Digital Commons Network^™

A Study In Judicial Sleight Of Hand: Did Geier V. American Honda Motor Co. Eradicate The Presumption Against Preemption?, Susan Raeker-Jordan

Faculty Scholarship

No abstract provided.

Sustainable Versus Unsustainable Propositions, John C. Dernbach

Faculty Scholarship

No abstract provided.

Enda Before It Starts: Section 5 Of The Fourteenth Amendment And The Availability Of Damages Awards To Gay State Employees Under The Proposed Employment Non-Discrimination Act, William D. Araiza

Faculty Scholarship

No abstract provided.

Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power

Faculty Scholarship

No abstract provided.

Why They Won't Take The Money: Black Grandparents And The Success Of Informal Kinship Care, Sonia M. Gipson Rankin

Faculty Scholarship

In this note, Ms. Gipson Rankin discusses kinship care as an alternative to placing children into foster care. For generations, particularly in the Black community, grandparents and other older relatives have played a crucial role in raising the children of younger relatives when they have become unable or unwilling to raise the children themselves. This system, known as kinship care, has ensured that thousands of American children are cared for and raised by members of their own families. The note explores the history and nature of the kinship care system, and analyzes federal and state policies that impact the system. …

Water And Population In The American West, Denise D. Fort

Faculty Scholarship

The American West is justly famed for its sunshine and wide skies.1 However, there is a potent combination of low rainfall and growing population in the West that ensures that water, or the lack of it, will remain another well-known feature of the region. As the number of people sharing already stressed water supplies increases, the economic, ecological, and social costs of providing water become more evident. Agriculture consumes about 90% of the water that is extracted in the West, and the transfer from agricultural to municipal and industrial uses is invariably complex. Increased water extraction has resulted in the …

Income Tax Treaty Arbitration, William W. Park

Faculty Scholarship

Notwithstanding similar fiscal objectives, countries that conclude income tax treaties often arrive at radically different results when treaty language is applied to a practical problem. The task of resolving disagreement on treaty interpretation falls either to national courts or to joint efforts by the tax administrations to work out differences on a voluntary basis. Neither alternative is satisfactory. Judicial proceedings lack political neutrality and yield inconsistent results. And the process for "mutual agreement" among competent fiscal authorities is fraught with delays and uncertainty.

Authors, Publishers And Public Goods: Trading Gold For Dross, Wendy J. Gordon

Faculty Scholarship

The article seeks to clarify what is at stake - and what is not - in the litigation challenging the constitutional validity of the Sonny Bono Copyright Term Extension Act (CTEA). First, the article distinguishes between the CTEA's retrospective term extension of copyright term and the retrospective extensions enacted by prior Congresses. The article suggests that the CTEA provisions are constitutionally questionable in ways that earlier retrospective extensions may not have been. To hold the CTEA unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as digitization and film preservation have …

Taking Contracts Private: The Quiet Revolution In Contract Law, Charles L. Knapp

Faculty Scholarship

No abstract provided.

A Theory Of Imperial Law: A Study On U.S. Hegemony And The Latin Resistance, Ugo Mattei

Faculty Scholarship

No abstract provided.

Positionality, Epistemology, And Social Justice In The Classroom, David Takacs

Faculty Scholarship

No abstract provided.

System And Lifeworld In Habermas's Theory Of Law, Hugh Baxter

Faculty Scholarship

Jürgen Habermas's recent work on law and democracy divides into two parts. With his "discourse theory of law and democracy," Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas's method is primarily philosophical and legal-theoretical. The second part of the project – the part on which this article focuses – develops what Habermas calls his "communication theory of society." Here Habermas seeks to "translate" the normative conclusions of his discourse theory into a substantive social-theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible …

What Do We Do When We Do Law And Popular Culture, Jessica Silbey

Faculty Scholarship

"What We Do When We Do Law and Popular Culture" establishes a theoretical framework for analyzing legal popular culture, taking as its point of departure Richard Sherwin's book "When Law Goes Pop." The article stresses what Professor Silbey considers to be three major stumbling blocks in the growing interdiscipline of law and popular culture. She argues that if we are to advance our understanding of the relationship between law and popular culture, we must follow at least three simple charges: (1) demarcate our beginning concepts, such as law or culture, so that amidst the vast phenomena that may be called …

Digital Handshakes In Cyberspace Under E-Sign: "There's A New Sheriff In Town!", Michael H. Dessent

Faculty Scholarship

No abstract provided.

Charter Insights For American Equality Jurisprudence, Stephen F. Ross

Faculty Scholarship

Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit …

Jefferson And Madison As Icons In Judicial History: A Study Of Religion Clause Jurisprudence, David Reiss

Faculty Scholarship

No abstract provided.

The Independence And Democratic Accountability Of The Supreme Court Of Ohio: Recalling The Work Of Frederick Grimke, Paul D. Carrington, Adam R. Long

Faculty Scholarship

No abstract provided.

Foreign Inspired Courts As Agencies Of Peace In Troubled Societies A Plea For Realism And For Creativity, Ugo Mattei

Faculty Scholarship

No abstract provided.

The Settlement Of Nazi-Era Litigation Through The Executive And Judicial Branches, Morris A. Ratner

Faculty Scholarship

No abstract provided.

Postsecondary School Education Benefits For Undocumented Immigrants: Promises And Pitfalls, Victor C. Romero

Faculty Scholarship

Should longtime undocumented immigrants have the same opportunity as lawful permanent residents and U.S. citizens to attend state colleges and universities? There are two typical justifications for denying them such opportunities. First, treating undocumented immigrants as in-state residents discriminates against U.S. citizen nonresidents of the state. Second, and more broadly, undocumented immigration should be discouraged as a policy matter, and therefore allowing undocumented immigrant children equal opportunities as legal residents condones and perhaps encourages "illegal" immigration. This essay responds to these two concerns by surveying state and federal solutions to this issue.

Antitrust Options To Redress Anticompetitive Restraints And Monopolistic Practices By Professional Sports Leagues, Stephen F. Ross

Faculty Scholarship

The hallmark of an antitrust violation is an agreement which has the effect of raising price, lowering output, or rendering output unresponsive to consumer demand. Owners of clubs comprising Major League Baseball, the National Football League, the National Basketball Association, and the National Hockey League engage in a variety of exploitative activities that consumers cannot avoid by substituting rival products. The purpose of this Article is to analyze specific areas where these monopoly sports leagues harm a variety of groups, through the maintenance of a monopolistic structure that precludes competitive entry, or through specific restraints that have demonstrable anticompetitive effects. …

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Faculty Scholarship

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Light, Less-Filling, It's Blue-Ribbon!, Stephen F. Ross

Faculty Scholarship

This Commentary reviews the recommendations of the Blue Ribbon Panel and, accepting the Report's perspective of advocating the long-term interests of baseball fans, identifies some important and positive contributions made by the Report. Next, some significant flaws and shortcomings are discussed. Finally, the Commentary suggests several practical reforms likely to improve competitive balance which plausibly could secure the support of t he various constituencies of the National Pastime.

Sovereign Bonds And The Collective Will, Lee C. Buchheit, G. Mitu Gulati

Faculty Scholarship

No abstract provided.

Constitutional Design: Proposals Versus Processes, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

Availability Of Works Cited In Recent Law Review Articles On Lexis, Westlaw, The Internet, And Other Databases, Simon Canick

Faculty Scholarship

In this study, a group of recent law articles was examined to determine the proportion of cited resources that are easily findeable online. Searches were conducted in databases such as LEXIS and Westlaw, and on the Internet, for full-text versions of every source cited in seven articles. The results have been broken down into 13 categories, including: federal cases, books, foreign law, and legal periodicals pre-1990. Not surprisingly coverage differs widely between the categories. Overall the study found that 77% of the 1,984 citations in the articles reviewed are available online. This article concludes with a general discussion of why …

Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Frank Pasquale, Matthew Fagin, Kim Weatherall

Faculty Scholarship

No abstract provided.

What Family For The 21st Century?, David D. Meyer, Harry D. Krause

Faculty Scholarship

No abstract provided.

The Communities That Make Standards Of Care Possible, Anita Bernstein

Faculty Scholarship

No abstract provided.