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A Post-Vieth Strategy For Litigating Partisan Gerrymandering Claims, James A. Gardner Dec 2004

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 Oct 2004

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 …


Law Librarians As Educators And Role Models: The University At Buffalo's Jd/Mls Program In Law Librarianship, James G. Milles Jul 2004

Law Librarians As Educators And Role Models: The University At Buffalo's Jd/Mls Program In Law Librarianship, James G. Milles

Journal Articles

No abstract provided.


Practicing What We Preach: A Call For Progressive Church Taxes, Matthew Barrett Mar 2004

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. …


The Future Of Affirmative Action, Wendy B. Scott Jan 2004

The Future Of Affirmative Action, Wendy B. Scott

Journal Articles

The author served as the moderator of a panel at the Symposium entitled Twenty-Five Years: The Future of Affirmative Action. In this Commentary, she reviews articles by Professors Kevin Brown, Leland Ware, and John Valery Mute appearing elsewhere in this Issue.


The Precautionary Principle As The Law Of Planetary Defense: Achieving The Mandate To Defend The Earth Against Asteroid And Comet Impacts While There Is Still Time, Evan R. Seamone Jan 2004

The Precautionary Principle As The Law Of Planetary Defense: Achieving The Mandate To Defend The Earth Against Asteroid And Comet Impacts While There Is Still Time, Evan R. Seamone

Journal Articles

Current legal and policy efforts to enable adequate defense against potential asteroid or comet collisions with the earth are insufficient because they are indirectly premised upon theories that require verification of a clear and imminent threat before governmental agencies can act. This Article identifies the "precautionary principle" as the preeminent law of planetary defense against asteroid and comet impacts. The precautionary principle requires governments to take action to prevent harm even when it is uncertain if, when, or where the harm will occur. It requires governments to implement specific frameworks for making prompt decisions, directs intergovernmental bodies to plan for …


Lessons Learned By A New Dean, Jim Rosenblatt Jan 2004

Lessons Learned By A New Dean, Jim Rosenblatt

Journal Articles

The account of my first year as dean of the Mississippi College School of Law in no way should focus on me as an individual, for my life and my decanal endeavors were inextricably woven into the life of the law school. The account of my first year as a "new dean" must, therefore, be a recounting of the events and activities of the law school in the academic year 2003-2004. Through this brief account, I shall share the story of the law school from my perspective and along the way recount the lessons I have learned and the nuggets …


Book Review, Mark C. Modak-Truran Jan 2004

Book Review, Mark C. Modak-Truran

Journal Articles

Lucinda Peach addresses the issue of religious lawmaking by focusing on the constitutional implications and gender issues that she argues have been overlooked by the Supreme Court and by participants in the debate about religion in politics.


Rehabilitate The Age Discrimination In Employment Act: Resuscitate The “Reasonable Factors Other Than Age” Defense And The Disparate Impact Theory, Judith J. Johnson Jan 2004

Rehabilitate The Age Discrimination In Employment Act: Resuscitate The “Reasonable Factors Other Than Age” Defense And The Disparate Impact Theory, Judith J. Johnson

Journal Articles

The Age Discrimination in Employment Act (ADEA) promised to protect older workers from discriminatory exclusion from the workforce, but recent studies show that older workers are being cut from the workforce and are unable to find employment. In a 1995 article, I warned of the potential dangers of construing the ADEA to allow employment decisions based on age-correlated criteria. Most courts have failed to heed these warnings and now approve employer practices, such as terminating employees based on higher salaries and refusing to hire workers with too much experience. These practices may explain the difficulty older workers are having retaining …


Reenchanting The Law: The Religious Dimension Of Judicial Decision Making, Mark C. Modak-Truran Jan 2004

Reenchanting The Law: The Religious Dimension Of Judicial Decision Making, Mark C. Modak-Truran

Journal Articles

Without a religious justification in the law, judges cannot fully justify their decisions in hard cases from within the law. The law must be indeterminate because the Establishment Clause proscribes this full justification. This does not mean that the Establishment Clause prohibits judges from fully justifying their decisions during their deliberations about hard cases. It only prohibits judges from including that full justification in their written opinions. Deliberation and explanation are separate stages of judicial decision making that should be kept distinct. Given this distinction, my thesis is that judges should fully justify their decisions in hard cases by relying …


Experiments In Comparative Corporate Law: The Recent Italian Reform And The Dubious Virtues Of A Market For Rules In The Absence Of Effective Regulatory Competition, Marco Ventoruzzo Jan 2004

Experiments In Comparative Corporate Law: The Recent Italian Reform And The Dubious Virtues Of A Market For Rules In The Absence Of Effective Regulatory Competition, Marco Ventoruzzo

Journal Articles

The article addresses a sweeping Reform of corporate law which was enacted by the Italian government in 2003 and came into effect on January 1, 2004. The new statutory regulation significantly increases freedom of contract in corporate law, relying on the idea that the development of an efficient market for rules will allow the "natural selection" of the rules that better suit the need of the different stakeholders. Together - and to some extent to compensate for - this greater freedom of contract, new protections for minority shareholders have also been implemented. The reform also imports into the Italian legal …


The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responbilility-Entrapment Debate, Katrice Bridges Copeland Jan 2004

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 …


Race, Immigration, And The Department Of Homeland Security, Victor C. Romero Jan 2004

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.


Health Care's "Thirty Years War": The Origins And Dissolution Of Managed Care, Edward P. Richards, Thomas R. Mclean Jan 2004

Health Care's "Thirty Years War": The Origins And Dissolution Of Managed Care, Edward P. Richards, Thomas R. Mclean

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 Jan 2004

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.


Leaky Boundaries And The Decline Of The Autonomous Law School Library, James G. Milles Jan 2004

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 …


Structural Bias And The Need For Substantive Review, Julian Velasco Jan 2004

Structural Bias And The Need For Substantive Review, Julian Velasco

Journal Articles

One of the fundamental debates in corporate law pits the authority of the board of directors to make business decisions without judicial interference against the accountability of directors to shareholders for their decisions. The business judgment rule attests to the value ascribed to authority by providing only limited judicial review for claims of breach of the duty of care, while the entire fairness test demonstrates the value ascribed to accountability by providing far more exacting scrutiny for claims of breach of the duty of loyalty. In cases involving structural bias, however, neither doctrine is appropriate. Whenever the interests of directors …


On The Historical School Of Jurisprudence, Robert E. Rodes Jan 2004

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 …


Marry Me, Bill: Should Cohabitation Be The (Legal) Default Option?, Margaret F. Brinig, Steven L. Nock Jan 2004

Marry Me, Bill: Should Cohabitation Be The (Legal) Default Option?, Margaret F. Brinig, Steven L. Nock

Journal Articles

Are cohabitation and marriage similar enough to warrant similar legal treatment? Earlier public reports on cohabitation have focused on the question of whether cohabitation before marriage increases or decreases the divorce rate.

But increasingly cohabitation is being proposed not as a testing ground for marriage, but as a functional substitute for it. The trend in family law and scholarship in Europe and Canada is to treat married and cohabiting couples similarly, or even identically.

In this country, the American Law Institute [ALl] recently proposed that, at least when it comes to the law of dissolution, couples who have been living …


Universal Criminal Jurisdiction, Douglass Cassel Jan 2004

Universal Criminal Jurisdiction, Douglass Cassel

Journal Articles

Universal criminal jurisdiction is an important tool in the worldwide struggle to end impunity for serious international crimes.

Universal criminal jurisdiction is the principle of international law that permits any nation to prosecute certain serious international crimes, regardless of where they are committed, by whom or against whom, or any other unique tie to the prosecuting nation. The Recommendation applies whether or not an accused is in custody and does not address the separate topics of universal jurisdiction in civil cases or the immunities of senior government officials before foreign national courts.

Universal criminal jurisdiction developed over time as a …


Unfunding Terror - Perspectives On Unfunding Terror (Panel One), Jimmy Gurule Jan 2004

Unfunding Terror - Perspectives On Unfunding Terror (Panel One), Jimmy Gurule

Journal Articles

According to the FBI, the September 11, 2001 terrorist attacks against the World Trade Center and the Pentagon that claimed the lives of 2,973 innocent civilians required as much as $500,000 to stage. At the time, al Qaeda, the jihadi terrorist organization responsible for the mass killings, was operating on an annual budget between $30 and $50 million. However, despite the obvious fact that terrorists need money to support their terrorist operations and organizational infrastructure, prior to 9/11, preventing the financing of terrorism was not a priority for the United States or international community. Moreover, a comprehensive legal framework to …


Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis Jan 2004

Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis

Journal Articles

The form of enactments must be distinguished from their legal meaning (their "juridical effect"), that is, from the propositions of law which those enactments, properly interpreted, make legally valid. This distinction makes it possible, and rationally necessary, to conclude that, in certain contexts, a certain statute which declares or textually implies that some abortions are legally permitted (but others prohibited) is not apermissive law within the meaning of the principle, assumed in this article to be true, that permissive abortion laws are intrinsically unjust and may never be voted for. A permissive statute, in that sense, is one which has …


The Appearance Of Election Law, John Nagle Jan 2004

The Appearance Of Election Law, John Nagle

Journal Articles

The recent attention to election law implies that questions of reapportionment, voting rights, campaign finance, and the counting of votes belong to the same category of legal questions. In each instance, the evolving Supreme Court jurisprudence emphasizes appearances. The appearance of legislative districts, the appearance of corruption, and the appearance of partisanship are just some of the distinct ways in which the Court has concluded that appearance matter. As with other appearances, what looks to some observers like a gerrymandered district or a corrupting contribution is seen by others as a legitimate apportionment or an innocent expression of political support. …


Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law, Roger P. Alford Jan 2004

Report To Law Revision Commission Regarding Recommendations For Changes To California Arbitration Law, Roger P. Alford

Journal Articles

In this Article, Professor Alford discusses a report by the Law Revision Commission recommending that certain changes be made to arbitration law in California. It begins by outlining the history of arbitration in California, from its 1961 adoption of the Uniform Arbitration Act, to the 1988 enactment of an international arbitration statute modeled on the UNCITRAL Model Law, to the 1989 enactment of Section 1281.8, which allowed courts to grants provisions remedies to parties involved in arbitration proceedings. It also provides a general overview of the purpose and practice of arbitration law. Then, it provides a chapter-by-chapter analysis the Law …


Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel Jan 2004

Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel

Journal Articles

The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current …


The Trial Court's Gatekeeper Role Under Frye, Daubert, And Kumho: A Special Look At Children's Cases, John Eric Smithburn Jan 2004

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 …


Overcoming Impediments To Information Sharing, Avishalom Tor, Amitai Aviram Jan 2004

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 …


Iraq: One Year Later, Mary Ellen O'Connell Jan 2004

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.


The End Of Legitimacy, Mary Ellen O'Connell Jan 2004

The End Of Legitimacy, Mary Ellen O'Connell

Journal Articles

No abstract provided.


Reflections On The Manifold Means Of Enforcing The Antitrust Laws: Too Much, Too Little, Or Just Right?, Joseph P. Bauer Jan 2004

Reflections On The Manifold Means Of Enforcing The Antitrust Laws: Too Much, Too Little, Or Just Right?, Joseph P. Bauer

Journal Articles

Lately, much attention has been given to the scope of the antitrust laws. This discussion has two overlapping components: (1) consideration of the substantive doctrines specifying the behavioral or structural changes that are or are not unlawful and the appropriate methodology; and (2) analysis for making those determinations with attention given to the appropriate vehicles for enforcing the antitrust laws. Some argue that the antitrust laws proscribe activities that are either pro-competitive or at worst benign. Further, they assert that the multiplicity of antitrust enforcers and enforcement devices has resulted in undue burdens, including excessive cost, time delay, and forestalling …