Law Commons^™

Virtual Property, Joshua A.T. Fairfield

Scholarly Articles

This article explores three new concepts in property law. First, the article defines an emerging property form - virtual property - which is not intellectual property, but that more efficiently governs rivalrous, persistent, and interconnected online resources. Second, the article demonstrates that the threat to high-value uses of internet resources is not the traditional tragedy of the commons that results in overuse. Rather, the naturally layered nature of the internet leads to overlapping rights of exclusion that cause underuse of internet resources: a tragedy of the anticommons. And finally, the article shows that the common law of property can act …

Taxing The Promise To Pay, Brant J. Hellwig, Gregg D. Polsky

Scholarly Articles

The IRS recently disclosed that it has identified more than 100 executives at 42 leading public corporations that participated in a tax shelter designed to defer the recognition of income from the exercise of stock options. While the agency thus far has identified approximately $700 million in unreported gains from these shelters, it predicts that the revenue loss to the government will ultimately exceed $1 billion. Compared to most tax shelters, this particular transaction (commonly known as the "Executive Compensation Strategy" or "ECS") is remarkably simple. Rather than exercise the options individually, a participating executive instead transfers the options to …

Restoring Reason And Civility To The Judicial Selection Process, Rodney A. Smolla

Scholarly Articles

Not available.

Constitutional Challenges, Risk-Based Analysis And Criminal History Databases: More Demands On The U.S. Sentencing Commission, Nora V. Demleitner

Scholarly Articles

Not available.

The Avena Case In The International Court Of Justice And The U.S. Response, Frederic L. Kirgis

Scholarly Articles

Not available.

A Tribute To Frederic L. Kirgis, David K. Millon

Scholarly Articles

A tribute to Professor Frederic L. Kirgis.

A Tribute To Frederic L. Kirgis, Mark A. Drumbl

Scholarly Articles

A tribute to Professor Frederic L. Kirgis.

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

Scholarly Articles

None available.

A Tribute To Frederic L. Kirgis, Samuel W. Calhoun

Scholarly Articles

A tribute to Professor Frederic L. Kirgis.

A Tribute To Edward O. Henneman, Robert T. Danforth

Scholarly Articles

A tribute to Professor Edward O. Henneman.

A Tribute To Frederic L. Kirgis, Joan M. Shaughnessy

Scholarly Articles

A tribute to Professor Frederic L. Kirgis.

Recalling Why Corporate Officers Are Fiduciaries, Lyman P.Q. Johnson, David K. Millon

Scholarly Articles

For all the recent federal attention to regulating - and differentiating - corporate officer and director functions, a curious fact remains: state fiduciary duty law makes no distinction between the fiduciary duties of these two groups. Instead, courts and commentators routinely describe the duties of directors and officers together, and in identical terms. To lump officers and directors together as generic fiduciaries with no distinction being made between them, suggests - as patently is not the case - that their institutional function and legal roles within the corporation are the same. Such a view, consequently, undermines efforts more sharply to …

Pluralizing International Criminal Justice, Mark A. Drumbl

Scholarly Articles

This Review Essay of Philippe Sands' (ed.) From Nuremberg to the Hague (2003) explores a number of controversial aspects of the theory and praxis of international criminal law. The Review Essay traces the extant heuristic of international criminal justice institutions to Nuremberg and posits that the Nuremberg experience suggests the need for modesty about what criminal justice actually can accomplish in the wake of mass atrocity. It also explores the place of one person's guilt among organic crime, the reality that international criminal law may gloss over criminogenic conditions in its pursuit of individualized accountability, the possibility of group sanction …

The Role Of State Regulation In Consumer-Driven Health Care, Timothy Stoltzfus Jost, Mark A. Hall

Scholarly Articles

The Consumer-directed health care movement has recently been given a major boost by section 223 of the Medicare Modernization Act, which provides federal income tax subsidies for health savings accounts coupled with high deductible health plans. The federal tax subsidy, however, will only be available in states whose program of insurance regulation permits high deductible health plans to exist. The MMA represents, therefore, a new approach to federalism in health insurance - offering tax incentives for states to change their approach to insurance regulation rather than preempting state regulation or imposing federal regulation. To date the states have generally responded …

Collective Violence And Individual Punishment: The Criminality Of Mass Atrocity, Mark A. Drumbl

Scholarly Articles

There is a recent proliferation of courts and tribunals to prosecute perpetrators of genocide, war crimes, and crimes against humanity. The zenith of this institution-building is the permanent International Criminal Court, which came into force in 2002. Each of these new institutions rests on the foundational premise that it is appropriate to treat the perpetrator of mass atrocity in the same manner that domestic criminal law treats the common criminal. The modalities and rationales of international criminal law are directly borrowed from the domestic criminal law of those states that dominate the international order. In this Article, I challenge this …

Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl

Scholarly Articles

In Rasul v. Bush, the Supreme Court held that U.S. district courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. In this paper, I explore what has happened since the Rasul decision: most notably, the introduction of combatant status review tribunals as a response to Rasul and the challenges that have been filed thereto and adjudicated in the federal courts (Khalid, In re Guantanamo Detainee Cases); the charges brought against certain detainees by military commissions and challenges to these commissions filed in the …

Law And Atrocity: Settling Accounts In Rwanda, Mark A. Drumbl

Scholarly Articles

Ten years ago, genocide ravaged the tiny African nation of Rwanda. In the wake of this violence, Rwanda has struggled to reconstruct, rebuild, and reconcile. Law-in particular, criminal trials for alleged perpetrators of genocide- has figured prominently among various policy mechanisms in postgenocide Rwanda. Criminal trials for Rwandan genocidaires' aspire to achieve several goals. These include exacting retribution, promoting reconciliation, deterring future violence, expressing victims' outrage, maintaining peace, and cultivating a culture of human rights.2 In this Lecture, I examine the extent to which these trials attain these multiple, often competing, and largely overwhelming goals. Part I begins by setting …

Corporate Officers And The Business Judgment Rule, Lyman P.Q. Johnson

Scholarly Articles

This article argues that the business judgment rule - a cornerstone concept in corporate law - does not and should not extend to corporate officers in the same broad manner in which it is applied to directors. The argument proceeds along both descriptive and normative lines. After first reviewing judicial decisions, the article concludes that, notwithstanding frequent, broad assertions to the contrary, application of the rule to corporate officers is not firmly established in case law. The article next examines the policy case by assessing three conventional rationales for applying the rule to directors and concluding, on balance, that the …

The Virginia Uniform Trust Code, Robert T. Danforth

Scholarly Articles

In its 2005 session the Virginia General Assembly enacted Senate Bill No. 891, thus adopting the Uniform Trust Code (UTC), with modifications considered appropriate to this state's institutions, traditions and jurisprudence. The Virginia Uniform Trust Code (Virginia UTC), set forth in new Chapter 31 of Title 55 of the Code, has an effective date of July 1, 2006, but, once in effect, will be applicable (with some exceptions) to trusts created before, on, or after that date.

The new Virginia UTC, which encompasses the great bulk of the principles and rules that comprise the law of trusts in Virginia, has …

Grounding Normative Assertions: Arthur Leff's Still Irrefutable, But Incomplete, "Sez Who?" Critique, Samuel W. Calhoun

Scholarly Articles

The late Professor Arthur Leff believed that standard methods for grounding normative assertions fail to provide a solid foundation for moral judgment because none provides a satisfactory answer to what Leff called the grand 'sez who?' - a universal taunt by which a skeptic may challenge the standing/competency of the speaker to make authoritative moral assessments. Leff argued that as a matter of logic no system of morals premised in mankind alone ever could withstand the taunt. His provocative conclusion was that the only unchallengeable response to the grand 'sez who?' is God sez.

This Article demonstrates the continued relevance …

Smart Public Policy: Replacing Imprisonment With Targeted Nonprison Sentences And Collateral Sanctions, Nora V. Demleitner

Scholarly Articles

None available

Thwarting A New Start? Foreign Convictions, Sentencing And Collateral Sanctions, Nora V. Demleitner

Scholarly Articles

None available.

(Reviewing Charif M. Bassiouni, Introduction To International Criminal Law (2003)), Mark A. Drumbl

Scholarly Articles

None available.

The "Do-Not-Call List" Controversy: A Parable Of Privacy And Speech, Rodney A. Smolla

Scholarly Articles

None available.

Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla

Scholarly Articles

Not available.

Consumer-Driven Health Care In South Africa: Lessons From Comparative Health Policy Studies, Timothy Stoltzfus Jost

Scholarly Articles

Consumer-driven health care, based on health savings accounts and high deductible health insurance policies, seems to be the next big thing in U.S. health policy. Long supported by conservative and libertarian advocacy groups, it received a big-boost with the HSA tax subsidy provisions of the Medicare Modernization Act. The question remains, however, whether consumer-driven health care can really bring down health care costs while improving quality and access, as its supporters claim that it will.

This article examines the experience of South Africa, where medical savings accounts have long been available and are widely used. It concludes that South Africa's …

Since When Is Dicta Enough To Trump Fourth Amendment Rights? The Aftermath Of Florida V. J.L., Melanie D. Wilson

Scholarly Articles

Unfortunately for individual liberty, and the inestimable right to personal security, the Supreme Court's extraneous language in its otherwise, well-reasoned decision in Florida v. J.L., and the lower federal courts' interpretation of that extraneous language, have jeopardized the Constitutional right to be free from capricious stops and frivolous frisks, both of which necessarily intrude on the sanctity of the person and sometimes "inflict great indignity and arouse strong resentment . . . ." When read logically and narrowly, the J.L. decision holds that an anonymous telephone tip, alone, does not give law enforcement a sufficient legal basis to stop or …

Traditional Paradisms For The Causes Of War Applied To The International Trading System: Nation-State Institutions In A World Of Market-States, Antonio F. Perez

Scholarly Articles

The first object of this paper, therefore, is to consider in very general terms the intellectual history of the study of the relation between trade and peace, using two key texts from the beginning and the end of the Cold War - first, Kenneth Waltz's "Man, the State, and War: A Theoretical Analysis" 3; and, second, Philip Bobbitt's "The Shield of Achilles: War, Peace, and the Course of History.

The second part of this paper will argue that Waltz's normative commitments are revealed in the order of his presentation and Bobbitt's normative commitments are revealed in the ostensibly descriptive thesis …

Clinical Legal Education: An Annotated Bibliography, J.P. "Sandy" Ogilvy

Scholarly Articles

No abstract provided.

Human Rights And Bioethics: Formulating A Universal Right To Health, Health Care, Or Health Protection?, George P. Smith Ii

Scholarly Articles

Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks - foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization. Although advanced - and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics - attainment …