Digital Commons Network^™

Find It Free And Fast On The Net: Strategies For Legal Research On The Web (2007), Michelle Rigual

Faculty Scholarship

This is a guide to researching legal issues on the internet. Basic search topics applicable to any database are discussed as well as specific strategies for finding free or inexpensive legal materials, effectively using new technologies such as blogs, RSS feeds, and podcasts. Additionally, attendees are warned to avoid outdated technologies and sources. Also presented in Albuquerque, New Mexico, December 13, 2007.

The Sunset Of Quality Control In Modern Trademark Licensing, Irene Calboli

Faculty Scholarship

Historically, based on the premise that trademark protection is about consumer welfare, trademark law has allowed trademark licensing only as long as licensors control the quality of the products bearing the licensed marks. Ever since its adoption, however, this rule has been difficult to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legal context: quality control. Unsurprisingly, the consequence has been inconsistent case law and much uncertainty as to what represents valid licensing. In addition, in the past decades, courts have proven increasingly reticent to strictly apply this rule and have declared …

A Beautiful Lie: Exploring Rhinelander V. Rhinelander As A Formative Lesson On Race, Identity, Marriage, And Family, Angela Onwuachi-Willig

Faculty Scholarship

This essay explores the past and present social meanings of what occurred during a 1920s New York trial court case, Rhinelander v. Rhinelander. Rhinelander involved a claim by Leonard Kip Rhinelander, a white socialite, who filed for annulment of his marriage to Alice Beatrice Jones, a woman of racially ambiguous heritage. Leonard claimed that Alice committed fraud that went to the essence of their marriage by failing to inform him that she was of "colored" blood. According to legend, Leonard and Alice were madly in love, and Leonard filed the lawsuit only because of his father, who refused to accept …

The Increased Use Of Reconciliation In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern, Cynthia Alkon

Faculty Scholarship

This statement sums up the challenges lawyers, courts, legislatures, and other policymakers face when discussing mediation, reconciliation, or the use of other process alternatives in criminal cases in Central Asia. First, many people in the legal community of Central Asia have different understandings about the types of criminal cases appropriate for referral to alternative processes in lieu of criminal prosecution. Second, many people in the Central Asian legal community have attitudes about victims, defendants, and certain types of crimes that differ significantly from the attitudes held by the legal communities in other countries of the world. For instance, in Central …

Decency, Dignity, And Desert: Restoring Ideals Of Humane Punishment To Constitutional Discourse, Eva Nilsen

Faculty Scholarship

American punishment today is degrading, indecent, and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment. Unfortunately, the U.S. Supreme Court’s response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions, and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as …

Maryland And The Constitution Of The United States: An Introductory Essay, William L. Reynolds

Faculty Scholarship

The State of Maryland and the attorneys who practice in it have played a profound role in the history of the Constitution of the United States. That relationship should not surprise anyone: after all, Maryland was one of the original thirteen states, and its proximity to the nation’s capitol ensured that its lawyers would play an active role in the bar of the Supreme Court. Although the case names alone would make that history apparent – McCulloch v. Maryland, Brown v. Maryland, Federal Baseball – I am not aware of a serious scholarly effort to bring that history to the …

Reimposable Discounts And Medieval Contract Penalties, James P. George

Faculty Scholarship

Penalty damages in contract -- contrary to Anglo-American law since the late Middle Ages -- ironically are common as reimposed discounts in modern consumer contracts. The reimposable discount is a late-twentieth-century sales scheme that combines legal puffery with illegal penalties. These pitches are used to sell furniture, appliances, cell phones, cars, to rent apartments, and to promote elective eye surgery. The offers are tempting and often heavily marketed in the media.

The common premise is that if the buyer acts now, the seller will discount the good or service by reducing the price, or by postponing the first payment and …

Who Is To Shame? Narratives Of Neonaticide, Susan Ayres

Faculty Scholarship

In seventeenth-century England, single women who killed their newborns were believed to have acted to hide their shame. They were prosecuted under the 1624 Concealment Law and punished by death. This harsh response eventually evolved into a more humane and sympathetic one, as shown by the increasing number of acquittals in the late eighteenth century and by the sharp drop of prosecutions in the late nineteenth century. Then, in 1922, England passed the Infanticide Act, amended in 1938, which provided that a mother who killed her child would be prosecuted for manslaughter, not murder. Today, the great majority of women …

The International Enclosure Movement, Peter K. Yu

Faculty Scholarship

Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and …

Endless Emergency: The Case Of Egypt, Sadiq Reza

Faculty Scholarship

The Arab Republic of Egypt has been in a declared state of emergency continuously since 1981 and for all but three of the past fifty years. Emergency powers, military courts, and other exceptional powers are governed by longstanding statutes in Egypt and authorized by the constitution, and their use is a prominent feature of everyday rule there today. This essay presents Egypt as a case study in what is essentially permanent governance by emergency rule and other exceptional measures. It summarizes the history and framework of emergency rule in Egypt, discusses the apparent purposes and consequences of that rule, mentions …

Vessels Of Reproduction: Forced Pregnancy And The Icc, Milan Markovic

Faculty Scholarship

In an important victory for both women and the cause of human rights, the International Criminal Court (ICC) has criminalized forced pregnancy. The Court's Statute defines forced pregnancy as "the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law." Although the concept of a forced pregnancy crime is relatively new, "forced impregnation" has been used throughout history as a tool of assimilation or subjugation of the enemy, minority, or slave populations." There is some evidence that the ancient Athenians used it as …

Dual Subordination: Muslim Sexuality In Secular And Religious Legal Discourse In India, Aziza Ahmed

Faculty Scholarship

Muslim women and Muslim members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community face a specific form of dual subordination in relation to their gender and sexuality. A Muslim woman might seek solace from India's patriarchal religious judicial structures only to find that the secular system's patriarchal structures likewise aid in their subordination and create a space for new forms of such subordination. Similarly, a marginalized LGBT Muslim might attempt to reject an oppressive religious formulation only to come to find that the secular Indian state might criminalize a particular form of sexuality. This analysis explores how Indian laws …

Reflections Of A Community Lawyer, Luz E. Herrera

Faculty Scholarship

In May 2002, I opened a law office in one of the most underserved communities in Los Angeles County. Many questioned the sanity of such a career path when evaluating my financial stability and the personal toll that such a career path can exact. Given that I graduated from some of the best universities in the country, my friends, family, and strangers were even more perplexed at my choice. I cannot say that my decision to build a law practice in Compton, California, has been easy. However, time and time again, I found myself rejecting more secure and prestigious job …

The Internet Evolution: Savvy Research Strategies For Paralegals, Michelle Rigual

Faculty Scholarship

This is a guide to researching legal issues on the internet. Basic search topics applicable to any database are discussed as well as specific strategies for finding free or inexpensive legal materials, effectively using new technologies such as blogs, RSS feeds, and podcasts. Additionally, attendees are warned to avoid outdated technologies and sources.

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Faculty Scholarship

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Torture And Islamic Law, Sadiq Reza

Faculty Scholarship

This article considers the relationship between Islamic law and the absence or practice of investigative torture in the countries of today's Muslim world. Torture is forbidden in the constitutions, statutes, and treaties of most Muslim-majority countries, but a number of these countries are regularly named among those in which torture is practiced with apparent impunity. Among these countries are several that profess a commitment to Islamic law as a source of national law, including some that identify Islamic law as the principal source of law and some that go so far as to declare themselves "Islamic states." The status of …

Tactical Level Psyop And Mildec Information Operations: How To Smartly And Lawfully Prime The Battlefield, Joshua E. Kastenberg

Faculty Scholarship

The subject matter and scope of this article is limited to providing a framework for legal oversight to the planning and execution of tactical level PSYOP and MILDEC operations. As a result, it does not cover in detail issues such as neutrality, operations conducted within the United States which impact the Constitution, or combatant command authorities and their attendant supporting and supported relations. Rather, it seeks to provide a roadmap for a JA or legal representative assigned to an IO cell in support of tactical military operations.

The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going, Robert B. Ahdieh, Zhu Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis

Faculty Scholarship

The focus of this panel is incrementally shifting from the previous panel. Whereas the previous was looking at public/private issues and issues relating to incentivizing innovation in the subject countries, we're going to take a focus more on, I think it's safe to say, from an external perspective looking at these countries and issues that are confronted by businesses who our either planning to deal with the four subject countries or are concerned about their technologies being used in their four subject countries.

We have four panelists, and each of them is going to speak to one of the four …

Trademarks And The Internet: The United States' Experience, Glynn S. Lunney Jr

Faculty Scholarship

This article is divided into three sections: (II) The past; (III) The Present; and (IV) The Future. Part II will focus on the early judicial decisions applying trademark law to the Internet. It will examine the Internet's frontier period, discuss some of the early cases and their fact patterns, and attempt to show how the courts re-wrote various doctrinal elements of trademark law so they could reach the bad actors before them. While this period is characterized more by the predominantly bad faith nature of the defendants than by a calendar, it runs for approximately five years, from the first …

Commentary On The U.N. International Law Commission's Draft Articles On The Law Of Transboundary Aquifers, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the …

Testimony On Law Enforcement In Indian Country Before The United States Senate Committee On Indian Affairs, 110th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Public safety and criminal justice on Indian reservations are better served when Indian tribes play a central role in these functions. Most of the successes of law enforcement in Indian country have involved careful cooperation and coordination between law enforcement agencies of different sovereigns. Even informal cooperation can be highly effective in improving public safety. Lack of cooperation undermines public safety.

Volunteer Discrimination, Angela Onwuachi-Willig

Faculty Scholarship

Part I of this Essay describes the new NBA dress code and then lays the framework for the discussions that ensued after the implementation of the code. Part II examines how some Blacks' defense of the allegedly discriminatory NBA appearance policy does not in itself negate claims of racial discrimination. In so doing, this Part explicates the various ways in which Blacks are pressured to perform their racial identity in order to advance in society - in particular, the ways in which outsiders often must conform to traditional standards of appearance and must distinguish themselves from the "bad outsiders" or …

Girl, Fight!, Angela Onwuachi-Willig

Faculty Scholarship

Today's twenty and thirty-something women have grown up in a world that is strikingly different from their mothers. Unlike their mothers, many of these women played sports in high school because of Title IX. Indeed, this generation of women has the opportunity to play professional basketball in the United State as opposed to just in Europe. A number of these women attend and study at colleges and universities with female presidents. Such women include undergraduate and graduate students at Harvard University, where Drew Gilpin Faust recently became the institution's first female President. Additionally, during the prime years of their careers, …

The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

In Hamdan v. Rumsfeld, a five to three majority of the United States Supreme Court held unlawful the Bush Administration's use of military commissions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba-at least until and unless Congress enacted more specific authorization for the composition and procedures of the commissions. 1 There are many features of the Court's opinion that we find questionable: its analysis of the wartime scope of the "executive Power"2 vested in the President by Article II of the Constitution,3 its construction of the statutes that supposedly limit the President's power …

Toward A Fairer Model Of Consumer Assent To Standard Form Contracts: In Defense Of Restatement Subsection 211(3), Wayne R. Barnes

Faculty Scholarship

Standard-form contracts permeate our very existence, and now even include contracts we assent to online by way of “clickwrap” and “browsewrap” methods. Notwithstanding the ever-increasing presence and complexity of such standard-form contracts, both offline and online, the law of contracts in this area has remained fairly static since the 18th century and before. The only meaningful salve to this problem thus far has been the unconscionability doctrine, but that doctrine tends to be reserved for the harshest and severest terms. Therefore, a new tool is needed for courts to protect consumers’ interests in this area. Section 211(3) of the Restatement …

The Rotation Velocity Attributable To Dark Matter At Intermediate Radii In Disk Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

We examine the amplitude of the rotation velocity that can be attributed to the dark matter halos of disk galaxies, focusing on well-measured intermediate radii. The data for 60 galaxies spanning a large range of mass and Hubble types, taken together, are consistent with a dark halo velocity log Vh = C + B log R with C = 1.47-0.19+0.15 and B ≈1/2 over the range of 1 < R < 74 kpc. The range in C stems from different choices of the stellar mass estimator, from minimum to maximum disk. For all plausible choices of stellar mass, the implied densities of the dark halos are lower than expected from structure formation simulations in ACDM, which anticipate C > 1.6. This problem is not specific to a particular type of galaxy or to the innermost region of the halo (cusp or core); the velocity attributable to dark matter is too low …

Patent Hermeneutics: Form And Substance In Claim Construction, Kelly Casey

Faculty Scholarship

The claims section of a patent performs an important public notice function in patent law. The claims inform us of the boundaries delineating the subject matter over which the inventor holds an exclusive right. Methodology for interpreting patent claims has a direct impact on the claims’ ability to fulfill that mandate. Theories of interpretation are far better developed in statutory and contract law. Many principles animating the debate between form and substance in those fields are relevant to patent law as well, but patents’ divergent genesis and purpose create some important differences. This Article identifies the methodology set forth in …

The Once And Future New York Stock Exchange: The Regulation Of Global Exchanges, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Once And Future New York Stock Exchange: The Regulation Of Global Exchanges, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Lessons From Florida: Swing Low, Sweet Charity, Michael Flynn

Faculty Scholarship

No abstract provided.