Law Commons^™

Implied Limits On The Legislative Power: The Intellectual Property Clause As An Absolute Constraint On Congress, Paul J. Heald, Suzanna Sherry

Scholarly Works

Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress's legislative power under certain circumstances. Their analysis begins by looking at other limits on the legislative power that the Court has found in the Bankruptcy Clause, the Eleventh Amendment, the Tenth Amendment, and Article III. Then by examining the history and structure of the Intellectual Property Clause and relevant precedent, they distill four principles of constitutional weight--the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle. These principles inform the Court's …

Suburban Sprawl: Not Just An Environmental Issue, Michael Lewyn

Scholarly Works

Many conservatives believe that (1) sprawl is merely the result of the free market at work; (2) even if sprawl has negative effects, it cannot be limited without implementation of the liberal/environmentalist agenda of larger and more intrusive government; therefore, (3) conservatives should do nothing to fight sprawl. This article rejects all three propositions. Specifically, I argue that: (1) sprawl is in large part a result of runaway statism rather than the free market; (2) sprawl threatens conservative values such as consumer choice, the work ethic, and social stability, and (3) free-market, anti-spending solutions can limit sprawl and revitalize cities.

As Mandatory Binding Arbitration Meets The Class Action, Will The Class Action Survive?, Jean R. Sternlight

Scholarly Works

Assuming that the traditional prerequisites for a class action have been met, courts have four choices: (1) order the dispute to be resolved in an individualized arbitration, thereby denying plaintiffs either a litigation or arbitration venue for their class claims; (2) refuse to mandate arbitration, and instead allow plaintiffs to litigate their class claims; (3) order that the dispute be resolved through an arbitral class action, also known as classwide arbitration; or (4) order the dispute to arbitration but allow the arbitrators to make the determination as to whether the dispute should be resolved individually or on a class basis. …

Dressed For Excess: How Hollywood Affects The Professional Behavior Of Lawyers, Nancy B. Rapoport

Scholarly Works

This article discusses two related points: first, that the way in which movies portray lawyers shapes how clients view effective/ineffective lawyer behavior, and second, that the portrayal also helps lawyers to forget appropriate professional behavior.

Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman

Scholarly Works

No abstract provided.

Appropriation & Transculturation In The Creation Of Community, Deborah W. Post

Scholarly Works

No abstract provided.

Seeing Through "The Glass Ceiling": A Response To Professor Angel, Dan Subotnik

Scholarly Works

No abstract provided.

The Salience Of Race, Deborah W. Post

Scholarly Works

No abstract provided.

Dismantling Democracy: Common Sense And The Contract Jurisprudence Of Frank Easterbrook, Deborah W. Post

Scholarly Works

No abstract provided.

Capital Punishment And Religious Arguments: An Intermediate Approach, Samuel J. Levine

Scholarly Works

Determining the place and use of capital punishment in the American legal system is a challenging affair and one that is closely associated with and determined by religion's role in American legal decision-making. Both capital punishment and religion are controversial issues, and tend to challenge legal scholars and practitioners about whether they should function together or alone as valid parts of the legal system in the United States. Professor Levine argues that religious arguments should be employed to interpret and explain American legal thought when the need or proper situation arises. He uses capital punishment as an example of how …

Due Process And Fundamental Rights, Martin A. Schwartz

Scholarly Works

No abstract provided.

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

Scholarly Works

No abstract provided.

Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, And Freedom Of Speech, Michael L. Wells

Scholarly Works

Mt. Healthy City School District Board of Education v. Doyle is among the most important, and least discussed, cases in constitutional tort law. It stands for the abstract principle that the "but-for" rule of causation, which is the usual test in common-law torts, applies in constitutional torts as well. Doyle, a nontenured school teacher, quarreled with another teacher, with school employees, and with students. Two specific incidents deserve mention. First, on one occasion he "made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor." Second, after the principal …

First Amendment Freedoms And The Encryption Export Battle: Deciphering The Importance Of Bernstein V. United States Department Of Justice, 176 F.3d 1132 (9th Cir. 1999), David Mcclure

Scholarly Works

For many years, a battle has raged over export restrictions on strong encryption products. Encryption ensures confidential and secure communications among individuals, and the Commerce Department and the State Department have long restricted its export because of national security concerns. Industry and privacy groups have fought against the restrictions for various reasons, ranging from the desire to sell encryption software in new markets to preventing government from accessing personal communications between individuals. Daniel Bernstein, a computer science graduate student, challenged these restrictions in 1996, placing himself in the center of this ongoing battle. In 1999, the Ninth Circuit Court of …

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

Scholarly Works

This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

A Reflective Rhetorical Model: The Legal Writing Teacher As Reader And Writer, Linda L. Berger

Scholarly Works

Like most writing teachers, the legal writing teacher believes that his reading and response to student work is the most important thing he does, an importance that is underscored by the amount of time it takes. Yet, despite its importance and the hours it consumes, the rhetoric of teacher reading and writing remains relatively unexplored. This article proposes that we begin to apply what we have learned about student reading and writing to our own reading and writing. Our process of reading and responding to student work should be as reflective and rhetorical as the reading and writing process that …

"We Do Not Preach, We Teach.": Religion Professors And The First Amendment, Leslie C. Griffin

Scholarly Works

No abstract provided.

Book Annotations, Leah Chan Grinvald

Scholarly Works

No abstract provided.

Supreme Court Of Nevada, Administrative Office Of The Courts, Nevada Domestic Violence Resource Manual, Mary E. Berkheiser

Scholarly Works

No abstract provided.

Human Rights And Wrongs In Our Own Backyard: Incorporating International Human Rights Protections Under Domestic Civil Rights Law---A Case Study Of Women In The United States Prisons, Martin A. Geer

Scholarly Works

An urgent human rights crisis at home is under close scrutiny by diverse groups including the United Nations, non-governmental organizations, the U.S. Department of Justice, and public interest lawyers. Within the context of a prison population explosion that dwarfs that of the rest of the world, the undeveloped status of international human rights in U.S. domestic jurisprudence becomes more evident. Within prison populations, increasing numbers of women’s lives are reduced to half-lives under the tortuous effects of sexual abuse by corrections officials. This dire situation presents the question: Can women prisoners continue to be denied the protections of international human …

Book Note, Fatma E. Marouf

Scholarly Works

Tortured Confessions presents an innovative perspective on the relationship between torture and propaganda. Abrahamian’s persuasive account exposes the intrinsic limitations of arguments that try to explain torture as simply the result of a “traditional” regime, a desire for social discipline, or a search fro security information; he binds torture instead to ideological warfare and political mobilization, the fundamental goals of military propaganda.

Globalization Or Global Subordination? Latcrit Links The Global To The Local And The Local To Global, Sylvia R. Lazos

Scholarly Works

Professor Lazos introduces the fifth and final cluster of this LatCrit IV Symposium, International Linkages and Domestic Engagement, which includes five important contributions to LatCrit IV's focus on global issues by Professors Timothy Canova, Gil Gott, Tayyab Mahmud, Ediberto Roman, and Chantal Thomas. The introduction below sketches out, by way of illustration only, how some of the work already presented in this symposium cultivates the linkage between local racial formation and global market dynamics. The introduction then explores LatCrit's contribution to the critique of globalism.

Alwd Citation Manual: A Professional System Of Citation, Terrill Pollman, Leah A. Kane

Scholarly Works

The Association of Legal Writing Directors (ALWD) has written a new citation manual that is easy to teach from and easy to use.

Although the ALWD Manual provides a very different teaching and learning experience, practitioners should experience few difficulties adjusting to the new manual.

Forum Non Conveniens In Federal Statutory Cases, Keith A. Rowley, Lonny Sheinkopf Hoffman

Scholarly Works

This article, previously published in Volume 49 of the Emory Law Journal, examines the federal doctrine of forum non conveniens in cases in which the plaintiff asserts a right to relief under federal law. The arguments we advance - particularly our claim that the federal doctrine of forum non conveniens can be better understood not as turning on matters of convenience, as the formal doctrine suggests, but on an assessment of the relative sovereign interests in adjudicating the dispute - remain relevant to an understanding of the federal doctrine. The paper, thus, may be of interest to practitioners, academics and …

Beyond Cloning: Expanding Reproductive Options For Same-Sex Couples, David Orentlicher

Scholarly Works

No abstract provided.

Medical Malpractice: Treating The Causes Instead Of The Symptoms, David Orentlicher

Scholarly Works

No abstract provided.

The Implementation Of Oregon’S Death With Dignity Act: Reassuring, But More Data Are Needed, David Orentlicher

Scholarly Works

Undoubtedly, empirical data from Oregon will play a key role for academics, legislators, judges, and the public as debate over the legalization of physician-assisted suicide continues. A central issue in the debate is whether a right to assisted suicide can be limited to only the truly compelling cases, or whether it will in practice be provided to patients who choose it out of depression, coercion, or misunderstanding. Empirical research can provide critical insights into this question.

Third Party Payments To Criminal Defense Lawyers: Revisiting United States V. Hodge And Zweig, David Orentlicher

Scholarly Works

No abstract provided.

Women Defenders On Television: Representing Suspects And The Racial Politics Of Retribution, Joan W. Howarth

Scholarly Works

This Essay is about Ellenor Frutt, Annie Dornell, Joyce Davenport, and other women criminal defense attorneys of prime time television. It examines how high-stakes network television presents sympathetic stories about women working as criminal defense attorneys while simultaneously supporting the popular thirst for the harshest criminal penalties. Real women who choose to represent criminal defendants are fundamentally out of step with angry and unforgiving attitudes toward crime and criminals. Indeed, women defenders have chosen work that puts them in direct opposition to the widespread public willingness to incarcerate record numbers of Americans, often young African-American and Latino men, for longer …

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

Scholarly Works

Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years …