Law Commons^™

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

All Faculty Scholarship

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged threat to …

The Opinion Volume 44 Issue 4 – December 1, 2005, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated December, 1, 2005

Theorizing Agency, Susan Carle

American University Law Review

Progressive legal scholars today exhibit contrasting views on the scope of legal actors' agency in making "choices" about how to lead their lives. Feminist legal scholar Joan C. Williams, for example, challenges claims that women who leave the paid workforce to stay home with children have made a voluntary choice to take this path. Critical race scholar Ian Haney López, on the other hand, argues that the social construction of racial identity occurs precisely through the many voluntary choices members of both subordinated and dominant racial groups make about matters that implicate racial meanings. Williams contests the idea of voluntary …

The Difference Between Filing Lawsuits And Selling Widgets: The Lost Understanding That Some Attorneys’ Exercise Of State Power Is Subject To Appropriate Regulation, Paul Taylor

The University of New Hampshire Law Review

[Excerpt] "It is often argued that all attorneys practicing in the United States – regardless of the function they perform in the American justice system – are purely private actors working in a free market system. This article examines whether it is true that all attorneys in every instance should be equated, as a matter of public policy, with other private actors.

This article explores why not all attorneys function in a free market, and consequently their remuneration should not always remain unregulated. Attorneys who file lawsuits can, by simply filing a complaint at their unfettered discretion, immediately subject defendants …

Property As Entrance, Eduardo M. Peñalver

Cornell Law Faculty Publications

Memory And Pluralism On A Property Law Frontier, Gregory Alan Hicks

ExpressO

This article explores the limits of legal victory and the problem of legitimacy of legal outcomes. It chronicles the decades-long dispute between Hispano settlers on northern New Mexico’s Sangre de Cristo land grant and the succession of entrepreneur owners of the grant in the last decades of the 19th century and the first decades of the 20th century. The dispute occurred on a legal and cultural frontier defined by the transition from Mexican to U.S. dominion in the years following the end of the Mexican War and by the opening of the region to larger scale economic development at the …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

The Opinion Volume 44 Issue 3 – November 1, 2005, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated November, 1, 2005

The Common Law And The Constitution: John Locke And The Missing Link In Law, Steve Sheppard

Steve Sheppard

Locke's concept of rights influenced the Framers of the Constitution, which has increased the stakes in later interpretation of what Locke’s model of rights entailed. “Lockean rights” now suggests a perfect right unlimitable by the state in the public interest. Such a right is theoretically interesting, but it is not what Locke had in mind, and it was not the model of rights Madison, Jefferson, Hamilton, and other inherited from Locke's Second Treatise.

This paper was an initial reconstruction of Locke's model of a right, locating it within the legal culture of his time and place. His model of what …

To Preserve, Protect, And Defend The Constitution Of The United States, Ronald J. Bacigal

University of Richmond Law Review

No abstract provided.

Tribute To Judge Merhige, Orran L. Brown

University of Richmond Law Review

No abstract provided.

Let Us Now Praise Famous Judges: Exploring The Roles Of Judicial "Intuition" And "Activism" In American Law, Rodney A. Smolla

University of Richmond Law Review

No abstract provided.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham

American University Law Review

No abstract provided.

The Opinion Volume 44 Issue 2 – October 1, 2005, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated October 01, 2005

What Appellate Judges Do, Rick Sims

The Journal of Appellate Practice and Process

No abstract provided.

Preface, David C. Frederick

The Journal of Appellate Practice and Process

No abstract provided.

Avoiding Missteps In The Supreme Court: A Guide To Resources For Counsel, Charles A. Rothfeld

The Journal of Appellate Practice and Process

No abstract provided.

Karen A. Mingst On The U.N. Security Council: From The Cold War To The 21st Century. Edited By David M. Malone. Boulder, Co: Lynne Rienner, 2004. 745pp., Karen A. Mingst

Human Rights & Human Welfare

No abstract provided.

The One That Got Away: Fishery Reserves In Prince Edward Island, Rusty Bittermann, Margaret E. Mccallum

Dalhousie Law Journal

In 1767, the British government divided Prince Edward Island into sixty-seven townships of about 20,000 acres each, and allocated all but one of these to about one hundred people who had some claim on the Crown's munificence. Subsequently, Island governments complained of their disadvantaged state in comparison with other British North American colonies, which could raise revenue by selling rights to Crown land and resources. Their complaints, although not totally unjustified, did not acknowledge the extensive and valuable lands which the Crown retained as fishery reserves. Most of the township grants reserved rights to the first 500 feet of land …

Towards A Basal Tenth Amendment: A Riposte To National Bank Preemption Of State Consumer Protection Laws, Keith R. Fisher

ExpressO

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state’s sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence …

Petitioner's Observations On Canada's Additional Information, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Petitioner's Observations On Canada's Additional Information, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.

Environmental Law In The Supreme Court: Highlights From The Blackmun Papers, Robert V. Percival

Faculty Scholarship

The papers of the late Justice Harry A. Blackmun provide a remarkably rich archive that documents how the Court, for nearly a quarter century, handled environmental cases during a period crucial to the development of environmental law. This Article reviews highlights of what the Blackmun papers reveal about the U.S. Supreme Court’s handling of environmental cases during Justice Blackmun’s service on the Court from 1970 to 1994. The Article first examines what new light the Blackmun papers shed on some of the principal findings of the author’s October 1993 article Environmental Law in the Supreme Court: Highlights from the Marshall …

Adjusting The Rear-View Mirror: Rethinking The Use Of History In Supreme Court Jurisprudence, Mitchell Gordon

ExpressO

No abstract provided.

Who Are The Good Guys? The Legacy Of Watergate And The Tangled Webs We Weave, Jeffrey A. Breinholt

ExpressO

This article examines the astounding revelation that Deep Throat, the anonymous source that brought down the Nixon Presidency, was Mark Felt, the man who ran the FBI during the Watergate Scandal. Was Mark Felt a hero or a villain? Thanks to the recent publication of Bob Woodward’s The Secret Man in combination with historical case law, we now have more historical evidence about what motivated Felt and how he reacted to his own legal misfortunes. This article examines this record and shows that categorizing Felt along the hero/villain continuum is not an easy task, but argues that this type of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The Opinion Volume 44 Issue 1 – September 1, 2005, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated September, 1, 2005

The Semi-Sovereign Corporation, Daniel J.H. Greenwood

ExpressO

For at least a generation, corporate law scholars have worked within a paradigm of the corporation as a nexus of contracts, using metaphors drawn from contract, property, agency and trust to describe the relationships between shareholders and the firm as something like those of strangers in a market.

But historically, corporations were understood to be political organizations much like a miniature state or sovereign. The political view emphasizes that the participants in a firm include more than the public shareholders, that they have relationships with each other that extend beyond the momentary contact of strangers in a spot-market, and most …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.