Law Commons^™

Dissecting O'Donnabhain, Anthony C. Infanti

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In O'Donnabhain v. Commissioner, a sharply divided Tax Court allowed a medical expense deduction for some costs related to sex reassignment surgery. This short commentary examines the opinions in the case and concludes that the taxpayer's victory rings hollow.

Doma And The Happy Family: A Lesson In Irony, Rhonda Wasserman

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In enacting the Defense of Marriage Act, Congress chose to protect heterosexual marriage because of its “deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” Ironically, DOMA may harm, rather than protect, the interests of some children – i.e., the children of gay and lesbian couples.

Both state and federal law reflect the belief that children are better off being raised by two parents in an intact family. This belief is reflected in the marital presumption of paternity, which presumes that a married woman’s …

The Missing Minority Judges, Pat K. Chew, Luke T. Kelley-Chew

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This essay documents the lack of Asian-American judges and considers the consequences.

Ornamental Repugnancy: Identitarian Islam And The Iraqi Constitution, Haider Ala Hamoudi

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Nearly six years after the enactment of Iraq’s final constitution, the Federal Supreme Court of Iraq has yet to render a single ruling respecting the conformity of any law to the “settled rulings of Islam” despite being empowered to do precisely that under Article 2 of the Iraqi Constitution. This so-called repugnancy clause is swiftly devolving from a matter that was of some importance during constitutional negotiations into one that is more symbolic than real – an assertion of identity, primarily of the Islamic variety (though when combined with Article 92, to some extent of the Shi’i Islamic variety) – …

Exporting Legal Education: Lessons Learned From Efforts In Transition Countries, Ronald A. Brand

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A convergence of inward and outward-looking processes in US law schools creates both risk and potential reward in the development of legal education. As law faculties engage in the current process of changing the traditional law school curriculum, they should carefully coordinate a desire for internal goals with an understanding of external impact, realizing that this process is likely to affect not just US law schools, but legal education across the globe. Changes in the curriculum at US law schools should be responsive, not only to concerns about the legal marketplace in the United States, but also to the impact …

Law Enforcement And Intelligence Gathering In Muslim And Immigrant Communities After 9/11, David A. Harris

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Since the attacks of September 11, 2001, law enforcement agencies have actively sought partnerships with Muslim communities in the U.S. Consistent with community-based policing, these partnerships are designed to persuade members of these communities to share information about possible extremist activity. These cooperative efforts have borne fruit, resulting in important anti-terrorism prosecutions. But during the past several years, law enforcement has begun to use another tactic simultaneously: the FBI and some police departments have placed informants in mosques and other religious institutions to gather intelligence. The government justifies this by asserting that it must take a pro-active stance in order …

Copyright’S Twilight Zone: Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

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Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright works, or engaging in acts of digital copyright piracy and plagiarism. As online conduct becomes more interactive, copyright laws are less effective in creating clear signals about proscribed conduct. This article examines the application of copyright law to Web 2.0 technologies. It suggests that social …

Taser Use: Report Of The Use Of Force Working Group Of Allegheny County, David A. Harris

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The Use of Force Working Group was convened in October of 2008 to study police use of electronic control devices, better known as Tasers. Allegheny County (Pa.) District Attorney Stephen A. Zappala, Jr. appointed the Working Group in the wake of an incident in which a person died following a Taser exposure at the hands of local police officers.

This Report concludes that Tasers can be worthwhile and safe weapons in the police arsenal, but only if they are used consistent with proper policy, training, supervision and accountability. Anything less makes the use of these weapons a risky choice from …

Digital Multi-Media And The Limits Of Privacy Law, Jacqueline D. Lipton

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While digital video and multi-media technologies are becoming increasingly prevalent, existing privacy laws tend to focus on text-based personal records. Individuals have little recourse when concerned about infringements of their privacy interests in audio, video, and multi-media files. Often people are simply unaware that video or audio records have been made. Even if they are aware of the existence of the records, they may be unaware of potential legal remedies, or unable to afford legal recourse. This paper concentrates on the ability of individuals to obtain legal redress for unauthorized use of audio, video and multi-media content that infringes their …

Wikipedia And The European Union Database Directive, Jacqueline D. Lipton

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“Web 2.0" and "User Generated Content (UGC)" are the new buzzwords in cyberspace. In recent years, law and policy makers have struggled to keep pace with the needs of digital natives in terms of online content control in the new participatory web culture. Much of the discourse about intellectual property rights in this context revolves around copyright law: for example, who owns copyright in works generated by multiple people, and what happens when these joint authored works borrow from existing copyright works in terms of derivative works rights and the fair use defense. Many works compiled by groups are subject …

What Blogging Might Teach About Cybernorms, Jacqueline D. Lipton

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Since the dawn of the information age, scholars have debated the viability of regulating cyberspace. Early on, Professor Lawrence Lessig suggested that “code is law” online. Lessig and others also examined the respective regulatory functions of laws, code, market forces, and social norms. In recent years, with the rise of Web 2.0 interactive technologies, norms have taken center-stage as a regulatory modality online. The advantages of norms are that they can develop quickly by the communities that seek to enforce them, and they are not bound by geography. However, to date there has been scant literature dealing in any detail …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

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The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

The Death Of Islamic Law, Haider Ala Hamoudi

Articles

That lawmaking in many modern Muslim nation states appears to give rather short shrift to shari’a, seemingly ignoring it in all areas save the law of the family and replacing it elsewhere with European transplanted law, has been discussed. That the Muslim world is replete with political institutions and leaders that seek a greater role than this for the shari’a in the affairs of the state is obvious to anyone even faintly familiar with the region.

However, left undiscussed is the fact that the Islamist, who derives his authority precisely on the basis of returning sovereignty to God in all …

Picture This: Body Worn Video Devices ('Head Cams') As Tools For Ensuring Fourth Amendment Compliance By Police, David A. Harris

Articles

A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from …

Identitarian Violence And Identitarian Politics: Elections And Governance In Iraq, Haider Ala Hamoudi

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This Essay, originally published in a 2010 issue of the Harvard International Law Journal (Online), maintains that it is a mistake to ask whether or not the United States was wise to have "allowed" elections in Iraq as early as it did following its overthrow of the Saddam Hussein regime in 2003. Such a question presumes an absence of domestic agency that was certainly not the case in Iraq, and is probably not the case in any modern society under occupation. Domestic demands coming from domestic forces seeking to shore up their own power base almost necessitated the outcome of …

The Technology Of Law, Bernard J. Hibbitts

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This paper argues that contemporary fascination with the law of technology (IP, cyberlaw, etc.) has led us to overlook the fundamental impact of the "technology of law," and offers suggestions for creating "neterate" lawyers more comfortable with and cognizant of technology itself. The author describes how the legal news service JURIST implements many of these suggestions and provides a unique learning experience for its law student staffers.

Veil-Piercing, Peter B. Oh

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From its inception veil-piercing has been a scourge on corporate law. Exactly when the veil of limited liability can and will be circumvented to reach into a shareholder’s own assets has befuddled courts, litigants, and scholars alike. And the doctrine has been bedeviled by empirical evidence of a chasm between the theory and practice of veil-piercing; notably, veil-piercing claims inexplicably seem to prevail more often in Contract than Tort, a finding that flouts the engrained distinction between voluntary and involuntary creditors.

With a dataset of 2908 cases from 1658 to 2006 this study presents the most comprehensive portrait of veil-piercing …

Negotiating The Situation: The Reasonable Person In Context, Lu-In Wang

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This Essay argues that our understanding of the reasonable person in economic transactions should take into account an individual’s race, gender, or other group-based identity characteristics - not necessarily because persons differ on account of those characteristics, but because of how those characteristics influence the situations a person must negotiate. That is, individuals’ social identities constitute features not just of themselves, but also of the situations they inhabit. In economic transactions that involve social interaction, such as face-to-face negotiations, the actor’s race, gender, or other social identity can affect both an individual actor and those who interact with him or …

Transnational Class Actions And Interjurisdictional Preclusion, Rhonda Wasserman

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As global markets expand and trans-border disputes multiply, American courts are pressed to certify transnational class actions -- i.e., class actions brought on behalf of large numbers of foreign citizens or against foreign defendants. While the Supreme Court's recent decision in Morrison v. National Australia Bank Ltd. is likely to reduce the number of "foreign-cubed" or "f-cubed" securities fraud class actions filed in the United States (at least in the short term), it is unlikely to inhibit the filing of transnational class actions involving securities listed on domestic stock exchanges, transnational class actions raising claims that arise under federal laws …

Mapping Online Privacy, Jacqueline D. Lipton

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Privacy scholars have recently outlined difficulties in applying existing concepts of personal privacy to the maturing Internet. With Web 2.0 technologies, more people have more opportunities to post information about themselves and others online, often with scant regard for individual privacy. Shifting notions of 'reasonable expectations of privacy' in the context of blogs, wikis, and online social networks create challenges for privacy regulation. Courts and commentators struggle with Web 2.0 privacy incursions without the benefit of a clear regulatory framework. This article offers a map of privacy that might help delineate at least the outer boundaries of Web 2.0 privacy. …

Bad Faith In Cyberspace: Grounding Domain Name Theory In Trademark, Property And Restitution, Jacqueline D. Lipton

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The year 2009 marks the tenth anniversary of domain name regulation under the Anti-Cybersquatting Consumer Protection Act (ACPA) and the Uniform Domain Name Dispute Resolution Policy (UDRP). Adopted to combat cybersquatting, these rules left a confused picture of domain name theory in their wake. Early cybersquatters registered Internet domain names corresponding with others’ trademarks to sell them for a profit. However, this practice was quickly and easily contained. New practices arose in domain name markets, not initially contemplated by the drafters of the ACPA and the UDRP. One example is clickfarming – using domain names to generate revenues from click-on …

Is Environmental Law A Barrier To Emerging Alternative Energy Sources, Amy J. Wildermuth

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My aim in this article is to explore the environmental law-energy divide from the environmental law perspective. In doing so, I will examine the impact of environmental law on energy use and energy sources today, focusing particularly on the development of alternative energy. Professor Lincoln Davies has taken up the same task---exploring the environmental law-energy divide-but from the perspective of energy law. Our collective goal is to inspire a discussion about how energy law and environmental law interact and what that means for energy development and use. We also hope to provide some ideas, based on lessons from alternative energy …

Standing, On Appeal, Amy J. Wildermuth, Lincoln L. Davies

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Scholarly criticism of standing doctrine is hardly new, but a core problem with standing jurisprudence remains overlooked: How do parties challenging administrative decisions factually prove that they have standing on appeal when appellate courts normally do not conduct fact finding? This Article attempts to tackle that problem. It combines a four-pronged normative procedural justice model with an empirical study of appellate cases to conclude that (1) although this issue arises in a relatively narrow set of cases, the number of such cases is growing and (2) existing judicial solutions to the problem are deficient. Thus, after exploring several options — …

Constructing Commons In The Cultural Environment, Michael J. Madison, Brett M. Frischmann, Katherine J. Strandburg

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This Essay considers the problem of understanding intellectual sharing/pooling arrangements and the construction of cultural commons arrangements. We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment(s) within which they are embedded and with which they share interdependent relationships. Such an improved understanding is critical for obtaining a more complete …

Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison

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The Supreme Court’s copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of “romantic authorship” in the 19th and 20th centuries, copyright critiques likewise ask, “Who is creative?” “How should creativity be protected (or not) and encouraged (or not)?” and “ Why protect creativity?” Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue …

Outsourcing Investigations, Elena Baylis

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This article addresses the International Criminal Court’s reliance on third-party investigations in the absence of its own international police force. In addition to cooperation from sometimes reluctant states, the ICC and other international criminal tribunals have come to rely on a network of NGOs and UN entities focused on postconflict justice work to provide critical evidence. This reliance raised problems in the ICC Office of the Prosecutor's first case against Thomas Lubanga. The use of third-party evidence raises questions regarding confidentiality and disclosure, the integrity of the evidence-gathering process, and the equality of arms between the prosecution and the defense. …

Seeing Subtle Racism, Pat K. Chew

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Traditional employment discrimination law does not offer remedies for subtle bias in the workplace. For instance, in empirical studies of racial harassment cases, plaintiffs are much more likely to be successful if they claim egregious and blatant racist incidents rather than more subtle examples of racial intimidation, humiliation, or exclusion. But some groundbreaking jurists are cognizant of the reality and harm of subtle bias - and are acknowledging them in their analysis in racial harassment cases. While not yet widely recognized, the jurists are nonetheless creating important precedents for a re-interpretation of racial harassment jurisprudence, and by extension, employment discrimination …

Learning By Doing: An Experience With Outcomes Assessment, Mary Crossley, Lu-In Wang

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An emphasis on assessment and outcomes measures is a drum beat that is growing louder in American legal education. Prompted initially by the demands of regional university accreditation bodies, the attention paid to outcomes assessment is now growing with the forecast that the ABA will revise its accreditation standards to incorporate outcomes measures. For the past three years, the University of Pittsburgh School of Law has been developing a system for assessing the learning outcomes of its students. By describing our experience here at Pitt Law, with both its high and low points, we hope to suggest some helpful pointers …

Promoting The Rule Of Law: Cooperation And Competition In The Eu-Us Relationship, Ronald A. Brand

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Both the United States and the European Union fund programs designed to develop the rule of law in transition countries. Despite significant expenditures in this area, however, neither has developed either a clear definition of what is meant by the rule of law or a catalogue of programs that can result in coordination of rule of law efforts. This article is the result of a presentation at a May 2010 policy conference at the University of Pittsburgh School of Law, at which U.S. and EU government officials, scholars, and practitioners discussed the concept of rule of law and efforts to …

Foreword: On Publishing Anonymously, Anthony C. Infanti

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In this foreword to the fall 2010 issue of the Pittsburgh Tax Review, I explain the troubling set of circumstances that led to our decision to publish one of the articles anonymously. All of the articles in this issue share a focus on suggestions for state and local tax reform in Pennsylvania. The circumstances surrounding the decision to publish this one article anonymously raise a host of questions regarding the extent to which tax professionals are free to make suggestions for tax reform without being subject to employer censorship.