general …

Testimony On The Regulation Of Indian Gaming, United States Senate, Committee On Indian Affairs, 109th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Congress must shore up NIGC regulatory authority over Class III gaming, guard against regulatory capture in tribal regulatory commissions, and reconsider the legitimacy of federal oversight of tribal economic decision-making. Congress should give the NIGC greater authority over licensure of those involved in Indian gaming and circumscribe the federal role over tribal economic decisions.

Florida's Request For Admission Rule: 150 Years On The Road To Inconsistency, Ineffectiveness And Appellate Nullification, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

"Tacking Too Close To The Wind": The Challenge To Prosecution Clinics To Set Our Students On A Straight Course, Stacy Caplow

Faculty Scholarship

No abstract provided.

Law And Public Health: Beyond Emergency Preparedness, Wendy K. Mariner

Faculty Scholarship

This Article examines three questions: What is public health? What is public health law? What roles can lawyers play in public health? It first describes the breadth of public health, highlighting six trends shaping its future: social determinants of health; synergy between medicine and public health; shifts in focus from external (e.g., environmental and social) to internal (behavioral) risks to health; federalization of public health law; globalization of health risks and responses; and bioterrorism. Because the domains of law that apply to public health are equally broad, the Article next offers a conceptual framework for identifying the types of laws …

Prolegomenon To Any Future Administrative Law Course: Separation Of Powers And The Transcendental Deduction, Gary S. Lawson

Faculty Scholarship

Federal constitutional law has a way of worming itself into just about every crevice of the law school curriculum. Civil Procedure students grapple with the Due Process Clauses, Property students ponder the Takings Clause, and Torts students must reckon with issues of federal preemption and legislative power. But few courses outside the mainstream Constitutional Law curriculum require as much sustained attention to constitutional issues as does Administrative Law.' Administrative Law courses typically involve an extensive study of procedural due process.2 They also engage, at least peripherally, in some of the most fundamental and long-lived constitutional controversies in the law of …

Jacobson V Massachusetts: It's Not Your Great-Great-Grandfather's Public Health Law, Wendy K. Mariner, George J. Annas, Leonard H. Glantz

Faculty Scholarship

Jacobson v Massachusetts, a 1905 US Supreme Court decision, raised questions about the power of state government to protect the public’s health and the Constitution’s protection of personal liberty. We examined conceptions about state power and personal liberty in Jacobson and later cases that expanded, superseded, or even ignored those ideas.

Public health and constitutional law have evolved to better protect both health and human rights. States’ sovereign power to make laws of all kinds has not changed in the past century. What has changed is the Court’s recognition of the importance of individual liberty and how it limits …

Protecting Protected Speech: First Amendment Taxonomy And The Food And Drug Administration's Regulation Of "Enduring Materials", Daniel J. Gilman

Faculty Scholarship

Numerous comments have called upon the Food and Drug Administration (FDA) to exercise restraint in its treatment of the dissemination of “enduring materials” (e.g., textbooks, journal articles, etc.) that address off-label uses of drug or biological products. This article considers the constitutional protections that apply to enduring materials as examples of commercial speech, and questions whether such materials—even though distributed by manufacturers—might be viewed more properly as scientific speech. Four conclusions will be set forth: 1) enduring materials regarding off-label uses deserve at least as much protection as the Constitution affords commercial speech; 2) there are good reasons to think …

Hadley V. Baxendale And Other Common Law Borrowings From The Civil Law, Wayne Barnes

Faculty Scholarship

In 1854, the English Exchequer Court delivered the landmark case of Hadley v. Baxendale. That case provided, for the first time in the common law, a defined rule regarding the limitations on recovery of damages for breach of contract. It has been widely celebrated as a landmark in the law of contracts, and more widely as a triumph of the common law system. A little over a decade after it was decided, it had already become highly regarded, for Chief Baron Pollock stated in 1866: “[A] more extensive and accurate knowledge of decisions in our law books, and a more …

Intellectual Property And The Information Ecosystem, Peter K. Yu

Faculty Scholarship

This short essay proceeds in two parts. The first part examines the controversy surrounding the use of the term intellectual property. It discusses the common criticisms of the term's usage, including those articulated by Richard Stallman. It also challenges the myth that intellectual property did not acquire any property attributes until the establishment of the World Intellectual Property Organization. The essay suggests that the term may remain in common usage despite its uneasy analogy to real property, and a more nuanced understanding of property law may alleviate some of the problems caused by using the term.

The second part focuses …

The Milosevic Trial - Live: An Iconical Analysis Of International Law's Claim Of Legitimate Authority, Maya Steinitz

Faculty Scholarship

It has been argued that international law has recently "come of age", that it is a fully-fledged legal system like any other. It has also been argued that in order for a normative system to qualify as "law" it must, at the least, claim to possess legitimate authority and to be supreme to other normative systems. This article examines one highly visible development in international law - the criminal war trials - from a sociological perspective, trying to discern whether and how international law claims legitimate authority and supremacy. Specifically, it focuses on a deeply symbolic example of international criminal …

The One-Stop-Shop For Vat And Rst: Common Approaches To Eu-U.S. Consumption Tax Issues, Richard Thompson Ainsworth

Faculty Scholarship

In March 2004 the European Commission solicited comments on a proposal to simplify value added tax (VAT) obligations through a one-stop scheme. The proposal was modest in scope. It was designed to build upon the success of a similar scheme that dealt with non-EU established persons supplying digital products to non-taxable EU persons. That scheme is found in Article 26c of the Sixth VAT Directive.

In its March Consultation Paper the Commission proposed that businesses established within the EU be allowed to participate in a one-stop scheme that would be similar to the Article 26c scheme. Limited to B2C transactions, …

The Section 5 Power And The Rational Basis Standard Of Equal Protection, William D. Araiza

Faculty Scholarship

No abstract provided.

Who's Afraid Of The Precautionary Principle?, Robert V. Percival

Faculty Scholarship

The precautionary principle – the notion that lack of scientific certainty should not foreclose precautionary regulation – has become enormously popular in recent years, as reflected by its endorsement in many important international declarations and agreements. Despite its growing influence, the precautionary principle recently has come under fire by critics who argue that it is incoherent, potentially paralyzing, and that it will lead regulators to make bad choices. They maintain that society faces greater peril from overly costly regulations than from exposure to sources of environmental risks whose effect on human health and the environment is not fully understood at …