Digital Commons Network^™

Rent Concessions And Illegal Contract Penalties In Texas, James P. George

Faculty Scholarship

Rent concessions--in theory a foregoing of money--ironically have become a new income source for Texas landlords. Although there is nothing wrong with discounting prices, there is something wrong with re-imposing that discount on a breaching tenant. The reimposed rent concession is a penalty that the landlord would not have collected in the routine performance of the contract and as a penalty, violates one of the oldest edicts in Anglo-American contract law.

This article arose from advice given and brief services rendered to clients in a landlord-tenant matter. Using the facts and documents from that dispute, this article reviews the history …

Rent Concessions And Illegal Contract Penalties In Texas, James P. George

Faculty Scholarship

Rent concessions-in theory a foregoing of money-ironically have become a new income source for Texas landlords. Although there is nothing wrong with discounting prices, there is something wrong with re-imposing that discount on a breaching tenant. The reimposed rent concession is a penalty that the landlord would not have collected in the routine performance of the contract and as a penalty, violates one of the oldest edicts in Anglo-American contract law.

This article arose from advice given and brief services rendered to clients in a landlord-tenant matter. Using the facts and documents from that dispute, this article reviews the history …

Indian Law On State Bar Exams: A Situational Report, Gloria Valencia-Weber

Faculty Scholarship

No abstract provided.

Brief For Pb&J, Family Services, Inc. As Amicus Curiae, Antoinette M. Sedillo Lopez, Iris Augusten, Deana M. Bennett, Amber Chavez, Kimberly Halpain, Leigh K. Haynes, Cody Lujan

Faculty Scholarship

PB&J, Family Services, Inc., through this brief as amicus curiae, has demonstrated that the decision rendered by the Court of Appeals was correct. The New Mexico Legislature did not draft NMSA 1978, § 36-6-1(D) (1973) to encompass the situation of a pregnant woman using drugs or alcohol during pregnancy. The Legislatures failure to pass legislation specifically criminalizing such conduct after careful consideration indicates that the Legislature did not intend for the statute to be so broadly construed. This is particularly true when considering the fiscal impact reports accompanying the proposed legislation. This decision by the Legislature is consistent with sound …

International Enclosure, The Regime Complex, And Intellectual Property Schizophrenia, Peter K. Yu

Faculty Scholarship

The year 2005 marked the tenth anniversary of the Agreement on Trade-Related Aspects of Intellectual Property Rights. Since it entered into effect on January 1, 1995, the Agreement has impacted a wide variety of areas, including agriculture, health, the environment, education, culture, competition, free speech, democracy, and the rule of law. Today, intellectual property protection has been considered a major issue in both the domestic and international policy debates, and policymakers have actively explored intellectual property issues in many different international regimes. These regimes range from public health to human rights and from biological diversity to information and communications.

As …

"Waterlocked": Public Access To New Jersey's Coastline, Timothy M. Mulvaney, Brian Weeks

Faculty Scholarship

This Article addresses the public trust doctrine as applicable to waterways and their shores, with a particular focus on emerging trends in the state of New Jersey. Several disparate factors have aggravated disputes between competing visions for waterfront areas. The U.S. population has increased much more in coastal than inland areas. The decline in heavy industry along with dramatic increases in real estate values have led to intensive development and redevelopment in waterfront areas, including the re-opening of areas functionally closed to the public for well over one hundred years. As communities have discovered the values of attractive waterfront areas, …

Constitutional Texting, Lawrence B. Solum

Faculty Scholarship

"Constitutional Texting" introduces an account of constitutional meaning that draws on Paul Grice's distinction between "speaker's meaning" and "sentence meaning." The constitutional equivalent of speaker's meaning is "framer's meaning," the meaning that the author of the constitutional text intended to convey in light of the author's beliefs about the reader's beliefs about the author's intentions. The constitutional equivalent of sentence meaning is "clause meaning," the meaning that an ordinary reader would attribute to the text at the time of utterance without any beliefs about particular intentions on the part of the author. Clause meaning is possible because the words and …

Why The Supreme Court Lied About Plessy, David S. Bogen

Faculty Scholarship

This article examines the citation in Plessy of a dozen cases that the Court said held racial segregation statutes in transport to be constitutional. It argues that none of those twelve cases upheld a segregation statute, but were largely decisions upholding decisions by the carrier under the common law. Justice Brown knew that the cases did not uphold segregation statutes, but he went ahead and used them to bury opposition under the weight of precedent. He knew that he was unlikely to be challenged, and he believed that the common law and the Constitution involved the same principles. The conflation …

Ruminations On The Past, Present And Future Of International Labor Standards: Empowering Law In The Brave New Economic World, Marley S. Weiss

Faculty Scholarship

International labor standards are among the oldest international standards pertaining to the conduct of private, as well as public, economic actors. Far from being settled, however, nearly every aspect of the current international labor standards regime is in flux: the role of labor standards in the international legal, economic, political, and social order, as well as in the parallel domestic orders; the modes by which standards are brought into being; the manner and means of their implementation and enforcement; the degree to which they may be binding solely on nation-state parties, and enforceable only at their behest; and the extent …

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray

Faculty Scholarship

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …

Probability, Policy And The Problem Of Reference Class, Robert J. Rhee

Faculty Scholarship

This short paper focuses on the problem of reference class in evidentiary assessment as it relates to probability and weight of evidence. The reluctance to inject mathematical formalism into the factfinding function is justified. Objective probability requires a reference class from which a proportion is derived. Probability assessments change with the reference class. If a proposition is subject to proportional comparison against two or more different references, their selection is often an inductive process. The advantage of objectivity and methodological rigor is illusory. A legal dispute is the search for a plausible understanding of the truth, and an overtly mathematized …

Copyright In An Era Of Information Overload: Toward The Privileging Of Categorizers, Frank Pasquale

Faculty Scholarship

Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, …

Technology, Competition, And Values, Frank Pasquale

Faculty Scholarship

Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage without substantially increasing overall social welfare. Others threaten to undermine collective values and perceptions commonly used to evaluate technology. A final category threatens to do both, creating unfair or wasteful competition while blunting our capacity to recognize its morally dubious character.

As new sectors of life become more game-like and competitive, methods of leveling the playing field developed in sports and college admissions might become more …

“A Rose By Any Other Word Would Smell As Sweet,” But Would It Still Be Treasured: The Mislabeling And Misunderstanding Of Parents And Grandparents In American Policy, Randy Lee

Faculty Scholarship

No abstract provided.

"In A Case, On The Screen, Do They Remember What They've Seen?" Critical Electronic Reading In The Law Classroom, Debra Moss Curtis

Faculty Scholarship

In 2005, we produced a well-received article and presentation entitled, "'In a Case, In a Book, They Will Not Take a Second Look!' Critical Reading in the Legal Writing Classroom." The article examined the educational foundations of critical reading, as well as, critical reading techniques. The purpose was to establish that law students need instruction in critical reading. In the article, we offered creative solutions that had been successfully used in our legal writing classes. In the two years since, we have found it necessary to reconsider the problem of critical reading in the law school classroom, in light of …

Corporate Governance Issues: United States And The European Union, Florence Shu-Acquaye

Faculty Scholarship

No abstract provided.

Geographic Variation In Informed Consent Law: Two Standards For Disclosure Of Treatment Risks, David M. Studdert, Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, Troyen A. Brennan

Faculty Scholarship

We analyzed 714 jury verdicts in informed consent cases tried in 25 states in 1985–2002 to determine whether the applicable standard of care (“patient” vs. “professional” standard) affected the outcome. Verdicts for plaintiffs were significantly more frequent in states with a patient standard than in states with a professional standard (27 percent vs. 17 percent, P = 0.02). This difference in outcomes did not hold for other types of medical malpractice litigation (36 percent vs. 37 percent, P = 0.8). The multivariate odds of a plaintiff’s verdict were more than twice as high in states with a patient standard than …

Sosa And The Retail Incorporation Of International Law, Ernest A. Young

Faculty Scholarship

Since its release in 2004, Justice Souter’s majority opinion in Sosa v. Alvarez-Machain has become something of a Rorschach blot, in which each of the contending sides in the debate over the domestic status of customary international law (CIL) sees what it was predisposed to see anyway. Neither the thoughtful article by Professors Curtis Bradley, Jack Goldsmith, and David Moore, nor this comment upon that article, is any exception to that tendency: we, too, read Sosa as vindicating our previously expressed positions on this debate. That is an embarrassing situation for scholars all round, and it counsels caution in interpreting …

Diplomatic Immunity Ratione Personae Did The International Court Of Justice Create A New Rule Of Customary International Law In Congo V Belgium, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Public's Right To Fair Use: Amending Section 107 To Avoid The "Fared Use" Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use" and "The End of Friction," commentators argue about whether or not the copyright doctrine of fair use should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The …

Final Oculina Evaluation Team Report, Oculina Experimental Closed Area (Oeca)., John K. Reed, Christopher C. Koenig, R. G. Gilmore, M. Miller, Andrew N. Shepard, C. Werner

Faculty Scholarship

The Council established the Oculina Evaluation Team (OET) as part of its Evaluation Plan for the Oculina Experimental Closed Area (OECA). The team -- comprising law enforcement representatives, research scientists, resource managers, commercial fishermen, recreational fishermen, outreach experts, and non-governmental organization representatives -- was charged with reviewing and providing recommendations for the ongoing research and monitoring, outreach, and law enforcement components of the Evaluation Plan. These recommendations will assist the Council in completing a required 3-year size and configuration evaluation and a 10-year complete evaluation of the OECA. The OET convened for the first time August 21-23, 2006 in Port …

The Constitution In A Postmodern Age, Calvin R. Massey

Faculty Scholarship

No abstract provided.

What Lawyers, What Edge?, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Just Until Payday, Ronald J. Mann, Jim Hawkins

Faculty Scholarship

The growth of payday lending markets during the last fifteen years has been the focus of substantial regulatory attention both in the United States and abroad, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have had conflicting purposes – some have sought to remove barriers to entry while others have sought to impose limits on the business. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of this industry's life, …

Changing Name Changing: Framing Rules And The Future Of Marital Names, Elizabeth F. Emens

Faculty Scholarship

What laws should govern spouses' names at marriage? If a man and a woman marry, should the woman's name change automatically? Or should the woman's name remain the same unless she goes through more or less complicated steps to change it? Contrary to convention, should the man's name change to the woman's? Should both their names be hyphenated? Many variations could be imagined.

The law of marital names has undergone a significant transformation over the past forty years. For about a hundred years of U.S. history, states required married women to take their husbands' names in order to engage in …

Getting Permission, Philip A. Hamburger

Faculty Scholarship

Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …

A Critique Of The Efficient Performance Hypothesis, Jody S. Kraus

Faculty Scholarship

The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and the defense of expectation damages that rests on it, has long been criticized for being inconsistent with the moral intuition that promisors necessarily forfeit their right …

End Natural Life Sentences For Juveniles, Jeffrey A. Fagan

Faculty Scholarship

In 2005, the U.S. Supreme Court in Roper v. Simmons (125 S. Ct. 1183) banned executions of persons who commit capital murder before they reach age 18. Roper overturned death sentences for 72 people in 18 states (Streib, 2005). Most (but not all) were resentenced to natural life or life in prison without the possibility of parole (or JLWOP). Juvenile justice advocates now want to extend Roper’s maturity heuristic, proportionality analysis, aversion to errors, and deference to international laws and norms to argue for a constitutional ban on natural life sentences for adolescent offenders. This move could have a far …

To Condone Or Condemn? Regional Enforcement Actions In The Absence Of Security Council Authorization, Monica Hakimi

Faculty Scholarship

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second …

The Best Defense: Why Elected Courts Should Lead Recusal Reform, Deborah Goldberg, James J. Sample, David Pozen

Faculty Scholarship

In recent years, we have seen an escalation of attacks on the independence of the judiciary. Government officials and citizens who have been upset by the substance of judicial decisions are increasingly seeking to rein in the courts by limiting their jurisdiction over controversial matters, soliciting pre-election commitments from judicial candidates, and drafting ballot initiatives with sanctions for judges who make unpopular rulings. Many of these efforts betray ignorance at best, or defiance at worst, of traditional principles of separation of powers and constitutional protections against tyranny of the majority.

The attacks are fueled in part by the growing influence …