Law Commons^™

The Utility Of A Bright-Line Rule In Copyright Law: Freeing Judges From Aesthetic Controversy And Conceptual Separability In Leicester V. Warner Bros., John B. Fowles

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No abstract provided.

Book Review: Madam Secretary, Dru Stevenson

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Review of Madeline Albright's Memoirs

Book Review: Forensic Linguistics, Dru Stevenson

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Review of John Gibbons' text "Forensic Linguistics"

A Brief Look At Broward County Lawyers’ And Judges’ Attitudes Toward Plea Bargaining As A Tool Of Courtroom Efficiency, Mohammad A. Faruqui

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Even the most rigidly ideological prosecutors acknowledge that they need to plea out most of the less serious criminal charges to ensure justice without incurring an unmanageable backlog of cases. But what do most criminal lawyers and judges think about the plea arrangment system? Is it fair to defendants? Do lawyers use plea bargains to better serve their clients by finding the best deal, or do they use plea bargains to cut their case load for what some call "garbage cases?" This paper surveys a small sample to see how 21st century Broward County criminal lawyers feel about the plea …

The Deep Structure Of Law And Morality, Robin B. Kar

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This Article argues that morality and law share a deep and pervasive structure, an analogue of what Noam Chomsky calls the “deep structure” of language. This structure arises not to resolve linguistic problems of generativity, but rather from the fact that morality and law engage psychological adaptations with the same natural function: to allow us to resolve social contract problems flexibly. Drawing on and extending a number of contemporary insights from evolutionary psychology and evolutionary game theory, this Article argues that we resolve these problems by employing a particular class of psychological attitudes, which are neither simply belief-like states nor …

Disrobe Dot Com For The Aclu: Ashcroft V. Aclu, A Strict Scrutiny Review For The Child Online Protection Act, Roger W. Stepp

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No abstract provided.

Ancillary Joint Ventures And The Unanswered Questions After Revenue Ruling 2004-51, Gabriel O. Aitsebaomo

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Ever since the Internal Revenue Service (the "Service") issued Revenue Ruling 98-15… in which it emphasized "control" as a critical factor in determining whether a tax-exempt hospital that enters into a whole-hospital joint venture with a for-profit entity would continue to maintain its tax-exemption, practitioners and scholars alike have sought guidance from the Service regarding whether such "control" would also be required of an exempt organization that enters into an "ancillary joint venture" with a for-profit entity. In response, the Service issued Revenue Ruling 2004-51 on May 6, 2004.

… In Revenue Ruling 2004-51, the Service enunciated that a tax-exempt …

The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution Within The United States That Is Unconstitutionally Overbroad, Erin Treacy

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The RAVE Act amends the 1986 "Crackhouse Statute" on the assumption that electronic music concerts are comparable to crackhouses. This article submits that the rationale behind the former Crackhouse statute does not logically support the RAVE Act and that the new law, as enacted, is unconstitutionally overbroad, infringing upon First Amendment rights. This article shows that the “rave culture,” its associated drug use and electronic music performances (sometimes known as raves) are not inextricably linked. The article also explores policy arguments that may be asserted against the RAVE Act and provides suggestions on how to amend the existing statute to …

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

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In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

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ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Evaluating Work: Enforcing Occupational Safety And Health Standards In The United States, Canada And Sweden, Daniel B. Klaff

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The United States’ occupational safety and health enforcement system is breaking down. Klaff argues that much of this breakdown has to do with a fundamental lack of worker participation in the United States’ safety and health system. Klaff makes his case by comparing and contrasting the history and enforcement schemes of the United States, Canada, and Sweden. After arguing for economic rights as human rights, Klaff concludes by offering a set of recommendations for the United States’ occupational safety and health system based upon his value-centered analysis.

Fuel Efficiency: The Disconnect Between Environmental Policy And Tax Policy, John J. Marciano

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The recent high gas prices in America have intensified the debate over oil and gas efficiency, use, and reserves. As the national average for a gallon tops $2.10, Congress and the President strive to find a common position to foster energy independence, protect the environment, and bolster the struggling economy.

President Bush’s energy policy and recent Senate and House bills have not contemplated their effects on the environmental state of our nation or its impact on the internal revenue code. In this time of uncertainty, energy independence and measured use of resources may be at odds, but must we stray …

Review Of The Merits In Class Action Certification, Geoffrey P. Miller

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No abstract provided.

Securing Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese

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No abstract provided.

Rights At United States Borders, Jon Adams

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This article explores protections available under the Fourth and Fifth Amendments to the United States Constitution. Contrary to opinions in popular culture, and perhaps even among Customs officials, powers to search, seize, and interrogate at United States border crossings are not unlimited. In the current world climate of security and threat, a discussion regarding the level of intrusiveness available to a zealous Customs agent appears particularly relevant. The article addresses the requirements for search, seizure, and interrogation, as well as the lawful conditions and limits upon each activity.

The Cocaine Vaccine, Dru Stevenson

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The controversial new cocaine vaccine (TA-CD) has the potential to be an extremely effective treatment tool for recovering addicts, but it also presents opportunities for non-therapeutic uses, such as preventing cocaine use in the first place. It is foreseeable that the cocaine vaccine could become a condition of parole or probation, or receiving welfare payments, or for employment in certain occupations. Universal vaccination is also a possibility but less likely for political reasons. This article investigates each of these areas of potential use. Any setting where mandatory drug testing is currently in place could become a venue for the vaccination. …

The Importance Of Corporate Models, Benedict C. Sheehy

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This article argues that the debate concerning the nature of the corporation is not finished and nor a mere intellectual exercise for interested legal academics. The current model of the corporation as an economic entity—the firm—has a number of imbedded value assumptions. Given the common territory between corporate law and economics, some scholars have come to identify the two as equal partners striving for the same ends. This is a serious error which has had and continues to have significant negative consequences for both the economic situation of the majority and justice in society. These value assumptions are being seriously …

The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis Of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed. , Chad Emerson

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No abstract provided.

The Legal Function Of Ritual, Geoffrey P. Miller

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No abstract provided.

Something Fishy, Tamara R. Piety

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The story of how one law professor encountered "Moby-Dick" and found therein a reading that offered an opportunity to introduce students to several general themes that resound in the study of law including the question of the function of law, the role of interpretation by analogy, formalism and many others.

The Disenchantment Of Logically Formal Legal Rationality Or Max Weber's Sociology In The Genealogy Of The Contemporary Mode Of Western Legal Thought, Duncan Kennedy

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Max Weber began his sociology of law with a description of the then present of Western legal thought, along with a brief summary of its previous stages. This appreciation begins with a summary description of the Western legal thought of Weber's time, as it looks from our present 100 years later, emphasizing the contrast between the mainstream of his time, now called Classical Legal Thought, and its critics in the social current. Part II presents Weber's sociology of law, comparing and contrasting his approach with that of the social current. The most striking thing about Weber's sociology of law, from …

Is The End Of The War In Sight: An Analysis Of Canada’S Decriminalization Of Marijuana And The Implications For The United States “War On Drugs”, Kara Godbehere Goodwin

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Discussion of marijuana decriminalization efforts by Canadian government and comparison of United States/Canadian drug legislation and healthcare. Public policy justifications are discussed as well as medical marijuana and effects of drug use on the two countries' prison and healthcare systems.

Progressivist Origins Of The 2003 California Gubernatorial Recall, Kira L. Klatchko

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Progressivist Origins of the 2003 California Gubernatorial Recall, was written in Sacramento in the midst of the first statewide recall of an elected official in California. The paper explores the nature of the recall procedure and its implementation in the state, and is chiefly an inquiry into the relatedness of the current incarnation and its Progressivist root. It focuses particularly on the recall of Governor Gray Davis, and details how shifting attitudes towards public participation have altered the procedure over time.

International Marine Environment Law: A Case Study In The Wider Caribbean Region, Benedict C. Sheehy

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Abstract: This study examines the effectiveness of international marine environment law in controlling and abating contamination of the marine environment in the Wider Caribbean Region. The main international agreement covering the region is the Cartagena Convention which came into force in 1983. This convention, initiated by the UNEP under its Regional Seas Program, is considered one of the most successful of the programs. The study examines that claim in light of events since the adoption of the Cartagena Convention by the majority of nations bordering on the region. Mexico, because of its stature as a leading Latin American nation, is …

All The Lizards Stand And Say “Yes Yes Yes” : The Element Of Play In Legal Actions Against Animals And Inanimate Objects, Anna Pervukhin

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Legal actions against non-humans (whether animals or objects) were once widespread. They were viewed seriously and undoubtedly served important social functions. This article considers the possibility that some of these actions may have been playful as well. Certain aspects of legal actions against animals and objects-- occasional moments of levity, a preoccupation with formal rules, and a strong emphasis on imaginative transformation-- suggest that these actions had elements of play. The possibility is worth considering for two reasons. First, it may shed some light on a practice that has perplexed and disturbed commentators for centuries. Second, an examination of play …

Combating Money Laundering And International Terrorism: Does The Usa Patriot Act Require The Judicial System To Abandon Fundamental Due Process In The Name Of Homeland Security?, Joan M. O'Sullivan Butler

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The USA PATRIOT Act was part of a wave of legislation which reshaped national security policies while simultaneously restricting traditional civil liberties in response to the terrorist attacks of September 11. Among the many terrorism related provisions of the Act, the executive branch was given authority to freeze the assets of organizations in which there is a foreign interest suspected of funding terrorist organizations through the use of an asset blocking order pending further investigation. The Act further permits the use of classified information which will be subjected to only ex parte, in camera inspection by the judge presiding over …

Scrooge—The Reluctant Stakeholder, Benedict C. Sheehy

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Abstract: Corporations law around the world is moving in the direction of the shareholder primacy model, common in the USA and other common law countries. Lawyers, academics and public policy analysts are divided as to the merits of the model and its main competitor, the stakeholder model. The gist of arguments usually hinge on economics. This article examines the claims for and against the two models on their own terms, and suggests that law has a unique contribution to make to the development of the corporation and society.

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

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The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …

Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang

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This Article advances the thesis that real options are not only ubiquitous in law, but also provide novel insights about legal decision making, doctrines and rules. An introduction provides a brief a primer about financial options, real options, and real options in law. Part I of this Article develops implications of the fact that every lawsuit contains a sequence of real options for the plaintiff to unilaterally abandon that lawsuit. Part II of this Article appraises the limitations of game-theoretic analysis of the abandonment options embedded in litigation and some responses to such limitations. Part III of this Article illustrates …

No Free Lunch: How Settlement Can Reduce The Legal System's Ability To Induce Efficient Behavior, Abraham Lee Wickelgren

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While there is widespread agreement that it is better for cases to settle than go to trial, the arguments in favor of settlement have typically overlooked how settlement affects one of the most important functions of the legal system: influencing the behavior that gives rise to lawsuits. This essay argues that, in some cases, settlement can impair the ability of the legal system to deter harmful behavior without chilling desirable behavior. Where it exists, this effect is a fundamental property of settlement in that there is no way to change other legal rules to eliminate it. Because settlements also have …