Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles

2003

Discipline
Institution
Keyword

Articles 1 - 30 of 188

Full-Text Articles in Law

Beware Of Lawyers Bearing Ggifts: A Critical Evaluation Of The Report Of Wg Ii To The European Convention On Incorporation Of The Eu Charter Of Fundamental Rights And Accession To The European Convention Of Human Rights., Stephen Carruthers Nov 2003

Beware Of Lawyers Bearing Ggifts: A Critical Evaluation Of The Report Of Wg Ii To The European Convention On Incorporation Of The Eu Charter Of Fundamental Rights And Accession To The European Convention Of Human Rights., Stephen Carruthers

Articles

This article undertakes a critical analysis of the fundamental rights provisions of the draft Treaty establishing a Constitution for Europe as presented to the President of the European Council in Rome on 18 July 2003, and in particular the Articles in Parts I and II of the draft Constitution incorporating proposals made in the final Report of Working Group II on “Incorporation of the Charter/Accession to the ECHR”.


Framework For Evaluation Of Tribal Water Settlements, Barbara Cosens Oct 2003

Framework For Evaluation Of Tribal Water Settlements, Barbara Cosens

Articles

No abstract provided.


Border Patrol, Carl E. Schneider Jul 2003

Border Patrol, Carl E. Schneider

Articles

Recently, the Supreme Court has encountered cases that concern perhaps our weightiest bioethical issue-how medical care is to be rationed. But this does not mean that the Court must therefore assess the justice of rationing, as many people incited by many journalists now fondly and firmly believe. In explaining why, we begin with a story about how Learned Hand remembered saying one day to Justice Holmes, "Well, sir, goodbye. Do justice!" Holmes turned quite sharply and said: "That is not my job. My job is to play the game according to the rules." If the Court doesn't do justice ...


Building A Home For The Laws Of The World: Part 1: Bates, Cook, And Coffey, Margaret A. Leary Jun 2003

Building A Home For The Laws Of The World: Part 1: Bates, Cook, And Coffey, Margaret A. Leary

Articles

The following feature is an edited version of "Building a Foreign Law Collection at the University of Michigan Law Library, 1910-1960."© Margaret A. Leary, 2002, which originally appeared at 94 Law Library Journal 395-425 (2002), and appears here with permission of the author. The first part of the article appears here; the conclusion will appear in the next issue of Law Quadrangle Notes.


Australia's Tampa Incident: The Convergence Of International And Domestic Refugee And Maritime Law In The Pacific Rim: Introduction To The Maritime Law Forum, Craig Allen Jan 2003

Australia's Tampa Incident: The Convergence Of International And Domestic Refugee And Maritime Law In The Pacific Rim: Introduction To The Maritime Law Forum, Craig Allen

Articles

The members of the Pacific Rim Law & Policy Journal are to be congratulated for their initiative, compassion, and insight in calling attention to the August 26, 2001 M/V Tampa incident and subjecting the actions of the involved principals and the governing legal regime to close and thoughtful scrutiny. Planning for the April 22, 2002 symposium in Seattle began in the fall of 2001, shortly after the Tampa's week-long crisis involving 438 migrants garnered international attention. Speakers for the Symposium conference, recruited under the leadership of the Journal's 2001-2002 Editor-in-Chief, Kelly Thomas, hailed from Australia, Europe and throughout ...


Introduction, The Osceola After 100 Years: Its Meaning And Effect On Maritime Personal Injury Law In The United States, Craig Allen Jan 2003

Introduction, The Osceola After 100 Years: Its Meaning And Effect On Maritime Personal Injury Law In The United States, Craig Allen

Articles

A century ago the United States Supreme Court issued its decision in The Osceola [189 U.S. 158 (1903)], announcing four legal propositions that controlled personal injury claims by seamen at the time. On the 100th anniversary of the Court's decision, the four admiralty law professors contributing to this symposium take the opportunity to critically examine the Court's renowned decision, Congress' responses to the decision, and the effect of both The Osceola's four propositions and the responsive legislation on the remedies available to injured maritime workers in the 21st century.

In the first of the three articles ...


"They Say He's Gay": The Admissibility Of Evidence Of Sexual Orientation, Peter Nicolas Jan 2003

"They Say He's Gay": The Admissibility Of Evidence Of Sexual Orientation, Peter Nicolas

Articles

This Article seeks to fill an existing gap. Part II of this Article discusses the ways in which the sexual orientation of a victim, party, or witness is relevant within the meaning of Federal Rule of Evidence 401 and its state-law analogues, as well as when such evidence, although relevant, is nonetheless excluded due to its potential prejudicial impact.

Part III of this Article examines the hearsay rule and its exceptions to determine when, if ever, a person's assertion that he is gay can be admitted into evidence. Part IV of this Article discusses the applicability of the spousal ...


Whose Deal Is It? Teaching About Structural Inequality By Teaching Contracts Transactionally, Kellye Y. Testy Jan 2003

Whose Deal Is It? Teaching About Structural Inequality By Teaching Contracts Transactionally, Kellye Y. Testy

Articles

Although Scott Burnham and others have urged the use of more contracts to teach Contracts for some time,'9 it is safe to say that the majority of Contracts courses in the United States do not put actual contracts front and center. While particular phrases or provisions surely are referenced in the steady diet of appellate decisions that comprise the first-year course, those decisions very rarely include the actual contract at issue for study. Moreover, in the increased compression of the first year course," few professors believe they can justify the time for transactional exercises or simulations in the rush ...


The Best Patent Practice Or Mere Compromise? A Review Of The Current Draft Of The Substantive Patent Law Treaty And A Proposal For A "First-To-Invent" Exception For Domestic Applicants, Toshiko Takenaka Jan 2003

The Best Patent Practice Or Mere Compromise? A Review Of The Current Draft Of The Substantive Patent Law Treaty And A Proposal For A "First-To-Invent" Exception For Domestic Applicants, Toshiko Takenaka

Articles

Part I of this paper I review the past efforts of patent harmonization. In Part II, I review the current draft of the Substantive Patent Law Treaty (SPLT) and compare its major articles with Title 35 of the United States Code, the European Patent Convention (EPC), and Japanese Patent Law (JPL). In Part III, I analyze the changes expected by the integration of the SPLT into U.S. patent practice and examine if such changes would result in the best patent practice. I propose that the best practice takes into account underlying patent policies in such instances in which the ...


Community Acequias In Colorado's Rio Culebra Watershed: A Customary Commons In The Domain Of Prior Appropriation, Gregory A. Hicks, Devon G. Peña Jan 2003

Community Acequias In Colorado's Rio Culebra Watershed: A Customary Commons In The Domain Of Prior Appropriation, Gregory A. Hicks, Devon G. Peña

Articles

This article presents an account of the landscape and water institutions of the acequia communities of Colorado's Rio Culebra watershed. The physical and social landscape of the Culebra watershed, a product of water institutions introduced by Hispano settlers in the years immediately following the Mexican War, and the persistence of those institutions after the introduction of the system of prior appropriation, offers an instance of a successful engagement of community water institutions in the creation of a sustainable and resource-rich watershed landscape. The ultimate goals of this article are threefold. First, the article describes the acequialandscape and its ...


A Reply--The Missing Portion, Pierre Schlag Jan 2003

A Reply--The Missing Portion, Pierre Schlag

Articles

No abstract provided.


Mountains Without Handrails … Wilderness Without Cellphones, Sarah Krakoff Jan 2003

Mountains Without Handrails … Wilderness Without Cellphones, Sarah Krakoff

Articles

No abstract provided.


Competence, Culpability, And Punishment: Implications Of Atkins For Executing And Sentencing Adolescents, Barry C. Feld Jan 2003

Competence, Culpability, And Punishment: Implications Of Atkins For Executing And Sentencing Adolescents, Barry C. Feld

Articles

The Supreme Court has explored the issues of culpability, proportionality, and deserved punishment most fully in the context of capital punishment. In death penalty decisions addressing developmental impairments and culpability, the Court has considered the cases of defendants with mental retardation and older adolescents, and has created an anomalous inconsistency by reaching opposite conclusions about the deserved punishment for each group of defendants. Recently, in Atkins v. Virginia, the Court relied on both empirical and normative justifications to categorically prohibit states from executing defendants with mental retardation. Atkins reasoned that mentally retarded offenders lacked the reasoning, judgment, and impulse control ...


Physician-Assisted Suicide And Federalism, Brian H. Bix Jan 2003

Physician-Assisted Suicide And Federalism, Brian H. Bix

Articles

The article considers the application of general theories of federalism (e.g., states as laboratories and competitive federalism) to the issue of physician-assisted suicide. The article also uses the analogies of same-sex marriage and medical marijuana to explore some of the moral and policy issues raised by this intersection of medical ethics and federalism.


Why (And How) Fairness Matters At The Ip/Antitrust Interface, Daniel A. Farber, Brett Mcdonnell Jan 2003

Why (And How) Fairness Matters At The Ip/Antitrust Interface, Daniel A. Farber, Brett Mcdonnell

Articles

This Article questions the widespread scholarly view that maximizing economic efficiency should be the sole goal of the intellectual property and antitrust laws. We propose that the law should also encourage a fair division of the economic surplus, at least by considering it as a tiebreaker when the dictates of economic efficiency are ambiguous or controversial. We begin by surveying some challenges that have been made to the theoretical underpinnings of exclusive reliance on economic efficiency, but go on to argue that, even on the terms of welfarism, some regard for distributive fairness is appropriate. First, since fairness is a ...


Ellman's "Why Making Family Law Is Hard": Additional Reflections, Robert Levy Jan 2003

Ellman's "Why Making Family Law Is Hard": Additional Reflections, Robert Levy

Articles

Not the least of the pleasures of membership in this distinguished group invited to praise Ira Ellman was the opportunity it gave me to renew old and dear friendships with Arizona State faculty members and their spouses, to come back to the scene of my "adjunct visitor" gig last year, to see once again an effective dean whom I greatly admire. More important, the occasion allows me to praise publicly a scholar whose creative thinking, academic writing, legislative drafting and public performances as Reporter for the American Law Institute's Principles of the Law of Family Dissolution I have long ...


State Interest And Marriage--The Theoretical Perspective, Brian H. Bix Jan 2003

State Interest And Marriage--The Theoretical Perspective, Brian H. Bix

Articles

By the conference description, we are to consider "the relationship of marriage and self-government." 2 It is hard to analyze the relationship of these two, because they are "moving targets." Everyone thinks they know what is meant by "marriage," but as the debate ensues about the extension (e.g., to same-sex couples) and modification (e.g., for covenant marriage rules) of marriage, and our social norms about the roles of parents (married or not) and spouses change, one might wonder how much is certain and agreed upon and how much is fluid and up for review and revision. 3


Norms On The Responsibilities Of Transnational Corporations And Other Business Enterprises With Regard To Human Rights, David Weissbrodt, Muria Kruger Jan 2003

Norms On The Responsibilities Of Transnational Corporations And Other Business Enterprises With Regard To Human Rights, David Weissbrodt, Muria Kruger

Articles

On August 13, 2003, the United Nations Sub-Commission on the Promotion and Protection of Human Rights approved the "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights" (Norms) 1 in its Resolution 2003/16. 2 The Norms represent a landmark step in holding businesses accountable for their human rights abuses and constitute a succinct, but comprehensive, restatement of the international legal principles applicable to businesses with regard to human rights, humanitarian law, international labor law, environmental law, consumer law, anticorruption law, and so forth.


The Constitutional Underpinnings Of Homelessness, Ann Burkhart Jan 2003

The Constitutional Underpinnings Of Homelessness, Ann Burkhart

Articles

In Lindsey v. Normet, 1 the U.S. Supreme Court upheld a state wrongful detainer statute against tenants who withheld their rent after the Bureau of Buildings of Portland, Oregon declared their house to be uninhabitable. 2 In reaching its holding, the Court stated that it was "unable to perceive in [the Constitution] any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the terms of his lease without the payment of rent." 3 The Court did not address the separate ...


Human Rights Approach To Intellectual Property Protection: The Genesis And Application Of Sub-Commission Resolution 2000/7, David Weissbrodt, Kell Schoff Jan 2003

Human Rights Approach To Intellectual Property Protection: The Genesis And Application Of Sub-Commission Resolution 2000/7, David Weissbrodt, Kell Schoff

Articles

On August 17, 2000, the United Nations Sub-Commission on the Promotion and Protection of Human Rights (the Sub- Commission) adopted Resolution 2000/7, entitled Intellectual Property Rights and Human Rights .1 This resolution signified the Sub-Commission s belief that international intellectual property regimes were not adequately accounting for human rights norms.2 Resolution 2000/7 called on U.N. Member States, intergovernmental bodies, and various U.N. entities to reaffirm their commitments toward the achievement of international human rights norms, adopt a human rights approach to the development of international intellectual property regimes, and further study the interaction between intellectual ...


The Constitutional Tension Between Apprendi And Mckeiver: Sentence Enhancements Based On Delinquency Convictions And The Quality Of Justice In Juvenile Courts, Barry C. Feld Jan 2003

The Constitutional Tension Between Apprendi And Mckeiver: Sentence Enhancements Based On Delinquency Convictions And The Quality Of Justice In Juvenile Courts, Barry C. Feld

Articles

In Apprendi v. New Jersey, the Supreme Court ruled that any fact that increases the penalty for a crime “other than the fact of a prior conviction” must be submitted to a jury and proved beyond a reasonable doubt. Apprendi exempted the fact of a prior conviction from its holding because criminal defendants enjoyed a constitutional right to a jury trial at the time the state obtained that conviction which assured the accuracy and reliability of the prior record. By contrast, a plurality of the Supreme Court in McKeiver v. Pennsylvania denied juvenile delinquents a constitutional right to a jury ...


Race, Politics, And Juvenile Justice: The Warren Court And The Conservative "Backlash", Barry C. Feld Jan 2003

Race, Politics, And Juvenile Justice: The Warren Court And The Conservative "Backlash", Barry C. Feld

Articles

A century ago, the Progressive reformers who created the juvenile court embraced a particular ideological construction of childhood as one of innocence and vulnerability. They also adopted a scientific conception of social control - positive criminology - that attempted to identify the causes of criminality and purported to treat, rather than to punish, offenders. The juvenile court combined the new conception of childhood with the new strategies of positive criminology to create a judicial-welfare alternative to the adult criminal process for juveniles. The juvenile court affirmed the responsibility of families to raise their children while expanding the state's prerogative to act ...


Revisiting The Black Hole Of Workplace Regulation: A Historical And Comparative Perspective Of Contingent Work, Stephen F. Befort Jan 2003

Revisiting The Black Hole Of Workplace Regulation: A Historical And Comparative Perspective Of Contingent Work, Stephen F. Befort

Articles

A dramatic shift in the nature of work relationships in the United States has occurred during the past two decades. Long-term employment constituted the predominant model of structuring work relationships well into the 1970s. Since then, American firms increasingly have resorted to a variety of non-traditional work arrangements. These new workers, frequently denominated the "contingent workforce," tend to have a weaker workplace affiliation and a lower expectation of long-term employment.'


The Economists' New Arguments, Brett Mcdonnell Jan 2003

The Economists' New Arguments, Brett Mcdonnell

Articles

Adam and Max, two law professors and longtime friends, have just run into each other at an Association of American Law Schools (AALS) meeting. Adam has long been a zealous partisan of the law and economics approach to legal analysis. Max, though he has some training in economics, is more skeptical about that approach. The two old friends have discussed various aspects of this subject over the years, and in this meeting they renew their discussion. The topic this time: Fairness Versus Welfare, 1 the new book (formerly a mammoth article in the Harvard Law Review) 2 by two leading ...


Getting Stuck Between Bottom And Top: State Competition For Corporate Charters In The Presence Of Network Effects, Brett Mcdonnell Jan 2003

Getting Stuck Between Bottom And Top: State Competition For Corporate Charters In The Presence Of Network Effects, Brett Mcdonnell

Articles

For decades, American legal scholars have debated over the implications of allowing corporations to choose in which state they will incorporate, irrespective of where they do business. Until recently the debate has centered almost exclusively on whether the managers who choose where to incorporate have incentive to choose a state whose laws favor managers to the disadvantage of shareholders (the "race to the bottom" thesis) or whether their incentives are to choose states whose laws treat shareholders properly (the "race to the top" thesis). Recently, some scholars have questioned whether the state charter competition process will necessarily lead to an ...


Corporate Governance After Enron And Global Crossing: Comparative Lessons For Cross-National Improvement, 78 723 (2003), Edward S. Adams Jan 2003

Corporate Governance After Enron And Global Crossing: Comparative Lessons For Cross-National Improvement, 78 723 (2003), Edward S. Adams

Articles

This Article outlines and compares the corporate governance structures of the United States, Japan, Germany, and France. This outline and comparison is made with respect to past, present, and future characteristics and trends. As a cross-national study, it recognizes that the varying natures of differing legal, business, social, and cultural structures significantly affect the degree to which a country can implement changes to its corporate governance systems. This study includes the possibility that one country's corporate model might be inapplicable to another country. Some aspects of American capitalism, nevertheless, are slowly being adopted as improvements in Germany, France, and ...


Regulatory Challenges And Models Of Regulation, Philip J. Weiser Jan 2003

Regulatory Challenges And Models Of Regulation, Philip J. Weiser

Articles

No abstract provided.


Justice White And Judicial Review, Philip J. Weiser Jan 2003

Justice White And Judicial Review, Philip J. Weiser

Articles

No abstract provided.


The Monumental Legacy Of The Antiquities Act Of 1906, Mark Squillace Jan 2003

The Monumental Legacy Of The Antiquities Act Of 1906, Mark Squillace

Articles

The Antiquities Act of 1906 authorizes the President of the United States "to declare by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon [federal] lands . . . to be national monuments . . . " The law was passed during the Theodore Roosevelt administration, and Roosevelt quickly set about designating a wide range of lands and resources as national monuments, including notably, the 800,000 acre Grand Canyon National Monument. Roosevelt's expansive interpretation of the law was embraced by later presidents and ultimately by the Supreme Court. In the latter part of the ...


Daubert Asks The Right Questions: Now Appellate Courts Should Help Find The Right Answers, Christopher B. Mueller Jan 2003

Daubert Asks The Right Questions: Now Appellate Courts Should Help Find The Right Answers, Christopher B. Mueller

Articles

No abstract provided.