Law Commons^™

Reforming Redistricting, Nicholas Stephanopoulos

ExpressO

There are several ways in which redistricting reform could in theory be achieved. State legislatures could voluntarily cede control over district-drawing, courts could invalidate especially egregious gerrymanders, or popular initiatives could be launched to create redistricting commissions. However, thanks to the self-interest of legislators as well as the Supreme Court’s unfortunate recent decisions in Vieth v. Jubelirer and LULAC v. Perry, the redistricting initiative is now the only realistic way to curb political gerrymandering. This Article provides the first detailed empirical and normative examination of redistricting initiatives. The Article begins by making the case for the popular initiative in the …

The Roberts Court And The Future Of Substantive Due Process: The Demise Of "Split-The-Difference" Jurisprudence?, John F. Basiak

ExpressO

This article offers a critical perspective on a problematic trend in substantive due process doctrine and suggests a resolution based on the jurisprudence of Chief Justice John G. Roberts, Jr. The subject matter is both timely and un-preempted, and my analysis expands upon ideas I previously developed in two recently published law review articles, Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights, 16 UNIVERSITY FLORIDA JOURNAL LAW & PUBLIC POLICY 401 (2005) and Dangerous Predictions: Referencing “Emerging” History and Tradition in Substantive Due Process Jurisprudence in an Era of Blue State Federalism, 15 WIDENER LAW JOURNAL 135 …

One Small Step: The Past, Present, And Future Of The Federal Sentencing System , Matthew Jill

ExpressO

The federal sentencing guidelines, which focus on offense based statistical consistency, had a ripple effect that molded the entire federal sentencing system in it’s wake; this article is an individual case study demonstrating the flaws of a consistency based sentencing system, the injustice such a system can create, and why United States v. Booker is only the first step in creating a fair and effective sentencing system.

Winter For Purehearts, Michael Cavendish

ExpressO

The worst judicial opinion ever written issued from Florida on an anonymous day in 1864. The opinion discussed slavery. More accurately, it cherished slavery—lionizing the then extant practice in the way the British sing of the sea. As a legal precedent, it was a dangerous opinion because it was presented as something basic, fundamental and inexorable, something not to be questioned. It was dangerously simple when conveyed to accepting minds in the way a cold knife is dangerous in angered hands. The opinion, Miller v. Gaskins, is a vital study for researchers surveying the lines of human fallacy that in …

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Distance Education In Law School: The Train Has Left The Station, Diana L. Gleason

ExpressO

Distance Education in Law Schools: The Train has Left the Station posits the idea that law schools are getting left behind a national trend to add distance education to the higher education curriculum to the detriment of legal education and law students. Approximately half the article describes reasons for the growth in distance education in non-law academia, followed by reasons why distance education has not impacted law schools. The remainder of the article discusses three changes taking place that will bring distance education to law schools. Specifically, students expect more, students are seeking a less expensive alternative to the brick …

The Death Of The Doha Round. What Next For Services Trade?, Rafael Leal-Arcas

ExpressO

With the indefinite suspension of the WTO multilateral trade negotiations in July 2006 by WTO Director-General Pascal Lamy, the world trading system must now find ways and means to unblock what is perceived as a danger to the world order. This article analyzes the legal and policy implications of the currently fatal Doha Round for the two main developed WTO Members, i.e., the U.S. and the EC, and the most relevant developing countries of the WTO. The specific focus of attention will be mainly on services trade. Thoughts on alternative ways to move forward in the multilateral trading system are …

The African Bushmeat Crisis: A Case For Global Partnership, Andrew Elliott Kohn, Heather E. Eves

ExpressO

Across Central Africa a commercial, unsustainable, and largely illegal hunting and trade in wildlife for meat has expanded in recent years causing immediate threat to countless wildlife populations and species. Currently, multi-national agreements and government initiatives created to address the bushmeat crisis in the region are unable to halt the extensive destruction to the area’s unique biodiversity . Although many of these agreements strongly support addressing the bushmeat crisis, they lack the resources and capacity to be fully implemented. Strong U.S. engagement in a global partnership, arising from intensive, complete, and wide-ranging bipartisan commitment would greatly enhance existing international biodiversity …

Article 17 And The Scope Of Trademark Protection Afforded Under The Trips Agreement, Katja G. Weckstroem

ExpressO

The protection of trademarks, when it raises a conflict with the protection of geographical indications is one of the most contested issues on the international trade and intellectual property arena. In European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs a WTO panel was faced with this issue. The panel report gives some insight into what international trademark law mandates as well as some pointers on how conflicts between different IP rights should be solved. This article attempts a deeper analysis of the coexistence of rights in the framework of the TRIPS Agreement that will …

Transsexualism And The Binary Divide: Determining Sex Using Objective Criteria, Mathew Staver

ExpressO

This article deals with the legal status of postoperative transsexuals in terms of marriage and sex-based classifications. Until recently, sex has been assumed to be binary, i.e., male and female. Whether sex is immutable or transitory, objective or subjective, has now become an international concern. This article addresses every case in the world every decided on this issue. The resolution is centrally important to the battle over marriage and sex0based classifications. The thesis of this article is that sex is an immutable characteristic at the time of birth and must be determined by objective criteria. Sex must be determined by …

Network Neutrality Or Bias?--Handicapping The Odds For A Tiered And Branded Internet, Robert M. Frieden

ExpressO

Recent double digit billion dollar mergers of telecommunications firms consolidate both market share and market leadership by incumbent operators such as Verizon. These companies seek to exploit technological and market convergence by offering a triple play package of wired and wireless telephone service, video and Internet access. As well they need to develop new profit centers to compensate for declining revenues and market shares in traditional services such as wireline telephony.

While incumbent telecommunications operators have pursued new market opportunities, these ventures have not abandoned core management philosophies, operating assumptions and business strategies. Longstanding strategies for recovering investments, using a …

Eu Legal Personality In Foreign Policy?, Rafael Leal-Arcas

ExpressO

This article examines whether the European Union (EU) already had legal personality prior to the EU’s Constitutional Convention’s statement in the autumn of 2002 on the need to provide the EU with legal personality. Abolition of the distinction between the Union and the two surviving Communities is an essential aspect of simplifying the Treaties, and making the European constitutional order easier to understand for those subject to it. It follows that there has to be a single Union legal personality; but recognition of this would not, in itself, entail any extension of the Union’s powers. However, one wonders whether, by …

Choice Of Jurisdiction In International Trade Disputes: Going Regional Or Global?, Rafael Leal-Arcas

ExpressO

This article is a legal and policy analysis of two international trade disputes fora, namely the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO), for countries that have standing in both jurisdictions, i.e., the United Mexican States, the United States of America, and Canada. Both fora are judicially compared from the perspective of the respondent and of the complainant, analyzing the advantages and disadvantages of each forum. The chosen time-frame of judicial analysis is between 1995 and 2001. The article concludes with two cases which may have been brought in either forum, Broomcorn and Canada – …

Brain Imaging And Privacy: How Recent Advances In Neuroimaging Implicate Privacy Concerns , David P. Finn

ExpressO

This paper deals with recent advances in neuroimaging technologies which could begin to implicate privacy concerns in the near future.

China’S Market Participation: The Case For A Paradigm Shift In Analyzing China’S Capital Market Regulation, David P. Finn

ExpressO

This paper deals with recent reforms governing China’s state owned enterprises and how those reforms affect both the domestic and international markets

Comity As A Step Towards The Unification Of Private Procedural International Law, Pedro J. Martinez-Fraga

ExpressO

In Comity as a Step Towards the Unification of Private Procedural International Law, a new substantive role for comity is developed that would provide uniformity, preditability, reasonableness, and judicial self-restraint in cross border litigation. Specifically eight categories of U.S. contributions to the development of private procedural international law are critically examined so as to underscore the need to confer upon the doctrine of comity a substantive rubric that would give rise to the referenced precepts of uniformity, predictive value, reasonableness, and judicial self-restraint: (i) The principle of comity, or the normative dictate greater than mere international courtesy but inferior to …

Formulaic Deliberation, Andre L. Smith

ExpressO

Formulaic Deliberation describes the major interpretive regimes--textualism, intentionalism, purposivism, and pragmatism—and represents them formulaically. By classifying them this way, it more precisely describes them as theories, so that we can more precisely perform them as deliberative techniques. And, if we agree that none of them, individually, fits all cases at all times, we can formulaically describe how to synthesize them toward a discrete decision.

William Eskridge, Stanley Fish, Hon. Antonin Scalia, Richard Posner, Ronald Dworkin, John Hart Ely, Adrian Vermeule, Hon. Stephen Breyer, Cass Sunstein, Lawrence Lessig. All of them are right, their method for deciding cases produces benefits with …

Losing Control: Regulating Situational Crime Prevention In Mass Private Space, Robert E. Pfeffer

ExpressO

In this article the author puts forth an approach to regulating Situational Crime Prevention (SCP) (i.e. steps to preemptively eliminate or reduce crime, such as preemptive exclusion and closed circuit TV monitoring in Mass Private Space (i.e. private property that has characteristics normally associated with public spaces, such as a large shopping mall).

It has become increasingly common for owners of mass private space to employ SCP techniques such as close circuit television monitoring, exclusion of persons based upon behavior or risk factors and limits on attire, such as colors associated with gangs. While there has been a lively scholarly …

21st Century Pillow-Talk: Applicability Of The Marital Communications Privilege To Electronic Mail, Mikah K. Story

ExpressO

This article is the first to explore whether the marital communications privilege, which protects from disclosure private communications between spouses, should attach to communication sent via Web-based email. Traditionally, the privilege does not attach where a third party learns, either intentionally or inadvertently, the content of an otherwise private communication. In the world of Web-based email, disclosure to a third party is necessary in order for successful communication to occur. Writers of Web-based email draft a message and store it on a third-party Internet Service Provider’s (ISP) server until the recipient reads the message. Even after the email has been …

Shareholder (And Director) Fiduciary Duties And Shareholder Activism, Paula J. Dalley

ExpressO

Recent attention to shareholder activism in the business and academic press has ignored the legal ramifications of that phenomenon. Under current law, shareholders are neither principals nor agents of the corporation, the board of directors, or the other shareholders; those seeking to increase shareholder power must confront this legal reality. Specifically, proposals for increased shareholder power on the one hand and recent investor attempts to gain actual management control on the other must both be considered in light of the shareholders’ lack of fiduciary responsibility. Moreover, all directors, including those representing “activist” shareholders, are obligated to exercise independent judgment about …

Standardized Tests, Erroneous Scores, And Tort Liability, Vincent R. Johnson

ExpressO

Recently, there has been a vast expansion of standardized testing and of related scoring errors. For example, in October 2005, the College Board mis-scored 5,000 SAT exams. Most scores were too low by 50 to 100 points, but in some cases the deficiency was over 400 points. This is the first law review article to examine the issue of whether mis-scoring of standardized tests is actionable until traditional tort theories. The article assesses the viability of claims for fraud, negligent misrepresentation, defamation, false-light invasion of privacy, tortious interference, and injurious falsehood.

The Battle Of Mars And Venus: Why Do American And European Attitudes Toward International Law Differ?, Robert J. Delahunty

ExpressO

No abstract provided.

Ethical Judicial Opinion Writing, Gerald Lebovits

ExpressO

This article explores an important topic about which almost nothing has been written: How to write an honest judicial opinion.

Cash, Credit Or Cell Phone? How To Influence Public Preferences About Payment Systems, Sarah E. Waldeck, Erik Lillquist

ExpressO

The paper examines how the government can influence the public’s choice of a particular payment system: not only existing systems like credit and debit cards, but innovative products such as stored value cards, electronic checks and electronic money. The success or failure of a new payment system can have a large economic impact, with shifts toward electronic payment options in particular having the potential to save up to one percent of a nation’s gross domestic product. For the United States, that translates to approximately one hundred billion dollars worth of savings.

Whether a new payment system succeeds or fails depends …

Biopolitics At The Bedside: Proxy Wars And Feeding Tubes, Joshua E. Perry

ExpressO

In the aftermath of Terri Schiavo’s dramatic final weeks of life, George Annas speculated that proponents of “culture of life” politics might “now view [themselves] as strong enough to generate new laws . . . to require that incompetent patients be kept alive with artificially delivered fluids and nutrition.” Indeed, Professor Annas’ prescience has been demonstrated by the post-Schiavo introduction in two dozen state legislatures of over fifty different bills making it more onerous to remove a patient’s artificial nutrition and hydration (ANH). With minor exception, however, most of the proposed legislation has either stalled or been watered down, prompting …

Judicial Caprice, Eric Miller

ExpressO

No abstract provided.

Information Privacy As A Function Of Facial Recognition Technology And Wearable Computers, Woodrow Barfield

ExpressO

As technological advances are made in the design of smart sensors, the issue of privacy in public places, first discussed by Warren and Brandeis in 1890, becomes an important topic for law and policy. This paper examines issues of privacy that are impacted when an individual’s image is recorded by a video-based wearable computer, analyzed using facial recognition software, and uploaded to the internet. While the Constitutional basis of search and seizure law for individual’s placed under video surveillance is reviewed, a particular focus of the paper is on a less investigated but emerging area of concern, the video recording …

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.

Re-Thinking Securities Regulation: A Comparative Study Of Asx, Nyse, And Sgx , Benedict Sheehy

ExpressO

This article approaches the issue of securities regulation starting with an examination of the nature and role of markets and financial markets. It next outlines the various arguments for and against regulation, and then looks at approaches taken by markets and their regulators. The approaches are government regulation, self-regulation and co-regulation, and the structural changes via demutualization and corporate governance. With this background, it turns to examine how these approaches have played out in the markets themselves. The article surveys the regulatory aspects of the ASX, NYSE and the SGX, and reviews the regulatory and financial performance of the markets. …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …