Law Commons^™

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Paul M. Schwartz

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

Jurisdiction Revisited: The Inherent Supervisory Power Of The Courts To Review Administrative Decisions - The Case Of R (Ignaoua) V Sshd [2013] Ewca Civ 1498, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The Court of Appeal handed down its decision in R (Ignaoua) v SSHD on 21 November. Ignaoua emphasizes that Parliament does not purport to remove the court’s jurisdiction to entertain judicial review proceedings under Section 15 of the Justice and Security Act 2013. This paper argues that the provisions in both the primary and secondary legislation in Ignaoua are clear enough to convey Parliament’s intention to give the Home Secretary the power to terminate judicial review proceedings or appeal from judicial review proceedings relating to a direction to exclude a foreign national from the United Kingdom. However, the Court of …

Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones

Brian Christopher Jones

This past summer saw the U.S. Supreme Court’s landmark decision in United States v. Windsor, and while the case has generated copious amounts of commentary and scholarship, relatively little attention has been paid to the case’s discussion of bill short titles. Central to the case’s analysis was a dispute over the role of short titles in inferring legislative purpose, and given this dispute, this Remark will argue that it’s time for a Congressional bill naming authority to ensure sensible, descriptive bill names.

Preemption By Fiat: The Department Of Labor's Usurpation Of Power Over Noncitizen Workers' Right To Unemployment Benefits, Irene Scharf

Irene Scharf

This Article starts with the premise that the right to unemployment insurance benefits is a property right protected by the Fifth and Fourteenth Amendments to the United States Constitution, which apply to noncitizen unemployment applicants as well as to United States citizens. Given this assumption, certain actions being taken by the United States Department of Labor ("DOL") violate both procedural and substantive due process as well as the Administrative Procedure Act ("APA"). The challenged actions involve the DOL's issuance of internally-created missives, termed Unemployment Insurance Program Letters ("Program Letters"), that purport to interpret the meaning of a requirement under federal …

Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf

Irene Scharf

This Article explores the long and faltering history of attempts to impose liability on tobacco product manufactures. Part II traces the manufacturers' historical and current actions of targeting youth through both promotions and deceptive advertising. Part III argues in favor of an expanded cause of action against the manufacturers for the intentional tort of battery. Part IV discusses the prospect of awards of punitive damages in these cases, and the Epilogue summarizes other advantages of the battery cause of action.

Corrections Day, John Copeland Nagle

John Copeland Nagle

In July 1995, the House of Representatives established a Corrections Day procedure for fixing statutory mistakes. This article traces the history of the corrections day idea, beginning with suggestions offered by Justices Cardozo and Ginsburg many years apart. The article also recounts the early applications of Correction Day by the House. This article describes the problem of statutory mistakes: what they are, and who makes them. It explains that statutory mistakes do exist, regardless of how one defines mistake. Congress, agencies, and the courts all make mistakes, though the responsibility for them ultimately resides with Congress, the author of the …

What Is This "Lobbying" That We Are So Worried About?, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

Lobbying is both an essential part of our democratic process and a source of some of our greatest fears about dangers to that process. Yet when Congress, the public, and scholars consider loosening or, as is more often the case, tightening the restrictions on lobbying, they usually assume that everyone knows what activities are in fact lobbying. They therefore overlook the fact that multiple definitions of lobbying currently exist in the various federal laws addressing lobbying. This Article seeks to fill this gap by answering the question of how lobbying should be defined for purposes of the existing federal laws …

Lawmaking By Public Welfare Professionals, Gerald Jogerst, Jeanette Daly, Jeffrey Dawson, Gretchen Schmuch, Margaret F. Brinig

Margaret F Brinig

No abstract provided.

Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Brennan

Patrick McKinley Brennan

This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Robert Bloom

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Dodd-Frank Act And Remittances To Post-Conflict Countries:, Raymond Natter

Raymond Natter

The Dodd-Frank Act established a new Federal framework for the regulation of international remittance payments that originate in the U.S. However, the statute and implementing regulations may have the unintended consequence of disrupting the flow of remittance funds to post-conflict nations. Recent revisions to the regulations have made significant improvements, but additional work is still necessary

Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings

Brett W Hastings

The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, dubbed the Sebelius Theory. The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the …

Faculty Colloquia, Spring 2010 Series, Royce Barondes, Kimberle Crenshaw, Chris Elmendorf, Michael Kang, Oliver Moreteau, Deborah Pearlstein, Richard Peltz, Nirej Sekhon, Stephanie Stern, Lee-Ford Tritt, Michael Zimmer

Lee-ford Tritt

Spring 2010 Presenters January 25: Royce Barondes (University of Missouri School of Law), ABA Ratings of Federal District Court Judges and the Likelihood of a Shepard’s Warning Signal February 1: Stephanie Stern (Loyola University Chicago School of Law), The Inviolable Home: From Iconic Property to Relational Privacy in the Fourth Amendment February 8: Michael Kang (Emory University School of Law), Sore Loser Laws February 15: Oliver Moreteau (LSU Paul M. Hebert Law Center), The Future of Civil Codes in Europe February 22: Deborah Pearlstein (Princeton University Woodrow Wilson School for Public and International Affairs), After Deference: Formal Approaches to Interpretation …

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Comentarios En Torno Al Ámbito Subjetivo Del Nuevo Estatuto Del Consumidor En Colombia, Entre La Técnica Y La Idoneidad (Comments About The Subjective Scope Of The New Consumer Protection Act In Colombia, Between The Technique And The Suitability), Jesús A. Soto

Jesús Alfonso Soto Pineda

El artículo analiza la intencionalidad adherida al acto de consumo y el elemento subjetivo de la relación, con el objetivo de determinar el ámbito de aplicabilidad del Estatuto del consumidor en Colombia, Ley 1480 de 2011. Identificando un compendio de caracteres que reducen la aplicación de la norma de acuerdo al objetivo privado perseguido por las partes con la celebración de un acto. Evaluando igualmente la relación que ahora parece existir, –gracias al texto adherido al Estatuto– entre las normas de consumo y el ejercicio de profesiones liberales.

The article analyses the motives attached to the act of consumption and …

Don’T Be Silly: Lawmakers “Rarely” Read Legislation And Oftentimes Don’T Understand It . . . But That’S Okay, Brian Christopher Jones

Brian Christopher Jones

During the debate over the Patient Protection and Affordable Care Act ("Obamacare"), the reading and understanding of legislation became one of the most controversial issues mentioned in Congress and throughout the media. This led many to state that lawmakers should “read the bill,” and led one academic to propose a read-the-bill rule for Congress, where legislators would not vote or vote “no” if they had not read the full text of the legislation. My essay argues that in contemporary legislatures such proposals are unfeasible, and would ultimately produce lower quality legislation. In doing so, the piece uses interviews with legislative …

Integrating Public Choice And Public Law: A Reply To Debow And Lee, Daniel A. Farber, Philip P. Frickey

Daniel A Farber

No abstract provided.

The Application Of The Endangered Species Act To The Protection Of Freshwater Mussels: A Case Study, Eric Biber

Eric Biber

The success or failure of the 1973 Endangered Species Act in protecting freshwater mussels, which constitute a substantial portion of the species listed as threatened or endangered in the US, is examined. Current human threats to the survival of mussel species are reviewed, as are tools provided by the Act that might be used to protect and restore them. While the Act has prevented the extinction of most species of freshwater mussels, many remain critically endangered and declining. The inability of the statute to provide for freshwater mussel species recovery is attributed to the near-impossibility of recovering a species after …

Bargaining In The Shadow Of Social Institutions: Competing Discourses And Social Change In Workplace Mobilization Of Civil Rights, Catherine R. Albiston

Catherine R. Albiston

The Family and Medical Leave Act requires employers to provide job-protected leave, but little is known about how these leave rights operate in practice or how they interact with other normative systems to construct the meaning of leave. Drawing on interviews with workers who negotiated contested leaves, this study examines how social institutions influence workplace mobilization of these rights. I find that leave rights remain embedded within institutionalized conceptions of work, gender, and disability that shape workers' perceptions, preferences, and choices about mobilizing their rights. I also find, however, that workers can draw on law as a culture discourse to …

The Rule Of Law And The Litigation Process: The Paradox Of Losing By Winning, Catherine Albiston

Catherine R. Albiston

This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their …

Scaled Legislation & The Legal History Of The Common Good, Jill M. Fraley

Jill M. Fraley

None available.

Federalism And Fiduciaries: A New Framework For Protecting State Benefit Funds, Richard E. Mendales

Richard E. Mendales

The financial crisis has underlined difficulties faced by states and their subdivisions in paying benefits to their employees. The most spectacular example is Detroit's bankruptcy, but state and local employers across the country face sharp cuts in benefits as their employers fight for solvency. A federal solution such as ERISA is precluded by considerations of federalism and the impracticability of getting major legislation through Congress. This Article proposes an alternative solution: a uniform state code, following other uniform state laws such as the Uniform Commercial Code, that states could adopt to govern both state and local plans. It would finance …

Personalized Bills As Commemorations: A Problem For House Rules?, Brian Christopher Jones

Brian Christopher Jones

The proliferation of personalized bills in Congress has occurred despite a prohibition on commemorations in the House of Representatives. This Essay provides a close examination of the wording behind the ban, especially the definition of “commemoration.” It uses examples from the Adam Walsh Child Protection and Safety Act of 2006 and other statutes to demonstrate how many contemporary personalized bills fall underneath the prohibition, and therefore should not be introduced or considered in the House.

Public Assistance, Drug Testing And The Law: The Limits Of Population-Based Legal Analysis, Candice Player

Candice T Player

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still population-based analysis is not without its problems. At times Parmet claims too much territory for the population-perspective. Moreover Parmet urges courts to recognize …

Assessing The Strength Of The Rule Of Law In New Zealand, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

The rule of law is fundamental to New Zealand’s legal system but its content is inadequately understood and observed. This paper calls for the rule of law in New Zealand to be clarified, strengthened and applied. The article offers an essentialised conception of the rule of law that might cross ideological divides and assesses recent Acts of Parliament against that conception. Finally, the article comments on the place of the rule of law in New Zealand’s constitutional culture and calls for its strengthening by establishment of an independent means of assessing draft legislation for consistency with the rule of law.

The Dangerousness Of The Status Quo: A Case For Modernizing Civil Commitment Law, Daniel A. Moon

Daniel C Moon

The states, private healthcare organizations, and those with psychiatric disorders are poorly served by the vague “dangerousness” standard endorsed by the United States Supreme Court in O’Connor v. Donaldson, as well as the state statutes that adhere to the high bar set in its holding. This paper explores involuntary civil commitment from a variety of perspectives in order to highlight these issues and to identify where improvements can be made. Specifically, this article proposes that the American Law Institute or the American Bar Association promulgate model rules intended to correct the system’s shortcomings and protect the various interested parties.

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …