Digital Commons Network^™

A Sturdy Rogue, Bruce K. Miller

Faculty Scholarship

The Author discusses the Poor Laws in the times of the Tudor monarchs, known to us at the Elizabethan Poor Laws. The Author discusses the Oakley case which shows the durability and power of our Elizabethan heritage in shaping a special law of poor families; the very venerability of this heritage suggests that it must play an important social role.

A Defense Of Creationism In Fiction, Jeffrey C. Goodman

Faculty Scholarship

Creationism is the conjunction of the following theses: (i) fictional individuals (e.g. Sherlock Holmes) actually exist; (ii) fictional names (e.g., ‘Holmes’) are at least sometimes genuinely referential; (iii) fictional individuals are the creations of the authors who first wrote (or spoke, etc.) about them.  CA Creationism is the conjunction of (i) – (iii) and the following thesis: (iv) fictional individuals are contingently existing abstracta; they are non-concrete artifacts of our world and various other possible worlds.  Takashi Yagisawa has recently provided a number of arguments designed to show that Creationism is unjustified.  I here critically examine three of his challenges …

Arbitral Law-Making, Thomas E. Carbonneau

Faculty Scholarship

Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how …

The Nhl Labour Dispute And The Common Law, The Competition Law, And Public Policy, Stephen F. Ross

Faculty Scholarship

This article develops the claim that, absent an agreement with the union, the imposition of a salary cap or punitive luxury tax would constitute an unreasonable restraint of trade, as well as a violation of section 48 of the Competition Act that the Canadian courts should enjoin. The article analyzes decisions of Canadian and other British Commonwealth courts concerning general principles of the common law as well as their specific application in the context of the sports industry. Second, the paper discusses why the same standard applies to restraints challenged under section 48 of the Competition Act. Next. the …

English Constitutionalism Circa 2005, Or, Some Funny Things Happened After The Revolution, Ernest A. Young

Faculty Scholarship

reviewing Adam Tompkins, Public Law (2003)

Modeling A Response To Predatory Lending: The New Jersey Home Ownership Security Act Of 2002, David Reiss, Baher Azmy

Faculty Scholarship

No abstract provided.

Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley

Faculty Scholarship

This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers …

Charging Orders And The New Uniform Limited Partnership Act: Dispelling The Rumors Of Disaster, Daniel S. Kleinberger, Carter G. Bishop, Thomas Geu

Faculty Scholarship

Last year, an article published in this magazine focused on the charging order as "the Exclusive Remedy Against a Partnership Interest" and announced the "[s]hocking [r]evelation" that ULPA (2001)--the new Uniform Limited Partnership Act--undermines the "exclusive remedy" limitation on charging orders. The authors asserted categorically that, "from an asset protection perspective, the 2001 Act is considerably less protective of a partner's partnership interest than the 1976 Act." Elizabeth M. Schurig & Amy P. Jetel, A Charging Order Is the Exclusive Remedy Against a Partnership Interest: Fact or Fiction?, Prob. & Prop. 57, 58 (Nov./Dec. 2003).

As this article will show, …

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

Faculty Scholarship

No abstract provided.

Global Credit Card Use And Debt: Policy Issues And Regulatory Responses, Ronald J. Mann

Faculty Scholarship

The rise of card-based payments has transformed the landscape of payments in the last half century, from one dominated by government-supported paper-based payments to one dominated by wholly private systems. The rise of those payments presents a number of policy problems, the most serious of which is the empirically demonstrable likelihood that use of the cards here and elsewhere contributes to an undue level of consumer credit and that borrowing on the cards contributes to a rise in the level of consumer bankruptcy. Because increasing financial distress imposes substantial externalities on the economies in which it occurs, the global rise …

The Muddles Over Outsourcing, Jagdish N. Bhagwati, Arvind Panagariya, T.N. Srinivasan

Faculty Scholarship

In the early 1980s, “outsourcing” typically referred to the situation when firms expanded their purchases of manufactured physical inputs, like car companies that purchased window cranks and seat fabrics from outside the firm rather than making them inside. But in 2004, outsourcing took on a different meaning. It referred now to a specific segment of the growing international trade in services. This segment consists of arm’s-length, or what Bhagwati (1984) called “long-distance,” purchase of services abroad, principally, but not necessarily, via electronic mediums such as the telephone, fax and the Internet. Outsourcing can happen both though transactions by firms, like …

Against Separation, Philip A. Hamburger

Faculty Scholarship

In 1802, in a letter to the Danbury Baptist Association, Thomas Jefferson wrote that the First Amendment had the effect of "building a wall of separation between Church & State." As it happens, when Congress drafted the First Amendment in 1789, Jefferson was enjoying Paris. Nonetheless, his words about separation are often taken as an authoritative interpretation of the First Amendment's establishment clause. Indeed, in the 1947 Everson v. Board of Education decision, the Supreme Court quoted Jefferson's pronouncement to justify its conclusion that the First Amendment guarantees a separation of church and state. Not only the justices but …

Legal Institutions And International Trade Flows, Daniel Berkowitz, Johannes Moenius, Katharina Pistor

Faculty Scholarship

Globalization and increasing international flows of goods and capital have created a sense that the importance of individual nation states and the public goods they provide, including law and law enforcement institutions, is in decline. Opting out of domestic legal institutions and into those of a third country or into an "international" architecture have been elevated to important complements, if not substitutes for "good" institutions at home. If traders and investors could indeed effectively opt-out of their home jurisdiction's legal systems, we should observe empirically that the quality of domestic institutions has little impact on international patterns of trade flows. …

Copyright's Communications Policy, Tim Wu

Faculty Scholarship

There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance," "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

I am honoured to contribute to this Festschrift for Bill Cornish, the leading exponent of the English (even if many of them are in fact Anzacs) School of Copyright and Intellectual Property. In addition to greatly valuing his scholarship, I hold Bill in especial esteem for his unswerving sanity in ALAI meetings, and for the piano duets in which he occasionally indulges my spouse. The following essay is offered in the spirit of international inquisitiveness that has animated so many of my contacts with Bill.

Constitutional And Statutory Interpretation, Kent Greenawalt

Faculty Scholarship

This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature …

Cuban Exceptionalism : Migration And Asylum In Spain And The United States, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Edith Wharton, Privacy, And Publicity, Jessica Bulman-Pozen

Faculty Scholarship

"It's the woman's soul, absolutely torn up by the roots-her whole self laid bare .... I don't mean to read another line; it's too much like listening at a keyhole." When Mrs. Touchett speaks these words in Edith Wharton's early novella, The Touchstone, we may wonder whether Wharton is mocking her own voyeuristic readership and grappling with her tenuous privacy as a professional female author. Despite her protestations, Mrs. Touchett has relished reading the letters of Mrs. Aubyn, a deceased novelist whose former lover, Stephen Glennard, has published her correspondence. It is precisely because these love letters (or "unloved letters" …

Be Careful What You Wish For: Legal Sanctions And Public Safety Among Adolescent Offenders In Juvenile And Criminal Court, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman

Faculty Scholarship

Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is …

Sexual Tensions Of Post-Empire, Katherine M. Franke

Faculty Scholarship

In this essay Katherine Franke examines two contemporary cites in which state efforts to eradicate the traces of empire and to resurrect an authentic post-colonial nation have produced sexual subjects that serve as a kind of existential residue and reminder of a demonized colonial past and absence. Looking first at post-colonial Zimbabwe, Franke argues that President Mugabe's aggressively homophobic policies have played a key role in fortifying his leadership as authentically African and post-colonial.

Franke then turns to current efforts by the Mubarak government in Egypt to publically prosecute men for having sex with men. The Mubarak government has used …

Radical Tax Reform, Municipal Finance, And The Conservative Agenda, Eric J. Gouvin

Faculty Scholarship

Proponents of a consumption tax system to replace the federal income tax typically couch their support for radical tax reform in the language of traditional tax policy goals. They claim that their reform plans promote the goals of simplicity, economic efficiency, stability, and equity. This Article examines how well the proposed tax reforms will achieve those goals in the context of their anticipated impact on state and local finance. The effects on state and local governments of a flattened-rate income tax, flat tax, or a broad federal consumption tax could be enormous and devastating. The Article finds that all of …

Meade V. Dennistone: The Naacp's Test Case To "...Sue Jim Crow Out Of Maryland With The Fourteenth Amendment.", Garrett Power

Faculty Scholarship

In 1936, Edmond D. Meade, an African-American pastor at Israel Baptist Church in Baltimore, contracted to purchase a home in an almost exclusively white block of Baltimore City. Meade’s purchase was followed by a suit by the white residents to block the use of the home by the new buyers. This work examines the legacy of Meade v. Dennistone, the effect of the decision on “free market forces” and concludes by considering the impact of the decision – and the community response – on the final judicial rejection of the “separate but equal” treatment of the races.

Pernicious Ambiguity In Contracts And Statutes, Lawrence Solan

Faculty Scholarship

No abstract provided.

Punishment, Guilt, And Shame In Biblical Thought, George P. Fletcher

Faculty Scholarship

The centrality of guilt in the criminal law provides puzzling perspective in the perennial debate on the nature and purpose of punishment. Why is it that all legal systems use this highly charged moral term to refer to an essential component of liability to punishment? This question is not easily answered. The reliance on the concept of guilt in the criminal law is suffused with paradox and mystery.

The Mechanics Of Indian Gaming Management Contract Approval, Kevin Washburn

Faculty Scholarship

The National Indian Gaming Commission's management contract review process is complicated, time-consuming and governed by detailed regulations. This article explains how the process actually works within the Commission and addresses some of the common issues that arise.

The Domesticated Liberty Of Lawrence V. Texas, Katherine M. Franke

Faculty Scholarship

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that affords gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke expresses …

The Alien Tort Statute, Civil Society, And Corporate Responsibility, Sarah H. Cleveland

Faculty Scholarship

The topic of this panel is civil participation in the global trading system, with a particular focus on Doe v. Unocal Corp. and use of the Alien Tort Statute (ATS) to enforce fundamental human rights norms against multinational corporations. These comments will therefore attempt to locate Doe v. Unocal and other ATS litigation in the broader efforts of civil society to establish and maintain normative principles for corporate responsibility in the global trading regime. This comment first explains the role of ATS litigation in the broader civil society context and the contribution of ATS cases to the development and enforcement …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Reconstructing The Blaine Amendments, Frederick Mark Gedicks

Faculty Scholarship

In the wake of the Supreme Court's decision upholding school vouchers in Zelman v. Simmons-Harris, school choice proponents have turned their attention to the state Blaine Amendments. Blaine Amendments are contained in 37 state constitutions, and are modeled after a failed federal constitutional amendment sponsored by James G. Blaine in 1876 that would have prohibited the states from allocating state funds and other resources to sectarian organizations. Thus, even though Zelman appears to have removed all federal Establishment Clause impediments to properly structured school choice programs, Blaine Amendments continue to stand in the way of such programs.

The validity of …