Law Commons^™

Successor Liability In Illinois, George Kuney

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No abstract provided.

Gimme Fiction: Rev. Rul. 99-6, Don Leatherman

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No abstract provided.

Successor Liability In Michigan, George Kuney

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No abstract provided.

Law And Governance In The 21st Century Regulatory State, Jason M. Solomon

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Legal scholarship and pedagogy on the regulatory state are at parallel, important junctures, and two new books stand at the cutting edge. The first, Law and New Governance in the EU and the US, edited by Gráinne de Búrca and Joanne Scott, is a collection of works by some of the leading scholars in the "new governance" field. New governance scholars have both described and laid the theoretical foundation for what they see as promising and innovative efforts to address public problems. These efforts attempt to be less hierarchical, more transparent, and more democratic than traditional top-down forms of …

Discovery, Judicial Assistance And Arbitration: A New Tool For Cases Involving U.S. Entities?, Peter B. Rutledge

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Limited discovery is one of the regularly cited advantages of international arbitration, as opposed to international litigation, particularly in contrast to litigation in the US. courts. Recent decisions by US. courts, however, have threatened to upend this comparative advantage. Invoking a little known US. law, 28 U.S.C. section 1782, these courts have permitted parties in an arbitration to petition for subpoenas issued by US. courts against their adversaries or third parties. Bucking the trend in the academic literature, which largely supports this development, this article opposes reading section 1782 to authorize subpoenas in support of an arbitration. Not only does …

Welfare Reform, Privatization And Power: Reconfiguring Administrative Law Structures From The Ground Up, Wendy A. Bach

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Since welfare reform in 1996, privatization has led to a radical reconfiguration in the dominant mode of governance in public benefits programs. The United States has largely moved from systems controlled through law and regulation to systems controlled through contracts. With this shift has come a significant diminishment in public accountability in general and, more specifically, a diminishment in the ability of poor communities and their advocates to intervene in the making of welfare policy. At the same time, privatization has proven to be an extraordinarily effective mechanism for imposing highly punitive welfare programs on poor communities. Building upon the …

Conceptualizing Intimate Violence And Gender Equality: A Comparative Approach, Valorie K. Vojdik

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No abstract provided.

How To Entrench A De Facto State Church In Russia: A Guide In Progress, Robert C. Blitt

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The Russian Orthodox Church's (ROC) assertion of a constitutionally inappropriate role in affairs of state has severely compromised Russia's secular constitutional framework. This gradual but steady erosion of the barrier between church and state is evidenced by a series of contemporary developments that are inexorably linked to the Church's vision of its traditional place in Russian history.

Disturbingly, each successive post-communist regime has further enabled this behavior, and there is no indication that the political transition from President Vladimir Putin to his hand-picked successor, Dmitry Medvedev, will change anything.

This paper argues that the emerging pattern of collusion presents a …

Harry Potter And The (Re)Order Of The Artists: Are We Muggles Or Goblins?, Gary Pulsinelli

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In "Harry Potter and the Deathly Hallows," author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the 'muggle' world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property …

Five Takes On District Of Columbia V. Heller, Glenn Harlan Reynolds

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Part of an Ohio State Law Journal symposium on the Supreme Court's decision finding an individual right to arms in District of Columbia v. Heller, this article offers five takes on what the Heller decision might mean, and how it may play out in lower courts. First, we argue that Heller essentially followed the prevailing national consensus on the meaning of the Second Amendment. Second, we argue that this fact furnishes an important data point for those who argue that the Court usually follows, rather than leads, public opinion on disputed matters; and that, when it invalidates laws, it does …

Retaliatory Discharge And The Ethical Rules Governing Attorneys, Alex B. Long

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In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney who, as part of his job duties, raised concerns with his superiors about possibly unlawful activity and was allegedly fired in response had no First Amendment retaliation claim. In support of its conclusion, the Court suggested that adequate checks already existed at the state and federal level to curb the behavior of employers who engage in unlawful activity and to protect the employees who seek to prevent or expose such activity. In addition to state and federal whistleblower statutes, the Court singled out the rules of professional …

Legal Advocacy And Education Reform: Litigating School Exclusion, Dean Rivkin

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School exclusion has existed as a dark side of public education since the creation of America's public schools. Several cases in the United States Supreme Court memorably invalidated State and school system efforts to deny equal educational opportunities to marginalized school children and youth. In these cases, the over-riding multiple values of education were poignantly articulated in the majority decisions.

School exclusion has stubbornly persisted. It takes many forms. This article surveys the most prominent pathways to school exclusion, highlighting what has been called the "School-To-Prison-Pipeline." Various legal challenges are also evaluated. The pros and cons of litigating school exclusion …

Is Dick Cheney Unconstitutional?, Glenn Harlan Reynolds

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During a recent policy kerfuffle, Vice President Dick Cheney's office briefly argued that the Vice President is really a legislative official, and hence not subject to some obligations of the Executive branch. Though Cheney's office quickly shifted its argument to less controversial statutory grounds, it turns out that the Vice Presidency's legislative character is, in fact, quite significant. To the extent that the Vice President is a legislative official, however, it is likely that extensive delegation of Presidential authority to the Vice President, of the sort that Vice President Cheney has enjoyed, is probably unconstitutional and certainly unwise.

'Babushka Said Two Things - It Will Either Rain Or Snow; It Either Will Or Will Not': An Analysis Of The Provisions And Human Rights Implications Of Russia's New Law On Nongovernmental Organizations As Told Through Eleven Russian Proverbs, Robert C. Blitt

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Longtime observers of Russia increasingly have called attention to and expressed profound concern for the direction the Russian Federation has taken in recent years. In advancing President Putin's vision of "dictatorship of law" and "managed democracy," the Russian government has retreated from key democratic reforms, undermining the transition away from Soviet rule and imperiling significant gains in fundamental human rights.

It is against this backdrop that, in January 2006, President Putin ratified major amendments to the 1996 Law on Nonprofit Organizations, which regulates the creation, reorganization, activity, and liquidation of NGOs in Russia. Putin has claimed that the amendments to …

Educating Workers About Labor Rights And Global Wrongs Through Documentary Film, Fran Ansley

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No abstract provided.

A Tale Of Two Case Methods, Benjamin H. Barton

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This essay argues that law schools should adopt the business school case method. Business school cases are generally real life problems. They ask the students to read the files and then perform actual management tasks. The students also generally work in teams and are graded on their actual work throughout the semester. The students thus spend their time learning how to actually manage, instead of only learning dry management theory.

There are several advantages to the business school case method. The business school case method is much more focused on the actual process of being a business manager. By comparison, …

A Response To Professor Fitzpatrick: The Rest Of The Story, Penny White

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In his essay Election as Appointment: The Tennessee Plan Reconsidered, Professor Brian T. Fitzpatrick contends that Tennessee's selection and retention method for appellate court judges is both unconstitutional and unmeritorious. This Essay responds to those claims. Part I will respond to Professor Fitzpatrick's claim that the Tennessee Plan is unconstitutional; Part II will respond to his claim that the Plan is not fulfilling the purposes which led the Tennessee legislature, in its wisdom, to adopt it.

Heller's Future In The Lower Courts, Glenn Harlan Reynolds

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The Supreme Court's recent decision in District of Columbia v. Heller not only established an individual right to gun ownership, but also overturned - by a 9-0 margin - lower-court caselaw based on a "collective right" interpretation of the Second Amendment. This article looks at how Heller is likely to fare in the lower courts, based on experience with other recent Supreme Court decisions, and incorporates new scholarship on decision rules and the so-called "new doctrinalism."

The Year Of The Gun: Second Amendment Rights And The Supreme Court, Glenn Harlan Reynolds

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This Essay looks at issues that the Supreme Court can duck - and those that it can't - in deciding the District of Columbia Second Amendment case, D.C. v. Heller. It also looks at political and institutional pressures placed on the Supreme Court by the Heller case.

Dna -- Intimate Information Or Trash For Public Consumption?, Melanie Wilson

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This essay discusses the increasingly popular police practice of covertly collecting DNA samples from people who inadvertently leave saliva, hair or other biological matter in public places. The essay contends that although the United States Supreme Court has yet to decide whether the practice is constitutional, well-established Fourth Amendment principles of “abandonment” supply the necessary framework to permit the practice and simultaneously protect citizen privacy.

Finding A Happy And Ethical Medium Between A Prosecutor Who Believes The Defendant Didn't Do It And The Boss That Says That He Did, Melanie Wilson

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In June of 2008, The New York Times reported on a New York prosecutor’s conflict with his supervisors. The disagreement rested on the prosecutor’s belief that the District Attorney’s Office had wrongly convicted two men of a 1990 shooting. After thoroughly re-investigating the case, the prosecutor made a powerful pitch to his bosses that the men’s convictions “be dropped.” The supervisors disagreed and instructed the prosecutor to proceed with a hearing to oppose setting aside the convictions. The prosecutor complied with the directive but then “deliberately helped the other side win.”

This short thought piece proposes an ethical course of …

Prosecutors "Doing Justice" Through Osmosis - Reminders To Encourage A Culture Of Cooperation, Melanie Wilson

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Scholars have often criticized the government for relying on "cooperating" defendant/witnesses in obtaining convictions of other persons. Such scholars contend that cooperating witnesses are powerfully motivated to parrot information a prosecutor wants to hear and that as naturally biased advocates, prosecutors overlook and ignore signs that cooperating defendants are lying.

This article asserts that defendants who "cooperate" with the government by substantially assisting in the prosecution of other crimes and criminals in exchange for a hope of receiving a more lenient sentence are invaluable crime prevention tools and should be encouraged. Nevertheless, the article recognizes the inconsistent manner in which …

When Informal Adoption Meets Intestate Succession: The Cultural Myopia Of The Equitable Adoption Doctrine, Michael J. Higdon

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In certain circumstances, the equitable adoption doctrine allows a person to inherit as the child of a testator even when the testator was neither that person's biological or adoptive parent. Although this doctrine, at first blush, might appear to be a move toward a more inclusive system of intestate succession, as many scholars have noted, the restrictive tests that the various courts have designed to determine who qualifies as an equitably adopted child have only served to greatly undermine the utility of the doctrine and, in numerous cases, have led to the denial of rather compelling claims.

While agreeing with …

Doing Policy From Below: Worker Solidarity And The Prospects For Immigration Reform, Fran Ansley

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No abstract provided.

Does Sarbanes-Oxley Foster The Existence Of Ethical Executive Role Models In The Corporation?, Joan Macleod Heminway

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If compliance with, or the efficacy of, Sarbanes-Oxley and other corporate governance initiatives requires that executives (or other firm leaders) be good ethical role models, then it is important to ask whether Sarbanes-Oxley - or any other attribute of existing corporate governance regulation - in fact promotes or permits the production or preservation of ethical role models in the executive ranks of public companies. An absence of support for ethical role models in public companies may signal the failure of broad-based federal corporate governance initiatives like Sarbanes-Oxley.

This Article assumes that ethical roles models may be important to the maintenance …

"The Appeal" To The Masses, Penny White

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No abstract provided.

Introducing The New And Improved Americans With Disabilities Act: Assessing The Ada Amendments Act Of 2008, Alex B. Long

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This essay summarizes the changes to the Americans with Disabilities made by the ADA Amendments Act of 2008. The Act represents the first substantive revision to the ADA since its inception and contains some dramatic changes. This essay summarizes those changes and makes some preliminary assessments as to how the new amendments are likely to alter the current interpretation of the ADA.

Time Is Of The Essence: Seize The Opportunity For Fulfillment In 2009, Francine J. Lipman

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No abstract provided.

Law On The Street: Legal Narrative And The Street Law Classroom, Elizabeth L. Macdowell

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This Article argues that the failure of anti-discrimination law to address the problems of subordination reflects the hegemonic perspective in legal narratives. For the lawyer concerned with social change, it is imperative to identify these narratives and the ways in which they not only inhibit deep social change, but may perpetuate the conditions of subordination. Yet, law school polices against the consciousness necessary for the lawyer to identify the hegemonic narrative in the law, and often instills attitudes, which are antithetical to the project of social change. In this context, Street Law - a practical law course taught by law …

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

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Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.