Law Commons^™

In Defense Of Geographic Disparity, Craig Allen Nard

Faculty Publications

A response to Margo A. Bagley, Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World, 87 Minn. L. Rev. 679 (2003).

Symposium: Issues In Bioterrorism -Introduction, Jessica Wilen Berg

Faculty Publications

This issue of Health Matrix focuses on the legal issues involving bioterrorism.

The Constitution Matters In Taxation, Erik M. Jensen

Faculty Publications

These articles, from a colloquy on the taxing power, are part of an ongoing-some might say endless-debate between the author and Professor Calvin Johnson about the meaning of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment. The author argues that the Direct-Tax Clauses were intended to be a significant limitation on the national taxing power, and that the Amendment ought to be interpreted accordingly-to have exempted only one category of taxes, taxes on incomes, from the apportionment rule that otherwise applies to direct taxes.

The Role Of Lawyers In Strategic Alliances, George W. Dent

Faculty Publications

No abstract provided.

Jensen’S Response To Johnson’S Response To Jensen’S Response To Johnson’S Response To Jensen (Or Is It The Other Way Around?), Erik M. Jensen

Faculty Publications

These articles, from a colloquy on the taxing power, are part of an ongoing-some might say endless-debate between the author and Professor Calvin Johnson about the meaning of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment. The author argues that the Direct-Tax Clauses were intended to be a significant limitation on the national taxing power, and that the Amendment ought to be interpreted accordingly-to have exempted only one category of taxes, taxes on incomes, from the apportionment rule that otherwise applies to direct taxes.

Security And Freedom: Are The Government's Efforts To Deal With Terrorism Volatile Of Our Freedoms?, Michael P. Scharf

Faculty Publications

Introducation to the Proceedings of the Canada-United States Law Institute Conference on Canada-U.S. Security and the Economy in the North American Context, Cleveland, Ohio, 2003.

The George A. Leet Business Law Symposium: The Role Of Lawyers In Strategic Alliances - Introduction, George W. Dent

Faculty Publications

Introducation to The George A. Leet Business Law Symposium: The Role of Lawyers in Strategic Alliances, Cleveland, Ohio.

Earned Sovereignty: Juridical Underpinnings, Michael P. Scharf

Faculty Publications

This piece is the second in a trilogy of three simultaneously published articles in the Denver Journal of International Law that examine the emerging doctrine of "earned sovereignty," a concept that seeks to reconcile the principles of self-determination and humanitarian intervention with the principles of sovereignty and territorial integrity. This article sets forth the legal underpinnings for the doctrine, while the other two articles in the trilogy provide its policy foundations, and apply the doctrine to several modem case studies. Together, the three articles are the product of the Public International Law and Policy Group's "Intermediate Sovereignty Project," sponsored by …

The Functions Of Justice And Anti-Justice In The Peacebuilding Process, Michael P. Scharf, Paul P. Williams

Faculty Publications

In our examination of the functions of justice in the peace-building process, we use the former Yugoslavia as an illustrative case study. Reference to the Yugoslavia experience provides a particularly useful touchstone for this analysis because in no other peace-building process in history has there been so much political emphasis placed on the need to employ the norm of justice, and so much energy devoted to creating and utilizing justice-based institutions. The Yugoslav conflict is a particularly fertile research ground for accurately assessing the role of justice in peace- building given the UN Security Council's creation of the United Nations …

Resolving Sovereignty-Based Conflicts: The Emerging Approach Of Earned Sovereignty, Paul R. Williams, Michael P. Scharf, James R. Hooper

Faculty Publications

All too frequently the mantra of sovereignty is used by states to shield themselves from international action to prevent them from violating human rights and committing atrocities in their attempts to stifle self-determination movements, as in the case of the Iraqi Anfal campaigns against the Kurds, the Turkish suppression of Kurdish human rights, the Russian campaign in Chechnya, the targeting of Christians in Southern Sudan, and Indonesia's brutal occupation of East Timor and its recent campaign in Aceh. Recent state practice, however, has evidenced a growing creativity among states and policy makers which has led to the emergence of a …

Consumers & Creative Destruction: Fair Use Beyond Market Failure, Raymond Shih Ray Ku

Faculty Publications

For almost twenty years, the concept of market failure has defined the boundaries of fair use under copyright law. In this article Professor Ku challenges this interpretation of fair use by offering an alternative economic interpretation of the doctrine. This Article argues fair use is justified when consumer copying creatively destroys the need for copy- right's exclusive rights in reproduction and distribution. This occurs when: 1) the consumer of a work makes copies of it, and 2) creation of the work does not depend upon funding derived from the sale of copies. Under these circumstances, exclusive rights in reproduction and …

Regulating Clinical Research: Informed Consent, Privacy, And Irbs, Sharona Hoffman

Faculty Publications

During the past two decades, the United States has experienced dramatic developments in the area of biomedical research. Expanding budgets, augmented computer capabilities, and the Human Genome Project have all significantly enhanced research capabilities. Consequently, the number of research projects conducted in this country is ever growing, and the enrollment of an adequate number of human subjects is becoming an increasingly challenging task.

Clinical research involving human participants is governed by federal regulations that have been promulgated by the Department of Health and Human Services (DHHS) and the Food and Drug Administration (FDA). In light of the proliferation of medical …

Foreword: The Role Of Justice In Building Peace, Michael P. Scharf

Faculty Publications

Forward to The War Crimes Research Symposium: The Role of Justice in Building Peace, Cleveland, Ohio 2003.

Reliability And The Admissibility Of Experts, Dale A. Nance

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …

Corrective Justice And Title I Of The Ada, Sharona Hoffman

Faculty Publications

Several recent studies have shown that employment discrimination plaintiffs filing lawsuits in federal court under Title I of the Americans with Disabilities Act (ADA) win only approximately five percent of their cases. This Article argues that this phenomenon is attributable at least in part to the ADA's very flawed definition of the term "disability." It suggests that the current definition be abandoned and that a new approach be adopted, one that would reshape the ADA's protected class so that it more closely resembles a discrete and insular minority, such as those traditionally protected by the civil rights laws. While Title …

Introduction: The Law, Technology & The Arts Symposium: Copyright In The Digital Age: Reflection On Tasini And Beyond, Craig Allen Nard

Faculty Publications

Introduction tp The Law, Technology & The Arts Symposium: Copyright in the Digital Age: Reflection on Tasini and Beyond, Cleveland, Ohio.

Doing Business In Indian Country: Introduction To American Indian Law Concepts Affecting Taxation, Erik M. Jensen

Faculty Publications

This article describes some of the issues that will affect whether national, state, and tribal governments can tax investors who do business, or who invest in doing business, within Indian country (a term generally meaning American Indian reservations, although it can be broader than that).

Absent treaty language or express statutory language to the contrary, tribal members are subject to federal taxes of general application, such as the income tax. The Internal Revenue Code does contain some specific provisions exempting certain sorts of income, such as that from fishing-rights related activities, from taxation. In general, nonmembers of a tribe who …

The Export Clause, Erik M. Jensen

Faculty Publications

This article examines the origins and meaning of the Export Clause in Article I, section 9 of the United States Constitution, which provides that "[n]o Tax or duty shall be laid on Articles exported from any State."

Part I of the article considers the original understanding of the Export Clause, concluding that, without the Clause, the Constitution would not have been adopted. In light of the Export Clause's significance in the constitutional structure, Part II examines the Supreme Court's decisions in United States v. International Business Machines Corp., 517 U.S. 843 (1996) (IBM), and United States v. United States Shoe …