Law Commons^™

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

The Quandary Of Serving Multiple Masters: An Institutional Exploratory Analysis Of Publishing In Business Law, Robert S. Rubin, John R. Olson, Laura Hartman, James A. Belohlav

ExpressO

Notwithstanding published articles on the nature and quality of research and scholarship in practically every other business discipline, to date there has been little systematic evaluation of relevant journals in the business law discipline. This deficiency is due, in part, to the fact that business law may still be described as a developing discipline. Thus, the focus of this article is on delineating the nature of research and scholarship within the business law discipline. Specifically, the publishing practices of business law faculty from academic institutions that were members of the Association to Advance Collegiate Schools of Business (AACSB International), the …

The Best Interest Standard: How Broad Judicial Discretion And Influences Of Social And Political Suggestion Have Led To An Abandonment Of The Rule’S Primary Purpose In Child Custody Decisions, Lakeisha J. Johnson

ExpressO

The vital questions in child custody disputes all concern that which is in the best interest of the child. Historically, interpretations of the “best interest” standard have been founded upon presumptions steeped in the notion of natural rights and duties based largely upon a mix of scientific and subjective conclusions regarding gender-based parenting roles and the need to sustain them. My research demonstrates that, as courts attempt to avoid the decisions of the past and submit to the societal will of the present, the modern application of the “best interest of the child” standard has led unexpectedly to an abandonment …

Legality Principle Of Crimes And Punishments In Iranian Legal System, Seyed Doraid Mousavi Mojab

ExpressO

The Principle of legality of crimes and punishments (nullum crimen, nulla poena sine lege) refers to the fact that an act is not considered a crime and deserves no punishment, unless the Legislator determines and announces the criminal title and its penalty before.

The legality principle protects individual security by ensuring basic individual libertties against the arbitrary and unwarranted intrusion of the state. Thus, the criminal judge can’t call the individuals’ acts crime and assign punishments for them or exert punishments that are not prescribed by the Legislator without any letter of law. If an act is morally rebutted or …

The Economics Of Limited Liability: An Empirical Study Of New York Law Firms, Scott Baker, Kimberly D. Krawiec

ExpressO

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form rationale. Each form contains its own set of default rules that inevitably get factored into this decision, including the extent to which each individual firm owner will be held personally liable for the collective debts and obligations of the firm. The significance of the differences in these default rules continues to be debated. Many commentators have advanced theories, most notably those based on unlimited liability, profit-sharing, and illiquidity, asserting that the partnership form provides efficiency benefits that outweigh any …

The Many Faces Of The Economic Substance's Two-Prong Test: Time For Reconciliation?, Yoram Keinan

ExpressO

The fall of 2004 saw the occurrence of several important developments in relation to the ongoing debate on the application of the economic substance doctrine. It started with the issuance of the opinion in Long Term Capital Holding v. United States in the end of August, a case in which a District Court held that a transaction involving the contribution of stock with a built-in loss to a partnership lacked economic substance and had been entered into without any business purpose other than tax avoidance. The court upheld penalties assessed by the IRS despite the taxpayer’s argument that it obtained …

Procedural Due Process Aspects Of District Of Columbia Eviction Procedures, Lynn E. Cunningham

ExpressO

The District of Columbia Superior Court, Landlord and Tenant Branch, administers the local Forcible Entry and Detainer statute in a manner that arguably violates standards of adequate notice under the Due Process Clause.

Section 4(F): Analyzing Differing Interpretations And Examining Proposals For Reform, David E. Kunz

ExpressO

Section 4(f): Analyzing Differing Interpretations and Examining Proposals for Reform, focuses on the ongoing debate over the scope, meaning and application of Section 4(f) of the Department of Transportation Act of 1966. Section 4(f) affects the construction and development of transportation-related projects that require the use of public parks, wildlife refuges or historic sites. Since its enactment, it has been a source of controversy and debate within the transportation and environmental law communities. Recent congressional and executive branch actions aimed at reforming the law have garnered increased attention. This article analyzes the current state of play concerning section 4(f) and …

“Judicial Nationalism” In International Law: National Identity And Judicial Autonomy At The Icj, Adam M. Smith

ExpressO

To many, the International Court of Justice’s allowance for a State to have a co-national on the bench when the Court hears its case is an affront to “justice.” The unstated assumption—under which both the critics of the practice and the States who demand it operate—is that national judges will view co-nationals with greater sympathy than they do foreigners. Despite its intuitive appeal, it is troubling that States, critics and academics alike have accepted this assumption with little questioning. In fact, nothing on “judicial nationalism” in the ICJ has appeared in the academic literature since the 1960s. Given the ICJ’s …

Paying The Price For Our Children’S Torts: Exploring Parental Liability Statutes Employed In The South, John Kevin Phillips

ExpressO

The accompanying manuscript explores the historical foundations for the common law imposition of liability upon parents for their child’s torts. The manuscript explores the adoption of the common law rules by Southern states with the exception of Louisiana and illustrates the different approaches employed in the common law versus the civil code. The manuscript then explores the growth of parental liability statutes and the alarming trend towards raising the amount of compensation even to unlimited liability coupled with almost strict liability in some Southern states.

Parental liability statutes continue to grow in importance and controversy. The present manuscript is especially …

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Balancing Representation: Special Representation Mechanisms Addressing The Imbalance Of Marginalized Voices In African Legislatures, Stephanie L. Kodish

ExpressO

This report focuses on four different mechanisms designed to provide marginalized groups in Africa with improved legislative representation at the national level. These special representation mechanisms include: proportional representation, guaranteed minority seating, advisory bodies and affirmative gerrymandering . These tools appear a beneficial means through which nations may eliminate discrimination, better safeguard the interests of marginalized people, boost opportunity for political expression and place each member of society on equal footing.

To situate this discussion in its proper context, this paper explores relevant international law, the case for and against special representation and the myriad problems that arise in attempting …

Legal Images Of Fatherhood: Welfare Reform, Child Support Enforcement, And Fatherless Children, Jane C. Murphy

ExpressO

This Article analyzes the issue of paternity disestablishment, an issue courts and legislatures have been struggling with over the last several years. For a variety of reasons explored in this Article, an increasing number of fathers have filed requests to set aside paternity orders seeking to be relieved of the legal obligations of fatherhood. As a result families have been destabilized and children are becoming fatherless. The implications for the future of the family are profound. Although some scholars have examined this phenomenon, none have addressed the link between paternity disestablishment and welfare reform.

This Article explores the law's evolving …

The New Neurobiology Of Severe Psychiatric Disorders And Its Implications For Laws Governing Involuntary Commitment And Treatment, E Fuller Torrey, Kenneth Kress

ExpressO

Medical advances have led to statutory changes and common law overrulings. This paper argues that such changes are now needed for laws governing the involuntary commitment and treatment of individuals with severe psychiatric disorders. Recent advances in the understanding of the neurobiology of these disorders have rendered obsolete many assumptions underlying past statutes and legal decisions. This is illustrated by using schizophrenia as an example and examining two influential cases: California’s Lanterman-Petris-Short Act (1969) and Wisconsin’s Lessard decision (1972). It is concluded that laws governing involuntary commitment and treatment need to be updated to incorporate the current neurobiological understanding of …

Rules Of The Game: The "Play In The Joints" Between The Religion Clauses, Sharon Keller

ExpressO

Locke v. Davey is an exemplar of the new generation of Establishment clause cases that, particularly in Zelman v. Simmons-Harris, have written into law a safe harbor, private choice, for governmental benefits that find their way into the coffers of religious institutions in amounts that are neither incidental nor trivial. In Locke the options presented in the private choice arguably infringed upon Free Exercise rights-- the dilemma that gives rise to the title of this article. Over the vigorous dissent of Justice Scalia, the Locke Court’s analysis of the permissibility of the conditioned benefit was based upon the argument that …

Bankruptcy Law And Inefficient Entitlements, Irit Haviv-Segal

ExpressO

The question as to the justification of bankruptcy law remains unanswered. The literature tends to emphasize the conflict and inability to compromise between the different normative outlooks of the insolvency law system. A deeper reflection on the existing theories of bankruptcy law reveals, however, that all theories share the same starting point: All theories share the understanding that efficiency considerations justify the enforcement of contractual bankruptcy arrangements. When the social theories call for increased levels of coercion and redistribution, these theories rely on normative considerations of distributive justice and rehabilitation values. They by no means rely on efficiency grounds. This …

Common Constitutional Law, A. Daniel Feldman

ExpressO

This essay deals with a branch of New York Times v. Sullivan which appeared to make the question of whether the words were libelous a federal issue. The line of cases ends with Masson v. New Yorker Magazine, which decides that the meaning of the words is not a federal issue, but cites approvingly all the prior cases, which do exactly that. The ambiguity of cases leaves unresolved the status of the rule which underlies New York Times, which is that judges, not juries, are to determine the facts in First Amendment cases.

From Carlin’S Seven Dirty Words To Bono’S One Dirty Word: A Look At The Fcc’S Ever-Expanding Indecency Enforcement Role , Faith Sparr

ExpressO

The manuscript entitled: From Carlin’s Seven Dirty Words to Bono’s One Dirty Word: A Look at the FCC’s Ever-Expanding Indecency Enforcement Role examines whether the FCC, in the years since the Supreme Court’s 1978 decision in FCC v. Pacifica, has exceeded the limited holding that the Court rendered in that seminal case. Initially, the article focuses on the Pacifica holding itself, reminding the reader of the narrowness of the decision and pointing out some interesting limitations that the FCC appears to have forgotten in its recent race to crack down on speech it deems indecent. From that initial examination, the …

Defining Dicta, Michael Abramowicz, Maxwell Stearns

ExpressO

The doctrine of stare decisis applies only to holdings of past cases, but scholars and courts have paid far more attention to stare decisis doctrine than to the distinction between holding and dicta, particularly in recent years. The lack of attention that the distinction receives may reflect a sense among legal analysts that they know dicta when they see it, but the problem is considerably more analytically complex than it may at first appear. In this Article, Professors Abramowicz and Stearns identify a number of structural problems that may affect whether statements in judicial opinions should be classified as holding …

Towards An Establishment Clause Theory Of Race-Based Allocation After Grutter: Administering Race-Conscious Financial Aid, Maurice R. Dyson

ExpressO

The novel application of the Establishment Clause doctrine by way of analogy to race0based financial aid after Grutter and Grats, while not identical, speaks to real issue of neutrality that is implicit in the debate of administering race-based scholarships that should be truthfully acknowledged. There is no concern about improper university indoctrination of race as the Grutter court has already established race-based diversity as worthy of a compelling state interest. Moreover, there is no concern that a college or university would establish an imprimatur on race-based scholarships merely or solely because it identifies potential candidates meeting specified eligibility criteria which …

A Cloak For The Bare: In Support Of Allowing Prospective Malpractice Liability Waivers In Certain Pro Bono Cases, Steve Berenson

ExpressO

No abstract provided.

Essay: New Political And Legal Strategies For African-Americans: Dreaming Big, Dreaming Creatively, Maxim Thorne

ExpressO

Maxim Thorne, a Yale Law School Graduate of 1992, writes an essay derived from his address delivered on October 1, 2004 at the thirty-fifth anniversary of the African-American Cultural Center at Yale University, entitled "New Political and Legal Strategies For African-Americans: Dreaming Big, Dreaming Creatively." He presents Seven Strategies that African Americans should use to secure power and justice in America: 1) Go Home, 2) Public Schools Aren’t Our Only Option and other paradigm shifting legal arguments 3) Draw On the Power of Older Women of Color, 4) Network Your Heart Out, Giving Time, Advice, and Money, 5) Honor Our …

Lawmaking By Public Welfare Professionals, Margaret F. Brinig

ExpressO

In an era of shrinking state and local resources for domestic violence prevention and detection, governments face a critical question of how to best allocate scarce funds. This paper suggests some answers for treating violence by caregivers and presents a model for evaluating other programs. To reach our conclusions, we analyzed data and survey results supplied by more than 1700 county-level adult protective services (APS) authorities.

We found that some expensive programs produce very few results in terms of reporting, investigating, and substantiating elder abuse. For example, requiring a specific education or experience level (and therefore guaranteeing higher salaries) or …

“Ua Koe Ke Kuleana O Na Kanaka” (Reserving The Rights Of Native Tenants): Integrating Kuleana Rights And Land Trust Priorities In Hawai`I, Jocelyn B. Garovoy

ExpressO

No abstract provided.

Seventeen Famous Economists Weigh In On Copyright: The Role Of Theory, Empirics, And Network Effects, Stan Liebowitz, Stephen Margolis

ExpressO

The case of Eldred v. Ashcroft, which sought to have the Copyright Term Extension Act (CTEA, aka Sonny Bono Copyright Act) declared unconstitutional, was recently decided by the Supreme Court. A remarkable group of seventeen economists including five Noble laureates, representing a wide spectrum of opinion in economics, submitted an amicus curie brief in support of Eldred. The economists condemned CTEA on the grounds that the revenues earned during the extension are so heavily discounted that they have almost no value, while the extended protection of aged works creates immediate monopoly deadweight losses and increases the costs of creating new …

The Ethics Of The Adversary System, Greg S. Sergienko

ExpressO

This article considers many commonly advanced criticisms of the adversary system. It provides an analytic framework that includes the likely results of changed ethical rules and that distinguishes and analyzes separately two different possible goals of the system, seeking the truth and promoting justice. The article is also unusual in the range of supporting materials that it synthesizes, which includes contributions from economic theory, psychological studies, philosophy, and traditional legal ethics.

The article concludes that changes in ethical codes meant to increase lawyers' duty to promote the truth will have a perverse result, decreasing the accuracy of litigation. This will …

The Limitations Of Retirement Plan Law, Peter M. Van Zante

ExpressO

It is widely believed that employers determine whether or not their employees receive retirement benefits and the type and amount of any benefits that are received. This belief is mistaken. While sponsorship of a retirement plan is a voluntary choice on the part of the sponsoring employer and the sponsoring employer directly controls the type of plan and the level of benefits provided, the employer's choices on these matters are controlled by its employees' preferences for different forms of compensation. An employer must spend the funds available for employee compensation so as to provide its employees with those forms of …

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51, Gabriel O. Aitsebaomo

ExpressO

Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

Rethinking Regulatory Democracy, Mariano-Florentino Cuellar

ExpressO

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept …

Behavioral Science Evidence In The Age Of Daubert: Reflections Of A Skeptic, Mark S. Brodin

ExpressO

The piece briefly traces the history of the use of social science in the courtroom, and proceeds to critically measure this form of proof (particularly “syndrome” evidence) against both the reliability standards imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and the traditional requirements for admission of expert testimony. Drawing upon empirical research concerning juries and decision-making as well as transcripts of the use of behavioral evidence at trial, I conclude that much of this testimony should be rejected. Rather than providing meaningful assistance to the jury, social science experts can distort the accuracy of the fact-finding process and imperil …