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2006

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Foreword: Law, Business, And Economic Development - Current Issues And Age-Old Battles, Eric J. Gouvin Jan 2006

Foreword: Law, Business, And Economic Development - Current Issues And Age-Old Battles, Eric J. Gouvin

Faculty Scholarship

On March 24, 2006, the Western New England College School of Law and School of Business jointly hosted the First Annual Academic Conference sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference capped a year of exciting developments at the Law and Business Center, which is the College's contribution to the entrepreneurship infrastructure in the greater Springfield, Massachusetts area. Economists have understood for some time that small businesses are an important engine of economic development and vitality. Across the United States, 25 million small businesses employ more than half the country's workers, create …

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Survey Says ... A Critical Analysis Of The New Title Ix Policy And A Proposal For Reform, Erin E. Buzuvis Jan 2006

Survey Says ... A Critical Analysis Of The New Title Ix Policy And A Proposal For Reform, Erin E. Buzuvis

Faculty Scholarship

More than thirty years have passed since Congress enacted Title IX, the statute prohibiting sex discrimination by schools, colleges, and universities that receive federal funding. In that time, Congress has confirmed -and reconfirmed- the statute's application to college athletic programs, and the Supreme Court has strengthened the statute's enforcement by construing a private right of action for both injunctive relief and, in certain cases, money damages. Bolstered by these measures, Title IX is duly credited for increasing the number of athletic opportunities for women and girls. But at the college level, female athletes still have far fewer opportunities to participate …

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Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai Jan 2006

Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai

Articles

This Article discusses data sharing in California's stem cell initiative against the background of other data sharing efforts and in light of the competing interests that CIRM is directed to balance. We begin by considering how IP law affects data sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who should have access to the …

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The Law Of Mediation In Texas., L. Wayne Scott Jan 2006

The Law Of Mediation In Texas., L. Wayne Scott

St. Mary's Law Journal

Abstract Forthcoming.

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A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon Jan 2006

A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon

St. Mary's Law Journal

Several Texas Supreme Court Justices have recently criticized Texas’s appellate justice system for its failure to provide consistency and the unfairness it produces, namely how litigants are treated differently despite the identical factual circumstances. Despite the warnings of various Texas Justices, neither the Texas Supreme Court nor the Texas Legislature have done much to rectify the lack of uniform justice received by Texas litigants. Most of the proposals to reform the Texas appellate justice systems’ unfairness have focused exclusively on structural changes. While structural changes could help reduce inconsistent “justice”, these reforms fail to address the main substantive problem—Texas’s weak …

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The Unable To Agree Requirement And Texas Condemnation Law: A Critical Analysis Of Hubenak V. San Jacinto Gas Transmission Co.., B. Tyler Milton Jan 2006

The Unable To Agree Requirement And Texas Condemnation Law: A Critical Analysis Of Hubenak V. San Jacinto Gas Transmission Co.., B. Tyler Milton

St. Mary's Law Journal

In Texas, the state constitution requires adequate compensation as a predicate to a taking of private property for a public use. Though an eminent domain cause of action has both a constitutional and statutory basis, the requirement of adequate or just compensation is premised on principles of natural equity and justice. Texas statutorily mandates that a condemner of land must, prior to the institution of a condemnation proceeding, plead and prove the two parties were “unable to agree” on the corresponding compensation due to the landowner. Texas courts interpreted this requirement in the condemnation statute to compel “good faith negotiations” …

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Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot Jan 2006

Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot

St. Mary's Law Journal

There are constitutional limitations that govern attempts to regulate the teaching of terrorism-encouraging ideologies. According to a 1999-2000 study by the National Center of Education Statistics, there are 152 full-time Islamic schools in the United States, schooling about 19,000 students. The primary concern is not that children will be instructed to immediately engage in terrorist acts, but that the teaching of a radical Islamist ideology will predispose them to join radical Islamist terrorist movements and engage in violence. The Free Exercise Clause and parental rights doctrine, however, might not by themselves bar the state from interfering in private education to …

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Acquiring Separate Property On Credit: A Review And Proposed Revision Of Texas Marital Property Doctrine., James W. Paulsen Jan 2006

Acquiring Separate Property On Credit: A Review And Proposed Revision Of Texas Marital Property Doctrine., James W. Paulsen

St. Mary's Law Journal

The character of property acquired on credit is one of the most vexing in Texas marital property law. The apparent black letter rule is that anything acquired by either spouse on credit during the marriage is community property, unless the creditor agrees at the outset to look only to separate property for repayment. The general rule follows naturally from a core principle of Texas law that everything owned by a married person is presumed community when the basic presumption is combined with the “inception of title” doctrine. In a credit transaction, the borrower acquires some legal right to the loan …

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Restricting Kelo: Will Redefining Blight In Senate Bill 7 Be The Light At The End Of The Tunnel., Adrianne Archer Jan 2006

Restricting Kelo: Will Redefining Blight In Senate Bill 7 Be The Light At The End Of The Tunnel., Adrianne Archer

St. Mary's Law Journal

In Kelo v. City of New London, the United States Supreme Court extended the public use limitation to its most expansive definition yet. The Kelo decision enhanced the Fifth Amendment takings power by allowing the city of New London, Connecticut, to exercise eminent domain power in furtherance of an economic development plan. Notably, the city’s revitalization plan did not include a claim that the area subject to eminent domain was “blighted.” The Fifth Amendment provides that governments may wield the power of eminent domain and take private property for public use but only with just compensation. Generally, private property can …

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Overcorrecting The Purported Problem Of Taking Child Brides In Polygamist Marriages: The Texas Legislature Unconstitutionally Voids All Marriages By Texans Younger Than Sixteen And Criminalizes Parental Consent., Rosanne Piatt Jan 2006

Overcorrecting The Purported Problem Of Taking Child Brides In Polygamist Marriages: The Texas Legislature Unconstitutionally Voids All Marriages By Texans Younger Than Sixteen And Criminalizes Parental Consent., Rosanne Piatt

St. Mary's Law Journal

In the 79th Regular Legislative Session, Texas lawmakers amended and added numerous provisions to both the Texas Family Code and Texas Penal Code relating to the status of marriage. One change was the inclusion in the Family Code of a section voiding a marriage if either party is younger than sixteen years of age. Additionally, legislators included criminal penalties to other laws relating to marriage. Specifically, parents are prohibited from giving consent to the marriages of parties under sixteen, but parents also face third-degree felony charges if they give consent. The legislature voided certain underage marriages in Texas due to …

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Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott Jan 2006

Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott

St. Mary's Law Journal

Because of corporate scandals that shook the business world, legislative, corporate, and public fingers immediately pointed at corporate attorneys for allowing such egregious conduct to occur. In 1983, the American Bar Association (ABA) passed Model Rule 1.13, which promoted the entity theory. Under the entity theory, the organization is the in-house counsel’s only client; and the in-house counsel’s primary duty is to act in the best interest of the organization. Whether the issue is deciding to make an executive compensation disclosure in a proxy statement, taking on a dual role within the organization, acting in compliance with heightened professional responsibility …

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A Radical Proposal For Lifetime Professionalism The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Antonio Alvarado Jan 2006

A Radical Proposal For Lifetime Professionalism The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Antonio Alvarado

St. Mary's Law Journal

Undeniably, the economics of law practice motivates the profession and immerses lawyers into a new professionalism paradigm not fully addressed by existing programs and activities. Linking professionalism to economic concerns might be considered heresy by some, yet now is the time to examine why the economic realities of practicing law sometimes cut short the best aspirations for high standards. Both the American Bar Association (ABA) and the State Bar of Texas focus extensively on questions concerning professionalism in the practice of law. Lawyers face significant economic burdens from several sources, and ironically technology does not always make practice easier. Often, …

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Sentence Modification In Texas: The Plenary Power Of A Trial Court To Alter Its Sentence After Pronouncement Comment., Andrew L. Johnson Jan 2006

Sentence Modification In Texas: The Plenary Power Of A Trial Court To Alter Its Sentence After Pronouncement Comment., Andrew L. Johnson

St. Mary's Law Journal

Post-sentence plenary power of a trial court is not statutorily defined in Texas criminal law, and its boundaries are not fully delineated. The Texas Court of Criminal Appeals recently added to the definition of plenary power in State v. Aguilera. The definition gives state trial courts the power to modify sentences if the modification is made the same day as the initial sentence before the court adjourns and if it is made in the presence of the defendant, his counsel, and counsel for the State. This holding lessens the sentencing pronouncement’s importance; potentially turning sentencing into a day-long affair. Additionally, …

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Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson Jan 2006

Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson

St. Mary's Law Journal

William H. Rehnquist taught for St. Mary’s University School of Law for four summers while serving as the sixteenth Chief Justice of the United States. For two weeks each July in 1991, 1994, 1998, and 2000, Rehnquist lectured on The Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. St. Mary’s has conducted the Institute as an annual five-week summer program at the University of Innsbruck since 1986, with the generous administrative support of that university’s Roman Law Institute. Rehnquist felt welcome in Innsbruck and earned the St. Mary’s …

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Standards Of Review In Texas., W. Wendell Hall Jan 2006

Standards Of Review In Texas., W. Wendell Hall

St. Mary's Law Journal

Abstract Forthcoming.

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Male Rape In U.S. Prisons: Are Conjugal Visits The Answer?, Rachel Wyatt Jan 2006

Male Rape In U.S. Prisons: Are Conjugal Visits The Answer?, Rachel Wyatt

Case Western Reserve Journal of International Law

No abstract provided.

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Building The New World Of Nanotechnology, Michael A. Van Lente Jan 2006

Building The New World Of Nanotechnology, Michael A. Van Lente

Case Western Reserve Journal of International Law

No abstract provided.

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Latin American Experience With Rule Of Law Reforms And Applicability Of Nation Building Efforts, Linn Hammergren Jan 2006

Latin American Experience With Rule Of Law Reforms And Applicability Of Nation Building Efforts, Linn Hammergren

Case Western Reserve Journal of International Law

No abstract provided.

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The Imf's Role In A Post-Conflict Situation, Sean Hagan Jan 2006

The Imf's Role In A Post-Conflict Situation, Sean Hagan

Case Western Reserve Journal of International Law

No abstract provided.

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Life's Golden Tree: Emprcal Scholarship And American Law, Carl E. Schneider, Lee E. Teitelbaum Jan 2006

Life's Golden Tree: Emprcal Scholarship And American Law, Carl E. Schneider, Lee E. Teitelbaum

Utah Law Review

I have tried to let this article reflect the qualities that made Dean Teitelbaum so distinguished in his calling. He was an irresistible teacher, an influential scholar, a solicitous colleague, a superb dean. He succeeded in those things because he turned all his intelligence and energy on them. More, he was attentive to the human beings around him. Not just to his students, colleagues, and staff, but to the people-the individual human beings-who lived under the law he studied. Dean Teitelbaum wrote about theory, but he thought about people.

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The Temporally Extended Family & Self-Control: An Essay For Lee E. Teitelbaum, Manuel A. Utset Jan 2006

The Temporally Extended Family & Self-Control: An Essay For Lee E. Teitelbaum, Manuel A. Utset

Utah Law Review

History could, he thought, help us move away from that version ofreality, and consider detailed questions. "Historical and sociological work may help us consider whether, if divorce was rare, marital breakdown was also rare, and whether acceptance ofthe 'family ideal' entailed the masking ofbehaviors that we now call domestic abuse.,,158 "History from any disciplinary source has a further important function," he said, "as a prophylaxis against nostalgia."159 This Essay on Painter v. Bannister, reading this case as a marker on the shape of the family, does not intend to describe a golden age, but rather to show the simplifications that …

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Children's Rights And The Problem Of Equal Respect, Lee E. Teitelbaum Jan 2006

Children's Rights And The Problem Of Equal Respect, Lee E. Teitelbaum

Utah Law Review

Few areas present more difficult problems than does the definition of the rights of children and parents and the authority of the state regarding their conduct. Conceptualizations and organizations that serve perfectly well in talking about other areas of human rights break down swiftly and badly in this context. The difficulty of applying traditional theory to family relationships led Professor Fried to observe that "[c]ertain moral phenomena are peculiarly elusive,,,l and most other writings in the area would at least implicitly confrrm his assessment of the rights of family members.2 American courts, in particular the Supreme Court, have also recognized …

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Hobgoblin Of Little Minds No More: Justice Requires An Irs Duty Of Consistency, Stephanie Hoffer Jan 2006

Hobgoblin Of Little Minds No More: Justice Requires An Irs Duty Of Consistency, Stephanie Hoffer

Utah Law Review

In the United States, as in no other country, taxes have played a foundational role in the shape and tenor of our government. Often cited as a spark that ignited the American Revolution, Samuel Adams led the Boston Tea Party in response to Britain's Tea Act of 1773, which exempted the East India Company from a tax on tea without providing a similar exemption for colonial merchants. It was a coup for tax consistency. After the Revolution, the perception that citizens of some states bore more of the war's cost than the citizens of other states proved crucial to organization …

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"Peoples Distinct From Others": The Making Of Modem Indian Law, Charles Wilkinson Jan 2006

"Peoples Distinct From Others": The Making Of Modem Indian Law, Charles Wilkinson

Utah Law Review

The story of how tribes have taken back their reservations, and through sovereign self-rule restored democracy and improved the lives of their people, is surprising, both in the means and the magnitude, and it cuts against preconceptions and stereotypes. Overwhelmingly, the central thrust has been the work of Indian people. People in the agencies, courts, and Congress were not sitting around wondering how they could benefit Indians. The tribes themselves initiated litigation or invited it by assertions of tribal sovereignty and jurisdiction and hunting, fishing, water, land and cultural rights. They themselves brought forth the legislative proposals. They constructed the …

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Political Education: An Analysis Of The Policy And Politics Behind Utah's Opposition To No Child Left Behind, Justin Atwater Jan 2006

Political Education: An Analysis Of The Policy And Politics Behind Utah's Opposition To No Child Left Behind, Justin Atwater

Utah Law Review

Today, e-mail is a part of the average person's everyday life. Despite their widespread use, legislatures and courts have not needed to deal in great detail with the disposition and ownership of personal e-mail accounts. This is attributable, in part, to the novelty of e-mail, but is more likely the result of the lag between the advent of e-mail and the death of those that most often use it. With the number of e-mail users increasing, the number of people who die owning e-mail accounts will also increase. As such, the question of what happens to personal e-mail at death …

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Do We Cair About Cooperative Federalism In The Clean Air Act?, Jamie Gibbs Pleune Jan 2006

Do We Cair About Cooperative Federalism In The Clean Air Act?, Jamie Gibbs Pleune

Utah Law Review

On May 12,2005, the Environmental Protection Agency ("EPA") adopted a new regulatory measure called the Clean Air Interstate Rule ("CAIR"),l which imposes a cap-and-trade program on sulfur dioxide (SOz) and nitrous oxide (NOx) emissions from power plants on the East Coast. This Note presents the changes finalized by CAIR and examines their validity under principles of administrative law. I suggest that the EPA abused its authority by interpreting its "statutory jurisdiction, authority or limitations" too broadly-violating the plain language of the Clean Air Ace ("CAA") as a whole, and upsetting the cooperative federalism model envisioned by the CAA. Even if …

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Monopolization, Abuse Of Dominance, And The Indeterminacy Of Economics: The U.S.Ie.U. Divide, Eleanor M. Fox Jan 2006

Monopolization, Abuse Of Dominance, And The Indeterminacy Of Economics: The U.S.Ie.U. Divide, Eleanor M. Fox

Utah Law Review

Article 82 and Section 2 have much congruence. Both the United States and the European Union condemn restraints by dominant firms that harm market competition. Both are committed to applying sound economics. The application of sound economics should steer both systems away from protecting inefficient competitors at the expense of consumers. Protecting inefficiencies is a course that neither jurisdiction wishes to take.

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Microsoft And Trinko: A Tale Of Two Courts, Spencer Weber Waller Jan 2006

Microsoft And Trinko: A Tale Of Two Courts, Spencer Weber Waller

Utah Law Review

Trinko's main defect is its attempt to radically redefine the law of monopolization while purporting to uphold established doctrine. It did far more than it had to and did it badly. Justice Stevens's opinion on standing would have sufficed, and in the alternative, the first few pages of the majority opinion would have sufficed once it found greater certainty in the regulatory provisions of the Telecommunications Act. What follows is an ode to laissez faire that is in stark contrast to everything antitrust has stood for since its inception, regardless of one's opinions about the validity of any particular theory …

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Mission Creep: Antitrust Exemptions And Immunities As Applied To Deregulated Industries, Darren Bush Jan 2006

Mission Creep: Antitrust Exemptions And Immunities As Applied To Deregulated Industries, Darren Bush

Utah Law Review

Traditionally scholars, judges, and practitioners have viewed antitrust and regulation as alternatives.) In the not-too-distant past, certain industries were subject to a traditional mode of regulation that limited the ability of a monopoly service provider to exit, barred competitor entry, and regulated the rates and services offered by the monopoly. An administrative agency would promulgate such regulation under authority derived from federal or state legislation. The agency would confer on the industry the right to some reasonable rate of return and an exclusive right to provide service within its territory in exchange for the provision of service to all comers, …

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Discounts And Exclusions, Herbert Hovenkamp Jan 2006

Discounts And Exclusions, Herbert Hovenkamp

Utah Law Review

The Sherman Act Section 2 law of discounting and bundling today is moving in the right direction. However, decisions such as LePage's in the Third Circuit indicate that the courts have yet to develop a set of concrete, administrable rules that will not deter firms from engaging in aggressive but procompetitive behavior.

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