Law Commons^™

When Do Facts Persuade? Some Thoughts On The Market For “Empirical Legal Studies”, Elizabeth Chambliss

Faculty Publications

No abstract provided.

Clarity And The Federal Rules Of Civil Procedure: A Lesson From The Style Project, Lisa A. Eichhorn

Faculty Publications

No abstract provided.

Mutual Fund Advisory Fees: New Evidence And A Fair Fiduciary Duty Test, John P. Freeman, Stewart Brown, Steve Pomerantz

Faculty Publications

No abstract provided.

"Manifest" Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption, Colin Miller

Faculty Publications

No abstract provided.

Even Better Than The Real Thing: How Courts Have Been Anything But Liberal In Finding Genuine Questions Raised As To The Authenticity Of Originals Under Rule 1003, Colin Miller

Faculty Publications

No abstract provided.

The Mysteriously Reappearing Cause Of Action: The Court’S Expanded Concept Of Intentional Gender And Race Discrimination In Federally Funded Programs, Derek W. Black

Faculty Publications

This Article addresses whether a cause of action exists under federal statutes to challenge gender and racial inequity in federally funded programs. The question has widespread ramifications because Congress appropriates funds to millions of programs that are subject to these statutes. The Court has held that the only cause of action that exists under these statutes is for intentional discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of intentional discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of intentional discrimination without accounting for the more complex nuances …

From The States Up: Building A National Renewable Energy Policy, Shelley Welton

Faculty Publications

No abstract provided.

Ocean Zoning And Spatial Access Privileges: Rewriting The Tragedy Of The Regulated Ocean, Josh Eagle, James N. Sanchirico, Barton H. Thompson Jr.

Faculty Publications

No abstract provided.

Educating At The Crossroads: Parents Involved, No Child Left Behind And School Choice, Danielle R. Holley-Walker

Faculty Publications

No abstract provided.

Unintended Consequences: Why Congress Should Tread Lightly When Entering The Field Of Family Law, Elizabeth G. Patterson

Faculty Publications

No abstract provided.

Children, Kin And Court: Designing Third Party Custody Policy To Protect Children, Third Parties And Parents, Josh Gupta-Kagan

Faculty Publications

No abstract provided.

Ordeal By Innocence: Why There Should Be A Wrongful Incarceration/Execution Exception To Attorney-Client Confidentiality, Colin Miller

Faculty Publications

No abstract provided.

Turning Stones Of Hope Into Boulders Of Resistance: The First And Last Task Of Social Justice Curriculum, Scholarship, And Practice, Derek W. Black

Faculty Publications

The most important and intangible aspect of teaching and practicing social justice law is retaining the hope that our efforts can translate into progressive results. At times, professors’ approaches to the subject of social justice tend toward pessimism that can have unintended negative effects on students. Thus, this Article calls on social justice professors to explicitly teach hope and, moreover, to produce practical scholarship on pressing legal issues that will help students keep hope once they leave school. This Article begins by exploring the theme of hope in John O. Calmore’s scholarship and how it interrelates with his project of …

Framework For The Next Civil Rights Act: What Tort Concepts Reveal About Goals, Results, And Standards, Derek W. Black

Faculty Publications

This article anticipates that the next president and the current Congress will likely pursue civil rights legislation for the first time since 1991. Their most significant and difficult task will be determining whether to retain the Supreme Court’s intentional discrimination standard. Because this issue has so often led to polemic debates and court decisions in the past, this article attempts to provide a neutral framework for that discussion. Relying on tort concepts and their longstanding connection to constitutional torts, it demonstrates that the attempt to create a standard to prohibit immoral or “wrongful” conduct is both misguided and will prove …

Lessons Learned: Transferring The European Union's Experiences With Energy Efficiency Policy To China, Shelley Welton

Faculty Publications

No abstract provided.

Envisioning The Constitution, Thomas P. Crocker

Faculty Publications

If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution …

A Copyright Conundrum: Protecting Email Privacy, Ned Snow

Faculty Publications

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the "forward" button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune …

Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker

Faculty Publications

From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the "marketplace of ideas." Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech …

Actually, We Are Leaving Children Behind: How Changes To Title I Under The No Child Left Behind Act Have Helped Relieve Public Schools Of The Responsibility For Taking Care Of Disadvantaged Students' Needs, Emily Suski

Faculty Publications

This article calls attention to the changes to Title I under NCLB that do a disservice to disadvantaged students. Under NCLB, Title I has shifted from its original focus on meeting the needs of disadvantaged students. These changes have removed almost any responsibility at all for taking care of the needs of disadvantaged students so they can learn in school, something this article terms ‘dynamic caretaking.’ It calls for revising Title I to require this kinds of dynamic caretaking in order to improve disadvantaged students’ access to education in public schools.

A Window Into The Regulated Commons: The Takings Clause, Investment Security, And Sustainability, Josh Eagle

Faculty Publications

The holding of the U.S. Court of Appeals for the Federal Circuit in American Pelagic Fishing Co. v. United States points to the conclusion that the government will almost never be liable, under the Takings Clause, when fisheries regulations reduce the value of commercial fishing permits, vessels, or gear. From the perspective of natural resource economics, this is a healthy result. Economists suggest that solving commons problems requires that natural resources be under the complete control of a sole owner who makes self-interested decisions about resource use, and if the Fifth Amendment required the government owner to compensate fishermen when …

Mandarin Chinese: An Annotated Bibliography Of Self-Study Materials, Duncan E. Alford

Faculty Publications

The People’s Republic of China is currently the seventh largest economy in the world and is projected to be the largest economy by 2050. Commensurate with its growing economic power, the PRC is using its political power more frequently on the world stage. As a result of these changes, interest in China and its legal system is growing among attorneys and academics. International law librarians similarly are seeing more researchers interested in China, its laws and economy. The principal language of China, Mandarin Chinese, is considered a difficult language to learn. The Foreign Service Institute has rated Mandarin as “exceptionally …

The Mutual Fund Distribution Fee Mess, John P. Freeman

Faculty Publications

No abstract provided.

The Voting Rights Act Of 1965: A Selected Annotated Bibliography, Terrye Conroy

Faculty Publications

Several remedial or "special" provisions of the Voting Rights Act of 1965, which were enacted as temporary measures and were set to expire in August 2007 if not reauthorized by Congress, were recently extended for another twenty-five years. Ms. Conroy offers a selected bibliography of resources to introduce researchers to the issues involved in the debate over the Act's reauthorization and its future implementation.

The Professionalization Of Law Firm In-House Counsel, Elizabeth Chambliss

Faculty Publications

This Article examines the structural evolution of the "firm counsel" position from a volunteer, part-time position filled by an existing partner to a specialized, often full-time position increasingly filled by career in-house counsel. Based on focus groups and interviews with firm counsel, as well as participant observation at meetings and conferences aimed at firm counsel, I examine how the professionalization of the firm counsel position affects: (1) the definition of the firm as the client; (2) the authority of firm counsel with partners; and (3) firm counsels' professional commitments and attitudes about ethical rules. I find that, from a regulatory …

The Prohibition Hangover: Why We Are Still Feeling The Effects Of Prohibition, Marcia A. Yablon-Zug

Faculty Publications

No abstract provided.

Regional Ocean Governance: The Perils Of Multiple-Use Management And The Promise Of Agency Diversity, Josh Eagle

Faculty Publications

Two high-level committees - the U.S. Commission on Ocean Policy and the Pew Oceans Commission - have recently issued reports expressing grave concerns about the condition of America's oceans. In these reports, the commissions suggest that institutional flaws underlie current problems. Specifically, the commissions' views are that state and federal agencies with marine jurisdiction lack the mechanisms, and the incentives, to coordinate their management activities. Accordingly, both commissions recommend the creation of regional ocean governance bodies. Although the commissions' designs differ, their goal is the same: management that operates on a larger scale and incorporates more ocean interests. This article …

Killing, Cheating, Legislating, And Lying: A History Of Voting Rights In South Carolina After The Civil War, W. Lewis Burke

Faculty Publications

No abstract provided.

The Best Offense Is A Good Defense: Why Defendants' Nolo Contendere Pleas Should Be Inadmissible Against Them When They Become Civil Plaintiffs, Colin Miller

Faculty Publications

All federal courts (and most state courts) agree that when a criminal defendant pleads nolo contendere and subsequently becomes a civil defendant, his plea is inadmissible against him pursuant to Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f). Conversely, courts are sharply divided over whether this same criminal defendant would be entitled to the protection of the Federal Rules (and corresponding state codes) if he became the plaintiff in a subsequent civil proceeding.

This article argues that courts holding that Federal Rule of Evidence 410, Federal Rule of Criminal Procedure 11(f), and corresponding state codes do …

The Professionalization Of Law Firm In-House Counsel, Elizabeth Chambliss

Faculty Publications

This Article examines the structural evolution of the "firm counsel" position from a volunteer, part-time position filled by an existing partner to a specialized, often full-time position increasingly filled by career in-house counsel. Based on focus groups and interviews with firm counsel, as well as participant observation at meetings and conferences aimed at firm counsel, I examine how the professionalization of the firm counsel position affects: (1) the definition of the firm as the client; (2) the authority of firm counsel with partners; and (3) firm counsels' professional commitments and attitudes about ethical rules.

I find that, from a regulatory …

Accessing The Internet Through The Neighbor's Wireless Internet Connection: Physical Trespass In Virtual Reality, Ned Snow

Faculty Publications

As wireless computer networks are becoming commonplace, so also is the practice of accessing the Internet through another's wireless network. The practice raises a simple question of law: Does accessing a wireless network, without express authorization, violate the property rights of the network operator? This Article argues that it does. A neighbor who intentionally accesses the Internet through a network operator's connection appears to trespass on physical property of the operator - the operator's router. Recent Internet jurisprudence suggests that the electronic signals that the neighbor sends through the router are sufficient to find trespassory physical contact. The same jurisprudence …