Law Commons^™

Keeping Up To Date With Ip News Services And Blogs: Drowning In A Sea Of Sameness?, Jon R. Cavicchi

Law Faculty Scholarship

It seems like so many IP related Websites you visit invite you to join their free email list to keep you up to date. Sources span a wide spectrum including governmental organizations, non-governmental organizations, educational institutions, consulting services, law firms, commercial publishers and more. These sources span the spectrum from free, to low fee to premium pricing. With all of this information overload and choices, how do you differentiate and choose news sources?

The goals of this article are twofold. Goal one is to present a survey of types and categories of IP news tools available to IP researchers. Since …

Secondary Sources: Top Ten, Susan Drisko Zago

Law Faculty Scholarship

Secondary sources are a legal researcher's best friend. They are a great place to begin researching a new topic as they provide a framework for understanding the subject. Not only will a good secondary source provide researchers with a way of approaching the topic, but it will also introduce beginning researchers to the language of the subject. Secondary sources also contain expert analysis, references to primary law such as cases, statutes, and regulations, and will also include such other resources as governmental reports, statistics, and other secondary sources. While secondary sources are an incredibly valuable research tool, they can offer …

Researching The Laws Of The Colony Of Rhode Island And Providence Plantations: From Lively Experiment To Statehood, Gail I. Winson

Law Faculty Scholarship

No abstract provided.

Even Judges Don’T Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings, Timothy P. Chinaris

Law Faculty Scholarship

A lawyer charged with a disciplinary violation is in a precarious position. Not only has the lawyer been accused of being "unethical," but he or she faces prosecution by an adversary typically staffed with professional prosecutors who are familiar with the system's often-arcane procedures and backed up by substantial financial resources. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Will such testimony be admitted? Unfortunately for the accused lawyer, the answer is not at all clear. The relatively few jurisdictions that have directly …

More Than The Camel’S Nose: The Sarbanes-Oxley Act As Bad News For Lawyers, Clients, And The Public, Timothy P. Chinaris

Law Faculty Scholarship

Business executives, accountants, lawyers, and the general public have shown great interest in the Sarbanes-Oxley Act ("the Act") that was passed by Congress and signed into law by President George W. Bush in 2002. Designed as securities legislation, the Act reaches into areas of lawyer conduct, and the regulation of that lawyer conduct, that previously were the domain primarily of state supreme courts. Lawyers, law firms, and bar organizations have recognized that the concept of what it means to be an ethical lawyer has been altered by the Act. Related developments spawned by the Act's passage will continue to change …

Justice Brennan's Significant Departure And Warning Of An Evisceration, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Justice Brennan's First Amendment jurisprudence regarding obscenity and the secondary effects doctrine.

Student Expression In The Age Of Columbine: Securing Safety And Protecting First Amendment Rights, David L. Hudson Jr.

Law Faculty Scholarship

"Student Expression in the Age of Columbine" is one in an ongoing series of First Reports, published by the First Amendment Center, on major First Amendment issues of our time.

The Separation Of Powers And The Public Policy Role Of The State Court In A Routine Case, Harold See

Law Faculty Scholarship

Grand questions like those of tyranny and anarchy rarely present themselves in royal attire, but, instead, appear in humble garb. I wish to address the constitutional issue of the separation and balance of powers in our tripartite structure of government, but I will address it in humble dress.

Does Capital Punishment Have A Future? : A Resource Guide For Teachers, David L. Hudson Jr.

Law Faculty Scholarship

The resource guide is intended to help teachers lead students through an exploration of the application of capital punishment in the United States. It offers substantive information about landmark U.S. Supreme Court cases affirming the constitutionality of the dearth penalty, establishing limits for its imposition, and setting legal procedures for judicial review. It explores the philosophical arguments for and against the death penalty, the social context for the death penalty debate, and current international perspectives. Understanding capital punishment and the issues it raises for the American legal system is necessary for students to become fully functioning citizens in a constitutional …

Taxation Without Explanation: The Federal Gift Tax, Jeffrey S. Kinsler

Law Faculty Scholarship

The Federal Gift Tax is designed to implement two competing policies: to tax gifts so as to prevent taxpayers from depleting their estates (and thus evading the estate tax) with tax-free lifetime transfers; but to tax gifts at a rate lower than testamentary transfers so as to encourage taxpayers to circulate wealth during life, thereby stimulating economic growth and income tax revenue. The gift tax has always been carefully crafted to balance these competing interests. That is, until now. The Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA") completely perverted these two policies.' EGTRRA was sold to the …

Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler

Law Faculty Scholarship

For all practical purposes, the Constitution prescribes only one limit on the federal government's power to tax: the Uniformity Clause, which requires that indirect taxes, such as income and excise taxes, be "uniform throughout the United States ... " It is exceedingly rare for a federal tax law to violate the Uniformity Clause. The Internal Revenue Code does not fix different taxes for different states, as Congress has carefully crafted the tax laws to avoid geographical distinctions. Unfortunately, the Internal Revenue Service ("IRS") has not always been so careful. In recent years, the IRS has adopted a practice of applying …

Three Governors: Herman Talmadge, The Georgia Supreme Court And The Gubernatorial Election Of 1946, Lucian E. Dervan

Law Faculty Scholarship

Herman Talmadge, who died March 21, 2002, was a governor, senator, and Georgia icon who controlled state politics for much of the last half of the 20th century. While many events in Talmadge’s life deserve attention, one event in particular stands out amongst the trials and tribulations, victories and scandals in this long American political life. In 1946, the Georgia gubernatorial election brought a state government to its knees, a state Supreme Court to the height of its power and Talmadge into the national spotlight as a revolver toting aspiring governor.

The Evolution Of Iranian Islamism From The Revolution Through The Contemporary Reformers, Jeffrey Omar Usman

Law Faculty Scholarship

This Note explores the evolution and maturation of Iranian Islamism from the revolutionary elites through the contemporary reformers of the 21st century. The Author examines the conflicting ideological influences that are shaping the Islamist movement in Iran. This Note begins by presenting the framework of the fundamental contradictions that underlie Iranian Islamist ideology. The analysis of the Iranian Constitution is divided into an exploration of the institutional role of the clerical elites in the form of the faqih and the Council of Guardians, the constitutionally defined role of women, the democratic elements in the Iranian Constitution, and Marxism and environmentalism …

Reflecting On The Virtual Child Porn Decision, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Ashcroft v. Free Speech Coalition, the so-called virtual child pornography case.

Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.

Law Faculty Scholarship

An examination of Justice Clarence Thomas' jurisprudence regarding commercial speech.

Fear Of Violence In Our Schools: Is ‘Undifferentiated Fear’ In The Age Of Columbine Leading To A Suppression Of Student Speech?, David L. Hudson Jr.

Law Faculty Scholarship

An essay on the suppression of student speech in the age of mass school shootings.

The Courts’ Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, David L. Hudson Jr., John E. Ferguson Jr.

Law Faculty Scholarship

The majority of courts have cited Bethel v. Fraser in such a way as to give public school officials free reign to censor vulgar, lewd, or plainly offensive student speech. Some courts have gone a step further and prohibited student speech that contains offensive ideas. This article seeks to explain how the Fraser decision curtailed student rights recognized in the Supreme Court's last pure student speech case, Tinker v. Des Moines Independent Community School District.

Balancing Act : Public Employees And Free Speech, David L. Hudson Jr.

Law Faculty Scholarship

More than 20 million Americans work for federal, state or local governments. Sometimes these employees are disciplined for speaking out against government corruption, belonging to a particular political party, criticizing agency policy or engaging in private conduct of which the employer disapproves. Granted, government employers need some leeway when dealing with their employees. After all, the primary function of a government agency is to provide efficient services to the public, and if a government employer were second-guessed every time it disciplined a public employee, services could grind to a halt. On the other hand, such employers do not have unfettered …

Using A Civil Procedure Exam Question To Teach Persuasion, Sophie M. Sparrow

Law Faculty Scholarship

Studies show that learners master new material more effectively when it builds upon what they already know. By revisiting assignments from a previous semester, students can focus their efforts on persuading, rather than learning new doctrine or facts. Turning a predictive discussion into a persuasive argument demonstrates that making an argument requires the same rigorous thinking as predicting a result. One way to do this is to assign students to write an argument based on their fall Civil Procedure exam.

Selected Conceptions Of Federalism: The Selective Use Of History In The Supreme Court's States' Rights Opinions, Lucian E. Dervan

Law Faculty Scholarship

In the period leading to the Civil War, debate over federalism and states’ rights developed into the seeds of a war that would forever change America. Over one hundred years later, the debate over federalism continues, unanswered by the blood of more than half a million soldiers. Over the last decade, the United States Supreme Court has increased state sovereignty and state immunity to levels unseen since the pre-Civil War period. The Court’s opinions are structured in a manner that relies significantly on historical methodologies. The multiple rationales used to structure the Justices’ arguments clash, and the Justices spar with …

Joseph Mccarthy, The Law Student, Jeffrey S. Kinsler

Law Faculty Scholarship

Much is known about Joseph McCarthy, the United States Senator. A fair amount is also known about Joseph McCarthy, the lawyer and Circuit Court Judge; particularly in his home state of Wisconsin. Not much is known, however, about Joe McCarthy, the law student. This is unfortunate because, arguably, many of the traits that catapulted McCarthy to the top and bottom of American politics were first exhibited in law school. It is a safe bet that very few of the current students at Marquette University Law School (MULS) are even aware that Joe McCarthy is an alumnus (LL.B., 1935) of the …

The Lsat Myth, Jeffrey S. Kinsler

Law Faculty Scholarship

Predicting which students will perform well in law school may seem like an impossible task, but law schools endeavor to do so everyday, and the primary tool they use to make such predictions is the Law School Admission Test (LSAT), a standardized, 101-question multiple-choice examination. This article explores whether the LSAT warrants such prominence. Using statistical and anecdotal evidence, this article analyzes recent graduates of Marquette University Law School (MULS) to ascertain whether: (1) the LSAT is a valid predictor of three-year performance in law school; (2) the LSAT is a better predictor of law school performance than the UGPA …

The New Face Of Creationism: The Establishment Clause And The Latest Efforts To Suppress Evolution In Public Schools, Deborah R. Farringer

Law Faculty Scholarship

If America wants to stay at the forefront of scientific study and remain competitive with other nations, its students must be taught scientific principles that are generally applied in the global scientific community. Thus, the implications involved in the latest battles over God and science extend beyond whether to teach controversial subjects, and could have a significant effect on the future of American schools. These problems warrant the development of a new test, or new legal analysis, that will enable the Court to deal with this latest chapter in the heated evolution and creationism debate. This Note examines the evidentiary …

Censorship Of Student Internet Speech: The Effect Of Diminishing Student Rights, Fear Of The Internet And Columbine, David L. Hudson Jr.

Law Faculty Scholarship

Analysis and examination of the case law of student Internet website speech created off campus.

Florida Professional Responsibility In 1999: The Rules Of The Game, Timothy P. Chinaris, Elizabeth Clark Tarbert

Law Faculty Scholarship

The year 1999 saw a number of changes and developments in Florida professional responsibility law. This article surveys these developments by reviewing: 1) relevant reported cases; 2) ethics opinions; 3) rules changes; and 4) disciplinary actions affecting lawyers and the practice of law in the Sunshine State. These authorities are examined in the context of the various relationships upon which a lawyer's professional life is built and within which the lawyer typically operates.

Professional Responsibility: 1998 Survey Of Florida Law, Timothy P. Chinaris, Elizabeth Clark Tarbert

Law Faculty Scholarship

Continuing a trend, 1998 included a number of important developments in the area of professional responsibility law in Florida. Significant appellate court decisions, rule changes, and disciplinary actions potentially affect the practices of more than 58,000 members of The Florida Bar. This article reports and summarizes those developments by placing them in the framework of the various relationships in which lawyers typically operate. Part II looks at decisions affecting what must be viewed as the central relationship in this context: the relationship between lawyer and client. Part III examines developments pertaining to what may be the dominant relationship: the lawyer's …

Professional Responsibility: 1997 Survey Of Florida Law, Timothy P. Chinaris, Elizabeth Clark Tarbert

Law Faculty Scholarship

Professional responsibility law in Florida continued to expand in 1997. Case law, rules, and ethics opinions amplified and, in some areas, extended the duties that lawyers assume as officers of the judicial branch of government. This article examines professional responsibility decisions that are likely to affect the relationships that lawyers have with clients, former clients, judges, third parties, and The Florida Bar. Part II looks at developments affecting the most important relationship that lawyers establish and operate within: the relationship between lawyer and client. Part III reviews developments of significance to the lawyer's relationship to the court and the judicial …

A Comparative Proposal To Reform The United States Gift Tax Annual Exclusion, Jeffrey S. Kinsler

Law Faculty Scholarship

This Article analyzes the U.S. gift tax annual exclusion, the main exemption to U.S. gift tax laws. The Article develops the history and purpose of the gift tax annual exclusion to demonstrate that the current system does not accomplish its original purposes. The Article concludes that reform is needed and proposes legislation to simplify the gift tax laws and create a more equitable gift tax law system. The Article uses the gift tax laws of New Zealand, the United Kingdom, Japan, and the Netherlands as models for U.S. gift tax reform legislation.

The Secondary Effects Doctrine: 'The Evisceration Of First Amendment Freedoms', David L. Hudson Jr.

Law Faculty Scholarship

An analysis of First Amendment Jurisprudence and the Secondary Effects Doctrine.

Professional Responsibility: 1996 Survey Of Florida Law, Timothy P. Chinaris

Law Faculty Scholarship

The prudent practitioner will note a number of changes, some of them quite substantial, to Florida's professional responsibility landscape in 1996. Courts and ethics committees rendered decisions affecting obligations that Florida lawyers assume as they interact with prospective clients, clients, judges, other lawyers, nonlawyer assistants, third parties, and disciplinary authorities. This article examines significant cases and ethics opinions in the context of the different roles which lawyers assume during the course of their relationships with these individuals and entities. Part II explores the traditional role of the lawyer as a zealous advocate for the client. This section reviews developments of …