Law Commons^™

Finding International Law: Rethinking The Doctrine Of Sources, Harlan G. Cohen

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The doctrine of sources has served international law well over the past century, providing structure and coherence during a time when international law was expanding rapidly and dramatically. But the doctrine's explanatory power is increasingly being challenged. Current doctrine tells us that treaties are international law; empirical evidence, however, suggest that treaties are poor predictors of state practice. The expansion of the international community, the rise of human rights, developments in international legal theory, and the international system's need to adapt to changing circumstances, have all also put pressure on the reified role of "treaty" in identifying rules of international …

Judging Plaintiffs, Jason M. Solomon

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With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral …

The Commerciality Doctrine As Applied To The Charitable Tax Exemption For Homes For The Aged: State And Local Perspectives, David A. Brennen

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This essay examines the question of how state and local government officials should consider federal tax law principles, like the commerciality doctrine, when they challenge state and local property tax exemptions that rely, at least in part, on tax-exempt charitable status for federal income tax purposes. In particular, this essay uses the example of CCRCs [continuing care retirement communities] to consider tax-exempt law's commerciality doctrine in an attempt to discern distinctions between “homes for the aged” that are “charitable,” and thus entitled to exemption, and those that are too commercial, and thus not entitled to exemption. In fact, one might …

Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky

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From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics -- at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments – not only absolute targets, …

The Price Of Misdemeanor Representation, Erica J. Hashimoto

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Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …

Blood And Turnips In School Funding Litigation, John Dayton, Anne Proffitt Dupre

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There are always winners and losers in school funding reforms, which often leads to protracted litigation in these cases. School funding reforms directly affect tax burdens, the distribution of resources, and the allocation of educational opportunities. Competition over limited resources is inevitable. Although win-win scenarios are ideal, they are not likely in school funding disputes. Limited resources generally make school funding reforms a zero-sum game, with significant systemic changes redefining who wins and loses under the new system.

After the initial exuberance that occurs with a court victory, reform advocates must still face the challenge of translating their court victory …

Thin But Not Anorexic: Copyright Protection For Compilations And Other Fact Works, David E. Shipley

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Questions about the copyrightability of compilations and other low authorship fact works, and about the scope of protection, have continued to trouble courts long after the Supreme Court's landmark decision in Feist Publications, Inc. v. Rural Telephone Services Co. in 1991. Justice O'Connor's opinion, explaining why a standard white pages telephone directory did not meet the constitutional and statutory requirements for copyright protection, defined an original work of authorship as one that is independently created by its author and that evidences at least a minimal level of creativity. The latter requirement has been elusive, in part because Justice O'Connor defined …

What Do We Really Know About The American Choice-Of-Law Revolution?, Hillel Y. Levin

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This Book Review reviews Symeon Symeonides's recent book, The American Choice-of-Law Revolution: Past, Present and Future. I conclude that the book is required reading in the field and that it pushes the law in the right direction in significant ways. However, I suggest that it falls short in its effort to tell the full story of the Revolution, for two reasons. First, the data set is limited to published opinions. Second, we cannot evaluate the Revolution simply by looking at judicial opinions. I argue that scholarship and practice in Conflicts must reengage with one another, and offer a framework for …

Representing Saddam Hussein: The Importance Of Being Ramsey Clark, Lonnie T. Brown, Jr.

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This article examines the professional life of former United States Attorney General Ramsey Clark in an effort to understand the many controversial representations and causes that he has undertaken during his post-government career. I do so through the vehicle of perhaps his most perplexing client choice - deposed Iraqi President Saddam Hussein. Although Hussein had other competent attorneys prepared and willing to represent him, Ramsey Clark nevertheless felt compelled to volunteer his services to the defense team. Why would he do so, and was his decision an ethically proper one under the circumstances?

These are the specific questions that this …

"Sociological Legitimacy" In Supreme Court Opinions, Michael Wells

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Analysis of a Supreme Court opinion ordinarily begins from the premise that the opinion is a transparent window into the Court's thinking, such that the reasons offered by the Court are, or ought to be, the reasons that account for the holding. Scholars debate the strength of the Court's reasoning, question or defend the Court's candor, and propose alternative ways of justifying the ruling. This Article takes issue with the transparency premise, on both descriptive and normative grounds. Especially in controversial cases, the Court is at least as much concerned with presenting its holding in a way that will win …

"Lawyers" Not "Liars": A Modified Traditionalist Approach To Teaching Legal Ethics, Lonnie T. Brown

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As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us …

Controlling Executive Compensation Through The Tax Code, Gregg D. Polsky

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This article analyzes Internal Revenue Code § 162(m), which in general denies public companies a deduction for annual non-performance-based compensation in excess of $1,000,000 paid to senior executive officers. Congress enacted § 162(m) with the intent to reduce the overall level of executive compensation and to influence the composition of executive compensation in favor of components that are more sensitive to firm performance. Notably, § 162(m) represents the most direct Congressional effort to influence executive compensation design. In light of recent events, Congress is being called upon to once again address the perceived problem of overgenerous executive pay packages. Accordingly, …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

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This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

Failure To Connect: The Massachusetts Plan For Individual Health Insurance, Elizabeth Weeks Leonard

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This Article briefly describes the key features of the Massachusetts Health Care Reform Act, focusing particularly on the Connector. It then offers preliminary thoughts on the expected effect of that mechanism for creating quality, affordable health insurance products for individuals. Observers anticipate that commercial insurers will offer scant coverage and high-premium, high-deductible plans through the Connector, which coverage ultimately may be neither more affordable than products currently or more helpful to covering the cost of health care than no coverage at all. If the Connector fails to facilitate the individual insurance mandate, Massachusetts's promise of universal coverage may begin to …

Milner S. Ball: Proof That One Professor Can Make A Difference, David Shipley

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Milner S. Ball, the Harmon W. Caldwell Chair in Constitutional Law, is proof positive that one person can make a difference in the world. There is no doubt that he has made a substantial difference for the better during his distinguished career at the University of Georgia, as a campus minister, as a non-traditional law student who was the First Honor Graduate in the Class of 1971 and editor in chief of the Georgia Law Review, and as a highly regarded professor at the School of Law since 1978. This article is part of a symposium in tribute to Milner …

The State Of The Judiciary: A Corporate Perspective, Larry D. Thompson, Charles J. Cooper

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The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner. This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

The State Of Judiciary: A Corporate Perspective, Larry D. Thompson

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The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

Reflections On Hope, Erica J. Hashimoto

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This is an article from a Symposium In Honor of Professor Milner S. Ball. This article describes Professor Ball's dedication towards public interest law and encourages others to join the the fight for justice.

Fighting for a more just society-a society that treats all of its members with dignity and respect-calls for courage, passion, and vision. People with those qualities who choose to work in the public interest will discover the joy of having a "job" that many days is exhilarating and rewarding and often is just plain fun.' There will also, however, be difficult days. Surviving those days and …

Punish Or Surveil, Diane Marie Amann

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This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were …

The Essential Holding Of Casey: Rethinking Viability, J. Randy Beck

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The Planned Parenthood of Southeastern Pennsylvania v. Casey plurality acknowledged an obligation to "justify the lines we draw." The corollary would seem to be an obligation to eschew lines that defy principled justification. In the decades since Roe v. Wade, the Court has offered no adequate rationale for the viability standard, notwithstanding persistent judicial and academic critiques. Exacerbating this country's divisions over abortion and placing us out of step with the world community, the viability rule seems a strong candidate for abandonment as the Court continues to rethink its abortion jurisprudence in the aftermath of Casey.

Judicial Activism: An Empirical Examination Of Voting Behavior On The Rehnquist Natural Court, Lori A. Ringhand

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This paper attempts to quantify one of the most deeply contested terms in constitutional law: “judicial activism.” Most discussions of “judicial activism” define activism either in reference to a particular political ideology (such as complaints about “liberal activist judges”) or a particular method of constitutional interpretation (such as assertions that a decision was “activist” because it was not based on the original meaning of the Constitution). This paper sidesteps those debates, focusing instead on an empirical examination of how recent U.S. Supreme Court justices have in fact exercised their judicial power. I do this by examining the voting records of …

What Is The Definition Of An "Organ" Under The Foreign Sovereign Immunities Act?, Peter B. Rutledge

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Did the court of appeals have jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. 1447(d)?

does a company wholly owned by a Canadian crown corporation -- that is itself wholly owned by the Canadian Province of British Columbia and that performs obligations and exercises rights of the Province pursuant to a treaty with the United States -- quality as an "organ" of a foreign state or political subdivision under the Foreign Sovereign Immunities Act?

The Future Of Footnote Four, Dan T. Coenen

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The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." The importance of this principle cannot be overstated. It pervaded the work of the Warren Court and has played a prominent role …

An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki, William K. Ford, Lori A. Ringhand

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The interpretive or judicial philosophies of Supreme Court Justices can be thought of as “packages of beliefs” about how to interpret the law, packages that go by names like formalism, originalism, and textualism. Given the reasonable assumption that a judge's judicial philosophy could matter for how he or she will decide cases, the judicial philosophy of a nominee to the Supreme Court is of great interest to members of the Senate who vote on a nominee's confirmation. Figuring out a nominee's judicial philosophy is, consequently, one purpose of the confirmation hearings in the Senate, and Senators often claim to base …

The Rehnquist Court: A "By The Numbers" Retrospective, Lori A. Ringhand

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The late Chief Justice William Rehnquist presided over the U.S. Supreme Court for nineteen years, longer than any other Chief Justice in the 20th century. Despite this longevity, however, there is little consensus on just what the legacy of the Rehnquist Court is. Was the Rehnquist Court a restrained Court that embraced a limited, text-based reading of the Constitution? Or was it a much more aggressive Court, responsible for a resurgence of conservative judicial activism? Is it best epitomized by the “swaggering confidence” that put a President in office, or the cautious minimalism that disappointed its conservative supporters by failing …

A Tax Lawyer's Perspective On Section 527 Organizations, Gregg D. Polsky

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Proponents of campaign finance reform generally assume that, by definition, all section 527 organizations are partisan, election-driven organizations. They also believe that by self-identifying to the IRS, these organizations receive substantial tax benefits. Based on these presuppositions, reformers argue that strict regulation of 527organizations is both constitutional and normatively beneficial. In this Essay, I argue that once section 527 is carefully analyzed from a tax perspective, it becomes evident that these assumptions are flawed. Ultimately, I conclude that section 527 should not be used as a mechanism for regulating campaign finance

Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis

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Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

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This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

Congressional Authority Over Intellectual Property Policy After Eldred V. Ashcroft: Deference, Empty Limitations, And Risks To The Public Domain, David E. Shipley

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The United States Supreme Court upheld the Copyright Term Extension Act of 1998 (CTEA) in Eldred v. Ashcroft. The Court ruled that Congress had not exceeded its authority under the Copyright Clause by extending the copyright term twenty years and applying this extension retroactively to existing copyrighted works that otherwise would have entered the public domain at the end of their current, nonextended terms. The majority found a rational basis for CTEA and showed great deference to the authority of Congress to set policy that, in its judgment, effectuates the aims of the Copyright Clause. Although this deference to …

Transaction Costs And Patent Reform, Paul J. Heald

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This article considers current proposals for patent law reform in light of a simple theory about intellectual property law: In a world without transactions costs, the assignment of property rights is not necessary to stimulate the optimal production of creative goods. Because potential users of inventions could contract for their creation, a compelling justification for granting property rights in these intangibles is the reduction of real-world transaction and information costs that hinder, or make impossible, contract formation between users and creators. Proposals for patent law reform, therefore, should be evaluated by whether a change in legal rights, or in the …