Law Commons^™

The Future Of Footnote Four, Dan T. Coenen

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The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." The importance of this principle cannot be overstated. It pervaded the work of the Warren Court and has played a prominent role …

Acquisition Licenses In Tennessee: An Annotated Model Tennessee Acquisition License Agreement, Joan Macleod Heminway

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The coauthors have constructed a model license agreement for use in connection with acquisitions, annotated with footnotes on substantive law and legal drafting issues. This model is intended to serve as a research piece, teaching tool, and practitioner resource. This agreement is part of a series of acquisition agreements and related ancillary contracts and instruments published by Transactions: Tennessee Journal of Business Law beginning in 2003.

Behavioral Economists At The Gate: Antitrust In The 21st Century, Maurice Stucke

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Although tossed against the rocks elsewhere, the Law and Economics' rational choice theories, within the quiet waters of antitrust, stand largely unchallenged. Antitrust's economic theories, premised on 'rational' profit maximizing behavior, enjoy the deep slumber of a decided opinion. Although Post-Chicago School antitrust theories have developed, the Chicago School's rational choice theories still dominate. This article explores some possible paradoxes and anomalies with respect to antitrust's merger theories. It appears anecdotally that some corporate behavior is (or is not) occurring which is not readily explainable under the Chicago School's theories. It is an empirical question as to the degree the …

From Simon Cowell To Tim Gunn: What Reality Television Can Teach Us About How To Critique Our Students' Work Effectively, Michael J. Higdon

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In an effort to illustrate and inform what makes for more effective critique of students' legal writing, this essay analogizes the various critiquing techniques currently taking place on the popular reality programs American Idol and Project Runway to the critiquing techniques used by legal writing professors.

Toward A More Efficient Bankruptcy Law: Mortgage Financing Under The 2005 Bankruptcy Amendments, Thomas E. Plank

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No abstract provided.

Milner S. Ball: Proof That One Professor Can Make A Difference, David Shipley

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Milner S. Ball, the Harmon W. Caldwell Chair in Constitutional Law, is proof positive that one person can make a difference in the world. There is no doubt that he has made a substantial difference for the better during his distinguished career at the University of Georgia, as a campus minister, as a non-traditional law student who was the First Honor Graduate in the Class of 1971 and editor in chief of the Georgia Law Review, and as a highly regarded professor at the School of Law since 1978. This article is part of a symposium in tribute to Milner …

Punish Or Surveil, Diane Marie Amann

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This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were …

The State Of Judiciary: A Corporate Perspective, Larry D. Thompson

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The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

What Is The Definition Of An "Organ" Under The Foreign Sovereign Immunities Act?, Peter B. Rutledge

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Did the court of appeals have jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. 1447(d)?

does a company wholly owned by a Canadian crown corporation -- that is itself wholly owned by the Canadian Province of British Columbia and that performs obligations and exercises rights of the Province pursuant to a treaty with the United States -- quality as an "organ" of a foreign state or political subdivision under the Foreign Sovereign Immunities Act?

The Rehnquist Court: A "By The Numbers" Retrospective, Lori A. Ringhand

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The late Chief Justice William Rehnquist presided over the U.S. Supreme Court for nineteen years, longer than any other Chief Justice in the 20th century. Despite this longevity, however, there is little consensus on just what the legacy of the Rehnquist Court is. Was the Rehnquist Court a restrained Court that embraced a limited, text-based reading of the Constitution? Or was it a much more aggressive Court, responsible for a resurgence of conservative judicial activism? Is it best epitomized by the “swaggering confidence” that put a President in office, or the cautious minimalism that disappointed its conservative supporters by failing …

The Essential Holding Of Casey: Rethinking Viability, J. Randy Beck

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The Planned Parenthood of Southeastern Pennsylvania v. Casey plurality acknowledged an obligation to "justify the lines we draw." The corollary would seem to be an obligation to eschew lines that defy principled justification. In the decades since Roe v. Wade, the Court has offered no adequate rationale for the viability standard, notwithstanding persistent judicial and academic critiques. Exacerbating this country's divisions over abortion and placing us out of step with the world community, the viability rule seems a strong candidate for abandonment as the Court continues to rethink its abortion jurisprudence in the aftermath of Casey.

Reflections On Hope, Erica J. Hashimoto

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This is an article from a Symposium In Honor of Professor Milner S. Ball. This article describes Professor Ball's dedication towards public interest law and encourages others to join the the fight for justice.

Fighting for a more just society-a society that treats all of its members with dignity and respect-calls for courage, passion, and vision. People with those qualities who choose to work in the public interest will discover the joy of having a "job" that many days is exhilarating and rewarding and often is just plain fun.' There will also, however, be difficult days. Surviving those days and …

The State Of The Judiciary: A Corporate Perspective, Larry D. Thompson, Charles J. Cooper

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The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner. This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki, William K. Ford, Lori A. Ringhand

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The interpretive or judicial philosophies of Supreme Court Justices can be thought of as “packages of beliefs” about how to interpret the law, packages that go by names like formalism, originalism, and textualism. Given the reasonable assumption that a judge's judicial philosophy could matter for how he or she will decide cases, the judicial philosophy of a nominee to the Supreme Court is of great interest to members of the Senate who vote on a nominee's confirmation. Figuring out a nominee's judicial philosophy is, consequently, one purpose of the confirmation hearings in the Senate, and Senators often claim to base …

[Insert Song Lyrics Here]: The Uses And Misuses Of Popular Music Lyrics In Legal Writing, Alex B. Long

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Legal writers frequently utilize the lyrics of popular music artists to help advance a particular theme or argument in legal writing. And if the music we listen to says something about us as individuals, then the music we, the legal profession as a whole, write about may something about who we are as a profession. A study of citations to popular artists in law journals reveals that, not surprisingly, Bob Dylan is the most popular artist in legal scholarship. The list of names of the other artists rounding out the Top Ten essentially reads like a Who's Who of baby …

State Sovereignty In Bankruptcy After Katz, Thomas E. Plank

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No abstract provided.

Successor Liability In Vermont, George Kuney

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No abstract provided.

A Tax Lawyer's Perspective On Section 527 Organizations, Gregg D. Polsky

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Proponents of campaign finance reform generally assume that, by definition, all section 527 organizations are partisan, election-driven organizations. They also believe that by self-identifying to the IRS, these organizations receive substantial tax benefits. Based on these presuppositions, reformers argue that strict regulation of 527organizations is both constitutional and normatively beneficial. In this Essay, I argue that once section 527 is carefully analyzed from a tax perspective, it becomes evident that these assumptions are flawed. Ultimately, I conclude that section 527 should not be used as a mechanism for regulating campaign finance

Civil Rights And Related Decisions, Eileen Kaufman

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No abstract provided.

Restitution As A Remedy For Refugee Property Claims In The Israeli-Palestinian Conflict, Michael Kagan

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This Article examines restitution as an autonomous human right for refugees displaced in the Israeli-Palestinian conflict, and assesses the implications of taking such a rights-based approach. The author concludes that the refugees have a strong legal claim to restitution. In international law, compensation is relevant only when restitution is materially impossible, where property has been damaged or declined in value so that restitution is not a complete remedy for the victim's loss or where a refugee chooses not to seek restitution. Current empirical research about land usage in Israel indicates that a great deal, and possibly the majority, of lost …

Reconsidering Procedural Conformity Statutes, Thomas O. Main

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No abstract provided.

Responding To Nietzsche: The Constructive Power Of Destruktion, Francis J. Mootz Iii

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As a student of Hans-Georg Gadamer, and later a translator and important commentator on Gadamer’s philosophy, P. Christopher Smith is widely acknowledged to be a leading hermeneutical philosopher. In a series of works, Smith has argued that Gadamer provides an important corrective to Nietzsche’s caustic critical challenges, but that Gadamer’s hermeneutics has no relevance for legal theory because law is just the manifestation of will to power. In this paper I argue that Smith misunderstands the nature of legal practice. Starting with a re-reading of the debate between Gadamer and Jacques Derrida about the legacy of Nietzsche’s philosophy, I argue …

Functional Neuroimaging Information: A Case For Neuro Exceptionalism?, Stacey A. Tovino

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The field of neuroethics has been described as an amalgamation of two branches of inquiry: “the neuroscience of ethics” and “the ethics of neuroscience.” The neuroscience of ethics may be described as “a scientific approach to understanding ethical behavior.” The law and ethics of neuroscience is concerned with the legal and ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. This Article is a contribution to the law and ethics of neuroscience.

No longer new or emerging, the burgeoning …

The Curious Incident Of The Law Firm That Did Nothing In The Night-Time, Nancy B. Rapoport

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This essay argues that organizations (here, the Milbank, Tweed law firm) often ignore obviously bad behavior by their employees because of various psychological and sociological factors that prevent them from recognizing the behavior as bad in the first place.

Squaring The Circle On Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use In The States, Patricia E. Salkin

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With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and …

Planners Gone Wild: The Overregulation Of Parking, Michael Lewyn

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No abstract provided.

Ensuring Continuing Community Amenities Through Golf Course Redevelopment, Patricia E. Salkin

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This article examines some of the issues faced by municipalities hoping to preserve their golf courses or to ensure their strategic redevelopment and focuses on how local governments can most effectively employ planning and zoning techniques to ensure that community amenities, including affordable housing and recreational areas, are an important part of golf course redevelopment projects.

"Curst Be He That Moves My Bones:" The Surprisingly Controlling Role Of Religion In Equitable Disinterment Decisions, Peter Zablotsky

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No abstract provided.

Charles Reich's Journey From The Yale Law Journal To The New York Times Best-Seller List: The Personal History Of The Greening Of America, Rodger D. Citron

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No abstract provided.

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman

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No abstract provided.