Law Commons^™

The Second Amendment Implications Of Regulating 3d Printed Firearms, Michael L. Smith

Faculty Articles

3D printed firearms have arrived, and commentators are beginning to ask whether and how this new technology can be regulated. An inevitable question that governments and courts will need to confront when considering restrictions on 3D printed firearms is whether these restrictions violate the Second Amendment. In this paper, I argue that most restrictions on 3D printed firearms would survive Second Amendment challenges. In carrying out this argument, I consider a complete ban on the manufacturing and possession of 3D printed firearms and conclude that even this complete ban would be likely to survive Second Amendment challenges. Because these particularly …

The American Legal Profession In The Twenty-First Century, Stephen M. Sheppard

Faculty Articles

Lawyers in the United States work in public service, private counseling, and dispute resolution, but many also work outside of traditional legal practice. The million-member American bar, second largest in the world, grows more diverse by gender, and ethnicity and older on average. All members of this learned profession must qualify by education or examination and by proof of good character and fitness before taking an oath to serve as an attorney. Thence, there are few limitations on the form of legal practice, though many law firms require an associateship before an attorney becomes an owner of the firm. Economic …

Collateral Damage: Protecting Cultural Heritage In Crimea And Eastern Ukraine, Zoe Niesel

Faculty Articles

Since the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia's actions that should not be overlooked - the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon's systematic looting of …

Escaping Liability Via Forum Non Conveniens: Conocophillips's Oil Spill In China, Chenglin Liu

Faculty Articles

In 2011, a year after British Petroleum (BP) 's oil spill in the Gulf of Mexico, ConocoPhillips's subsidiary in China caused a massive oil spill in the Bohai Sea. A group of fishermen suffered severe property damage as a result of the oil spill. After a failed attempt to have their complaint heard in a Chinese court, the fishermen sued ConocoPhillips in the United States District Court in Houston, Texas. It is very likely that the Houston District Court will deem the Chinese courts the more appropriate forum for this case and grant ConocoPhillips's motion for forum non conveniens dismissal. …

Against The Profit Motive: The Salary Revolution In American Government, 1780–1940 (Book Review), Michael S. Ariens

Faculty Articles

In Against the Profit Motive, Nicholas R. Parrillo expertly explains how and why state and federal governments moved from paying their employees fees to paying them salaries. The book offers insights into the history of government finance and administrative law, shifting dramatically in time, subject matter, and geography. The book begins with a helpful fifty-page introductory summary and then is divided into two parts, each of which considers a type of activity that generated fees for government officers: facilitative payments and bounties. Further, Against the Profit Motive illustrates, in the disparate areas of criminal law enforcement, tax collection, and naval …

The Invention Of Murder: How The Victorians Revelled In Death And Detection And Created Modern Crime (Book Review), Michael S. Ariens

Faculty Articles

The Invention of Murder, by Judith Flanders, is an extraordinary achievement—an exhaustively researched history of 19th-century Great Britain written with verve. Flanders uses the conceit of murder to immerse the reader in 19th-century legal, cultural, and social history. Her depth of knowledge appears to encompass everything related to every murder during this place and time. As a legal history, the book explains a number of developments in English law. As a cultural history, the book discusses the importance in the early 19th century of broadsides, penny-bloods, illegal penny-gaffs, licensed plays, and newspapers; all centered around murder and mayhem. As a …

A Death At Crooked Creek: The Case Of The Cowboy, The Cigarmaker, And The Love Letter, By Marianne Wesson (Book Review), Michael S. Ariens

Faculty Articles

Marianne Wesson’s A Death at Crooked Creek tells the story of one of the most intriguing mysteries in American legal history. For evidence teachers, and possibly even law students, Mutual Life Ins. Co. v. Hillmon is a classic nineteenth century mystery story. The case raises the question: Was the deceased John W. Hillmon, who had recently taken out the extraordinary sum of $25,000 in life insurance, or was it Frederick Adolph Walters, an itinerant who had left Iowa a year earlier?

In addition to teaching at the University of Colorado School of Law, Wesson is the author of three mystery …

Punitive Damages, Chinese Tort Law, And The American Experience, Vincent R. Johnson

Faculty Articles

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more …

Father, Son, And Constitution: How Justice Tom Clark And Attorney General Ramsey Clark Shaped American Democracy, By Alexander Wohl (Book Review), Vincent R. Johnson

Faculty Articles

In Father, Son, and Constitution, Alexander Wohl brings to life two major figures of American law: Tom C. Clark and his son, Ramsey Clark. The story focuses primarily on the middle third of the twentieth century and the many heated constitutional challenges that arose during that era.

With an engaging literary style, Wohl perceptively examines not merely the lives and careers of Tom and Ramsey Clark, but the key roles they played in the issues of their day. The story proceeds from Pearl Harbor and World War II, to the Cold War, to desegregation, to the problems that beset President …

Canon 1095 And The Dignitas Connubii: The Role Of Consent, Incapacity, And Psychic Anomalies In Cases Of Matrimonial Nullity, Roberto Rosas

Faculty Articles

This Article will focus on the following points: (1) the essential elements of marriage; (2) the basic principle of matrimonial consent; (3) the nature of consent; (4) acts through which consent is formed; (5) matrimonial nullity in Canon Law; (6) Canon Law and the Dignitas Connubil (Dignitas); and (7) recent jurisprudence concerning matrimonial nullity. It aims to shed light and clarify paragraphs 2 and 3 of Canon 1095 of the Code by making clear how the causes of defect of discretion of judgment and the inability to assume the essential obligations due to some sort of psychic disorder or anomaly …

The Law Of The Church In The Nullity Of Marriage Due To Causes Of Psychic Nature, Roberto Rosas

Faculty Articles

Introduction. - I. The principles of marriage, matrimonial consent and nullity of marriage in Canon Law. - II. The ordinary process of a declaration of nullity of marriage. The enhancement to the Code of Canon Law by the Instruction Dignitas connubii. - 1. Summary of the principal functions of the Dignitas connubii. - 2. Connections of Dignitas connubii to can. 1095 of the Code. - Ill. Recent Rotal Jurisprudence and the Dignitas connubii. - 1. Doctrine and case law. - a. Grave defect of discretion of judgment. - b. Incapacity to assume the essential obligations of marriage. - 2. Recent …

Minimizing The Costs Of Patent Trolling, Vincent R. Johnson

Faculty Articles

Patent trolling is a serious legal problem. In addressing patent trolling, disclosure requirements and periodic reporting standards will be critical to minimizing the costs of this controversial practice.

Patent trolling, at its most problematic, generally refers to patent infringement allegations made by non-practicing entities (NPEs) which produce essentially no products or services except in connection with the buying and selling of patent rights. The targets of these patent “trolls” often lack basic information that is relevant to their evaluation of the claims against them, and policymakers know too little about specialized patent assertion entities and their impact on innovation and …

The Underappreciated Role Of The National Environmental Policy Act In Wilderness Designation And Management, Michael Blumm, Lorena Wisehart

Faculty Articles

On its 50th anniversary, the Wilderness Act owes much to the effect of the National Environmental Policy Act (NEPA), both in terms of the number of acres in the national wilderness system and in the management of designated wilderness areas. Courts have closely scrutinized federal land management agency actions that threaten wilderness qualities — and this article maintains that the usual vehicle has been NEPA. Enacted a little over a half-decade after the Wilderness Act, NEPA was instrumental in the doubling of wilderness acres in the 1980s, as Congress added wilderness areas and released other areas to multiple uses in …

Federal Wild Lands Policy In The Twenty-First Century: What A Long, Strange Trip It's Been, Michael Blumm, Andrew B. Erickson

Faculty Articles

The protection of federally owned wild lands, including but not limited to designated wilderness areas, has long been a cardinal element of the American character. For a variety of reasons, designating wild lands for protection under the Wilderness Act has proved difficult, increasingly so in recent years. Thus, attention has focused on undesignated wild lands, that is, unroaded areas managed by the principal federal land managers, the U.S. Forest Service and the Bureau of Land Management (BLM). These areas can benefit from a kind of de facto protected status if they are Forest Service areas that have been inventoried for …

The Past As Prologue To The Present: Managing The Oregon And California Forest Lands, Michael Blumm, Tim Wigington

Faculty Articles

This article is a brief review of the convoluted history of what are known as the Oregon and California forest lands, federal lands that were once the subject of a 19th century federal railroad grant, then became the focus of widespread land fraud and official corruption, which led to the Supreme Court halting land sales and Congress taking back the lands, situated in eighteen Oregon counties. Federal management of the lands in the 20th century emphasized timber harvesting, and this dominant use of the lands led to environmental lawsuits and the Endangered Species Act listing of the northern spotted owl …

Endangered Species Act Listings And Climate Change: Avoiding The Elephant In The Room, Michael Blumm, Kya Marienfeld

Faculty Articles

The Endangered Species Act (ESA), with its reputation as the nation’s strongest environmental law, might be expected to impose some limits on greenhouse gas (GHG) emissions adversely affecting listed species due to rising global temperatures. Although the federal government recently ended a long period of denial by conceding that some species warrant listing because of climate change, the accompanying listing decisions revealed a federal refusal to apply the ESA to constrain GHG emissions causing the listings. In this article, we explain those decisions — involving the American pika, the polar bear, the wolverine, and the Gunnison sage-grouse — and their …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

Trademarks Under The North American Free Trade Agreement (Nafta), With References To The Current Mexican Law, Roberto Rosas

Faculty Articles

The introduction of Mexico into the international trademark arena may significantly influence the future of the North American Free Trade Agreement (“NAFTA”). NAFTA established a reliable and efficient system for trademark registration and protection. This system not only protects owners of trademarks, but also helps consumers identify and purchase goods or services that meet their needs.

Despite its membership in NAFTA, Mexico is in the process of internationalizing its Intellectual Property protections. It is evident that among countries, economic improvement is generally the main motivation to form Free Trade Agreements, and Mexico's case is no different. Mexico has pursued an …

Lost And Found: David Hoffman And The History Of American Legal Ethics, Michael S. Ariens

Faculty Articles

David Hoffman was a successful Baltimore lawyer who wrote the first study of American

law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A …

Mismatch: How Affirmative Action Hurts Students It’S Intended To Help, And Why Universities Won’T Admit It (Book Review), Michael S. Ariens

Faculty Articles

Mismatch is one of the most important books about law and public policy published recently. The authors, Richard H. Sander and Stuart Taylor, Jr., offer a provocative and deeply researched conclusion: empirical evidence strongly suggests that affirmative action in the admission of African-Americans and Hispanics to selective colleges and law schools is more harmful than helpful.

The problem of underrepresentation of African-Americans and Hispanics in the American legal profession is a continuing problem. But the work of Richard Sander strongly indicates that relying on the power of affirmative action has generated deleterious effects for those this “solution” was designed to …

The Agony Of Modern Legal Ethics, 1970–1985, Michael S. Ariens

Faculty Articles

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

The Dignity Of The Human Person: Catholic Social Teaching And The Practice Of Criminal Punishment, Dora W. Klein

Faculty Articles

The moral foundation that supports the Catholic Church's opposition to the death penalty is wide and deep. This Article proposes that despite the oft-repeated maxim that "death is different," the same foundation that supports efforts to abolish the death penalty can also support those who seek to achieve other reforms in the practice of criminal punishment.

Think Twice: Charging Orders And Creditor Property Rights, Chad J. Pomeroy

Faculty Articles

What do you do? As a lawyer (or prospective lawyer), I mean – what do you do (or what will you do) in exchange for a salary or hourly fee? You will probably be expecting a lot of money for your services; so what, exactly, is it that you will do to justify that payment?

The answer, of course, is varied because lawyers do lots of different things. And, among these activities, there are some things that only lawyers can do. Chief among those is suing people. Suing people is something that only lawyers do because states do not generally …

Scientific, Legal, And Ethical Foundations For Texas Water Law., Gabriel Eckstein, Amy Hardberger

Faculty Articles

Water law is the field of law concerned with the ownership, control, and use of water resources, both surface and subsurface. Although most closely related to property law, recent developments in other legal fields, especially in environmental law, have heavily influenced the interpretation, application, and development of water law. As a result, water law today encompasses a broad perspective and often takes into account individual and community rights, environmental issues, commerce and economics, and other societal and legal concerns. Significantly, modern water law is also an interdisciplinary practice. In light of the continuously expanding body of knowledge of the hydrologic …

What Do We Talk About When We Talk About Control, Anthony J. Sebok

Faculty Articles

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains. This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

The Courts And National Security: The Ordeal Of The State Secrets Privilege, David Rudenstine

Faculty Articles

No abstract provided.

A Proposal To Withhold Divorce Decrees On Grounds Of Equity, J. David Bleich

Faculty Articles

Throughout the medieval period, marriage was acknowledged by temporal rulers to be a religious matter governed by the ecclesiastic law of the Church which, to be sure, incorporated many principles of Roman law. Subsequent to the Reformation, the rulers of many European countries became disposed to regard marriage as a civil act, to withdraw marriage from the control of the church and to entrust it entirely to the state. The Napoleonic Code was the first example of a legal system that treated marriage as a purely civil act. The Napoleonic Code did not deny the religious element present in marriage …

Crowd-Classing Individual Arbitrations In A Post-Class Action Era, Myriam E. Gilles, Anthony J. Sebok

Faculty Articles

Class actions are in decline, while arbitration is ascendant. This raises the question: will plaintiffs' lawyers skilled in bringing small value, large-scale litigation-the typical consumer, employment, and antitrust claims that have made up the bulk of class action litigation over the past forty years-hit upon a viable business model which would allow them to arbitrate one-on-one claims efficiently and profitably? The obstacles are tremendous: without some means of recreating the economies of scale and reaping the fees provided by the aggregative device of Rule 23, no rational lawyer would expend the resources to develop and arbitrate individual, small-value claims against …

Why The Buffett-Gates Giving Pledge Requires Limitation Of The Estate Tax Charitable Deduction, Edward A. Zelinsky

Faculty Articles

The Buffett-Gates Giving Pledge, under which wealthy individuals promise to leave a majority of their assets to charity, is an admirable effort to encourage philanthropy. However, the Pledge requires us to confront the paradox that the federal estate tax charitable deduction is unlimited while the federal income tax charitable deduction is capped. If a Giving Pledger leaves his wealth to charity, the federal fisc loses significant revenue since the Pledger thereby avoids federal estate taxation as charitable bequests are deductible without limit for federal estate tax purposes. Despite its laudable qualities, the Giving Pledge is a systematic (albeit inadvertent) threat …