Law Commons^™

Reviving The Rhetoric Of The Public Interest: Choir Directors, Copy Machines, And New Arrangements Of Public Domain Music, Paul J. Heald

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The decision to photocopy or not to photocopy has significant consequences for the music consumer's pocketbook. Photocopies cost around three cents per page, while an original printed version of a choral work costs about thirty cents per page. The expense of buying rather than copying public domain sheet music is directly absorbed by the taxpayers who fund music education in public schools, the church congregations who must raise money for the church music budget, and the patrons of the fine arts who finance music ensembles with their admission fees or donations.

To recognize the high cost of sheet music is …

Equitable Recoupment: Revisiting An Old And Inconsistent Remedy, Camilla E. Watson

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This Article examines the development of recoupment by first comparing and contrasting other equitable remedies. Because discussions of related equitable remedies have filled tomes in themselves, this Article concentrates only on the more salient aspects of these remedies as they pertain to the development of recoupment in the federal tax context. Next, the established elements of recoupment will be discussed in depth, with particular emphasis on the views of Professor Andrews. The Article questions whether Professor Andrews's views represent the most effective analysis of the recoupment criteria in light of the judicial inconsistencies.

In discussing the ineffectiveness of recoupment as …

Should Students Have Constitutional Rights? Keeping Order In The Public Schools, Anne Proffitt Dupre

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This Article focuses on how the Supreme Court's conception of the public school as either an institution of social reproduction or reconstruction, a conflict Professor Dupre maintains is deeply rooted in intellectual history, has affected the power that public schools have been afforded in matters of discipline and order. Professor Dupre argues that the Court -- by allowing the reconstruction model to influence its opinion for almost thirty years -- paved the way for the decline in school order and educational quality. Although Professor Dupre contends that the Court's recent repudiation of the reconstruction model in Vernonia School District 47J …

Roman Slave Law: An Anglo-American Perspective, Alan Watson

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When one looks at Roman slave law from an Anglo-American perspective, what is striking is the apparent disinterest or lack of concern in the subject on the part of the state and the corresponding freedom of action allowed to slave owners. My claim is not that there was little law--indeed there was a great deal--but that the state did not get overly involved in laying down what owners could do with their slaves. For instance, though law decreed the methods by which slaves could be freed, the state imposed very few restrictions on manumission. This is all the more striking …

The Proposed Corporate Sponsorship Regulations: Is The Treasury Department "Sleeping With The Enemy"?, David A. Brennen

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Part II of this article will outline the historical development of this so-called unrelated business income tax on charities. Part III will show, in detail, how the Treasury's position in the proposed regulation represents a sharp departure from its pre-1993 interpretations regarding the status of sponsorship payments and posit possible reasons for the change. Part IV shows that the Treasury's “new” position on sponsorship payments, while an example of poor policy-making in light of the historical development of the unrelated business income tax, is legally defensible. Finally, part V suggests that the Treasury, in light of the policy concerns, should …

Copyright And Free Speech Rights, L. Ray Patterson, Stanley F. Birch, Jr.

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By letter of 1 March 1993, the Copyright Compliance Office of the Association of American Publishers (AAP) informed a copyshop that it had “without prior permission, made multiple copies of excerpts of copyrighted works for distribution to students in course anthologies.” Stating that this copying was an infringement of copyright, the letter requested the copyshop to sign an enclosed agreement stating it would not commit such acts again and to pay a penalty of “$2,500 to help defray the costs of the AAP's copyright enforcement program in this matter and to impress on your business the need to operate in …

Introduction To Law For Second-Year Students?, Alan Watson

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The casebook method of teaching is, in fact, an exercise in futility. It is the students themselves who are expected to build up a picture of law from the few generally disconnected scraps available to them and with virtually no tools. Students are left to guess what the editors' view of the law is rather than getting to what the law is all about. Instead of looking at the reasoning of a case in the light of the developed conceptual thought that preceded it, and of its place in a structured web of reasoned principle, they are provided in the …

The New Dimensions Of United Nations Peacemaking, Louis B. Sohn

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Since its beginning, mankind has alternated between periods of peace and war. The Twentieth Century was the first one in which attempts were made to outlaw war and to establish institutions which would protect the peoples of the world against war. After the carnage of the Second World War, the United Nations was established "to save succeeding generations from the scourge of war," and the Security Council was given the "primary responsibility for the maintenance of international peace and security." The founders of the United Nations tried to ensure that the Council would have necessary means for discharging this responsibility, …

The Role Of The United Nations In The Maintenance Of Peace Before And After The Year Two Thousand, Gabriel M. Wilner

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This short description of some of the important ideas set forth in the various contributions to the Colloquium is meant to give the reader an idea of the broad spectrum of issues and problems with which the international community is confronted both in continuing to use the present structure and competence of the Security Council and in making reforms. While the General Assembly and other organs of the United Nations and of regional and national institutions are mentioned as useful in the struggle to maintain world peace, it is clear that the Security Council will continue to dominate the work …

The Ongoing Role Of Alternative Dispute Resolution In Federal Government Litigation, Peter R. Steenland, Jr., Peter A. Appel

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This essay demonstrates that within appropriate guidelines, ADR has an important and growing role in the conduct of government litigation. To the extent that ADR can help the government save resources, this alone is of considerable public interest. More importantly ADR can help the government settle entire disputes rather than those pieces of disputes that become litigation events. ADR also involves the parties more directly in shaping the resolution of a dispute, and can often provide a result that is beyond the capacity of a court to provide. Because of the direct participation by the parties in mediation processes, ADR …

The Standard Of Review For The Voluntariness Of A Confession On Direct Appeal In Federal Court, Peter B. Rutledge

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Section I of this Comment reviews the Supreme Court's jurisprudence on confessions, provides a close reading of Miller v. Finton, 474 U.S. 104 (1985), and reviews the division among the federal circuits over the standard of review for voluntariness determinations on direct appeal. Section II analyzes the literature on standards of review and focuses on two vexing problems in this field-the application of law to fact (hereinafter "mixed questions") and the constitutional fact doctrine. These two issues frame the analysis of voluntariness determinations. Section III analyzes these determinations and defends the application of de novo review in cases on …

Commerce Clause Restraints On State Business Development Incentives, Walter Hellerstein, Dan T. Coenen

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In this Article, we explore the ill-defined distinction between the constitutional carrot and the unconstitutional stick in state tax, subsidy, and related cases. Part I examines the restraints that the Commerce Clause imposes on state tax incentives. It canvasses the general principles limiting discriminatory state taxation, explores the Court's decisions addressing state tax incentives, and proposes a framework of analysis for adjudicating the validity of such incentives. Part I concludes by considering the constitutionality of a variety of state tax incentives within our suggested framework and also under alternative approaches that courts might utilize. Part II examines the restraints that …

Markets And Law Reform: The Tension Between Uniformity And Idealism, James C. Smith

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The most ambitious effort at uniform property legislation ever launched was the Uniform Land Transactions Act (“ULTA”) and its companion, the Uniform Simplification of Land Transfers Act (“USLTA”). Both Acts, however, met with singular failure in the sense of uniform legislative shunning and have not substantially influenced judges in their lawmaking roles. In published opinions, very few courts have relied upon the ULTA or USLTA positions for analogous support.

Why did a single state legislature, somewhere in America, not pass at least one of the Acts? We cannot tell for sure why the legislatures eschewed the USLTA and the ULTA. …

A Profile Of Tort Litigation In Georgia And Reflections On Tort Reform, Thomas A. Eaton, Susette M. Talarico

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Fact-based studies of tort litigation in Georgia are almost nonexistent. Georgia is one of many states that does not provide the NCSC with any information regarding tort litigation patterns. Georgia does not provide such information because it is not compiled. It is not compiled because these data are not systematically maintained by local courts and reported to the Administrative Office of the Courts. Because the data are not routinely collected and reported, it is impossible to answer such elementary questions as: How many tort cases are filed in Georgia courts? What types of claims are brought? How many go to …

Aspects Of Reception Of Law, Alan Watson

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In most places at most times borrowing is the most fruitful source of legal change. The borrowing may be from within the system, by analogy - from negligence in torts to negligence in contract, for instance - or from another legal system. The act of borrowing is usually simple. To build up a theory of borrowing on the other hand, seems to be an extremely complex matter. Receptions come in all shapes and sizes: from taking over single rules to (theoretically) almost a whole system. They present an array of social phenomena that are not easily explained: from whom can …

Estate Creditors, The Constitution, And The Uniform Probate Code, Sarajane Love

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The United States Supreme Court's decision in Tulsa Professional Collection Services, Inc. v. Pope caused the usually staid legal enclave of estate administration to sit alert. The Court declared unconstitutional an Oklahoma statute that barred creditors of decedents from filing claims against the decedents' estates two months after published notice of the commencement of probate proceedings. The statute violated the due process rights of known and reasonably ascertainable creditors because it did not require a better form of notice to them. In failing to require actual notice to known creditors, the statute was not drastically atypical of other statutes regulating …

Because I Am Black, Because I Am Woman: Remedying The Sexual Harassment Experience Of Black Women, Andrea L. Dennis

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This Note examines the intersection of race and gender in the context of sexual harassment jurisprudence. Since the arrival in this country of the first female African slaves, Black women have experienced sexual harassment on the job. This Note discusses the failure of sexual harassment theory to acknowledge the unique sexual harassment experience of Black women. From the very earliest discussions of sexual harassment, the impact of the race of the victim on the experience and resulting legal claim was ignored. Feminist legal theorists, leaders in issues affecting women, have been slow to acknowledge and integrate the role of race …

Testing Two Assumptions About Federalism And Tort Reform, Thomas A. Eaton, Susette M. Talarico

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In, 1996 both the United States House of Representatives and Senate passed legislation that, if enacted, would preempt state tort laws in significant ways. Why would a Congress otherwise apparently committed to vesting states with greater policymaking autonomy call for federal control of tort law?

Tort policymaking has traditionally been done at the state level. One assumption underlying this distribution of power is that states are better able than the national government to fashion tort rules appropriate for local conditions and circumstances. In other words, states are thought to have a special competence in crafting tort rules responsive to local …

Trade Secrets And Roman Law: The Myth Exploded, Alan Watson

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In 1929 A. Arthur Schiller published a celebrated article, Trade Secrets and the Roman Law; the Actio Servi Corrupti. His main conclusions are that the Roman owner of a mark or firm name was legally protected against unfair usage by a competitor through the actio servi corrupti, “action for making a slave worse,” which the Roman jurists used to grant commercial relief under the guise of private law actions. “If, as the writer believes [writes Schiller], various private causes of action were available in satisfying commercial needs, the state was acting in exactly the same fashion as it …

Punitive Damages For Constitutional Torts, Michael L. Wells

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Critics complain that punitive damages often serve no good purpose. Whatever the merit of this charge as a general proposition, it is not universally valid across the range of tort suits. This article examines the issues raised by punitive damages for constitutional torts and takes issue with the general failure of commentators on punitive damages to recognize differences between constitutional tort and common law torts. I shall argue that constitutional tort is one area where punitive damage awards are essential to the effective enforcement of our rights. Constitutional tort is a special domain, in which the policy issues that bear …

Vicarious And Personal Liability For Employment Discrimination, Rebecca H. White

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This Article addresses the issues of vicarious and personal liability for employment discrimination as a coherent whole. Part II examines the prevailing view on an employer's vicarious liability for employment discrimination under Title VII, the ADEA, and the ADA. Part II further discusses the exception to vicarious liability that has developed in hostile work environment cases and examines the justifications advanced for that exception. My point here is not so much to debate whether such an exception should exist but to determine whether the arguments against vicarious liability in hostile work environment cases justifiably can be limited to that context. …

Experts, Judges, And Commentators: The Underlying Debate About An Expert's Underlying Data, Ronald L. Carlson

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Debate concerning the limits of judicial power over expert witnesses remains active and in its early states. Commentators charting the course of judicial opinions observe that some of the modern regulatory proposals have yet to enlist official adoption. Part of the problem may relate to recognition of questions. Courts will adjudicate critical issues only when they are made aware of them. The burden of calling attention to an expert's flawed bases falls squarely on trial lawyers who must make astute and incisive objections.

In this formative period of legal development important decisions will be made. The future direction of courtroom …