Law Commons^™

The New Jurisprudence Of The Necessary And Proper Clause, J. Randy Beck

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Several recent Supreme Court decisions evidence reinvigorated principles of federalism and an increased willingness to strike down legislation as beyond the power of Congress. In this article, Professor Beck considers this trend in light of the persistent debate surrounding the implied powers of Congress under the Necessary and Proper Clause. Because the Necessary and Proper Clause represents the outer boundary of congressional authority, consideration of this provision necessarily illuminates discussions of state sovereignty and reserved powers.

The article begins with an historical overview of the Framers' understanding of the Necessary and Proper Clause, leading up to the Supreme Court's decision …

Charities And The Constitution: Evaluating The Role Of Constitutional Principles In Determining The Scope Of Tax Law's Public Policy Limitation For Charities, David A. Brennen

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This Article expands the discussion of whether tax-exempt charities, for constitutional law purposes, should be treated as government actors, as private actors or as something in between. While government actors are subject to constitutional law restrictions concerning discrimination and free speech, private non-government actors are not generally subject to these same restrictions. Although tax-exempt charities are often thought of as sovereigns and, thus, government-like, the fact remains that charities are private entities created to serve public purposes. As private entities, charities - like all other private entities - are not necessarily bound by constitutional law principles. Still, the many “public” …

Lawyers And Decisions: A Model Of Practical Judgment, Alexander W. Scherr

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What do lawyers do, and how do they think in practice? Certainly, lawyers analyze law, and apply it to facts: the law school answer. This article proposes a more fluid notion: that lawyering prompts a mindfulness associated with decision-making, a mindfulness that engages and integrates a number of different capacities. Lawyers engage in a complex and unique thought process that relies only partially on rigorous analysis of legal principle. Lawyers must also integrate non-legal and even non-conceptual realities in considering client decisions. This integration emerges from the lawyer-client relationship and flexes to the demands characteristic of lawyering tasks. Lawyering is …

Intervention In Roman Law: A Case Study In The Hazards Of Legal Scholarship, Peter A. Appel

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In this Article, I offer a case study of one of the hazards presented by legal scholarship in law reviews as it has evolved over the last century. The standard law review article typically begins with an overview of the author's subject, frequently involving a historical perspective or a chronology of the development of a doctrine. This background section stems from a number of causes, but many attribute it to the fact that most law reviews are student-edited. In order to evaluate an author's argument, students need a brief course in, say, the basics of trade law and pollution control …

Dissenting Opinions: In The Georgia Supreme Court, R. Perry Sentell Jr.

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Under our system of justice, each jurisdiction necessarily evolves its own distinct tradition of judicial dissent. That evolution's impetus, history, pattern, and results all converge in an informative profile--affording yet another means of studying a state's highest appellate court. A dissent profile of the Georgia Supreme Court thus offers an additional evaluative view of the state's most important judicial cathedral.

The Writ Of Habeas Corpus, Donald E. Wilkes Jr.

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A fundamental legal safeguard of freedom and the most important English common law writ, the writ of habeas corpus is a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. The writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law. Whenever imprisonment violates a constitutional or fundamental right, there is an infringement of the right …

A Common Private Law For Europe, Alan Watson

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A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

The United States Of America And The International Criminal Court, Diane Marie Amann, M.N.S. Sellers

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The United States of America has not ratified the treaty establishing a permanent international criminal court, and it is highly un-likely to do so. This is not simply a question of delay caused by cumbersome ratification procedures; rather, it reflects deep-seated opposition by the U.S. executive branch and by many members of Congress. The United States voted against the Rome Statute of the International Criminal Court when it was adopted on July 17, 1998, at the U.N. Diplomatic Conference of Plenipotentiaries. President William J. Clinton approved signature of the statute on the last day that a state, by signing, could …

Biting Off What They Can Chew: Strategies For Involving Law Students In Problem-Solving Beyond Individual Client Representation, Katherine R. Kruse

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Problem-solving is most often taught in the context of representing individual clients in small manageable cases where students retain primary control and develop a sense of ownership. Increasingly, law school clinical programs are involving students in broader service projects designed to meet the needs of clients that go unaddressed by the legal system. Student involvement in these projects presents challenges for the traditional model of problem-solving taught in individual case representation. This article explores the challenges of translating the problem-solving techniques employed in direct representation of individual clients into the larger context of problem-solving for a client community by examining …

Nevada’S Employee Inventions Statute: Novel, Nonobvious, And Patently Wrong, Mary Lafrance

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In its Seventy-First Session, the Nevada Legislature enacted a new statute, S. B. 558, granting employers complete ownership of any work-related inventions created by their employees, regardless of whether the employer contributed any resources whatsoever to the inventive process. This stunning reversal of longstanding common law was little noticed by the public, and was debated only superficially in the state legislature before receiving its overwhelming vote of approval.

This Article examines Nevada's new employee invention statute from the perspectives of common law and public policy. It compares Nevada's new statute with the traditional common law rules governing employee inventions, as …

Congress Trips Over International Law: Wto Finds Unfairness In Music Licensing Act, Mary Lafrance

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Intellectual property law reform in the United States frequently involves balancing the interest rights of holders against the interests of users. As international agreements play an increasingly important role in the development of domestic intellectual property law, striking this balance has become a more complicated process.

Whereas, a few decades ago, resolving the competing needs of owners and users often could be accomplished purely as a matter of domestic policy – whether the outcome was based on high-minded principle, interest group politics, or simple pragmatism – today the proposed resolution to such a conflict more often than not must be …

Authorship And Termination Rights In Sound Recordings, Mary Lafrance

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In late 1999, Congress amended the definition of "works made for hire" in § 101 of the Copyright Act to make explicit its intent to include sound recordings as a category of works eligible for this status. The amendment was repealed with retroactive effect less than a year later. All this happened—pardon the expression—in record time.

This odd course of events was precipitated by a request from the record industry, represented by the Recording Industry Association of America ("RIAA"), which persuaded Congress, shortly before passage of the Intellectual Property and Omnibus Communications Reform Act of 1999, to add a "technical …

Recent Developments In Copyright Law: Technology And International Trade Play Starring Roles, Mary Lafrance

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The once staid field of copyright law has undergone a dramatic revolution in recent years, as new technologies and international trade pressures have spurred legislative change, while challenging the federal courts to find answers to those questions that Congress has not resolved or, in some cases, to questions that recent acts of Congress have created. This article explores recent developments in copyright law in 2002.

Defining Marriage: What Ballot Question 2 Doesn’T Do, Mary Lafrance

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This article examines he oddly-worded initiative, which constituted Question 2 on Nevada’s 2002 ballot and explains how it was a bit of a puzzle, even two years after it was first sprung upon the electorate. Touted during its previous appearance in the 2000 election as a “definition of marriage,” this article shows how it is all too clear that the initiative was anything but that. Neither the initiative, nor any existing provision of Nevada law, made the slightest attempt to define marriage.

Missouri, The “War On Terrorism,” And Immigrants: Legal Challenges Post 9/11, Sylvia R. Lazos

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This article explains how the 2000 census confirmed what many already knew--the traditional image of what it means for Missouri to be a heartland state is changing. The 2000 census shows that the fastest growing racial/ethnic group in Missouri are Latinos. This growth in first generation immigrants has not been limited to Missouri's large urban centers. In rural Missouri and its small towns, the major group of first generation immigrants is Latinos.

Uncharted Terrain: The Intersection Of Privatization And Welfare, Rebecca L. Scharf, Henry Freedman, Mary R. Mannix, Marc Cohan

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Welfare, a mainstay of legal services practice, is cutting edge again. Clients need help negotiating a system that devolution, discretion, and privatization have changed radically. Public officials need help in this new environment to "get it right," so that programs achieve the laudable goals ascribed to them.

Privatization creates special challenges for welfare advocates. New players, ranging from neighborhood nonprofit organizations to churches to multinational corporations, are making decisions that affect clients' vital interests. New legal issues, ranging from state action to public contracting compliance, can arise. Accountability and transparency, difficult to achieve in the governance of traditional welfare programs, …

“Owing To The Extreme Youth Of The Accused”: The Changing Legal Response To Juvenile Homicide, David S. Tanenhaus, Steven A. Drizin

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In this essay, the authors seek to dispel the myth that the juvenile court was never intended to deal with serious and violent offenders; a myth that has largely been unchallenged, especially in the mainstream media, and one that critics of the juvenile court have used to undermine its legitimacy. The discovery of homicide data from the Chicago police department from the early twentieth century, the era in which modern juvenile justice came of age, provides us with new historical date with which to put this dangerous myth to rest, by showing that the nation’s model juvenile court—the Cook County …

Paradise Lost: Good News Club, Charitable Choice, And The State Of Religious Freedom, Ian C. Bartrum

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The United States Constitution's two religion clauses prohibit Congress from passing laws that establish religion or restrict its free exercise. This Note argues that James Madison and Thomas Jefferson worked to include this language in the Constitution because of their belief that citizens' religious duties were more fundamental than their civic duties. It argues that they intended the Constitution's religion clauses to form a simple dialectic: the government may not force citizens to renounce their religious duties by compelling them to support another faith, nor may it pass laws that act coercively to restrict their religious beliefs and practices. This …

Persecution In The Fog Of War: The House Of Lords’ Decision In Adan, Michael Kagan, William P. Johnson

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International law requires that a refugee have a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. It is not enough to be at risk of being persecuted, nor is it even enough to be a member of a particular race or religion. There must be a “nexus” between the danger and one of the five Convention-recognized reasons for persecution. In the 1998 decision in Adan v. Secretary of State for the Home Department, the House of Lords concluded that a man fleeing clan warfare in Somalia could not …

New Voices At Work: Race And Gender Identity Caucuses In The U.S. Labor Movement, Ruben J. Garcia

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Recently, labor law scholars have examined the emergence of "identity caucuses," in unions and in nonunion workplaces. Some scholars have pointed to identity caucuses as a source of division in unions, while others have pointed to them as alternatives to traditional unions. The author argues that race and gender caucuses in unions are not a source of division in the labor movement today, nor are they a viable alternative to traditional unions. In spite of the National Labor Relations Act's subordination of minority rights to majority rule, the author determines that women and people of color in union-based identity caucuses …

Do Best Practices In Legal Education Include Emphasis On Compositional Modes Of Studying Law As A Liberal Art?, Linda L. Berger

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Reporter's Notes on "A Liberal Education in Law: Engaging the Legal Imagination through Research and Writing Beyond the Curriculum."

"An Overwhelming Question" About Non-Formal Procedure, Thomas O. Main

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No abstract provided.

S Corporation Loss Limitations: The Tax Court Provides Potential Hope For Related Party Debt Restructurings, Francine J. Lipman

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No abstract provided.

Incentive Stock Options And The Alternative Minimum Tax: The Worst Of Times, Francine J. Lipman

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Congress enacted the Alternative Minimum Tax ("AMT") to stop high-income individuals from escaping their tax liabilities through tax code loopholes. In recent years, increasing numbers of moderate-income taxpayers have been subject to astronomical AMT liabilities. The problem has been especially acute for technology sector employees who exercised stock options while the market was high, sold their stock after its value fell, and found themselves owing AMT they could not afford to pay. In this Essay, Professor Lipman explains the Internal Revenue Code's complicated treatment of Incentive Stock Options ("ISOs"). She argues that the AMT adjustment for ISOs should not be …

Never-Ending Limitations On S Corporation Losses: The Slippery Slope Of S Corporation Debt Guarantees, Francine J. Lipman

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Francine Lipman explains S corporation loss limitations in the area of shareholder guarantees, focusing on the recent tax court and seventh circuit decisions in T.F. Grojean and concludes with a summary of the lessons s corporation shareholders can learn from the Grojeans' missteps.

The Intractable Problem Of Bankruptcy Ethics: Square Peg, Round Hole, Nancy B. Rapoport

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This article continues my earlier research on conflicts of interest in bankruptcy cases, particularly in chapter 11 cases. It suggests that conflicts in interest in chapter 11 bankruptcy cases should not be handled the same way that conflicts are handled under state ethics rules, and it proposes a new section of the Bankruptcy Code to cover conflicts of interest in cases filed under chapter 11.

In Memoriam: Yale Rosenberg, Nancy B. Rapoport

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In memory of Yale Rosenberg, much-appreciated colleague at the University of Houston Law Center.

Is "Thinking Like A Lawyer" Really What We Want To Teach?, Nancy B. Rapoport

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This article argues that the phrase thinking like a lawyer assumes that other professions don't have their own ways of approaching problems and that law schools only need to teach how lawyers think, rather than how lawyers do what they do. It suggests that law schools should do much more than just teach law students how to think.

"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part I), Nancy B. Rapoport, Jeffrey D. Van Niel

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This part of the article provides a primer on the history of utilities regulation. (Part II provides a discussion on the intersection of utilities law and bankruptcy law, pre-BAPCPA.)

Introduction: Favorite Insurance Cases Symposium, Jeffrey W. Stempel

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Insurance law scholars and teachers sometimes feel, with a mixture of paranoia and justification, that insurance law simply does not receive its proper respect in the hierarchy of legal education and law generally.

Consider the law school curriculum. In none of America’s nearly 200 ABA-approved law schools in insurance law a required course. Nor is it considered a course that, although not required, prudent students “must” be sure to take before they graduate (e.g. Evidence, Corporations). Enrollments may be respectable but the class is seldom oversubscribed, even where the law school is located in an insurance hub city. Although other …