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2006

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Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald F. Leonard Jan 2006

Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald F. Leonard

Faculty Scholarship

Even after the publication of Larry Kramer's The People Themselves, the early history of judicial review suffers from the unfortunate influence of Sylvia Snowiss's Judicial Review and the Law of the Constitution. Snowiss misread, among other things, James Iredell's foundational argument in 1786 for the inevitability and necessity of judicial review. Snowiss claimed that early understandings of judicial review conceptualized it not as a legal doctrine but as a doctrine of political and revolutionary resistance. In fact, however, Iredell argued for judicial review as a straightforward, legalistic consequence of popular sovereignty. In Iredell's influential account, the transition from the British …

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Intelligent Design And The First Amendment: A Response, Jay D. Wexler Jan 2006

Intelligent Design And The First Amendment: A Response, Jay D. Wexler

Faculty Scholarship

In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my …

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Dna Testing, Banking, And Genetic Privacy, George J. Annas Jan 2006

Dna Testing, Banking, And Genetic Privacy, George J. Annas

Faculty Scholarship

"Who am I?” has always been a fundamental philosophical question that may require decades of reflection to answer. With the advent of DNA analysis, there is a growing public impression that the answer may be found in our genes. Various Internet sites offer descriptions of our ancestral history on the basis of our DNA, as well as testing for specific “disease genes” or general profiles that are used to recommend lifestyle changes, such as foods to be eaten or avoided. Researchers have even suggested that although the scientific evidence is speculative and at best probabilistic, many people will want to …

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Torts And Choice Of Law: Searching For Principles, Keith N. Hylton Jan 2006

Torts And Choice Of Law: Searching For Principles, Keith N. Hylton

Faculty Scholarship

If a tortious act (e.g., negligently firing a rifle) occurs in state X and the harm (e.g., killing a bystander) occurs in state Y, which state's law should apply? This is a simple example of the choice of law problem in torts. The problem arises between states or provinces with different laws within one nation and between different nations. In this article I discuss this problem largely in terms of incentive effects and also consider where this topic might be addressed in a torts course.

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Property Rules And Liability Rules, Once Again, Keith N. Hylton Jan 2006

Property Rules And Liability Rules, Once Again, Keith N. Hylton

Faculty Scholarship

In recent years, new articles presenting rigorous analyses of bargaining incentives have overturned some of the fundamental claims made by Calabresi and Melamed in their seminal article on property rules and liability rules published in 1972. In particular, the proposition that property rules are socially preferable to liability rules when transaction costs are low appears to be either no longer valid or severely weakened under the new analyses. This paper reexamines the property rule versus liability rule question in light of the contributions of the recent bargaining theory literature. In contrast to this literature, I find that the fundamental propositions …

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The Jeffersonian Treaty Clause, Gary S. Lawson, Guy Seidman Jan 2006

The Jeffersonian Treaty Clause, Gary S. Lawson, Guy Seidman

Faculty Scholarship

The Treaty Clause of the federal Constitution declares that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. …

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An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke Jan 2006

An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke

Faculty Scholarship

This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political …

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Family Constitutions And The (New) Constitution Of The Family, Linda C. Mcclain Jan 2006

Family Constitutions And The (New) Constitution Of The Family, Linda C. Mcclain

Faculty Scholarship

This article looks at a topic that has received little attention in the legal literature: constitution making by families. Of what interest is it to constitutional law and family law, and to those interested in the state of the family, that families undertake to draft - and are urged by assorted experts on the family to draft - family constitutions (by analogy to the U.S. constitution) and family mission statements (by analogy to corporate mission statements)? This article contends that this reported trend is a fruitful topic of inquiry, since it bears on important questions about the dynamics of family …

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Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain Jan 2006

Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain

Faculty Scholarship

This essay offers some ABCs for a framework for sex education informed by feminist and liberal principles, in contrast to the conservative sexual economy underlying abstinence-only sex education. It embraces affirmative governmental responsibility to foster sexual and reproductive agency and responsibility and stresses the aims of capacity, equality, and responsibility. An adequate program of sex education should also address how gender role expectations and stereotypes may stand in the way of adolescents developing capacities for responsible self-government and acquiring a sense of personal agency with respect to intimacy and sexuality. The Essay then evaluates such a feminist project in light …

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"God's Created Order", Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain Jan 2006

"God's Created Order", Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain

Faculty Scholarship

Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …

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What The Right Of Publicity Can Learn From Trademark Law, Stacey L. Dogan, Mark A. Lemley Jan 2006

What The Right Of Publicity Can Learn From Trademark Law, Stacey L. Dogan, Mark A. Lemley

Faculty Scholarship

The right of publicity gives people the right to control the use of their name and likeness for commercial purposes. For years, courts have struggled to make sense of two dimensions of this right - what it means to use a name or likeness commercially, and what aspect of a person's likeness are protected against appropriation. In the absence of any clear theoretical foundation for the right of publicity, the meanings of these terms have steadily swelled, to the point at which virtually any use that brings financial benefit to someone by referencing an individual qualifies as a violation of …

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The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk Jan 2006

The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The seminal rulings in 2004 by the International Court of Justice and the Israeli High Court on the legality of the wall/barrier that Israel is building through the occupied West Bank and East Jerusalem provide a study in contrast. While both judgements were critical of the wall/barrier, their judicial approaches and legal conclusions were strikingly divergent, particularly given that the two courts were purporting to rely upon the same principles of international law. The judgements also elicited quite different political and diplomatic reactions, especially among the parties most involved in the Israel/Palestine conflict. This article explores the legal analysis and …

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Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp Jan 2006

Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp

Faculty Scholarship

The objection to citation of foreign law in U.S. Supreme Court decisions is bad history and bad law. First, let me briefly review how the objection has come to prominence recently. On June 26, 2003, the U.S. Supreme Court decided Lawrence v. Texas, striking down a same-sex sodomy statute. Justice Antonin Scalia, in the course of his dissenting opinion, wrote that the majority's citation of foreign law was "meaningless dicta," "[d]angerous dicta."' He added that the majority's opinion was "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

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The Policies Of State Succession: Harmonizing Self-Determination And Global Order In The Twenty-First Century, Robert D. Sloane Jan 2006

The Policies Of State Succession: Harmonizing Self-Determination And Global Order In The Twenty-First Century, Robert D. Sloane

Faculty Scholarship

In State Succession and Commercial Obligations (2006), Tai-Heng Cheng applies the New Haven School methodology to an opaque and unsettled body of international law: that governing the commercial rights and duties of states, creditors, and other participants in the unruly process of state succession. Rather than work within inherited conceptual and doctrinal frameworks, which have seldom proved either helpful or descriptively accurate, Cheng provides a fresh perspective on the issues. He argues that a policy-oriented perspective on state succession ameliorates the "descriptive inaccuracy" and "normative deficit" of inherited theories. Part I of this review considers the former claim; Part II …

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Democracy's Handmaid, Robert L. Tsai Jan 2006

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

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The Aeolian Flux Of Calcium, Chloride And Nitrate To The Mcmurdo Dry Valleys Landscape: Evidence From Snow Pit Analysis, Rebecca A. Witherow, W. Berry Lyons, Nancy A. Bertler, Kathleen A. Welch, Paul A. Mayewski, Sharon B. Sneed, Thomas H. Nylen, Michael J. Handley, Andrew G. Fountain Jan 2006

The Aeolian Flux Of Calcium, Chloride And Nitrate To The Mcmurdo Dry Valleys Landscape: Evidence From Snow Pit Analysis, Rebecca A. Witherow, W. Berry Lyons, Nancy A. Bertler, Kathleen A. Welch, Paul A. Mayewski, Sharon B. Sneed, Thomas H. Nylen, Michael J. Handley, Andrew G. Fountain

Geography Faculty Publications and Presentations

We have determined the flux of calcium, chloride and nitrate to the McMurdo Dry Valleys region by analysing snow pits for their chemical composition and their snow accumulation using multiple records spanning up to 48 years. The fluxes demonstrate patterns related to elevation and proximity to the ocean. In general, there is a strong relationship between the nitrate flux and snow accumulation, indicating that precipitation rates may have a great influence over the nitrogen concentrations in the soils of the valleys. Aeolian dust transport plays an important role in the deposition of some elements (e.g. Caý?) into the McMurdo Dry …

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Respecting And Protecting The Sacred, Darlene Johnston Jan 2006

Respecting And Protecting The Sacred, Darlene Johnston

All Faculty Publications

In Canada, many citizens are justifiably proud of our country’s commitment to multiculturalism and respect for diversity. Cultural variations in language, art, law, and religion are not only tolerated but also celebrated. There is a growing appreciation that as human beings we share common, fundamental categories of experience, but that those experiences are mediated by and need to be understood in terms of our particular cultural contexts. Just as different cultures have different approaches to land and property, so too do traditions of sacredness vary. But respect for such variations, particularly as between Aboriginal peoples and newcomers to Canada, has …

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Educating The Total Jurist?, W. Wesley Pue Jan 2006

Educating The Total Jurist?, W. Wesley Pue

All Faculty Publications

This paper discusses a discontinuity between the ways in which legal education has historically sought to reconstruct the soul of lawyers-in-training and the contemporary conceit that legal education can be value-free. It identifies a gap between early 21st century narrowly technocratic approaches to legal professionalism - epitomized by Enron professionalism and earlier conceptions of lawyering. A desire to instill a moral sensibility in apprentice lawyers weighed heavily in an earlier generation's thinking about legal education everywhere in the common law world, giving rise to the programmes, schemes, and imaginings that provided templates for contemporary university legal training. With surprising consistency, …

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Super Precedent, Michael J. Gerhardt Jan 2006

Super Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.

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Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt Jan 2006

Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt

Faculty Publications

No abstract provided.

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Plagiarism In Cyberspace: Learning The Rules Of Recycling Content With A View Towards Nurturing Academic Trust In An Electronic World, Deborah R. Gerhardt Jan 2006

Plagiarism In Cyberspace: Learning The Rules Of Recycling Content With A View Towards Nurturing Academic Trust In An Electronic World, Deborah R. Gerhardt

Faculty Publications

No abstract provided.

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Bankruptcy Reform And The Costs Of Sickness: Exploring The Intersections, Melissa B. Jacoby Jan 2006

Bankruptcy Reform And The Costs Of Sickness: Exploring The Intersections, Melissa B. Jacoby

Faculty Publications

No abstract provided.

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Beyond Hospital Misbehavior: An Alternative Account Of Medical-Related Financial Distress, Melissa B. Jacoby, Elizabeth Warren Jan 2006

Beyond Hospital Misbehavior: An Alternative Account Of Medical-Related Financial Distress, Melissa B. Jacoby, Elizabeth Warren

Faculty Publications

No abstract provided.

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A Patient-Centered Approach To Health Care Fraud Recovery, Joan H. Krause Jan 2006

A Patient-Centered Approach To Health Care Fraud Recovery, Joan H. Krause

Faculty Publications

No abstract provided.

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Transcending The Individualist Paradigm In Sexual Orientation Antidiscrimination Law, Holning S. Lau Jan 2006

Transcending The Individualist Paradigm In Sexual Orientation Antidiscrimination Law, Holning S. Lau

Faculty Publications

No abstract provided.

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Assessing The Harms Of Noncompliance With The International Covenant On Civil And Political Right's Protections Of Sexual Minorities, Holning S. Lau, The Williams Institute Jan 2006

Assessing The Harms Of Noncompliance With The International Covenant On Civil And Political Right's Protections Of Sexual Minorities, Holning S. Lau, The Williams Institute

Faculty Publications

No abstract provided.

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Impact On Washington State's Budget Of Allowing Same-Sex Couples To Marry, M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, Holning S. Lau, The Williams Institute Jan 2006

Impact On Washington State's Budget Of Allowing Same-Sex Couples To Marry, M.V. Lee Badgett, R. Bradley Sears, Elizabeth Kukura, Holning S. Lau, The Williams Institute

Faculty Publications

No abstract provided.

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Judicial Accountability In A Time Of Legal Realism, William P. Marshall Jan 2006

Judicial Accountability In A Time Of Legal Realism, William P. Marshall

Faculty Publications

No abstract provided.

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Effects Of An External Field And Dissipation On Decoherence, Jian Zuo Jan 2006

Effects Of An External Field And Dissipation On Decoherence, Jian Zuo

LSU Doctoral Dissertations

Decoherence is the suppression of the interference of quantum states. It plays important roles in the study of the quantum-classical transition. It is also the major obstacle in the implementation of various schemes of quantum computers. Decoherence can be affected by many factors. The interactions between quantum systems of interest and dissipative environments cause the extensively studied environment-induced-decoherence. Decoherence can also occur as the result of a temperature effect. A recent experiment investigated the engineering of decoherence, which involves applying an external field to the quantum system. In this thesis, we study the effect of an external field on decoherence …

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Factors That Influence Traditional-Age, High-Achieving Students To Enroll At A Research-Extensive University In The Southern Region Of The United States, Roy Cleveland Brooks, Jr. Jan 2006

Factors That Influence Traditional-Age, High-Achieving Students To Enroll At A Research-Extensive University In The Southern Region Of The United States, Roy Cleveland Brooks, Jr.

LSU Doctoral Dissertations

The primary purpose of this study was to determine if a model existed that significantly increased the researcher's ability to accurately explain the enrollment status of high-achieving freshmen based on the influence of selected demographic and academic characteristics. Since World War II, the need for students to obtain an outstanding postsecondary education in order to compete for the best positions in today's job market has become increasingly important. Thus, the need exists for higher education institutions to offer competitive academic programs that will attract top students and faculty. Since the number of graduating high school students is predicted to decline …

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