Law Commons^™

Protecting Research: Copyright, Common-Law Alternatives, And Federal Preemption, David E. Shipley, Jeffrey S. Hays

Scholarly Works

Under federal copyright law, an author's expression is protected but his ideas and discoveries are not. Professor Shipley explores the possibility of expanding copyright to protect the research of nonfiction authors, but concludes that such an expansion would undermine federal copyright policy. State-law remedies exist that will provide such protection if they are not preempted by federal law. Professor Shipley concludes that most contract claims and some misappropriation claims will survive preemption and therefore are a means by which nonfiction authors can protect their research.

The Future Of The Common Law Tradition, Alan Watson

Scholarly Works

What, then, can one say about the common law tradition as it will develop in the relatively near future? In terms of the future development of the common law systems, three facts seem certain and decisive. In the first place, there has been, as a matter of observable fact, a great shift in the balance of lawmaking in the common law world from judicial precedent to legislation, which together comprise the two main sources of law. In the second place, there is a deep awareness in the common law countries of a crisis in lawmaking, an awareness that is probably …

Political Perspectives On State And Local Taxation Of Natural Resources, Walter Hellerstein

Scholarly Works

This article investigates the questions that have dominated the political debate over state and local taxation of natural resources in the federal system. It seeks to identify areas of consensus, clarify points of disagreement, and examine proposals that could provide a basis for reconciling the competing concerns. Part I briefly considers the issues as they arise within the framework of the individual state. Part II addresses interstate and interregional conflict. Part III turns to the dialogue over the role, if any, that the federal government should play in mediating the disputes.

Obligation: Not To The Law But To The Neighbor, Milner S. Ball

Scholarly Works

In this article I will first address the strongest yet still unsatisfactory argument for an obligation to obey the law, the argument that the government and its officers are obligated to obey the law. I will then consider the weaker, more satisfactory argument that citizens have an obligation to obey the law. I will conclude by taking up the issue that I find more interesting and important: the absence of a biblical basis for an obligation to obey the law.

Balancing Government Efficienty And The Protection Of Individual Liberties: An Analysis Of The Conflit Between Executive Branch "Housekeeping" Regulations And Criminal Defendants' Rights To A Constitutionally Fair Trial, James F. Ponsoldt

Scholarly Works

This Article addresses the issue of whether an accused person should be entitled to obtain and use at trial relevant government information or the testimony of government employees to prove his innocence, regardless of whether he has revealed in advance to his adversary his intended use of that information or the specific content of that testimony. Part I describes the federal "housekeeping" statute and the Justice Department's housekeeping regulations, which require that subpoenaed government employees not disclose evidence unless the person seeking that evidence has first summarized the requested evidence in advance, explained its intended use, and obtained permission from …

First Things Last: Amendomania And State Bills Of Rights, Donald E. Wilkes Jr.

Scholarly Works

State bills of rights preceded the federal Bill of Rights. From June 1776, when the Virginia Declaration of Rights (the first state bill of rights) was adopted, until December 1791, when the federal Bill of Rights was ratified, eight states each adopted a bill of rights as a separate part of their state constitution. State constitutional rights existed even before there as a United States Constitution. Furthermore, the federal Bill of Rights contains provisions derived from earlier state bills of rights. Indeed, virtually every guarantee in the federal Bill of Rights can be traced to a similar guarantee in one …

The Evolution Of Law: The Roman System Of Contracts, Alan Watson

Scholarly Works

I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.

The Extraterritorial Application Of The Export Administration Act Of 1979, Peter T. Knopf

LLM Theses and Essays

This thesis deals with the major legal issues of the gas pipeline embargo. It is not an abstract treatise on extraterritoriality under international law, but a legal expertise on the legality of the unique measures imposed in 1982. It also tries to point out the legal trends as indicated by the recent publications. The first part of the thesis examines to what extent some European firms were affected by the American embargo. The second part examines whether the President had the authority under the Export Administration Act of 1979 to impose the far-reaching extraterritorial restrictions. It concludes that the President …

Fraud And Injunctive Relief In International Standby Letter Of Credit Transactions: A Comparative Study, Dirk H. Mahler

LLM Theses and Essays

This study attempts to compare the various concepts which have been developed under U.S. and German law, focusing in particular the interpretation of fraud and the prerequisites for injunctive relief. Comparative analysis of case law, statutory provisions and corresponding commentaries will illustrate that although evolved out of different legal backgrounds the results show only minor deviations, a phenomenon which might support the hypothesis that instruments developed by practitioners to serve international commercial needs tend to give birth to uniform internationalized legal treatment.

Freedom Of Expression In England And The United States: A Comparative Study, With Particular Reference To Restrictions Imposed By Means Of Prior Restraint, Peter G. Shears

LLM Theses and Essays

Freedom of expression is both a basic right and a basic need in all democratic societies. Without it, democracy itself cannot function. This is a comparative study. The protection, or more often the restriction, of freedom of expression in England before the American Revolution is considered first. Then two chapters outline the development and extent of freedom of expression, first in America, then in England, from 1776 up to the present day. There follows a direct comparison in two separate areas: the Fair Trial-Free Press tension which exists between the interests of those involved in judicial proceedings, and their rights …

Newsletter, January 1984, Vol. 1, No. 2, The Dean Rusk International Law Center

Newsletters

Thoughts on Customary International Law; Southeastern Conference of International Law Societies; Rusk Center Activities; the University of Georgia International Law Collection; International Developments; The Georgia Journal of International and Comparative Law; Exporting in the 80's: The New Economic Challenge (program); Selected Recent Acquisitions

An Approach To Customary Law, Alan Watson

Scholarly Works

A proper understanding of the nature of customary law is important for legal historians. For students of European legal history, customary law is particularly important; from post-Roman times to the beginning of the modern legal age in the eighteenth century, the two main elements in European law have been Roman law and legal custom. In large measure, the main task of lawyers of that interim time period was to unify or harmonize the two strands of Roman law and custom.

Customary law flourishes in circumstances where law is likely to be the least theoretical. Yet, the nature of any source …

Substantive Due Process And The Scope Of Constitutional Torts, Michael L. Wells, Thomas A. Eaton

Scholarly Works

The thesis of this Article is that both the Supreme Court and its critics have failed to identify and confront the central issue presented by these due process constitutional tort cases. That issue is neither procedural fairness nor the choice between state and federal courts. It is deciding whether a government-inflicted injury to life, liberty, or property violates the substantive protections of the due process clauses and thereby warrants a constitutionally derived tort remedy. In Part II of this Article we examine the Supreme Court's decisions in this area, focusing primarily on Parratt v. Taylor. We demonstrate that neither Parratt …

Ohio's Public Employee Bargaining Law: Can It Withstand Constitutional Challenge?, Rebecca White, Robert E. Kaplan, Michael W. Hawkins

Scholarly Works

Public employees in Ohio are now statutorily entitled to bargain collectively with their government employers. This controversial right was obtained on July 6, 1983, when Ohio Governor Richard Celeste fulfilled a major campaign promise by signing into law Senate Bill 133. This bill, which took effect April 1, 1984, has been labeled "one of the most pro-labor public employee bargaining statutes in the nation.

As with any legislation that provides sweeping social and economic changes, challenges to the bill's legitimacy can be expected. Experience in other states teaches that constitutional attacks on the statute will be mounted swiftly, attacks that …

Small High Technology Companies And Public Policy: A Legal Analysis, Werner W. Mielke

LLM Theses and Essays

This study analyzes the legal side of the public policy regarding high technology companies. It examines the role of small high technology firms in the national economy. The needs and problems of these firms are analyzed and categorized in order to have an analytical framework in which to examine their relationship with the prevailing legal environment. Finally, on the basis of selected laws and regulations, legal barriers and disincentives and the way to reduce them are examined as well as legal provisions intended to provide incentives and assistance.