Law Commons^™

How Many Terrorists Are There? The Escalation In So-Called Terrorism Prosecutions, Nora V. Demleitner

Scholarly Articles

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Revisiting Byrum, Brant J. Hellwig

Scholarly Articles

In the landmark case of United States v. Byrum, the Supreme Court determined that a majority shareholder's retention of voting rights over stock transferred in trust did not cause the stock to be included in his gross estate under Section 2036(a)(1) or (a)(2). The Court grounded its decision in the fiduciary duty owed by the board of directors and the majority shareholder to exercise their discretion over corporate distributions to promote the best interests of the entity. Despite legislative action quickly reversing the Court's holding in Byrum, the case continued to influence decisions concerning the estate tax consequences of a …

Speaking Outdoors, Lewis H. Larue

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Post-Trilogy Science In The Courtroom, Part Ii: What Are The Judges Still Doing?, David S. Caudill, Lewis H. Larue

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Kimbell: Is The Party Over For Family Limited Partnerships, Brant J. Hellwig

Scholarly Articles

Professor Brant J. Hellwig of the University of South Carolina School of Law examines the impact of the recent Kimbell decision on the future use of family limited partnerships for estate planning purposes.

Assassination, The War On Terrorism, And The Constitution, Rodney A. Smolla

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Fifteen Years Of Federal Guidelines Reviewed At The Yale Conference: What Would Success Mean?, Nora V. Demleitner

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Comparative And International Health Law, Timothy Stoltzfus Jost

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When Is Enrichment Unjust? Restitution Visits An Onyx Bathroom, Doug Rendleman

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Looking Up, Down And Across: The Icty's Place In The International Legal Order, Mark A. Drumbl

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After Enron: Remembering Loyalty Discourse In Corporate Law, Lyman P.Q. Johnson

Scholarly Articles

The demise of monetary damages as a remedy for breach of the corporate director duty of due care means that only a breach of the duty of loyalty or good faith affords the possibility of holding corporate directors personally liable for wrongdoing. The author argues that the fiduciary duty of loyalty contains both a widely appreciated, but rather minimal, "non-betrayal" aspect and a less appreciated, but more affirmative, "devotion" dimension. The affirmative. thrust of loyalty, grounded in widely-shared cultural norms and finding expression in myriad literary and religious stories, offers a doctrinal avenue for addressing a potentially broader range of …

A Comparative Study Of The Law Of Palliative Care And End-Of-Life Treatment, Denuta Mendelson, Timothy Stoltzfus Jost

Scholarly Articles

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Abusing State Power Or Controlling Risk?: Sex Offender Commitment And Sicherungverwahrung, Nora V. Demleitner

Scholarly Articles

This article addresses a paradigmatic risk-based collateral sanction, the so-called civil confinement. In contrast to many other collateral sanctions, it does not follow automatically but is judicially imposed following a hearing. In Hendricks v. Kansas (1997) the Supreme Court specifically upheld involuntary confinement following a criminal justice sentence for a sexually violent predator. The Kansas statute mandated confinement based on an assessment of dangerousness which had to result from a mental abnormality. Once it characterized the sanction as civil, the Court concluded that procedural protections traditional in the criminal context, such as double jeopardy, do not apply. The narrow majority …

How Much Do Western Democracies Value Famiily And Marriage? : Immigration Law's Conflicted Answers, Nora V. Demleitner

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Self-Defence In An Age Of Terrorism: Introductory Remarks, Mark A. Drumbl

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Why Judges Applying The Daubert Trilogy Need To Know About The Social, Institutional, And Rhetorical -- And Not Just The Methodological Aspects Of Science, Lewis H. Larue, David S. Caudill

Scholarly Articles

In response to the claim that many judges are deficient in their understanding of scientific methodology, this Article identifies in recent cases (i) a pragmatic perspective on the part of federal appellate judges when they reverse trial judges who tend to idealize science (i.e., who do not appreciate the local and practical goals and limitations of science), and (ii) an educational model of judicial gatekeeping that results in reversal of trial judges who defer to the social authority of science (i.e., who mistake authority for reliability). Next, this Article observes that courts (in the cases it analyzes) are not interested …

To Err Is Human: The Judicial Conundrum Of Curing Apprendi Error, Joshua A.T. Fairfield

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The Tenuous Nature Of The Medicaid Entitlement, Timothy Stoltzfus Jost

Scholarly Articles

Though Medicare was from the outset an entitlement under federal law, the status of Medicaid has always been less certain. Arguably, it was the Supreme Court, rather than Congress that first recognized that Medicaid recipients (and providers) could sue the states in federal court to enforce federal Medicaid requirements. A recent widely reported federal court decision, however, called radically into question the continuing existence of a federal Medicaid entitlement. Though this decision has now been reversed, and rejected by other courts, it illustrates the tenuous nature of the Medicaid entitlement, and the need to reconstitute Medicaid as an exclusively federal …

Tolstoy And The Christian Lawyer, Raymond B. Marcin

Scholarly Articles

It may be that there is no literate person alive in the Western world who has not heard of Count Lyof Nikolaevich Tolstoi (Tolstoy), author of what some have called the quintessential novel among all recorded literature: War and Peace. It may also be that most literate persons are aware that Tolstoy was a moralist of some renown-of great renown in his day-whose pacifist thought presaged and influenced Mohandas K. Gandhi, the great and saintly Mahatma of India. One doubts, however, whether many are aware that Tolstoy penned what is perhaps the most devastating attack in all religious literature on …

The City Of Babel: Yesterday And Today, Raymond B. Marcin

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Legal Lessons Learned From Operation Enduring Freedom, Michael F. Noone Jr.

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Internal Corporate Investigations: Legal Ethics, Professionalism And The Employee Interview, Sarah Helene Duggin

Scholarly Articles

This article addresses key ethical issues pertaining to the conduct of employee interviews in the course of internal corporate investigations. The discussion focuses on business corporations, but it is equally applicable to other for-profit and not-for-profit organizations." Part II provides background information on developments in organizational criminal liability over the past two decades, the importance of the United States Sentencing Commission's Organizational Sentencing Guidelines, and the concomitant emergence of the internal investigation as an integral part of modern corporate legal practice. Part III examines law enforcement authorities' growing insistence on corporate "cooperation" as a prerequisite to participation in voluntary disclosure …

Federalism, Human Rights, And The Realpolitik Of Footnote Four, Robert A. Destro

Scholarly Articles

The burden of this Essay is to argue that the conventional wisdom about the Court's resolution of the crisis of 1937 both begs the question of the Court's jurisdiction to prescribe substantive rules governing our rights,' and misses the point that history proves the Court unfit to be the sole repository of such a sweeping power. Part I will argue that the Founders' vision of a "compound"

American republic was lost when the Supreme Court of the United States used the New Deal controversy over the limits of judicial review to accomplish one of the most far-reaching power grabs in …

The Intersection Between Welfare Reform And Child Support Enforcement: D.C.’S Weak Link, Stacy Brustin

Scholarly Articles

This Article examines the effectiveness with which the District of Columbia has linked welfare reform and child support collection. Part I discusses the ways in which the 1996 federal welfare reform legislation significantly altered federal and state child support systems. Part II shifts the discussion from the national arena to the District of Columbia and explores legislative, executive, and judicial responses to child support enforcement in the wake of federal welfare reform.

Part III recommends ways in which the District of Columbia can improve its enforcement system and suggests that it is not enough to simply establish child support orders; …

Does The Children’S Internet Protection Act Induce Public Libraries To Violate The First Amendment?, Susanna Frederick Fischer

Scholarly Articles

The Children's Internet Protection Act contains filtering provisions for public libraries that condition the receipt of federal assistance for Internet access and related services on libraries' operation of technologi­cal measures that block all patrons' access to obscene and pornographic materials and also block minor patrons' access to material that is "harmful to minors." Now the Supreme Court has agreed to review a trial court's decision that enjoined the government from enforcing these filtering provisions on the basis that they are facially invalid under the First Amendment.

Leasing Consumer Goods: The Spotlight Shifts To The Uniform Consumer Leases Act, Ralph J. Rohner

Scholarly Articles

As a participant throughout the drafting process for the Uniform Consumer Leases Act ("U.C.L.A." or "the Act"), I believe that the Act deserves serious consideration in the state legislatures to fill gaps in existing consumer protections for consumer lessees. The Act complements the Uniform Commercial Code ("U.C.C.") Article 2A (Leases), which creates a basic legal framework for all leases of goods, commercial and consumer alike, and the federal Consumer Leasing Act, which prescribes advertising and disclosure rules for consumer leases. The U.C.L.A. is also intended to reinforce, or be reinforced by, certain existing state laws, such as those prohibiting unfair …

The Ninth Circuit’S Invasion Of The Tort Of Invasion Of Privacy, Harvey L. Zuckman

Scholarly Articles

The tort of invasion of privacy has had a short but tortuous development made even more tortuous by a number of recent rulings by the United States Court of Appeals for the Ninth Circuit. This common law tort does not begin with the normal judicial iterations that created and sculpted other torts. Rather, it began life as a law review article prompted by personal pique.

Researching English Case Law, Stephen E. Young

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Innocent Until Proven Guilty: The Origins Of A Legal Maxim, Kenneth Pennington

Scholarly Articles

The maxim,' Innocent until proven guilty', has had a good run in the twentieth century. The United Nations incorporated the principle in its Declaration of Human Rights in 1948 under article eleven, section one. The maxim also found a place in the European Convention for the Protection of Human Rights in 1953 [as article 6, section 2] and was incorporated into the United Nations International Covenant on Civil and Political Rights [as article 14, section 2]. This was a satisfying development for Americans because there are few maxims that have a greater resonance in Anglo-American, common law jurisprudence. The Anglo-American …

Central Banks’ Role In Bank Supervision In The United States And United Kingdom, Heidi Mandanis Schooner

Scholarly Articles

Driven in part by the question of bank supervision in euro-area countries, a growing body of literature addresses whether central banking and bank supervision should be combined. This paper address this debate in light of recent legislation in the United Kingdom and the United States. Recent legislation in the United Kingdom stripped the Bank of England of its responsibility for bank supervision and established the Financial Services Authority as an integrated supervisor of financial services. In the United States, the Gramm-Leach-Bliley Act of 1999 expanded the regulatory authority of the Federal Reserve. In light of international trends, I consider how …