Law Commons^™

Learning From Others: Sustaining The Internationalization And Globalization Of U.S. Law School Curriculums, James Maxeiner

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This address has three principal points: (1) An overview of how we are going about internationalizing the law school curriculum today in the United States; (2) Whether we are making as much progress as we should and how learning from others is central to sustaining our progress such as it is; and (3) What some of the obstacles to such learning are.

The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, John B. Kirkwood, Robert H. Lande

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The conventional wisdom in the antitrust community is that the purpose of the antitrust laws is to promote economic efficiency. That view is incorrect. As this article shows, the fundamental goal of antitrust law is to protect consumers.

This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that …

Is America Finally Ready To Elect A Black President?, F. Michael Higginbotham

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In its 220 year history, America has yet to elect a president who is not white. In the 2008 presidential election, Barack Obama, the only black member of the United States Senate, has received the nomination of the Democratic Party, the first minority candidate to ever receive a major party nomination. This article argues that Americans must not let fear or prejudice squander this historic opportunity.

Under-The-Table Overruling, Christopher J. Peters

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In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

Determining The Character Of Section 357(C) Gain, Fred B. Brown

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Under section 351, a person transferring property to a controlled corporation generally recognizes no gain or loss on the transaction. An exception to tax-free treatment is contained in section 357(c), which generally provides that a transferor in a section 351 transaction recognizes gain to the extent that any liabilities assumed by the corporation on the transfer exceed the transferor's aggregate adjusted basis in the assets transferred. An issue under section 357(c) is whether the recognized gain should be capital gain or ordinary income. The statute suggests that the character of section 357(c) gain should be based on the character of …

From Medals To Morality: Sportive Nationalism And The Problem Of Doping In Sports, Dionne L. Koller

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The conventional wisdom is that in the fight against doping, the government is in the best position to clean up sport and protect the integrity of competition. The premise underlying this assumption is that in the United States, sport is private, so that the government typically has no role in its regulation. It is now, advocates suggest, with the integrity of sport on the line, the government should move off the sidelines and take action. This essay challenges that premise by arguing that with respect to doping in sports the government has not merely been a sidelines observer, but was …

Some Realism About Legal Certainty In The Globalization Of The Rule Of Law, James Maxeiner

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The rule of law is at the heart of globalization. It promises both international and domestic routes to peace, security, democracy, human rights and sustainable development worldwide. A central tenet of the rule of law is legal certainty. For most modern jurists, it is a matter of course that legal certainty is a systemic goal, even if that goal is not always fully realized. But for American jurists who count themselves legal realists, legal certainty is not even a flawed goal; it is a childish myth. This address seeks to raise awareness of this fundamental difference and to show its …

Step Right Up: Using Consumer Decision Making Theory To Teach Research Process In The Electronic Age, Amy E. Sloan

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The legal academy has framed legal research as a professional skill, and much research pedagogy centers around replicating a controlled professional environment to allow students to learn how to do research by simulating legal practice. Although this is a valid way to conceptualize research, it is not the only way. Another way to conceptualize research is as a consumer transaction. Legal information is, in many ways, a product that information providers market to lawyers and students, as the promotions and contests that LexisNexis and Westlaw sponsor demonstrate. Once legal information is understood as a product, the process of research can …

Justiciable Generalized Grievances, Kimberly L. Wehle

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The Supreme Court's prevailing test for Article III standing - injury-in-fact, causation, and redressability - generally restricts suits to remedy injuries affecting broad segments of the public in substantially equal measure. In Massachusetts v. EPA, the Supreme Court appeared to depart from this proposition in holding that the Commonwealth of Massachusetts has standing to sue the EPA to prompt it to slow global warming, a harm that affects everyone on Earth. The dissenting Justices assailed the majority for finding justiciable a so-called “generalized grievance” in contravention of prior standing precedent that is based on the notion that if parties seek …

Is Europe Unfairly Attacking Another U.S. High Technology Company?, Robert H. Lande

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This short piece considers whether the EU antitrust action against Intel constitutes an example of European regulators attacking a successful US company in order to protect a European competitor, or whether it instead is an example of legitimate law enforcement.

Protecting The Right To Vote: Oversight Of The Department Of Justice's Preparations For The 2008 Election - Statement Of Gilda R. Daniels Before The Senate Judiciary Committee, September 9, 2008, Gilda R. Daniels

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In 2000, we witnessed faulty voting machines with hanging chads and dimpled ballots. We also experienced error-filled purges and voter intimidation in minority neighborhoods. Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, voting irregularities and election protection and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act and the National Voter Registration Act, (NVRA), problems persist in the operation of our …

Bringing Baseball To Israel, Kenneth Lasson

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This brief article discusses little leagues in Israel, as well as individuals interested in baseball in that nation, especially those from the Maryland and Baltimore area. Mentioned is assistance sent to the little leagues by the Baltimore Orioles baseball team, and some of the memories of those involved of baseball in the United States, but who now reside in Israel.

World War 4.0: The Intel Antitrust Wars, Robert H. Lande

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This short piece gives an overview of antitrust actions filed around the world against Intel for allegedly undertaking anticompetitive actions in the market for X 86 PC chips.

Lessons Learned From The 2004 Presidential Election: Testimony Of Gilda R. Daniels Before The House Judiciary Subcommittee On The Constitution, Civil Rights And Civil Liberties, July 24, 2008, Gilda R. Daniels

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Since the 2000 Presidential election the voting rights vocabulary has expanded to include terms such as, "voting irregularities" and "election protection" and created a new debate regarding voter access versus voter integrity. Despite the debates and new legislation in the form of the Help America Vote Act (HAVA), and the continued enforcement of other voting statutes such as the Voting Rights Act, and the National Voter Registration Act, (NVRA), problems persist in the operation of our participatory democracy.

What we have witnessed since 2000, particularly during the 2004 election, gave us some reason to hope but also reason for concern. …

Citizen Mccain, Michael I. Meyerson

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No abstract provided.

Mamaloshen At Hopkins: The Education Of Marc Caplan, Kenneth Lasson

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This short article recounts the life story of Johns Hopkins Professor Marc Caplan, the first professor of Yiddish at that institution. He was born in Alexandria, La, and thus had his origins in the Deep South, in that town of about 100 Jewish families. He eventually went to Yale, and New York University, finally finding his present job at Hopkins, in Baltimore, MD.

Guiding Litigation: Applying Law To Facts In Germany, James Maxeiner

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"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a "simple-minded demand" that is "silly and misleading. It is not; it is what the public rightly expects from law. H.L.A. Hart, reminded U.S. jurists that "conventional legal thought in all countries conceives as the standard judicial function: the impartial application of determinant existing rules in the settlement of disputes."

This essay discusses the German method of judicial applying of law to facts. called, in German, the "Relationstechnik," that is, in English, literally "relationship technique." This essay shows how …

Popular Sovereignty And Legality, Christopher J. Peters

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This talk, prepared for delivery at the 2008 Wayne State University

Humanities Center Faculty Fellows Conference, explores the relationship between

popular sovereignty and legality. Legality – in particular, legal rights entrenched in a

constitution – often is thought to conflict with popular sovereignty in a way that

mirrors the supposed tension between individual autonomy and legal authority.

Both perceived conflicts, however, rest in part upon the problematic idea that the

law knows better than legal subjects what to do in particular cases. In fact, legal

authority is best justified as a means of resolving disputes about what to do in …

Reevaluating Where We Stand: A Comprehensive Survey Of America’S Family Justice Systems, Barbara A. Babb

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The call for court reform remains critical in the face of the growing complexity of burgeoning family law cases nationwide. Many states have restructured their court systems using the unified family court model, resolving legal, personal, emotional, and social disputes with the aim of improving the well-being of families and children. Other states utilize the traditional approach, resulting in cases being handled in a fragmented, time-consuming and expensive manner. In this article, Professor Barbara A. Babb presents the results of her nationwide survey regarding how each state handles family law matters. The survey is a follow-up to her comprehensive 1998 …

Valuation Discounting Techniques: Terms Gone Awry, Wendy G. Gerzog

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Fair market value is defined in the section 2031 Regulations. For its validity, that definition of fair market value relies on the normal definitions of its significant terms: a seller is someone who is seeking the highest price for her product and a buyer is someone who wants to obtain the lowest price for his purchase. It is only that tension that creates the realistic, and fair, market value of that asset. Indeed, without that conflict, the definition is comprised of hollow words.

In the context of family limited partnerships, terms have been misused. By utilizing the limited partnership shell, …

Introduction To Special Issue On Unified Family Courts, Barbara A. Babb, Gloria Danziger

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No abstract provided.

Benefits From Private Antitrust Enforcement: An Analysis Of Forty Cases, Robert H. Lande, Joshua P. Davis

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The goal of this Report is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. To do this the Report assembles, aggregates, and analyzes information about forty of the largest recent successful private antitrust cases. This information includes, inter alia, the amount of money each action recovered, what proportion of the money was recovered from foreign entities, whether the private litigation was preceded by government action, the attorneys' fees awarded to plaintiffs' counsel, on whose behalf money was recovered …

The Third Wave: Young Feminists Find Common Ground With Those Who Came Before Them, Jane C. Murphy

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Reporting on recent research at Chicago-Kent Law School and supported by studies at other schools, a group of student panelists noted sharp differences in participation rates in class discussions and lower feelings of self-confidence among female students compared with their male counterparts.

The 'Double Feature' Of Hearsay And The Confrontation Clause, Plus Coming Attractions, Lynn Mclain

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Class handout outlining the interaction between the evidence rule of hearsay and the Confrontation Clause of the Constitution.

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton

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Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's …

The Gentleman From Hagerstown: How Maryland Jews Won The Right To Vote, Kenneth Lasson

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This article discusses the early history of Maryland in the context of religious discrimination, specifically in reference to discrimination against those of the Jewish faith, even though the state "was founded as a haven of religious liberty and beacon of toleration." It also highlights a member of the Maryland House of Delegates, Thomas Kennedy, a Christian, as being the leader of the movement to ultimately correct this injustice. Part of the problem were clauses in the state's constitution requiring officeholders to be Christians. Kennedy lost his seat in the House, but didn't give up the battle. Ha had tried several …

The Microsoft-Yahoo Merger: Yes, Privacy Is An Antitrust Concern, Robert H. Lande

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Privacy and antitrust? Isn't antitrust only supposed to be concerned with price? Well, no. Antitrust is actually about consumer choice, and price is only one type of choice. The ultimate purpose of the antitrust laws is to help ensure that the free market will bring to consumers everything they want from competition. This starts with competitive prices, of course, but consumers also want an optimal level of variety, innovation, quality, and other forms of non-price competition. Including, in the Google-Doubleclick and Microsoft-Yahoo transactions, privacy protection.

Death And Harmless Error: A Rhetorical Response To Judging Innocence, Colin Starger

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Professor Garrett’s impressive empirical analysis of the first 200 post conviction DNA exonerations in the United States (“Garrett Study”) has the potential to affect contemporary debates surrounding our nation’s criminal justice system. This Response explores this potential by harnessing the Study’s data in support of arguments for and against a contested doctrinal proposition — that guilt-based harmless error rules should never apply in death penalty appeals. My analysis starts with the premise that the Study’s real world impact will necessarily depend on how jurists, politicians, and scholars extrapolate the explanatory power of the data beyond the 200 cases themselves. While …

More Than Just Law School: Global Perspectives On The Place Of The Practical In Legal Education, James Maxeiner

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Foreign experiences remind us that legal education is not just law school. They inform us that we should seek for ways not just to integrate theoretical and practical teaching, but to assure that our students or our graduates get real experience with practice. The assumption that law schools are the exclusive place for preparation for the profession of law is bad for students, bad for bar, bad for law schools, bad for the legal system and bad for society. We should look to see what we can do best and should encourage other institutions to do what they can do …

Patents, Taxes And The Nuclear Option: Do We Need A “Tax Strategy Patent” Ban?, Max Oppenheimer

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No abstract provided.