Law Commons^™

Practical Consequences, Institutional Competence, And The Kentucky Bond Case, Bradley W. Joondeph

Faculty Publications

On November 5, 2007, the Supreme Court will hear arguments in Department of Revenue of Ky. v. Davis. At issue is whether state income tax preferences for their own municipal bonds impermissibly discriminate against interstate commerce. This article makes two basic arguments as to why the Court should find such preferences constitutional. First, as a doctrinal matter, Davis is essentially indistinguishable from the Court's decision last term in United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth. There, the Court held that laws that "favor the government," that "treat every private business. . . exactly the same," and that …

Defining International Criminal Law, Beth Van Schaack, Ron Slye

Faculty Publications

This work is an introductory chapter for a forthcoming book on Understanding International Criminal Law to be published by Aspen Publishers as part of Aspen's Essentials series. This chapter presents a succinct definition of international criminal law (ICL), situating it within the fields of public international law, transnational law, international human rights, and international humanitarian law. Additional chapters in the text will address the history of ICL, the sources of ICL, the major international crimes and defenses, and ICL reasoning and rhetoric. Publication is expected in 2007 for adoption in 2008.

'There It Is: Take It' Endangered Species And Water Management In The San Francisco Bay Delta, W. David Ball

Faculty Publications

This paper explores endangered species and water management in the San Francisco Bay Delta. Two endangered species, the Delta Smelt and the Winter-run Chinook Salmon, use the Bay Delta for crucial portions of their life cycle. At the same time, California's agricultural industry, as well as population centers to the South, require substantial outflows of Bay-Delta water. The paper explores the multi-jurisdictional regulation of the Bay-Delta's water, takes a hard look at the purported success of the Environmental Water Account (EWA) program, and reports on the tensions between scientists at regulatory agencies and the political appointees who oversee them. We …

Race And Wealth Disparity: The Role Of Law And The Legal System, Beverly Moran, Stephanie Wildman

Faculty Publications

In response to the prevalent view that American law and legal institutions are class and color blind, this Article provides examples of how legal institutions sometimes do create and maintain racialized wealth disparities. The Article offers examples of this phenomenon by examining a sequence of federal judicial decisions, the federal taxing statutes, the role of legal education, and access to legal services. These examples are instructive because they cut across a broad spectrum of components of the American legal system. By revisiting issues of race and wealth in different legal settings from the Constitution to federal cases, the tax system, …

A Concise History Of International Criminal Law, Beth Van Schaack, Ron Slye

Faculty Publications

This work is an introductory chapter for a forthcoming book on Understanding International Criminal Law to be published by Aspen Publishers as part of Aspen's Essentials series. This chapter presents a succinct history of international criminal law (ICL), drawing upon major developments in the law of armed conflict, international human rights law, and the criminal prohibitions against piracy and the slave trade. The chapter interweaves the history of substantive norms with that of evolving principles of domestic and international jurisdiction, as these narratives are virtually inseparable in ICL. Additional chapters in the text will address the sources of ICL, the …

Online Word Of Mouth And Its Implications For Trademark Law, Eric Goldman

Faculty Publications

This Chapter discusses the emergence of online word of mouth, the process by which consumers disseminate their views about marketplace goods and services. Due to online word of mouth, consumers have an unprecedented ability to influence the brand perceptions of other consumers. Unfortunately, these effects have put doctrinal pressure on trademark law, leading to judicial interpretations that inhibit the flow of online word of mouth and may damage the efficacy of marketplace mechanisms. This Chapter will explore how trademark law should be interpreted to preserve the flow of socially beneficial online word of mouth.

Teaching Race/Teaching Whiteness: Transforming Colorblindness To Color Insight, Margalynne J. Armstrong, Stephanie Wildman

Faculty Publications

This Article argues that whiteness operates as the normative foundation of most discussions of race. Legal educators often overlook the role of whiteness in the law school setting and in law more generally. Identifying and understanding whiteness should be an essential component of legal education. This Article considers reasons why legal education rarely addresses this normative role played by whiteness. An incomplete understanding of the nature of white privilege and the modern move toward "colorblindness" conceal the raced nature of much law. To draw the harmful operation of colorblindness into relief, this Article proposes adopting "color insight, " which would …

Mentally Ill Prisoners In The California Department Of Corrections And Rehabilitation: Strategies For Improving Treatment And Reducing Recidivism, W. David Ball

Faculty Publications

The California state prison system is proving ill-equipped to deal with the state's mentally ill prisoner population. This paper examines the ways in which mentally ill felons are not receiving adequate care while in prison as well as appropriate preparation for life after their release. The paper argues that the result is an avoidable drain on the state's budget as well as unnecessarily high recidivism rates for this population. Accordingly, constructive policy recommendations for ameliorating this shortcoming of the prison system are proposed.

Patentee Overcompensation And The Entire Market Value Rule, Brian J. Love

Faculty Publications

Imagine a computer chip composed of millions of transistors and hundreds or even thousands of individually patented inventions. Could just one of those patented components ever account for the entire economic value of the chip? Could just one such invention ever account for the entire value of a total personal computer system-monitor, keyboard, mouse, printer, software, and all-sold along with the chip? While these questions may seem far-fetched, they may soon be answered in the affirmative under a U.S. patent law doctrine known as the "entire market value rule."

Language Accommodation And The Voting Rights Act, Angelo N. Ancheta

Faculty Publications

Since 1975, the language assistance provisions of the federal Voting Rights Act have provided important safeguards of voting rights to racial and ethnic minority citizens. Despite the renewal of key provisions of the Voting Rights Act in 2006 for an additional twenty-five years, Congress has not articulated a comprehensive theory of language rights in the voting arena, nor has it provided language assistance mechanisms that provide adequate assistance to all limited-English-proficient voters.

This paper articulates a theory of language accommodation within federal antidiscrimination jurisprudence and suggests revisions to key sections of the Voting Rights Act to expand coverage of the …

Stealth Risks Of Regulating Stealth Marketing: A Comment On Ellen Goodman's 'Stealth Marketing And Editorial Integrity', Eric Goldman

Faculty Publications

In this response piece to Ellen Goodman's Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83 (2006), Professor Goldman explores the potential adverse consequences of Professor Goodman's proposal for sponsorship disclosure laws. More specifically, Goldman argues that any deliberation of such disclosure laws must consider: (i) why consumers desire to know the source of content; (ii) whether consumer distrust of marketing wrongly affects consumers' evaluation of content; and (iii) the adverse effects of noisy disclosures.

Introduction: Snapshots Of The State Of China’S Environmental Regulatory System, Tseming Yang

Faculty Publications

No abstract provided.

Why Torts Die, Kyle Graham

Faculty Publications

A few authors have performed autopsies on specific torts and identified the suspected reasons behind their deaths. These analyses, though interesting, are by their own admission of limited scope and do not provide especially useful analytic or predictive tools. This Article has a broader goal. Just as pathologists and epidemiologists study how fatal illnesses spread, conservation biologists examine why animal species go extinct, and geographers and anthropologists try to understand why societies succeed or fail, this Article surveys the roster of dead and dying torts and then asks (and tries to answer) a novel question: Why do torts die? This …

Continuing Violations Doctrine, Kyle Graham

Faculty Publications

It has been intimated that the uncertainty surrounding the continuing violations doctrine owes to a failure to grasp its origins and modem-day contours. This article treats this assertion as true, and tries to dispel at least some of this confusion. Toward this purpose, this article charts the conceptual landscape of this theory and explains how and why the doctrine has been and should be applied.

This analysis begins with the recognition of and distinction between two types of continuing violations. Though frequently confused or conflated, these two approaches are in fact quite different in both purpose and effect. The first …

Sos (Safeguard Our Survival): Understanding And Alleviating The Lethal Legacy Of Survival Threatening Child Abuse, Nancy A. Wright, Eric Wright

Faculty Publications

To try to achieve the goal of fully protecting a child the first time the child is subjected to potentially survival-threatening abuse, this Article suggests the creation of a model program, called the SOS ("Save Our Survival") Program, with the hope that this model program might ultimately be adopted by child protective agencies throughout the United States. Specially trained teams, known as SOS ("Safeguard Our Survival") Teams, comprised of child protection workers, police officers, medical personnel, attorneys and social workers would staff the program. SOS Team members, who would be on call 24/7, would be notified as soon as a …

Increasing Law Students' Effectiveness When Representing Traumatized Clients: A Case Study Of The Katherine & George Alexander Community Law Center, Lynette Parker

Faculty Publications

This article contributes to the discussion of representation of traumatized clients through a detailed case study of the Katharine & George Alexander Community Law Center (KGACLC). First, it will discuss the issues that arise when students represent traumatized clients. This section will focus on the goals for training effective representation, the importance of such training, and the issues of duty of care and professional responsibility. Second, it will review the mechanics of training and mentoring law students who work with traumatized clients. This section will include a brief introduction to KGACLC and outline KGACLC's case acceptance policy, its early attempts …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

Faculty Publications

Three employees of Mphasis, a business process outsourcing ("BPO") firm, which runs call center services for Citibank's U.S. customers in Bangalore, India, were arrested for allegedly siphoning $350,000 from the accounts of Citibank's U.S. customers. These employees used their positions, which provided them access to Citibank customers, to induce four customers into giving out the personal identification numbers to their accounts, allowing the employees to illegally siphon funds out of those accounts. Outsourcing is a growing trend among budgetconscious U.S. companies and institutions. Information being outsourced includes personal data and confidential proprietary information. For example, Unisys Corporation, a company that …

The Avoidance Canon: From The Cold War To The War On Terror, Lisa A. Kloppenberg

Faculty Publications

No abstract provided.

But Can It Be Fixed? A Look At Constitutional Challenges To Lethal Injection Executions, Ellen Kreitzberg, David Richter

Faculty Publications

This article argues that California's Procedure 770 as currently implemented is unconstitutional. Judge Fogel, after an exhaustive review of evidence from all parties,agrees. Although Judge Fogel believes that the lethal injection system, while broken "can be fixed," we argue that lethal injection, as a method of execution, is always unconstitutional because the procedures employed in its administration can never ensure against unnecessary risk of pain to the inmate. We also argue that the California legislature must step in to publicly review lethal injection executions and to investigate the conduct of the California Department of Corrections and Rehabilitation (CDCR) in the …

Ringing The Bell On The Nyse: Might A Nonprofit Stock Exchange Have Been Efficient?, Stephen F. Diamond

Faculty Publications

This spring the New York Stock Exchange, Inc. (NYSE) completed an historic restructuring. On March 7, 2006, the NYSE completed its merger with Archipelago Holdings Inc. (Archipelago), a publicly traded electronic trading platform. As a result, the old NYSE itself will become the New York Stock Exchange LLC, a wholly owned subsidiary of NYSE Group, Inc. (NYSE Group). The former members, or seat holders, of the NYSE will receive one of three forms of consideration: all cash, all stock in NYSE Group, or a package of cash and stock. Then, NYSE Group will allow those former members to offer their …