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Journal Articles

1997

Articles 1 - 30 of 54

Full-Text Articles in Law

The Definition Of Voting Stock And The Computation Of Voting Power Under Sections 368(C) And 1504(A): Recent Developments And Tax Lore, Stuart G. Lazar Jul 1997

The Definition Of Voting Stock And The Computation Of Voting Power Under Sections 368(C) And 1504(A): Recent Developments And Tax Lore, Stuart G. Lazar

Journal Articles

Although the concepts of "voting stock" and "voting power" are pervasive throughout the Code, until recently, courts, commentators and the Service have devoted minimal energy to demystifying the confusion surrounding the definition of voting stock and even less to expanding upon the methodology of computing voting power. Recent developments, however, may prompt practitioners to take a second look at these terms. While a 1995 decision by the Tax Court adds little to the existing body of authority with respect to the determination of the owner of voting stock, the Service's analysis of the voting power requirement in a 1994 private …


Delaware & Hudson Revisited, John Copeland Nagle Jul 1997

Delaware & Hudson Revisited, John Copeland Nagle

Journal Articles

Four score and eight years ago, the Supreme Court decided United States v. Delaware & Hudson Co., a little remembered case holding that a federal statute prohibited railroads from shipping coal that they own across state lines. The statute at issue seemed to bar any railroad company from transporting any article that it had produced, but a group of Pennsylvania railroads objected that the statute violated numerous provisions of the Constitution. The Court dodged those constitutional questions by reading the Act narrowly to apply only if the railroad still owned the coal at the time of shipment. Justice Edward White …


Cultural Criticism Of Law, Guyora Binder, Robert Weisberg May 1997

Cultural Criticism Of Law, Guyora Binder, Robert Weisberg

Journal Articles

Professors Binder and Weisberg expound a "cultural criticism" of law that views law as an arena for composing, representing, and contesting identity, and that treats identity as constitutive of the interests that motivate instrumental action. They explicate this critical method by reference to "New Historicist" literary criticism, postmodern social theory, and Nietzchean aesthetics. They illustrate this method by reviewing recent scholarship of two kinds: First, they explore how legal disputes take on expressive meaning for parties and observers against the background of legal norms regulating or recognizing identities. Second, they examine "readings" of the representations of character, credit, and value …


Liberty, Community And The Constitutional Structure Of Political Influence: A Reconsideration Of The Right To Vote, James A. Gardner Apr 1997

Liberty, Community And The Constitutional Structure Of Political Influence: A Reconsideration Of The Right To Vote, James A. Gardner

Journal Articles

No abstract provided.


"Who Ya Gonna C(S)Ite?" Ghostbusters And The Environmental Regulation Debate, Christine Corcos Jan 1997

"Who Ya Gonna C(S)Ite?" Ghostbusters And The Environmental Regulation Debate, Christine Corcos

Journal Articles

No abstract provided.


Never Again: Questioning The Yugoslav And Rwanda Tribunals, Makau Wa Mutua Jan 1997

Never Again: Questioning The Yugoslav And Rwanda Tribunals, Makau Wa Mutua

Journal Articles

Fifty years after Nuremberg, the international community has again decided to experiment with international war crimes tribunals. The stated purpose for the establishment of both the Yugoslav and Rwanda Tribunals by the United Nations are to “put an end” to serious crimes such as genocide and to “take effective measures to bring to justice the persons who are responsible for them.” This piece argues that both assumptions are unrealistic and that such tribunals will have little or no effect on human rights violations of such enormous barbarity. In addition, this piece questions the motivations behind the formulation of the tribunals …


Look Who's Making The Rules: International Environmental Standard Setting By Non-Governmental Organizations, Errol E. Meidinger Jan 1997

Look Who's Making The Rules: International Environmental Standard Setting By Non-Governmental Organizations, Errol E. Meidinger

Journal Articles

No abstract provided.


Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky Jan 1997

Freedom And Interdependence In Twentieth-Century Contract Law: Traynor And Hand And Promissory Estoppel, Alfred S. Konefsky

Journal Articles

No abstract provided.


West Virginia Corporate Law: Is It "Broke"?, Debra R. Cohen Jan 1997

West Virginia Corporate Law: Is It "Broke"?, Debra R. Cohen

Journal Articles

We are all familiar with the cliche "if it ain't broke, don't fix it." The sentiment is as applicable to law as it is to the rest of life. When a law does what it is intended to do, legislators and courts should leave it alone. However, when a law no longer serves its intended purpose, it is "broke," and should be revised. The question is whether West Virginia's corporate law is "broke." In 1974, the West Virginia Legislature adopted the West Virginia Corporation Act (the "Act").' The Act brought then modem standards of corporate law to West Virginia. Since …


"Substantially Limited" Protection From Disability Discrimination: The Special Treatment Model And Misconstructions Of The Definition Of Disability, Robert Burgdorf Jan 1997

"Substantially Limited" Protection From Disability Discrimination: The Special Treatment Model And Misconstructions Of The Definition Of Disability, Robert Burgdorf

Journal Articles

DISABILITY' nondiscrimination laws, such as the Americans with Disabilities Act of 1990 (ADA),2 and the disability rights movement which spawned them have, at their core, a central premise that is both simple and profound. That premise is that people denominated as "disabled" are just people, not different in any critical way from other people. Paradoxically, commentators, enforcement agencies and the courts, with manifest good intentions, have frequently interpreted and applied these laws in ways that reinforce a diametrically opposite premise-that people with disabilities are significantly different, special and need exceptional status and protection, One is reminded of Justice Brandeis's admonition …


Commercialization Of Genetic Testing Services: The Fda, Market Forces, And Biological Tarot Cards, Michael J. Malinowski, Robin J.R. Blatt Jan 1997

Commercialization Of Genetic Testing Services: The Fda, Market Forces, And Biological Tarot Cards, Michael J. Malinowski, Robin J.R. Blatt

Journal Articles

No abstract provided.


Presuming Innocence: Alan Pakula And Scott Turow Take On The Great American Legal Fiction, Christine Corcos Jan 1997

Presuming Innocence: Alan Pakula And Scott Turow Take On The Great American Legal Fiction, Christine Corcos

Journal Articles

No abstract provided.


Grandeur Or Mockery?, Alain A. Levasseur Jan 1997

Grandeur Or Mockery?, Alain A. Levasseur

Journal Articles

No abstract provided.


The Latent Efficiency Of Fraudulent Transfer Law, Marie T. Reilly Jan 1997

The Latent Efficiency Of Fraudulent Transfer Law, Marie T. Reilly

Journal Articles

A creditor holding a claim against a debtor typically holds the right, subject to the debtor's default, to obtain a judgment against the debtor, liquidate the debtor's assets, and apply the proceeds against his claim. If the debtor's assets are insufficient to satisfy the creditor's claim, the creditor is usually, but not always, out of luck. Under limited circumstances, a creditor can reach property the debtor transferred to a third party and apply the value of such property to satisfy his claim. The creditor can undo the transfer and obtain the property or its value from the transferee as though …


Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero Jan 1997

Congruence Principle Applied: Rethinking Equal Protection Review Of Federal Alienage Classifications After Adanrand Constructors, Inc. V. Peña, Victor C. Romero

Journal Articles

This article suggests that the Supreme Court's 1995 decision in Adarand Constructors, Inc. v. Peña constitutes a starting point for a renewed dialogue on the intersection of race, noncitizens' rights, and immigration law.

Part I of this Article examines the historical foundations of the plenary power doctrine up to the current dichotomy between judicial review of state and federal alienage classifications under equal protection. Part II reviews the Adarand decision, arguing that Justice O'Connor's congruence principle provides the bulwark for a revision of judicial review of federal legislation, especially in light of the historical and continuing perception of Asian- and …


Altering The Balance Between State Sovereignty And Competition: The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer Jan 1997

Altering The Balance Between State Sovereignty And Competition: The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Journal Articles

In the post-Seminole Tribe world, the legal analysis in situations where states have chosen regulation over competition, supplanting the free functioning of markets, will diverge depending upon the identity of the defendant. If a state, its agencies, or departments are the named defendants, the broader Eleventh Amendment analysis controls and claims for damages against government entities must be dismissed on the ground of sovereign immunity. If the defendant is a private firm, the narrower State Action Doctrine, which has been crafted to balance true exercise of state sovereignty against the goal of competition, provides immunity for private defendants. As …


Equal Protection Held Hostage: Ransoming The Constitutionality Of The Hostage Taking Act, Victor C. Romero Jan 1997

Equal Protection Held Hostage: Ransoming The Constitutionality Of The Hostage Taking Act, Victor C. Romero

Journal Articles

This Article contends that, following the Supreme Court's lead in Adarand Constructors, Inc. v. Peña and City of Cleburne v. Cleburne Living Centers, Inc., the continuing maltreatment of noncitizens in this country requires that federal alienage classifications be reviewed with the same strict, or at least heightened rational basis, scrutiny applied to state legislation.

Part II of this Article describes the 1979 Hostage Taking Convention and sets forth some of its provisions in an effort to better understand the impetus for the HTA. Part III examines the legislative history of the HTA and briefly describes the Yunis case as …


Romanian Bankruptcy Law: A Central European Example, Samuel Bufford Jan 1997

Romanian Bankruptcy Law: A Central European Example, Samuel Bufford

Journal Articles

Romania now has one of the best-drafted bankruptcy laws in Central and Eastern Europe. The new Romanian bankruptcy law went into effect on August 26, 1995 and replaced the previous bankruptcy provisions in §695-987 of the Romanian Commercial Code, which was translated from the Italian Commercial Code of 1884 and enacted in 1887. While the commercial code fell into disuse during the Communist era, it was never repealed. After the Romanian revolution and the demise of Nicolae Ceauşescu at the end of 1989, the commercial code as well as the civil code remained good law and needed only to be …


Balancing State Sovereignty And Competition: An Analysis Of The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer Jan 1997

Balancing State Sovereignty And Competition: An Analysis Of The Impact Of Seminole Tribe On The Antitrust State Action Immunity Doctrine, Susan Beth Farmer

Journal Articles

The great impact of the Seminole Tribe v. Florida decision will likely be felt in the range of federal causes of action that have exclusive remedies in federal court. Antitrust cases are among such causes of action. In seeking to avoid antitrust liability, defendants have invoked the protections of the antitrust state action doctrine, which immunizes only that anticompetitive activity imposed and supervised by states. This immunity bars suits against state and private actors alike. After Seminole Tribe, state defendants will escape all antitrust liability, whether or not the traditional requirements of the state action doctrine have been met. …


The Buck Does Not Stop Here: Supervisory Liability In Section 1983 Cases, Kit Kinports Jan 1997

The Buck Does Not Stop Here: Supervisory Liability In Section 1983 Cases, Kit Kinports

Journal Articles

The appropriate standard for supervisory liability in Section 1983 cases has been a source of considerable disagreement among federal courts of appeals. In the absence of established Supreme Court authority on the subject, courts have rejected vicarious and negligence liability in favor of a higher culpability requirement, but they have not agreed on precisely what form this higher standard should take. In this article, the Author addresses the need for a uniform standard consistent with the statute's twin goals of compensating the victims of constitutional violations and deterring constitutional infractions.

The author notes at the outset that lower courts have …


The Misunderstood Alliance Between Sports Fans, Players, And The Antitrust Laws, Stephen F. Ross Jan 1997

The Misunderstood Alliance Between Sports Fans, Players, And The Antitrust Laws, Stephen F. Ross

Journal Articles

The baseball strike and the ongoing hostilities between the players' association and owners have evoked criticism and frustration among fans and others. Although the players successfully defeated the owners' most recent attempts to reduce major league competition, the threat of future imposition of competitive restraints by the owners remains. In this article Professor Stephen F. Ross argues that blanket restraints on the market for players affirmatively inhibit on-the-field competition and consequently offend the Sherman Act.

The article begins with the proposition that monopsony - price-fixing behavior by buyers', rather than sellers' cartels - implicates the Sherman Act. Restraints on competition …


The Role Of Arbitration In Resolving Transnational Disputes: A Survey Of Trends In The People’S Republic Of China, Catherine A. Rogers, Frederick Brown Jan 1997

The Role Of Arbitration In Resolving Transnational Disputes: A Survey Of Trends In The People’S Republic Of China, Catherine A. Rogers, Frederick Brown

Journal Articles

The purpose of this Essay is to provide investors and practitioners with a realistic overview of the strengths and limitations of international arbitration in China. Part I of this Essay provides some general comments about the economic, social, and cultural reasons why arbitration is a popular choice among both international investors and Chinese nationals. Part I concludes that arbitration can only provide a partial solution to the ills of China’s legal system. Part II examines how the observations in Part I manifest themselves in recent developments affecting arbitration in China. Part III examines the range of efforts by foreign investors …


Introduction To This Symposium And A Guide To Issues In Mergers And Acquisitions, Samuel C. Thompson Jr. Jan 1997

Introduction To This Symposium And A Guide To Issues In Mergers And Acquisitions, Samuel C. Thompson Jr.

Journal Articles

No abstract provided.


Female Trouble: The Implications Of Tort Reform For Women, Lucinda M. Finley Jan 1997

Female Trouble: The Implications Of Tort Reform For Women, Lucinda M. Finley

Journal Articles

No abstract provided.


From "Winners And Losers" To New Authority Structures In Ecological Policy, Errol E. Meidinger Jan 1997

From "Winners And Losers" To New Authority Structures In Ecological Policy, Errol E. Meidinger

Journal Articles

No abstract provided.


Claiming Our Foremothers: The Legend Of Sally Hemings And The Tasks Of Black Feminist Theory, Stephanie L. Phillips Jan 1997

Claiming Our Foremothers: The Legend Of Sally Hemings And The Tasks Of Black Feminist Theory, Stephanie L. Phillips

Journal Articles

No abstract provided.


Habermas’S Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran Jan 1997

Habermas’S Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran

Journal Articles

The relationship between law and religion has become the subject of a sustained and robust debate. However, unlike earlier theological attempts to ground law in religion or the Divine, participants in the modem debate rarely, if ever, argue for a theological or religious legitimation of law. Either implicitly or explicitly, there appears to be a modem consensus among legal scholars and philosophers that the world has been disenchanted. The world can no longer be viewed as an integrated, meaningful whole under a comprehensive religious or metaphysical worldview, and law can no longer be legitimized by its religious or metaphysical foundations. …


Making Traditional Courses More Inclusive: Confessions Of An African American Female Professor Who Attempted To Crash All The Barriers At Once, Angela Mae Kupenda Jan 1997

Making Traditional Courses More Inclusive: Confessions Of An African American Female Professor Who Attempted To Crash All The Barriers At Once, Angela Mae Kupenda

Journal Articles

"WE MUST DISMANTLE all barriers at once!"' "No, go slow!" These were two of the opposing cries heard during, the civil rights movement. Some thought the only way to eliminate exclusiveness, based on race and gender, was to dismantle all the barriers all at once. Others thought the costs of such change too great and urged for caution and patience. Even in the 1990s, barriers of exclusiveness continue to exist, even in the law school classroom. Here I share my story of how, as a beginning law school professor, I tried to bring change to the law school classroom. I …


Foreword: A Hard Case And An Intractable Problem, Matthew Steffey Jan 1997

Foreword: A Hard Case And An Intractable Problem, Matthew Steffey

Journal Articles

No abstract provided.


Tort Reform In Mississippi: An Appraisal Of The New Law Of Products Liability, Part Ii, Phillip L. Mcintosh Jan 1997

Tort Reform In Mississippi: An Appraisal Of The New Law Of Products Liability, Part Ii, Phillip L. Mcintosh

Journal Articles

In 1993, the Mississippi legislature enacted the Mississippi Products Liability Act, the substantive portions of which became effective on July 1, 1994. Part I of this Article, previously published, discussed the purpose of the new Act; the definitions of basic terms of art used in the Act - such as "product," including whether used products are covered by the Act, "manufacturer," "seller," and "unreasonably dangerous"; and the interests protected by the Act. Part II of this article addresses the categories of defects forming the bases of claims for damages created by the Act, the liability of sellers and manufacturers, defenses …