Law Commons^™

Mixing Oil And Water: Reconciling The Substantial Factor And Results-With-In-The-Risk Approaches To Proximate Cause, Peter Zablotsky

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No abstract provided.

"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.

Academic Freedom As Private Ordering: Politics And Professionalism In The 21st Century, Deborah W. Post

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No abstract provided.

Five Myths About Sprawl, Michael Lewyn

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In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is "a natural result of affluence that occurs in all urbanized societies." Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the …

You Can Have It All: Less Sprawl And Property Rights Too, Michael Lewyn

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Some commentators believe that smart growth and property rights are at loggerheads - and to be sure, these theories do lead to differing positions on a few issues (most notably urban growth boundaries and similar anti-sprawl regulations). But as to a wide variety of issues, smart growth advocates and property rights theorists can find common ground. Both groups can support eliminating zoning regulations that mandate automobile-dependent, sprawling development, such as single-use zoning, minimum parking requirements and minimum lot size requirements.

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.

Civil Rights And Related Decisions, Eileen Kaufman

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No abstract provided.

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

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This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …

Nuance And Complexity In Regulatory Takings Law, Gregory M. Stein

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No abstract provided.

Materiality And Social Change: The Case For Replacing "The Reasonable Investor" With "The Least Sophisticated Investor" In Inefficient Markets, Margaret V. Sachs

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The current materiality standard for federal securities fraud is a mid-twentieth-century construct that fails to accommodate certain twenty-first century realities. This Article argues that its reach should be restricted to preserve it for the many circumstances in which it continues to function well.

The current standard measures materiality from the standpoint of "the reasonable investor," a savvy person who grasps market fundamentals. This standard has a fatal flaw: its inability to protect unsophisticated investors who are duped by implausible falsehoods in inefficient markets. This flaw can no longer be ignored given Internet and telemarketing securities fraud and its many unsophisticated, …

After The Catastrophe: Disaster Relief For Hospitals, Elizabeth Weeks Leonard

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Disaster planning for health care providers following the September 11, 2001, terrorist attacks and, more recently, Hurricane Katrina, focuses on preparing hospitals and other emergency services to respond to victims' medical needs. But little attention has been paid to the challenges that providers would face resuming normal operations after responding to the catastrophe. A large-scale catastrophe could create unprecedented demand for health care and emergency services. Hospitals already struggle to fulfill the high demand for and high costs of emergency care. Following a major disaster, hospitals would face additional financial challenges. Strained capacity and financial reserves, may force hospitals to …

The Price Of Pretrial Release: Can We Afford To Keep Our Fourth Amendment Rights?, Melanie Wilson

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This Article looks at the intersection of the Fourth Amendment, which protects Americans' personal security against arbitrary and oppressive searches by law enforcement officials, and the Eighth Amendment, which proscribes excessive bail. The focus is on the validity and effectiveness of an arrested person's agreement to relinquish some or all of her Fourth Amendment rights as a means of gaining freedom from pre-trial detention. In other words, can an arrested person validly "consent" to waive some of her Fourth Amendment rights to avoid pre-trial detention? Recently, in a case of first impression in the federal courts of appeal, the Ninth …

(Whatever Happened To) The Ada's Record Of Disability Prong(?), Alex B. Long

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The ADA's record of disability prong is the prong least likely to be used by ADA plaintiffs in claiming protection under the Act. Between the years 2000 and 2004, ADA and Rehabilitation Act plaintiffs in federal court who alleged employment discrimination relied upon the record of disability prong less than one-third as often as the actual and perceived disability prongs in claiming disability status. Nor have ADA plaintiffs enjoyed any greater success when asserting coverage under the record of disability prong during that time period. Congress, the Equal Opportunity Commission (EEOC), and the federal courts bear much of the blame …

The Rhetoric For Ratification: The Argument Of "The Federalist" And Its Impact On Constitutional Interpretation, Dan T. Coenen

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Courts, lawyers, and scholars have long assumed that The Federalist Papers supply important information for use in constitutional argument and interpretation. In recent years, commentators have questioned this view. Their skepticism grows out of two major concerns. First, Justice Scalia's challenge to the use of legislative history in the statutory context casts a cloud over judicial use of background texts such as The Federalist in seeking the meaning of the Constitution. Second, even if courts may rely on some background materials in interpreting the Constitution, there is reason to conclude that The Federalist does not qualify as the sort of …

The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith

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In Part I of this Article, we apply the Coase Theorem and its most useful corollary to the problem of pollen drift. We conclude that the liability of pollen polluters should be governed by balancing rules against nuisance law, to be applied on a case-by-case basis, rather than by a blanket liability or immunity rule. We also conclude that truly bystanding non-GMO farmers should have a viable defense to patent infringement because liability would result in the application of a reverse Pigovian tax that cannot be justified under accepted economic theory. Only a contextual approach can account for the wide …

A Teacher's Teacher, Lonnie T. Brown

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This article is a tribute to Harold G. Maier which focuses on his career and his influence on Professor Brown.

Harold G. Maier: A World Class Fellow Indeed, Kurtz

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Hal Maier has played many roles in my life: he has been my teacher, my boss, my advisor, my colleague, and most and best of all, my friend. In all those roles, he has exhibited enthusiasm, patience, tact, and brilliance. Not at all a bad combination, I would say. This is an article in tribute to Harold G. Maier.

Acquiring Land Use Rights In Today's China: A Snapshot From On The Ground, Gregory M. Stein

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For the interested observer of real estate markets, China is the most fascinating place in the world today, and the coming years promise to be no less intriguing than the recent past has been. This Article offers an overview of how a specific segment of the Chinese real estate market - the acquisition of land use rights - operates in practice, from both a legal and business perspective.

I recently interviewed dozens of Chinese and Western experts who are taking part in one of the greatest real estate booms in world history. My conversations with these real estate developers, bankers, …

Using Dvd Covers To Teach Weight Of Authority, Michael J. Higdon

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Using various examples, this essay explores how the movie critic quotes that companies select to grace the cover of DVDs (and ultimately help sell the product) can actually be used to teach students about weight of authority.

A Diversity Theory Of Charitable Tax Exemption -- Beyond Efficiency, Through Critical Race Theory, Toward Diversity, David A. Brennen

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Part I of the article presents Robin Paul Malloy's Law and Market Economy Theory (“LMT”) as an example of the basis for a normative explanation of the charitable tax exemption. LMT addresses the relationship among law, markets, and culture. Thus, using LMT, this part demonstrates how traditional law and economic analysis, premised on self-interest and wealth maximization, simply does not capture the essence of the many values that impact the marketplace and the market exchange process. Instead, LMT approaches legal analysis in a broader market context and is premised on the need to promote a process of sustainable wealth formation …

The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West

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This Article begins the debate over the constitutional underprotection of autobiographical speech. While receiving significant historical, scientific, religious, and philosophical respect for centuries, the timehonored practice of talking about yourself has been ignored by legal scholars. A consequence of this oversight is that current free speech principles protect the autobiographies of the powerful but leave the stories of “ordinary” people vulnerable to challenge. Shifting attitudes about privacy combined with advanced technologies, meanwhile, have led to more people than ever before having both the desire and the means to tell their stories to a widespread audience. This Article argues that truthful …

The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck

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Law school seminars sometimes educate the professor as much as the students. That proved true for me in the spring of 2004, when seventeen law students and two colleagues from other departments joined me for a seminar focused on ancient and contemporary perspectives on law found within various Christian theological traditions. One seminar student who repeatedly spurred my own thinking was Jason Carter. Particularly thought provoking was the paper Jason presented in the final weeks of the seminar.

The returns from the 2004 election suggested that Jason had been unusually prescient in his analysis of U.S. religious and political trends. …

Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett

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An implicit dichotomy of the corporation exists in legal scholarship. On one side of the dichotomy rests the publicly held corporation suffering from a significant conflict of interest between its managers and dispersed shareholders; on the other side, the closely held corporation plagued by intershareholder conflict. This Article argues that understanding the agency problems that can exist within a firm demands a rejection of this traditional dichotomy and the theories of the firm built upon it. Using venture capital (VC) finance, this Article demonstrates how this dichotomy obscures how all firms -- public and private -- often face the same …

Christian Faith And Political Life: A Dialogue [With Jason Carter], J. Randy Beck

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Several months before the 2004 presidential election, a seminar at the University of Georgia School of Law explored views of law and legal institutions reflected in various Christian theological traditions. The class included an unusually gifted group of students from a variety of theological and political backgrounds. One student brought a particularly unique and relevant set of experiences to the course. Jason Carter grew up as the grandson of Jimmy Carter, a former Democratic President who has often discussed the political implications of his Christian faith. Jason also observed first hand the interaction of Christian faith and political activity as …

The Seductive Comparison Of Shareholder And Civic Democracy, Usha Rodrigues

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This Comment takes the common comparison of shareholder democracy and political democracy in a new direction by exploring the parallels between the board of directors and the Electoral College, examining both institutions in light of the differences between nation and corporation and their contrasting histories. Both are "once removed" representative democracies, because both systems only give the voters the right to vote for representatives who then select those who actually govern. The Comment next considers, with a critical eye, the underlying premise that shareholder and civic democracies can be compared at all, given the radically different nature of the corporate …

Concurring In Part & Concurring In The Confusion, Sonja R. West

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When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments …

Same-Sex Marriage In New York, Lewis A. Silverman

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No abstract provided.

The Spirit Of Serrano: Past, Present And Future, Anne Dupre, John Dayton

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A decades-long school funding revolution continues in the United States. The litigation sparked by the Supreme Court of California's 1971 decision in Serrano v. Priest continues to reshape the legal, political, and educational landscape in the United States, affecting the lives of children, parents, educators, and taxpayers throughout the nation. Serrano-inspired lawsuits have transformed school funding policies nationwide, resulting in billions of dollars in new funding and a notable redistribution of resources among school districts. Serrano-inspired litigation has changed public schools in many states to a degree second only to the transformation that followed Brown v. Board of …

On The Passing Of My Friend, Dick Wellman, Paul M. Kurtz

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Writing the introduction to a symposium in memory of a friend is a great honor, of course, and one that I seized immediately, for fear that the Editor in Chief might change his mind.

The Status Of Administrative Agencies Under The Georgia Constitution, David E. Shipley

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This Article discusses the place of administrative agencies under the Georgia Constitution. The rules of the Georgia Supreme Court on these issues, like the comparable rulings from the U.S. Supreme Court, make excellent reading for anyone interested in Georgia law, government, politics, and history. Most of the decisions surveyed in this Article are correct, but not necessarily for the reasons given by the Georgia Supreme Court. Some of the opinions offer comprehensive treatises on sections of the Georgia Constitution and aspects of administrative law, while others reach conclusions without much explanation. Some results are at odds with prior decisions that …