Law Commons^™

Can International Law Provide Extra-Constitutional Protection For Excludable Aliens?, Louis B. Sohn

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This paper focuses on the problems of those who do not qualify for a regular admission as refugees, but are detained at the entrance point, or are detained in the United States after being released on temporary parole or pending repatriation. The thesis I shall try to defend is that these persons must be treated according to basic rules of humanitarian law; that they are entitled to be treated as human beings, regardless of any particular legislation or administrative regulations depriving them of basic legal protection granted to citizens and regular residents of the country.

Race And The Core Curriculum In Legal Education, Fran Ansley

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No abstract provided.

The Admissibility Of Hypnotically Enhanced Testimony In Criminal Trials, Gary Shaw

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No abstract provided.

The Georgia Jury And Negligence: The View From The Bench, R. Perry Sentell Jr.

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It is virtually impossible to think seriously about torts and not think of negligence; it is virtually impossible to think seriously about negligence and not think of the jury. The staples of the common-law negligence system--striking a liability profile, and assessing a causal loss--are the staples of the civil jury province. The historic inevitableness of the fact, however, has never put the matter beyond reflection, scrutiny, reconsideration, challenge, nor controversy. Assuredly, controversy.

A Slave's Marriage: Dowry Or Deposit, Alan Watson

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This articles examines the concept of dowry among marriage of slaves in ancient Rome.

Mindlessness And The Law, Paul J. Heald, James E. Heald

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No less an authority than Milton Friedman has argued that improving the realism of assumptions in economic theory, although hardly essential to establishing the absolute validity of the theory (purely an empirical question), may offer several benefits. First, a “restructuring” (to use Posner's term) of an assumption may help explain divergences between predicted and observed results. Second, an explanation of why a seemingly unrealistic assumption does not destroy the predictive value of a theory may strengthen the theory by connecting it to “a more general theory that applies to a wider variety of phenomena . . . and has failed …

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

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The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

Federal Intellectual Property Law And The Economics Of Preemption, Paul J. Heald

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In the Sears/Compco decisions, the United States Supreme Court established that federal patent law preempts state prohibitions on the mere copying of unpatented product configurations. After years of harsh criticism by commentators, apparent rejection by the lower courts, and allegedly inconsistent treatment by the Court itself, most had proclaimed this principle far beyond resuscitation. The Court, however, miraculously resurrected the principle in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., which unanimously reaffirmed that intentional copying often should be privileged under federal law. In so doing, the Court provided an expressly economic rationale to be used in future determinations …

Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells

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Whether there is parity between federal and state courts has become a central question in the law of federal courts, dividing judges and commentators into two well-defined camps. Although the issue rarely arose thirty years ago, it now enters into virtually every discussion of the rules concerning access to federal court for constitutional claims. On one side of the debate, advocates of broad federal jurisdiction over constitutional challenges to state action claim that federal courts are better than state courts at adjudicating these controversies. On the other side, advocates of state court jurisdiction insist that state courts are fully adequate …

United States Telecommunications Trade Policy: Critique And Suggestions, Glenn Harlan Reynolds

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No abstract provided.

Justice Scalia And The Commerce Clause: Reflections Of A State Tax Lawyer, Walter Hellerstein

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This paper considers Justice Scalia's substantive views of the restraints that the commerce clause imposes on state taxation. My purpose is to examine critically Justice Scalia's dormant or "negative" commerce clause analysis of the state tax issues on which he has opined and to draw from that examination some general conclusions about Justice Scalia's commerce clause jurisprudence.

The Constitutional Case Against Intracircuit Nonacquiescence, Dan T. Coenen

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A cornerstone of the United States Constitution is its separation of powers among the legislative, executive, and judicial branches of the national government. The Framers of the Constitution reasoned that separated powers would guard against tyranny by blocking the undue concentration of authority in any single governmental department. In crafting the Constitution, however, the Framers could not anticipate every dispute their scheme of separated powers might engender. One modern separation-of-powers conflict not specifically anticipated by the constitutional text involves so-called "intracircuit nonacquiescence.”

Intracircuit nonacquiescence occurs when executive-branch decision makers refuse to follow a circuit court's precedents even when acting subject …

The Finnigan Case: A Reply To Vogelenzang's Second Stage Apportionment Of Unitary Income, Walter Hellerstein, Jerome R. Hellerstein

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In this article J. Hellerstein and W. Hellerstein take issue with arguments made by Pierre Vogelenzang in a special report in Tax Notes that California’s second-stage apportionment of the income of a unitary business amounts to unconstitutional extraterritorial taxation. In the Finnigan case, the California State Board of Equalization held that sales made into California by a corporation that is not itself taxable in California, but is a member of a unitary group that is taxable there, are includable in the numerator of the state’s sales factor in apportioning income. The authors defend this result, arguing that the separate identity …

Broken Promises Revisited: The Window Of Vulnerability For Surviving Spouses Under Erisa, Camilla E. Watson

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While there are pervasive problems with the current ERISA legislation, this Article will focus only on survivor benefits and will concentrate in particular on the short-term marriage provision. This Article will maintain that facial neutrality notwithstanding, the short-term marriage provision is discriminatory in effect, grounded in dubious logic, and unsupportable from a historical perspective. In order to demonstrate this, this Article will delve thoroughly into the historical development of ERISA, with particular emphasis on the survivor benefit provisions. The depth to which this Article plumbs the general development of ERISA is intended to demonstrate the weak historical foundation on which …

Transfers Prior To Marriage And The Uniform Probate Code's Redesigned Elective Share - Why The Partnership Is Not Yet Complete, Rena C. Seplowitz

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No abstract provided.

Law's Patriarchy, Lynne Henderson

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No abstract provided.

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

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No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

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The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …

Time For Every Purpose Under The Heaven: Service – The National Bar Association Model, Beverly Mcqueary Smith

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No abstract provided.

Choosing The Insidious Path: West Virginia University Hospitals, Inc. V. Casey And The Importance Of Experts In Civil Rights Litigation, Eileen R. Kaufman

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No abstract provided.

A Comparison Of A Mentally Ill Individual's Right To Refuse Medication Under The United States And The New York State Constitutions, William M. Brooks

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No abstract provided.

International Year In Review: Developments In International Criminal Law, Christopher L. Blakesley

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In this piece Professor Blakesley provides remarks on recent developments in International Criminal Law.

Time For A New Approach: Why The Judiciary Should Disregard The "Law Of The Circuit" When Confronting Nonacquiescence By The National Labor Relations Board, Rebecca H. White

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The National Labor Relations Board has been criticized for its nonacquiescence policy, under which the Board interprets the national Labor Relations Act, issues an order, and then defends this order before a circuit court that previously had rejected the Board's interpretation of the Act. In this Article, Professor Rebecca White begins by stating that the NLRB's nonacquiescence policy is both lawful and proper. From this basic premise, White then argues that courts of appeals should abandon the "law of the circuit" doctrine when confronting Board nonacquiescence. She contends the policy concerns that justify application of the "law of the circuit"-- …

Protecting The Marine Environment From Vessel Source Pollution: Unclos Iii And Beyond, Daniel M. Bodansky

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The vessel-source pollution provisions of UNCLOS III have become the reference point for virtually all discussions of marine environmental jurisdiction and, although the Convention is not yet in force, have arguably become norms of customary international law. Moreover, these environmental provisions are likely to come under increased scrutiny and assume even greater importance should the disputes over the seabed mining provisions of the Convention be resolved. Thus far, these disputes have stood in the way of ratification by many advanced industrialized countries, including the United States. The U.S. Congress recently rejected several international conventions dealing with oil spills on the …

Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role Of Human Rights, And Issues Of Extraterritoriality Under International Criminal Law, Christopher L. Blakesley

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This Article examines extradition and jurisdiction over extraterritorial crime, focusing on the relationship between jurisdiction and extradition in the broader context of human rights law. The authors challenge what they argue are chimerical, although strongly held beliefs in the incompatibility of European and United States criminal justice systems and extradition practices. They argue that cooperation in matters of international criminal law may be enhanced, while protection of human rights is promoted. The authors establish this possibility by breaking down the barriers to understanding that stem from the divergent European versus Anglo-American modes of analysis.

The authors first analyze the five …

Teaching Students How To "Think Like Lawyers": Integrating Socratic Method With The Writing Process, Mary Beth Beazley, Mary Kate Kearney

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Professor Beazley begins this article with an overview of how Socratic method and the writing process have traditionally been used and how they can be integrated in the legal writing course. The remainder of the article is devoted to an analysis of how this integration can be achieved in a five-step structured dialogue. She and her co-author identified these five steps as: (1) the assignment, or "instigating question"; (2) the student's written answer, in a series of "focused drafts" with "private memos"; (3) the teacher's written response, using Socratic questions whenever possible; (4) the conference, where the teacher can use …

The Canons Of Construction In Georgia: "Anachronisms" In Action, R. Perry Sentell Jr.

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Two initial observations may be tendered concerning the canons of interpretations: The literature, almost uniformly, discredits them; the courts, almost uniformly, employ them. The purpose of this effort is to reflect some sense of background, and illustratively to marshal the Georgia experiences with what are perhaps the three most famous canons of interpretation.

Congress's Paramount Role In Setting The Scope Of Federal Jurisdiction, Michael L. Wells

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Article III presents a conundrum for scholars seeking a coherent explanation of the federal courts' role in our system of government. On the one hand, the framers set up the judiciary as a separate branch with jurisdiction over federal law and other matters of federal interest. They granted federal judges life tenure and undiminishable salary in order to preserve judicial independence from executive and legislative pressure. It is evident from these provisions that the framers saw a need for a strong national judiciary. At the same time, article III explicitly leaves to Congress the decision whether to create any lower …

Governmental Inaction As A Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells

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DeShaney v. Winnebago County Department of Social Services is the Supreme Court's first major effort to define the scope of state and local governments' affirmative obligations under the fourteenth amendment. The Court rejected liability against a county welfare agency and a caseworker for failing to prevent a father from severely beating his four-year-old son. The Court intimated that constitutional affirmative duties exist only where the plaintiff is in the state's custody. Scholarly commentary reads the case as announcing a sweeping prohibition against the imposition of affirmative duties in other contexts. Professors Eaton and Wells demonstrate that the DeShaney opinion is …

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

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No abstract provided.