Digital Commons Network^™

A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss

Faculty Scholarship

This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …

Fuzzy Logic And Corporate Governance Theories, Z. Jill Barclift

Faculty Scholarship

Fuzzy logic is a theory that categorizes concepts or things belonging to more than one group. A methodology that explains how things function in multiple groups (not fully in one group or another) offers advantages when one definition or membership in a group accounts for belonging to multiple groups. A principal/agent model of corporate governance has some characterizations of fuzzy logic theory. The purpose of this article it to evaluate other models of corporate governance that account for the multi-agent role of senior officers of public companies and assess the accountability to the corporation. Corporate governance theorists continue to debate …

Universal Proceduralism, Edward J. Janger

Faculty Scholarship

No abstract provided.

The Politics Of Risk: Pre-Litigation Site Assessment In Houston, Texas, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Using Stock And Stock Options To Minimize Patent Royalty Payment Risks After Medimmune V. Genentech, Sean O'Connor

Faculty Scholarship

No abstract provided.

More Stories Of Jurisdiction-Stripping And Executive Power: Interpreting The Prison Litigation Reform Act (Plra), Giovanna Shay, Johanna Kalb

Faculty Scholarship

In the last several years, the Supreme Court has decided a number of important challenges to the government’s conduct of its “War on Terror.” Brought on behalf of persons alleged to be “enemy combatants,” many of whom were detained at Guantánamo Bay, these suits challenged the prisoners’ indefinite detention, asserted their right to access federal courts, and questioned the legality of the tribunals created to adjudicate the charges against them. The debate about the detainees’ access to federal courts has continued in Congress, with the passage of the Military Commissions Act (MCA), and in the lower courts, with challenges to …

Retributive Justice In The Real World, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Pain Detection And The Privacy Of Subjective Experience, Adam Kolber

Faculty Scholarship

No abstract provided.

A Liberal Challenge To Behavioral Economics: The Case Of Probability, Alex Stein

Faculty Scholarship

No abstract provided.

Outing Outcomes: An Empirical Study Of Confidential Employment Discrimination Settlements, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

The Policy And Politics Of Immigrant Rights, Shoba S. Wadhia

Faculty Scholarship

This article examines how immigration policies over the past decade have affected immigrant rights, scrutinizes administrative and legislative efforts to improve or eliminate these measures, and makes recommendations for advancing a due process agenda in the future. The first part of this article analyzes administrative and legislative proposals under four themes: 1) checks and balances, 2) punishment does not fit the crime, 3) judicial review, and 4) detention. The second part of this article identifies efforts to redress measures emanating from the 1996 immigration laws and policies issued after September 11, 2001. For example, it analyzes legislation introduced in the …

A Moratorium On Intersex Surgeries?: Law, Science, Identity, And Bioethics At The Crossroads, Laura Hermer

Faculty Scholarship

Should the law prevent all parents and guardians from requesting and consenting to cosmetic genital surgeries on children with certain intersex conditions before the children are mature enough to decide the matter for themselves? While such surgeries ought not to be encouraged, banning the surgeries altogether, as some advocate, would hobble, if not eliminate, the burgeoning scientific investigation of the best treatment practices for different intersex conditions. It would also remove a surgical option that, according to data in a number of studies, has resulted in subjectively satisfactory outcomes for many patients.

Bright Line Breaking Point: Embracing Justice Scalia’S Call For The Supreme Court To Abandon An Unreasonable Approach To Fourth Amendment Search And Seizure Law, Edwin Butterfoss

Faculty Scholarship

In Thornton v. United States, the United States Supreme Court applied the bright-line rule of New York v. Belton to uphold the search of containers in the passenger compartment of a car when the arresting officer made initial contact with the suspect alter the suspect had parked his car and started walking away. Justice Scalia concurred in the judgment but criticized the majority for relying on the bright-line rule of Belton to uphold the search, stating that the Court’s effort to apply the Belton rule stretched that doctrine "beyond its breaking point."

Justice Scalia found the search in Thornton lawful …

Lawyers And Community Economic Development, William H. Simon

Faculty Scholarship

The Articles in this symposium and the experiences they report show that, for lawyers, Community Economic Development (CED) has become a more expansive and more complex subject than it was when we discovered it two decades or so ago.

The Articles and the experiences are particularly revealing about what I would guess have been the two central preoccupations of lawyers in the field. The first, of course, is what we mean by community, and more specifically, how a community can become – or be regarded as – a legal and political actor. The second concerns lawyer accountability. Progressive lawyers have …

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, …

Agents Of The Good, Servants Of Evil: Harry Potter And The Law Of Agency, Daniel S. Kleinberger

Faculty Scholarship

No abstract provided.

Economic Growth And The Interests Of Future (And Past And Present) Generations: A Comment On Tyler Cowen, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Tax Reform Unraveling, Michael J. Graetz

Faculty Scholarship

The Tax Reform Act of 1986 was widely heralded as the most significant change in our nation’s tax law since the income tax was extended to the masses during World War II. It was the crowning domestic policy achievement of President Ronald Reagan, who proclaimed it “the best antipoverty measure, the best pro-family measure and the best job-creation measure ever to come out of the Congress of the United States” (Reagan, 1986). This journal published a symposium on the Tax Reform Act in its first issue. The law’s rate reductions and base broadening reforms were mimicked throughout the countries belonging …

Enron And The Special Purpose Entities - Use Or Abuse - The Real Problem - The Real Focus, Neal Newman

Faculty Scholarship

On the heels of Enron's debacle came the Sarbanes-Oxley Act of 2002, the far reaching legislative reform that was designed to shore-up the accounting and corporate governance shortfalls that the legislature and the investing public believed allowed Enron to do what it did unabated. Supplementing the reforms set forth in the Sarbanes-Oxley Act are a number of accounting rules, guidelines, and interpretations that are designed to curtail the type of accounting fraud Enron perpetrated through its use (or more accurately abuse) of what are referred to as special purpose entities (SPEs). Although much has been written chronicling and analyzing the …

Clouds Of Mystery: Dispelling The Realist Rhetoric Of The Uniform Commercial Code, Franklin G. Snyder

Faculty Scholarship

Students in contracts and commercial law courses are routinely taught that Article 2 of the Uniform Commercial Code is a product of the Legal Realist movement-that it was designed by its principal draftsman, Karl Llewellyn, to more accurately reflect the needs and realities of modern business than the prior common law and statutes it displaced That story is important, because it is routinely retold as we explain to students the provisions in Article 2 that change the powers, rights, and responsibilities of contracting parties. Yet that story is a myth. There is relatively little "Realism'" in Article 2, whether we …

Overcharging The Uninsured In Hospitals: Shifting A Greater Share Of Uncompensated Medical Care Costs To The Federal Government, James Mcgrath

Faculty Scholarship

In addressing problems with our health care payment system, one of the most contentious debates has been whether the United States should adopt a plan of universal health care. The debate intensifies over whether this country should adopt a single payer health care system, which one commentator describes as a system "in which a federal agency would centrally administer a single, comprehensive benefits package financed through general tax dollars..." Under a single payer plan, everyone in the country would receive at least some level of access to health care for which the federal government would pay.

The federal government already …

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

Shifting Paradigms Of Parochialism: Lessons For International Trade Law, Elizabeth Trujillo

Faculty Scholarship

Much of the study of international private law has focused on exploring differences in legal systems in light of domestic issues or harmonization. Much less emphasis has been on accepting these various parochial interests as part of a global legal structure. This preliminary study into what drives parochial attitudes can help international trade scholars observe the traditions engendering these differing parochial attitudes and their impact on trade. Through a pluralist lens and in borrowing from studies in the social sciences on parochialism, this paper attempts to bring to light a world of "hybrid legal spaces" that adds complexity to the …

Strengthening International Law's Capacity To Govern Through Multilayered Strategic Partnerships, Charlotte Ku

Faculty Scholarship

This article examines the multiple layers at which international law now functions--the international, national, and sub-national. It identifies both public and private institutions and practices that have emerged to carry out international law's normative objectives. It ends with a call to expand the formal structure of international law to include the realities of a disaggregated state, a non-hierarchical system of governance, and a transnational political space.

Keeping Stigma Out Of Administrative Law: An Explanation Of Consistent Beliefs, Roberto Galbiati, Nuno Garoupa

Faculty Scholarship

We provide an interpretation based on consistent beliefs for the widely accepted observation that a criminal conviction generates more stigma than an administrative penalty. Implications for the criminalization of administrative noncompliance are discussed.

China's Future Lawyers: Some Differences In Education And Outlook, Malinda L. Seymore, Patricia Ross Mccubbin, Andrea Curcio, Llewellyn Joseph Gibbons

Faculty Scholarship

The number of Chinese lawyers and law schools is burgeoning as China's legal system undergoes significant substantive changes. Whether in business transactions or in legal disputes about products liability, intellectual property, or any number of other issues, U.S. lawyers in this era of globalization will begin to have more frequent interactions with their Chinese counterparts. Additionally, more and more U.S. law students and professors are involved in international exchanges with Chinese law schools. These growing opportunities for interaction among U.S.- and China-trained legal professionals bring with them unique challenges and opportunities because of cultural, political, and legal system differences.

The …

The Ever-Expanding Health Care Conscience Clause: The Quest For Immunity In The Struggle Between Professional Duties And Moral Beliefs, Maxine M. Harrington

Faculty Scholarship

The role of religion in the delivery of health care, particularly family planning and reproductive health services, has been discussed extensively. The debate over moral refusals in health care appears to be intensifying for a number of reasons. Society has seen the rapid expansion of controversial medical technologies such as embryonic stem cell research, genetic testing, cloning, and in vitro fertilization. Political controversy erupted over the application before the FDA to switch Plan B, an emergency contraceptive, from prescription to nonprescription status. The physician-assisted suicide debate and the Terri Schiavo case brought renewed attention to end-of-life care issues. Finally, the …

Center Of Main Interests, International Insolvency Case Venue, And Equality Of Arms: The Eurofood Decision Of The European Court Of Justice, Samuel Bufford

Faculty Scholarship

This Article examines the Eurofood-E.C.J. decision and evaluates its impact on the decisions of the Irish and the Italian courts to open main insolvency cases for Eurofood. This Article also addresses the broader international insolvency law issues that the E.C.J. decision left open. Part II of this Article provides background information on the format and binding effect of a decision of the E.C.J. Part III explores the background of Parmalat and Eurofood and describes the Eurofood cases in the Irish and Italian courts prior to the E.C.J. decision. Part IV examines the E.C.J. decision, its rationale, and its application to …

Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis

Faculty Scholarship

As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …

Please, Let's Bury The Junk: The Codis Loci And The Revelation Of Private Information, David H. Kaye

Faculty Scholarship

This Northwestern University Law Review Colloquy paper describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases. It then considers the phenotypes and familial relationships that the CODIS STRs can be used to identify. The profiles carry limited information about an individual's race and familial relationships, and the article places the resulting privacy issues in perspective. Finally, the paper comments …