Law Commons^™

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson

Darren L Hutchinson

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court’s suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

Restraining The Hand Of Law: A Conceptual Framework To Shrink The Size Of Law, Bryan H. Druzin

Bryan H. Druzin

There is a fierce ideological struggle between two warring camps: those who rally against expansive government and those who support it. Clearly, the correct balance must be struck between the extremes of legislative over-invasiveness and the frightening total absence of legal structure. This paper articulates a framework that allows for legislative parsimony—a way to scale back state law in a way that avoids lurching to unnecessary extremes. I assume the libertarian premise that law should strive to encroach as minimally as possible upon social order, yet I argue that we must do this in a highly selective fashion, employing a …

Opening The Machinery Of Private Order: Public International Law As A Form Of Private Ordering, Bryan H. Druzin

Bryan H. Druzin

Does legal order always need the enforcement power of the State? The concept of private order says no. Private ordering is traditionally defined as the coming together of non-governmental parties in voluntary, self-enforcing arrangements. This Article radically expands the concept of private order to include not only individuals, but also governments themselves, arguing that the ingredients for private ordering exist in both spheres. State actors, perhaps even more so than individuals, are producers of private order in that they regularly establish sophisticated legal order in the absence of centralized enforcement. The Article constructs a theory of private order which focuses …

Planting Seeds Of Order: How The State Can Create, Shape, And Use Customary Law, Bryan H. Druzin

Bryan H. Druzin

This paper argues that government can strategically trigger the emergence of customary law in order to achieve specific policy ends. While much has been written on customary law, the idea that the State can stimulate its emergence is a radical notion with clear policy implications. Harnessed correctly, such an approach could be a powerful legislative weapon to create, sustain, and even redirect social order. Building upon basic insights from game theory, the paper posits a way to do this: policymakers can deliberately recreate the social conditions that foster the emergence of customary order. The paper, however, draws a sharp divide …

The First Thing We Do, Jorge R. Roig

Jorge R Roig

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education LEWIS M. WASSERMAN Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theft, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Mediating Theftv, Kaitlyn E. Tucker

Kaitlyn E Tucker

In the attached short article, I argue for a change in the punishment scheme in non-violent theft crimes. Specifically, I outline a new Victim-Offender Mediation program and then argue how and why it should integrate into the criminal justice system to advance restorative justice as a viable method for punishment in America. I describe restorative justice as a model for punishment and Victim-Offender Mediation specifically as a restorative technique. I then explain why our criminal justice system needs Victim-Offender Mediation. The nation faces unprecedented numbers of prisoners and costs to run prison facilities, in addition to the disparate number of …

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Shlomo C. Pill

This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …

Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan Valentin

Ryan Valentin

No abstract provided.

Restoring The Right To Organize In The Private Sector, James Newell

James Newell

No abstract provided.

A Theory Without A Movement, A Hope Without A Name: The Future Of Marxism In A Post-Marxist World, Justin Schwartz

Justin Schwartz

Just as Marx's insights into capitalism have been most strikingly vindicated by the rise of neoliberalism and the near-collapse of the world economy, Marxism as social movement has become bereft of support. Is there any point in people who find Marx's analysis useful in clinging to the term "Marxism" - which Marx himself rejected -- at time when self-identified Marxist organizations and societies have collapsed or renounced the identification, and Marxism own working class constituency rejects the term? I set aside bad reasons to give on "Marxism," such as that the theory is purportedly refuted, that its adoption leads necessarily …

Science And Compliance In The Arctic: A Constructivist Approach To The Un Commission On The Limits Of The Continental Shelf, Sari M. Graben, Peter Harrison

Sari M Graben

The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to sea bed resources in the Arctic Ocean. Positivist theories of international law generally source Arctic state compliance to the binding effect of Article 76 of the UN Convention on the Law of the Sea. However, positivist explanations fail to answer why the Arctic states, which are authorized to establish their own limits, would accept the sovereignty costs associated with the Commission’s legal and scientific interpretations. In order to better understand how the Commission …

International Law And Ungoverned Space, Matthew Hoisington

Matthew Hoisington

Ungoverned spaces, strictly defined as “spaces not effectively governed by the state” exist all over the world, presenting particular difficulties to public international law, which is historically premised on sovereignty and state control. Examples of such spaces include cyberspace, south-central Somalia and the Federally Administered Tribal Areas along the Afghan-Pakistan border. These spaces destabilize the international system in novel ways—and they might also be dangerous. Many of the terrorism plots from the late twentieth and early twenty-first century emanated from “safe havens” afforded by ungoverned spaces. The lack of governance over certain spaces also raises concerns over development, including the …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

"Health Care For All:" The Gap Between Rhetoric And Reality In The Affordable Care Act, Vinita Andrapalliyal

Vinita Andrapalliyal

The rhetoric of “universal health care” and “health care for all” that pervaded the health care debate which culminated in the Patient Protection and Affordable Care Act (ACA)’s passage. However, the ACA offers reduced to no protections for certain noncitizen groups, specifically: 1) recently-arrived legal permanent residents, 2) nonimmigrants, and 3) the undocumented. This Article explores how the Act fails to ensure “health care for all,” demonstrates the gap between rhetoric and reality by parsing the ACA’s legislative history, and posits reasons for the gap. The ACA’s legislative history suggests that legislators’ biases towards these noncitizen groups, particularly with respect …

Westminster's Impending Short Title Quandary: And How To Fix It, Brian Christopher Jones

Brian Christopher Jones

Discusses the likelihood that, in the absence of official guidelines on the choice of short title for new Bills submitted to the Westminster Parliament, increasingly the US practice of giving Bills "sloganising" or personalised short titles will be emulated. Reports on the views of parliamentarians about the use of evocative language in Bill titles. Outlines the formal and informal rules and practices followed by Office of the Parliamentary Counsel in the naming of Bills, and suggests five guidance points for the selection of a short title.

Abduction, Torture, Interrogation - Oh My! An Argument Against Extraordinary Rendition, Kaitlyn E. Tucker

Kaitlyn E Tucker

An American citizen waits patiently in an airport terminal in Jordan for a flight back to the United States. Several men – Jordanian officials – are watching the American and waiting for the right moment to approach him. The American gets up and starts to walk away, perhaps to get a cup of coffee. The Jordanian officials stop the American quickly and take him to a secluded part of the airport. For the next several days, the Jordanians question the American relentlessly, trying to discover his connection to the torture of hundreds of Muslim and Middle Eastern individuals. They do …

Enforcing International Law: States, Ios, And Courts As Shaming Reference Groups, Roslyn Fuller, Sandeep Gopalan

Roslyn Fuller

We seek to answer the question as to whether international law imposes meaningful constraints on state behaviour. Unabated drone strikes by the dominant superpower in foreign territories, an ineffective United Nations, and persistent disregard for international law obligations, as evidenced by states killing their own citizens, all suggest that the sceptics have won the debate about whether international law is law and whether it affects state behaviour. We argue that such a conclusion would be in error because it grossly underestimates the complex ways in which IL affects state behaviour. We argue that scholars who claim that the lack of …

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.

Federal Prohibition Of Medical Marijuana In Pain Management: Undue, Unimportant, And Irrational, Michael L. Timm Jr.

Michael L. Timm Jr.

This paper provides a review of the historical right of the people of the United States to seek, and use, alternative medicinal treatment options in the realm of managing both the pain and symptoms associated with a variety of illnesses. The focus then turns to the right involved: a patient’s ability to employ medical marijuana instead of a commonly prescribed narcotic or mass-market non-steroidal anti-inflammatory analgesic (NSAIA) drug to manage pain and increase quality of life under the advice and consent of a treating physician. No one article has argued that there is a fundamental, important, or at least recognizable …

Introduction To The Theory Of Law: History And The Unity Of Legal Things, John Lunstroth

John Lunstroth

I propose a general theory of the law. I begin with the history of the western legal tradition. When tracing laws, or legal things, over long periods of time it is apparent that the positivist theory is inadequate to describe law. Natural law similarly fails to explain what is seen in the historical record. I suggest an historicist theory best describes the law when seen as a conceptual and historical whole. I then identify a fundamental break in the historical record, the Enlightenment, when the scientific worldview became dominant. The scientific gaze splits nature (including law) into two parts, moral …

Policing Terrorists In The Community, Sahar F. Aziz

Sahar F. Aziz

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted in counterterrorism as a means of collaborating with Muslim communities and local police to combat “Islamist” homegrown terrorism. Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among law enforcement and …