Law Commons^™

Security Interests, Repossessed Collateral And Turnover Of Property To The Bankruptcy Estate, Stephen Ware

Stephen Ware

Property is generally understood in two ways. Most people think of property as a thing that is owned by someone. By contrast, lawyers and other specialists understand property as rights against people with respect to things.

This duality in our understanding of property can cause confusion when lawmakers mix the colloquial understanding of property as thing-ownership with the specialist's understanding of property as a bundle of rights. Such mixing seems to have occurred in the law governing security interests in bankruptcy. As a result, courts are split on a frequently recurring issue: must a secured creditor who, at the time …

Consumer And Employment Arbitration Law In Comparative Perspective: The Importance Of The Civil Jury, Stephen Ware

Stephen Ware

Much of what makes civil litigation in the United States materially different from civil litigation elsewhere in the world can plausibly be traced back to the jury. By contrast, enforcement of consumer and employment arbitration agreements affects only a few categories of cases and, within those categories, affects only those cases in which an enforceable arbitration agreement has been formed. The civil jury is a mountain; enforcement of consumer and employment arbitration agreements is a molehill. Those who value uniformity across nations and seek to bring U.S. law into the international mainstream should be far more troubled by the civil …

Domain-Name Arbitration In The Arbitration-Law Context: Consent To, And Fairness In, The Udrp, Stephen Ware

Stephen Ware

In this Article, Professor Ware surveys many of the arbitration systems that have been attacked for lacking consent or fairness. The Article begins by introducing the domain-name arbitration system and summarizing the charges that it lacks consent or fairness. This Article asserts, however, that research reveals no sustained critique that domain-name arbitration lacks consent. The Article next provides what may be the first sustained analysis of consent issues in domain-name arbitration. Professor Ware concludes the article by placing domain-name arbitration in the context of arbitration generally, and, within that context, assesses the fairness of domain-name arbitration.

O Princípio Da Eficiência E O Software Livre, Ivo T. Gico

Ivo Teixeira Gico Jr.

O presente artigo visa a incitar o debate acerca da adoção do software livre pela Administração Pública em respeito ao princípio da efetividade, inscrito no art. 37 da Constituição Federal.

This article goal is to encourage discussion about the adoption of free software by the government regarding the principle of effectiveness included in Art. 37 of the Federal Constitution.

Zoning, Taking, & Dealing: The Problems And Promise Of Bargaining In Land Use Planning, Erin Ryan

Erin Ryan

Municipal land use bargaining may imply as many problems as it heralds promise, but it is widely acknowleged as the universal language of land use planning. Planners and scholars agree that public-private negotiation plays a central role in the vast majority of local land use decision-making. At least in part, this is a result of the peculiar attributes of the resource at issue. Land is, perhaps, the ultimate nonfungible. Each parcel of land possesses unique characteristics not only in its physical attributes, but also by virtue of its location, and its proximity to other unique parcels. Moreover, land uses implicate …

The Gramm-Leach-Bliley Act, Jolina C. Cuaresma

Jolina C. Cuaresma

Has The Supreme Court Sounded The Death Knell For Jury Assessed Punitive Damages? A Critical Re-Examination Of The American Jury, Lisa Litwiller

Lisa Litwiller

LAST TERM, the United States Supreme Court drastically altered the balance of power between judge and jury, and the legal community barely noticed. Although Cooper Industries, Inc. v. Leatherman Tool Group, Inc. is remarkable for what it does overtly - it changes the standard of review in punitive damages cases from an abuse of discretion review to de novo review; it is even more remarkable for what it does covertly - it arguably takes the right to assess punitive damages in the first instance entirely out of the hands of the jury. According to the Court, [u]nlike the measure of …

Revisiting The Balkan Crisis: A Un Question; The European Connection And The Us Solution, Jackson N. Maogoto

Jackson Nyamuya Maogoto

This Article examines the conflict in the former Yugoslavia which gave birth to the International Criminal Tribunal for the former Yugoslavia (ICTFY). The ICTFY established the beginning of a new pattern in the genuine international implementation of international criminal and humanitarian law and the move back to the international model inaugurated at Nuremberg which had in the Cold War era been boldly supplanted by national prosecutions. The Article seeks to show that even this ad hoc tribunal was the by-product of international realpolitik. It was born out of a political desire to redeem the international community’s conscience rather than the …

The Contract Law Codification Process In Europe: Policies, Targets And Time Dimensions, Mauro Bussani

Mauro Bussani

The contribution aims to address the issues implied by the following questions: (a) What is the contract law to be codified? (b) What is the possible impact of a European contract law codification upon the other private law fields? (c) Which are the driving forces behind and ahead of the European codification process? The paper approaches these problems by focusing on the fragmentation in different layers of European contract law within and across national frontiers, and on the bearing that this ‘stratification’ may have on the choice of adopting a code with either a ‘regional’ or a world-wide scope. Moreover, …

Lessons From The Lindh Case: Public Safety And The Fifth Amendment, M. Katherine B. Darmer

M. Katherine B. Darmer

In the case of the American Taliban, a plea agreement enabled the courts to avoid deciding difficult questions about the legality of Lindh's confession to authorities, which Lindh argued was made in violation of his Miranda and other rights. This paper points out that questions regarding the legality of interrogation techniques in terrorism investigations will inevitably recur, and argues that there should be a public safety exception to the Edwards rule that normally requres interrogation to cease if a suspect invokes his right to counsel.

Aggression: Supreme International Offence Still In Search Of Definition, Jackson N. Maogoto

Jackson Nyamuya Maogoto

The consequence of the state of lawlessness that permitted States to wage war even on flimsy reasons was not fully appreciated until World War I when primitive barbarism and modern technology came together to result in enormous bloodshed and massive atrocities. The deep impression on public opinion opened the door to vigorous condemnation of aggression and a move at the international level to outlaw it. Though aggression continues to pose one of the greatest threats in the efforts to create a peaceful and stable world public order, the definition of aggression steeped as it is in political and legal quagmire …