Law Commons^™

Legal Regulation Of The Effects Of Military Activity On The Environment, Daniel M. Bodansky

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While in times of peace a growing number of multilateral environmental agreements serves to protect the environment, existing international law affords only very limited protection against the threats of war to the environment. This is the finding of a study by Prof. Daniel Bodansky, University of Georgia, USA on behalf of the German Federal Environmental Agency (Umweltbundesamt) which reviews the adequacy of the law of war and of the general principles of international law to protect the environment. At present international law leaves nation states with a wide degree of discretion to justify environmental harm caused by acts of war.

Lightening The Load: In The Georgia Supreme Court, R. Perry Sentell Jr.

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The Supreme Court of Georgia enjoys legendary status in perpetuating both "law" and "justice" for the citizens it serves. It functions as an institution of rich tradition, and it operates from a perspective of historic proportions. The court's heritage exudes a profusion of shaping facets, facets coalescing to yield an indelible profiles of Georgia's juristic content. That profile reflects such characteristics as the court's authoritative underpinnings: the legends of judicial fame to whom the court periodically returns for lessons of wisdom. Other distinctions focus upon the court's output: the per curiam opinion, for example, constitutes an expressive peculiarity of historical …

The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck

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Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind a …

Assessing International Criminal Adjudication Of Human Rights Atrocities, Diane Marie Amann

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These remarks were presented on January 5, 2001, as part of a panel on international criminal adjudication at a conference entitled "Into the 21st Century: Reconstruction and Reparations" in Cape Town, South Africa.

The United States joined a number of countries that rushed to sign the treaty to establish the International Criminal Court. They included states like Yemen, Iran, and Israel. These three, along with the United States, were among the few that had refused to vote in favor of the treaty when it was adopted at a diplomatic conference in Rome in 1998. By the end of 2000, 139 …

Adult Guardianship In Georgia: Are The Rights Of Proposed Wards Being Protected? Can We Tell?, Eleanor Crosby Lanier

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National scrutiny of guardianship policies and practice by scholars and legal, health, and social service practitioners followed. This resulted in a succession of forums, studies, and recommendations aimed at improving the guardianship system. One such forum was the Wingspread conference, convened by the American Bar Association (ABA) in 1988. Experts from a variety of fields met to produce a groundbreaking set of recommendations for reforming guardianship. Wingspan, a second national guardianship conference addressing reform issues in 2001, produced in a second series of recommendations. The recommendations from these two conferences proposed greater protection for the proposed ward's liberty interests and …

The Diligent Prosecution Bar To Citizen Suits: The Search For Adequate Representation, Peter A. Appel

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To ensure that citizen suits assist but do not replace or overshadow government enforcement actions, all environmental statutes which authorize citizen suits bar such suits in certain circumstances. This short Article examines the relatively narrow but important problems created by one such bar, namely the statutory bar on a citizen suit if the federal or state government is “diligently prosecuting” an action against the same violator. The requirement that a governmental prosecution be diligent protects against two types of undesirable situations. On the one hand, the diligent prosecution bar prevents citizens from bringing simple “me too” actions. One would not …

The Latina/O And Apia Vote Post-2000: What Does It Mean To Move Beyond “Black And White” Politics?, Sylvia R. Lazos

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This Article frames the challenges to LatCrit theory and activism posed by voting rights, electoral process, and minority politics. In order to focus on the key challenges, The Article poses this question: What does a LatCrit theorist mean when she proposes to move beyond the "Black-White" paradigm? The Article discusses the changes in the U.S. electorate that in post-2000 have made the Latina/o and APIA vote the darling of both major parties. In the process of being perceived as an important electoral group, Latinas/os and Asian Pacific Islands Americans are at times being depicted as "model minorities." The Article concludes …

Shielding The Unmedia: Using The Process Of Journalism To Protect The Journalist's Privilege In An Infinite Universe Of Publication, Linda L. Berger

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When a computer and a connection to the Internet allow almost anyone to claim to be a journalist, the question of who should be covered by media shield laws becomes especially difficult. Based on the premise that it is important to preserve the journalist's privilege and to accommodate the "unmedia" if that can be done without undermining journalism's values, this article suggests that the best way to limit the journalist's privilege is not to define "who is a journalist?" or "what is news?" Instead, the privilege should extend protection to anyone who is engaged in the work process of journalism. …

Traditional Equity And Contemporary Procedure, Thomas O. Main

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This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

Of Child Welfare And Welfare Reform: The Implications For Children When Contradictory Policies Collide, Kay P. Kindred

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On August 22, 1996, President Bill Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter, “PRWORA” or the “welfare reform law”), which replaced the Aid to Families and Dependent Children Program (“AFDC”), the nation’s primary cash-assistance program, with the Temporary Assistance to Needy Families Program (“TANF”), funded by block grants to states. PRWORA represented a dramatic change in social welfare policy in the United States. Among the many changes effected by the law in the nation’s social welfare programs were: (1) the increased authority of the states over cash-assistance programs for needy families, giving …

Nietzschean Critique And Philosophical Hermeneutics, Francis J. Mootz Iii

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This article appears as part of a Symposium on "Nietzsche and Legal Theory" published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory.

Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At …

Culture Clash? The Miller & Modigliani Propositions Meet The United States Court Of Federal Claims, Rodger D. Citron

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No abstract provided.

The Economics Of Uniform Laws And Uniform Law Making, John Linarelli

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Uniform law making has a substantial history in the twentieth century. It seems to be continuing with some force into the twenty-first century. A significant American law and economics literature, however, questions its merit. By contrast, there have been limited rational choice oriented investigations of unification or centralization of law in Europe. Critics of the uniform law movement in the United States use methods of analysis influenced by public choice theory, political economics and positive political theory. The paper does not call into question the methods and assumptions of these approaches. The paper claims that economic analysis supports public policy …

Taking Ethics Codes Seriously: Broad Ethics Provisions And Unenumerated Ethical Obligations In A Comparative Hermeneutic Framework, Samuel J. Levine

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Ethics scholars have documented the increasingly legislative form of twentieth-century ethics regulations, culminating in the enactment and widespread adoption of the Model Rules of Professional Conduct. Nevertheless, pointing to the presence of broad ethics provisions, a number of leading scholars have questioned the extent to which ethics codes can accurately be conceptualized as a form of legislation. Responding to these critiques, Levine aims to take seriously both the legislative form of ethics codes and their interpretation. Toward that aim, he looks to interpretive methodologies employed in American constitutional law and Jewish law to provide both descriptive and normative models for …

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

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No abstract provided.

Professionalism Without Parochialism: Julius Henry Cohen, Rabbi Nachman Of Breslov, And The Stories Of Two Sons, Samuel J. Levine

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Professor Levine addresses the question of whether the practice of law a business or a profession and looks at sources where practitioners might draw inspiration for ethical behaviors. He examines two works: a 1916 book by Julius Henry Cohen - The Law: Business or Profession?; and a tale by Chasidic master Rabbi Nachman of Breslov. Both works tell the story of two sons from two different fathers with different ethical natures that manifest in their different choices of and approaches to their careers. Professor Levine uses these two parables to suggest that a more inclusive question than those posed above: …

September 11th: Pro Bono And Trauma, Marjorie A. Silver

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No abstract provided.

Beware: What You Say To Your [Government] Lawyer May Be Held Against You - The Erosion Of Government Attorney-Client Confidentiality, Patricia E. Salkin

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No abstract provided.

Teaching Government Law & Policy In Law School: Reflections On Twenty-Five Years Of Experience, Patricia E. Salkin

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No abstract provided.

2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin

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No abstract provided.

Where Will The Baby Boomers Go? Planning And Zoning For An Aging Population, Patricia E. Salkin

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The article discusses the subject of land use planning and zoning for an aging community.

Which Wave Are You? Comments On The Collected Essays From The Seminar “To Do Feminist Legal Theory”, Deborah W. Post

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No abstract provided.

Generation X In Law School: The Dying Of The Light Or The Dawn Of A New Day, Tracy L. Mcgaugh

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No abstract provided.

How City Hall Causes Sprawl - A Case Study (Book Review), Michael Lewyn

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Some commentators have labeled Atlanta, Ga. as America's poster child for sprawl. Atlanta is highly auto-oriented, and suffers from higher levels of traffic congestion and air pollution than most other cities. This book review explains how sprawl happened in Atlanta - not through the mysterious invisible hand of the free market, but through transportation and zoning decisions made by city officials.

Taking Ethical Discretion Seriously: Ethical Deliberation As Ethical Obligation, Samuel J. Levine

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This Article builds on and responds to the work of a number of leading ethics scholars who have offered alternatives to the prevailing model of legal ethics. Specifically, the Article proposes a "Deliberative Model," which posits that the lawyer's professional responsibility carries with it a duty on the individual lawyer to exercise discretion through consideration of the relevant ethical issues. Thus, the Article takes seriously the principle of ethical discretion, respecting the role of individual ethical decision-making but requiring that such decision-making be carried out through a justifiable process of ethical deliberation.

Bankruptcy And Federalism, Thomas E. Plank

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No abstract provided.

The Dmca: A Modern Version Of The Licensing Act Of 1662, L. Ray Patterson

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The thesis of this Article is that the Digital Millennium Copyright Act of 1998 (DMCA) in the United States is a modern version of the Licensing Act of 1662 in England. The English censorship statute is sufficiently obscure to merit an explanation of why the similarity and why it makes a difference. The reasons can be simply stated. The statutes are similar because they represent the same goals: the control of access to ideas. The similarities make a difference because a legal construct to control public access to ideas undermines -- and will eventually destroy -- the right of free …

Symposium On The Ilc's State Responsibility Articles: Introduction And Overview, Daniel M. Bodansky, John R. Crook

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In August 2001, the International Law Commission (ILC) adopted its “Draft Articles on the Responsibility of States for Internationally Wrongful Acts,” bringing to completion one of the Commission's longest running and most controversial studies. On December 12, 2001, the United Nations General Assembly adopted Resolution 56/83, which “commend[ed the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.”

The ILC articles address the fundamental questions: when does a state breach an international obligation and what are the legal consequences? Rather than attempting to define particular “primary” rules of conduct, the …

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

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The authors examine Eldred v. Ashcroft in a play setting where one of the characters plays a constitutional law professor and the other character plays an intellectual property professor.

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

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Scene: The quiet hallway of a law school. A troubled young professor of Intellectual Property law stands in front of a senior colleague's office and studies a pencil sketch of Bushrod Washington taped to the door. After a moment's hesitation, he knocks and enters.