Digital Commons Network^™

A Common Private Law For Europe, Alan Watson

Scholarly Works

A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

Federalism In Environmental Protection, Peter A. Appel

Scholarly Works

In the last seven years, the Supreme Court has decided several cases that potentially alter the balance between the states and the federal government. Although these decisions have generated much controversy, in some ways they only address some important federalism questions at the periphery. Professor Appel examines four areas of environmental law that the recent decisions either only inform or do not address at all: cleanup of hazardous waste sites; the effect of state enforcement actions on citizen enforcement brought under federal environmental laws; the effect of state enforcement actions on federal enforcement actions; and the management of federal lands …

The Writ Of Habeas Corpus, Donald E. Wilkes Jr.

Scholarly Works

A fundamental legal safeguard of freedom and the most important English common law writ, the writ of habeas corpus is a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. The writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law. Whenever imprisonment violates a constitutional or fundamental right, there is an infringement of the right …

The New Jurisprudence Of The Necessary And Proper Clause, J. Randy Beck

Scholarly Works

Several recent Supreme Court decisions evidence reinvigorated principles of federalism and an increased willingness to strike down legislation as beyond the power of Congress. In this article, Professor Beck considers this trend in light of the persistent debate surrounding the implied powers of Congress under the Necessary and Proper Clause. Because the Necessary and Proper Clause represents the outer boundary of congressional authority, consideration of this provision necessarily illuminates discussions of state sovereignty and reserved powers.

The article begins with an historical overview of the Framers' understanding of the Necessary and Proper Clause, leading up to the Supreme Court's decision …

Lawyers And Decisions: A Model Of Practical Judgment, Alexander W. Scherr

Scholarly Works

What do lawyers do, and how do they think in practice? Certainly, lawyers analyze law, and apply it to facts: the law school answer. This article proposes a more fluid notion: that lawyering prompts a mindfulness associated with decision-making, a mindfulness that engages and integrates a number of different capacities. Lawyers engage in a complex and unique thought process that relies only partially on rigorous analysis of legal principle. Lawyers must also integrate non-legal and even non-conceptual realities in considering client decisions. This integration emerges from the lawyer-client relationship and flexes to the demands characteristic of lawyering tasks. Lawyering is …

The United States Of America And The International Criminal Court, Diane Marie Amann, M.N.S. Sellers

Scholarly Works

The United States of America has not ratified the treaty establishing a permanent international criminal court, and it is highly un-likely to do so. This is not simply a question of delay caused by cumbersome ratification procedures; rather, it reflects deep-seated opposition by the U.S. executive branch and by many members of Congress. The United States voted against the Rome Statute of the International Criminal Court when it was adopted on July 17, 1998, at the U.N. Diplomatic Conference of Plenipotentiaries. President William J. Clinton approved signature of the statute on the last day that a state, by signing, could …

Suitability Of Selected Raw Materials And By-Products In Formulated Feeds For Nile Tilapia Oreochromis Niloticus And African Catfish Clarias Gariepinus, Abdel-Wahab A. Abdel-Warith

School of Biological and Marine Sciences Theses

The current status of global aquaculture production was reviewed with a special emphasis on Africa and in particular Egypt. The main species of interest in this study were tilapia Oreochromis niloticus and African catfish Clarias gariepinus which are gaining popularity and are of considerable importance in the market of farmed fish in this continent and of economic relevance to Egypt and other Middle Eastern countries. Research was principally directed to establishing the suitability of specific feed ingredients and materials that could be included in balanced diets for both species. Various animal and plant by-products were selected to evaluate their nutritional …

Developing The Asset Protection Dynamic: A Legacy Of Federal Concern, John K. Eason

Faculty Articles

This article analyzes and critiques the modern asset protection environment, drawing from various paradigms of influence. Particularly, the article considers federal influence over asset protection—proposing that such federal factors need to be investigated with a critical eye in order to comprehensively understand asset protection issues in the modern landscape.

Toward A "New Deal" For Copyright In The Information Age, Pamela Samuelson

Michigan Law Review

Jessica Litman believes the public needs a very good copyright lawyer, and if I have not mistaken her intentions, she is volunteering for the job (pp. 70-73). A century of Congressional deference to industry-negotiated compromises has produced, she argues, a copyright law that is both incomprehensible and unfair. This incomprehensibility might be tolerable if copyright law governed only commercial relations among industry participants, all of whom have copyright counsel. To the extent that copyright law applies to the conduct of ordinary persons, its incomprehensibility presents serious difficulties. Moreover, to the extent that copyright law makes illegal many ordinary activities of …

The Contested Right To Vote, Richard Briffault

Michigan Law Review

For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000 must have been more than a little disconcerting. In the election for our most important public office - our only truly national office - the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot …

Contract Rights And Civil Rights, Davison M. Douglas

Michigan Law Review

Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by …

Marriage And Belonging, Ann Laquer Estin

Michigan Law Review

Marriage is a quintessentially private institution. Justice Douglas put the point this way in 1965, writing for the Supreme Court in Griswold v. Connecticut: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association …

The Electrical Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi

Michigan Law Review

Over the last thirty years, regulators have deregulated just about every regulated industry. In no industry has deregulation raised as much fear and concern as in electric power markets. Even before the Enron debacle, a crisis that is more about the failures of corporate than regulatory law, it was clear that something had gone seriously wrong in the turn towards deregulation of electric power. Recent events in California are illustrative. In early 2000, consumers in California, the first state to deregulate retail power markets on a mass scale, saw repeated months of power interruptions. Many utility customers experienced a risk …

Hemispheric Integration And The Politics Of Regionalism: The Free Trade Area Of The Americas (Ftaa), Christopher M. Bruner

Scholarly Works

This article examines negotiations toward a Free Trade Area of the Americas (FTAA). It seeks to discern what key negotiating parties want out of such an agreement, and the means through which they have sought to achieve their disparate goals.

The United States and Brazil, in particular, have employed complex negotiating strategies in order to gain theupper hand - strategies prompted by a variety of economic and political dynamics at domestic andsubregional levels. These dynamics include the significant pressure exerted on U.S. policy-makers by constituent groups sensitive to globalization's impact on labor and the environment, as well as the challenge …

Transformational Leadership And Moral Discourse In The Workplace And Civil Society, John W. Frank

UNF Graduate Theses and Dissertations

This study was grounded in the theory and practice of transformational leadership, where leaders function as moral agents of change as they facilitate values talk (moral discourse) among their constituents. The study took its cue from Rost's call for a new paradigm for leadership ethics that calls for methods of group moral decision making to assess organizational and social ends. The inquiry sought to better understand how leaders engage others in moral conversation and how such processes influence organizational culture and democratic civil society.

The methodology was qualitative and phenomenological as it was centered on leaders' perceptions of their experiences …

Recent Books, Michigan Law Review

Michigan Law Review

A list of books recenlty received by Michigan Law Review.

Market Orientation, Competitive Strategy Type And Performance In Independent Retail Businesses : A Contingency Analysis In A Market Town Context, Philip Rhys Megicks

Plymouth Business School Theses

In recent years there has been significant interest in the performance of independent retail businesses located in UK market towns as they face up to new patterns of competition and demand. However prior to this study there has been only a very limited understanding of the factors that contribute the success and failure of these individual small businesses. This thesis fills a gap in the literature relating to the performance of these small firms through empirical analysis and the application of management research methods in a contextual setting. Based upon a comprehensive review of relevant literature spanning the boundaries of …

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 …

Patent Settlement Agreements: Preliminary Views, Joseph F. Brodley, Maureen A. O'Rourke

Faculty Scholarship

Settlements between S competitors in patent cases raise important and sensitive antitrust issues. Patent settlement agreements may create or maintain a monopoly in technology or innovation markets and may also effectuate a monopoly or cartel in related goods markets. Indeed, absent the patent rights, certain terms of patent settlement agreements may be per se antitrust violations. Further, anticompetitive patent settlements-unlike most antitrust conspiracies-are enforceable in court, providing the parties with an effective means of preventing the cheating that is the bane of cartels. Thus, the antitrust risk that a settlement agreement may operate as a disguised cartel has long been …

Bulletin 2002-2003, Seattle University School Of Law

Viewbooks

No abstract provided.

Book Review: In The Hands Of The People: The Trial Jury's Origins, Triumphs, Troubles, And Future In American Democracy By William L. Dwyer, Philip A. Talmadge

Seattle University Law Review

The author recommends In The Hands of the People to every high school or college civics instructor as a basic text on America's jury system. In this book, Judge Dwyer traces the history of the jury system in Anglo-American legal history from its earliest inception to its present status in the American justice system.

The Changing Face Of Recognition In International Law: A Case Study Of Tibet, Robert D. Sloane

Faculty Scholarship

The concept of state recognition in public international law has long been mired in a (pejoratively) academic debate between the "declaratory" and "constitutive" schools. This article strives to reappraise and recast recognition through analysis of the history and status of Tibet and its government-in-exile. I argue that, for analytic purposes, we must distinguish three forms of recognition: first, political recognition, the formal acts by which one sovereign recognizes another's claim to statehood or legitimate governance; second, legal recognition, a judgment of recognition based on some set of reasonably objective legal criteria; and third, civil recognition, the force of popular moral …

A State Supreme Court In Transition, James E. Bond, Kelly Kunsch

Seattle University Law Review

This article presents a statistical snapshot of voting patterns within the Washington Supreme Court at the turn of the century and then explores how the changing makeup of the court may affect substantive areas of the law. The Washington Supreme Court is in a state of transition; following the November 2000 elections, only Justice Smith has served more than ten years on the high court. Four of the nine justices are serving their first terms. By looking at the opinions and voting records of both the remaining and departing members of the court, we can make some generalizations about the …

A Closer Look At Good News V. Milford: What Are The Implications? (Stay Tuned) , John E. Dunsford

Seattle University Law Review

This article will examine: (1) whether Lamb's Chapel should control; (2) whether there is a relevant distinction between religious viewpoint and subject matter; (3) whether a forum open to much of the public may be limited to others; (4) whether the presence of prayer and worship should affect the right of a private organization to access public property; and (5) whether such use of public property violates the Establishment Clause.

Smith V. Bates Technical College: Washington Extends The Availability Of The Tort Of Wrongful Discharge In Violation Of Public Policy, But A Little Too Far: Employees Should Still Exhaust Other Remedies, Richard A. Morris

Seattle University Law Review

This Note will present and analyze two significant issues addressed by the Smith court. First, the court properly decided that state common law claims are not preempted by collective bargaining agreements or available administrative procedures. Second, the court incorrectly determined that exhaustion of administrative or contractual remedies is not a prerequisite to seeking tort relief in court. The judiciary should give deference to administrative or contractual procedures specifically designed to resolve the matter in dispute. This Note will analyze the preemption issue by first examining, in Part II, the general function of common law torts, the doctrine of employment-at-will, and …

Zoning Churches: Washington State Constitutional Limitations On The Application Of Land Use Regulations To Religious Buildings, Darren E. Carnell

Seattle University Law Review

This Article traces a path to various land use regulatory approaches that should survive scrutiny under the Washington State Constitution. Part I outlines the legal history of challenges to the application of zoning regulations to church buildings; Part I also describes the contexts in which such disputes presently arise. Part II introduces the Washington State Constitution's provision regarding the free exercise of religion and describes the limited body of case law that has applied this provision in the land use context. Part III considers the role of federal case law in interpreting the free exercise clause of the Washington State …

Alsea Valley Alliance V. Evans And The Meaning Of "Species" Under The Endangered Species Act: A Return To Congressional Intent, Leslie Marshall Lewallen, Russell C. Brooks

Seattle University Law Review

This article examines whether the Alsea decision's definition of species is consistent with the Endangered Species Act by examining the language of the ESA and Congressional intent. This article then examines some of the implications of the Alsea decision in the Northwest. Counting hatchery salmon would likely result in the removal of most salmon ESUs from the endangered or threatened list, ending many of the costly restrictions imposed by the ESA. In particular, Part I discusses the ESA provisions and congressional intent regarding the definition of species that is pertinent to understanding Alsea. Part II describes some of the …

Application Of Patent Law Damages Analysis To Trade Secret Misappropriation Claims: Apportionment, Alternatives, And Other Common Limitations On Damages, Douglas G. Smith

Seattle University Law Review

Part I of this article discusses the case law acknowledging the applicability of patent law precedents in the context of trade secret damage claims. Part II discusses the application of patent law precedents regarding lost profits as a measure of damages. Part III analyzes the applicability of patent law damages principles in the context of unjust enrichment as a measure of damages. Part IV then proceeds to examine how patent law principles are frequently applied in the context of royalty damages. Part V discusses the case law relating to disaggregation and apportionment of damages in the context of patent and …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Discoverability Of "Deleted" E-Mail: Time For A Closer Examination , Michael Marron

Seattle University Law Review

This Comment will argue that the discovery rules presently require disclosure of an unacceptable amount of information. Part II of this Comment will outline some of e-mail's advantages over other communications media to help explain the rapid rise in e-mail use. Part III will then explain, in layman's terms, how e-mail actually works and discuss some of the reasons why e-mail archives are often considered as likely to contain “smoking gun” messages—the kind of evidence that can drastically affect the outcome of a case. But what is it about e-mail that can make it such a potent evidentiary weapon? The …