Law Commons^™

A Post-Vieth Strategy For Litigating Partisan Gerrymandering Claims, James A. Gardner

Journal Articles

No abstract provided.

The Origins Of American Felony Murder Rules, Guyora Binder

Journal Articles

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews …

Practicing What We Preach: A Call For Progressive Church Taxes, Matthew Barrett

Journal Articles

Many Catholics do not know that canon law allows their bishop to impose taxes on the parishes in his diocese for diocesan needs. Under canon law, these diocesan taxes, sometimes called diocesan assessments, parish assessments, or quotas, must be proportionate to [the parishes'] income. To a tax lawyer, the adjective proportionate describes a so-called flat tax, or a system that imposes the same tax rate on every taxpayer's taxable income. Canon law commentators, however, have consistently agreed that diocesan bishops can use a progressive tax, which in this context would impose a higher tax rate on parishes with larger incomes. …

Ordering (And Order In) The City, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the broken windows hypothesis by George Kelling and James Q. Wilson has revolutionized thinking about urban policy. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory has been a proliferation of policies focusing on public order. Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. This Article attempts to fill that property law gap in the public-order puzzle …

Leaky Boundaries And The Decline Of The Autonomous Law School Library, James G. Milles

Journal Articles

Academic law librarians have long insisted on the value of autonomy from the university library system, usually basing their arguments on strict adherence to ABA standards. However, law librarians have failed to construct an explicit and consistent definition of autonomy. Lacking such a definition, they have tended to rely on an outmoded Langdellian view of the law as a closed system. This view has long been discredited, as approaches such as law and economics and sociolegal research have become mainstream, and courts increasingly resort to nonlegal sources of information. Blind attachment to autonomy as a goal rather than a means …

Telling All: The Sarbanes-Oxley Act And The Ideal Of Transparency, David A. Westbrook

Journal Articles

No abstract provided.

The Voyage Of The Neptune Jade: The Perils And Promises Of Transnational Labor Solidarity, James B. Atleson

Journal Articles

No abstract provided.

The Accidental Legal Historian: Herman Melville And The History Of American Law, Alfred S. Konefsky

Journal Articles

No abstract provided.

The Case Of The Missing Discipline: Finding Buddhist Legal Studies, Rebecca Redwood French

Journal Articles

No abstract provided.

Keeping Wetlands Wet: Are Existing Protections Enough?, Kim Diana Connolly

Journal Articles

No abstract provided.

The Theology Of The Blaine Amendments, Richard W. Garnett

Journal Articles

The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called Blaine Amendments - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.

First, the Article considers what might be called the federalism defense of the provisions. …

"Tax Services" As A Trojan Horse In The Auditor Independence Provisions Of Sarbanes-Oxley, Matthew J. Barrett

Journal Articles

This article argues that the failure of the Sarbanes-Oxley Act of 2002 (SOx) to prohibit auditors for public companies from also providing tax services to audit clients or their executives and selling tax shelters to anyone remains a Trojan horse that threatens both the investing public and the auditing profession. Although SOx enacted several reforms designed to enhance auditor independence, the legislation and implementing regulations that the Securities and Exchange Commission (SEC) subsequently promulgated allow an auditor for a publicly traded company to provide tax services to the company as long as the audit committee preapproves the engagement.

As the …

The Trial Court's Gatekeeper Role Under Frye, Daubert, And Kumho: A Special Look At Children's Cases, John Eric Smithburn

Journal Articles

The typical requisites for receiving testimony from an expert witness are that the expert be qualified in a particular subject or area of expertise, that the expert testify in opinion form or otherwise, which will help the fact finder, and that there be a proper basis for the expert's testimony. This article examines the changing meaning in the law of evidence of the expert's subject area in cases involving children. During most of the last century, where the expert witness proposed to testify concerning a new or novel scientific system, process or technique, the court applied the rule of Frye …

The Public Choice Of Elder Abuse Law, Margaret F. Brinig, Gerald Jogerst, Jeanette Daly, Gretchen Schmuch, Jeffrey Dawson

Journal Articles

This interdisciplinary study finds that the way laws are written and treated by state regulators measurably affects bureaucratic performance: the care taken by legislatures and state agencies in developing domestic elder abuse law affects how lower-level bureaucrats investigate and report abuse. Perhaps more interesting, however, are two robust findings about state law making. Both legislator characteristics (here, being middle-aged or slightly older) and lobbying by seemingly the most important group (here, the American Association of Retired Persons [AARP]) sometimes have an unexpected effect. We surmise that these legislators and lobbyists find other issues both more politically attractive and more pressing …

The Globalization Of Human Rights: Consciousness, Law And Reality, Douglass Cassel

Journal Articles

Human rights have suffered sharp setbacks in the four years since the paper that follows was delivered in London in the summer of 2000. The terrorist attacks on the United States on September 11, 2001, and the Bush Administration’s ensuing “war on terrorism,” have led not only to a demotion of human rights on the list of American foreign policy priorities, but also to gross violations of human rights by Washington. Among other recent assaults on the rule of law are the prolonged detentions of hundreds of prisoners without trial or due process of law at the United States Naval …

On The Historical School Of Jurisprudence, Robert E. Rodes

Journal Articles

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …

The End Of Legitimacy, Mary Ellen O'Connell

Journal Articles

IRAQ: ONE YEAR LATER

INTRODUCTORY REMARKS by Mary Ellen O'Connell, 261

THE USE OF FORCE IN IRAQ: ILLEGAL AND ILLEGITIMATE by Anne-Marie Slaughter, 262-63

THE IRAQ WAR AND THE FUTURE OF INTERNATIONAL LAW by Richard Falk, 263-66

THE ROLE OF INTERNATIONAL LAW AND THE UN AFTER IRAQ by Thomas M Franck, 266-69

THE END OF LEGITIMACY by Mary Ellen O'Connell, 269-70

THE PROBLEMS OF LEGITIMACY-SPEAK by James Crawford, 271-73

Iraq: One Year Later, Mary Ellen O'Connell

Journal Articles

Almost exactly one year ago, during her presidential speech at the 2003 Annual Meeting of the American Society of International Law, Anne-Marie Slaughter spoke of the use of force that began in Iraq shortly before that Annual Meeting. She concluded that the war was unlawful but nevertheless potentially legitimate. That conclusion provoked a great debate from the moment her speech ended. Our purpose today is to take up that debate.

Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram

Journal Articles

When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of …

Does Title Ix Protect Academic Whistle Blowers? An Analysis Of Jackson V. Birminghan Board Of Education, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). The author expected the Court to decide whether Title IX's ban on discrimination allows a private individual to sue for retaliation when a recipient of federal funds engages in adverse action against that individual because of his complaints that the recipient is violating Title IX?

The United States Supreme Court Rulings On Detention Of "Enemy Combatants" - Partial Vindication Of The Rule Of Law, Douglass Cassel

Journal Articles

In three rulings on prolonged military detention of so-called "unlawful enemy combatants" in the "war" against terrorism, the United States Supreme Court in June 2004 shielded the rule of law from some of the more extreme excesses of the Bush Administration. However, the Court also yielded some ground and left open a number of troublesome questions.

Of Bakke's Balance, Gratz And Grutter: The Voice Of Justice Powell, Paul R. Baier

Journal Articles

No abstract provided.

State V. Chauvin: Determining The Admissibility Of A Post-Traumatic Stress Syndrome Diagnosis As Substantive Evidence Of Sexual Abuse, Melissa T. Lonegrass

Journal Articles

No abstract provided.

Administrative Compensation For Medical Malpractice Injuries: Reconciling The Brave New World Of Patient Safety And The Torts System, Edward P. Richards, Thomas R. Mclean

Journal Articles

No abstract provided.

Race, Immigration, And The Department Of Homeland Security, Victor C. Romero

Journal Articles

Despite the wisdom of separating the service and enforcement functions of our immigration bureau, the new tripartite system under the auspices of the Department of Homeland Security risks fueling the "immigrant Arab as terrorist" stereotype, rather than helping to re-establish the reality that noncitizen terrorists, like U.S. citizen ones, are a rare species.

Passports And Nationality In International Law, Adam I. Muchmore

Journal Articles

Shifts in state control over territory can have substantial consequences for the nationality of individuals. This Article explores situations where an individual finds that the state which issued him a passport no longer recognizes his nationality. The law of binding state action, a set of broadly-accepted rules regulating state representations to other states, may provide more protection for passport-holders than the “soft” norms of human rights law.

So Much Activity, So Little Change: A Reply To The Critics Of Battered Women's Self-Defense, Kit Kinports

Journal Articles

Prior to 1970, the term "domestic violence" referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners. Today, of course, domestic violence is a household word. After all, it has now been ten years since the revelation of football star O.J. Simpson's history of battering purportedly sounded "a wake-up call for all of America"; ten years since Congress enacted legislation haled as "a milestone . . .truly a turning point in the national effort to break the cycle" of violence; and twenty years since Farrah Fawcett's portrayal of Francine Hughes in the movie The …

The Nhl Labour Dispute And The Common Law, The Competition Law, And Public Policy, Stephen F. Ross

Journal Articles

This article develops the claim that, absent an agreement with the union, the imposition of a salary cap or punitive luxury tax would constitute an unreasonable restraint of trade, as well as a violation of section 48 of the Competition Act that the Canadian courts should enjoin. The article analyzes decisions of Canadian and other British Commonwealth courts concerning general principles of the common law as well as their specific application in the context of the sports industry. Second, the paper discusses why the same standard applies to restraints challenged under section 48 of the Competition Act. Next. the …

The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responbilility-Entrapment Debate, Katrice Bridges Copeland

Journal Articles

This Note argues that Section 3E1.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3E1.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …

Turning The Endangered Species Act Inside Out, Jud Mathews

Journal Articles

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings". The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation …