Law Commons^™

The Confrontation Right Across The Systemic Divide, Richard D. Friedman

Book Chapters

In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.

In this essay, I will explore how these four features play out in the …

Business Profits (Article 7 Oecd Model Convention), Reuven S. Avi-Yonah, Kimberly A. Clausing

Book Chapters

The 2006 OECD Report on attribution of profits to permanent establishments states that its recommendation "was not constrained by either the original intent or by the historical practice and interpretation of Article 7." Moreover, the Report recommends a redrafting of both the Article itself and the Commentary. Given this, it seems appropriate to begin by asking: If we were working on a clean slate, what would be the best way to tax MNEs at source in the light of 21st century business practices? The beginning point has to be that a modern MNE does not operate as if its constituent …

Choosing Metaphors, Jessica Litman

Book Chapters

The copyright law on the books is a large aggregation of specific statutory provisions; it goes on and on for pages and pages. When most people talk about copyright, though, they don't mean the long complicated statute codified in title I7 of the U.S. Code. Most people's idea of copyright law takes the form of a collection of principles and norms. They understand that those principles are expressed, if sometimes imperfectly, in the statutory language and the case law interpreting it, but they tend to believe that the underlying principles are what count. It is, thus, unsurprising that the rhetoric …

Anglo-American And Continental Systems: Marsupials And Mammals Of The Law., Richard O. Lempert

Book Chapters

When Peter Tillers invited me to participate in this festschrift for Mirjan Damaška, I proposed to write a short concluding essay reviewing the articles in this volume and drawing links between them. Perhaps I should have anticipated that this would be no easy task, and maybe even have foreseen that it was an assignment I would eventually shun. I should have known that there would not be the six to eight articles I anticipated but the 17 that have been submitted. Had I thought more, I would have realised that there would be many people, myself included, who would seek …

Cameras Should Not Be Allowed In The Supreme Court, Christina B. Whitman

Book Chapters

There are understandable reasons for televising U.S. Supreme Court arguments. It is reasonable for the American public to want to understand the thinking behind so many important decisions, and other governmental branches have allowed electronic media access, as have lower courts. Such access, however, would be misleading, as oral arguments would receive attention that is disproportionate to their significance. For many justices, oral arguments play an insignificant role in their decision making, and the remarks they make during such arguments may not be indicative of their actual stances. Televising the Court's oral arguments, may result in undue attention for those …

Policies To Expand Minority Entrepreneurship: Closing Comments, Michael S. Barr

Book Chapters

This essay is based on comments delivered at the Conference on on Entrepreneurship in Low- and Moderate-Income Communities, November 3-4, 2005. This has been a productive conversation. In my closing comments, I want to shift our focus somewhat, from entrepreneurship in low-income communities to minority entrepreneurship generally. I want to do so because many minority entrepreneurs are connected to or hire from low-income communities, and because minority entrepreneurs face critical barriers even when they attempt to create and grow firms outside of distressed communities. In this comment, I want to highlight key barriers and suggest five steps for Congress, the …

Social Science And The Evolving Standards Of Death Penalty Law, Samuel R. Gross, Phoebe C. Ellsworth

Book Chapters

Unlike many of the topics covered in this book, death penalty litigation involves a wide variety of empirical issues. The Eighth Amendment of the U.S. Constitution provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." But what is a "cruel and unusual punishment?" It could be a punishment that is morally unacceptable to the American people, like cutting off noses or hands. Following the other clauses of the amendment, it could be a punishment that is excessive, in that a lesser penalty would achieve the same ends. For example, if a …