Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 92

Full-Text Articles in Law

U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin Oct 2005

U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin

Scholarly Works

No abstract provided.


The Limitation On Undocumented Workers’ Lost Earnings After Balbuena And Sanango: Crafting A Fair And Principled Balance Of Immigration Policy And New York State Labor Law § 240 Safety Goals, Meredith R. Miller Oct 2005

The Limitation On Undocumented Workers’ Lost Earnings After Balbuena And Sanango: Crafting A Fair And Principled Balance Of Immigration Policy And New York State Labor Law § 240 Safety Goals, Meredith R. Miller

Scholarly Works

In December 2004, in a pair of cases, the Appellate

Division, First Department, held that under state labor

and tort laws, injured workers who are not legally permitted

to be present or employed in the United States

are only entitled to receive lost earnings reflecting what

they could have earned in their country of origin. This

article explores these First Department decisions by first

discussing the federal statutory and decisional backdrop

against which the cases arose. This article then

provides a discussion of the First Department cases and

the competing economic incentives they implicate.

Finally, this article posits that a ...


Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge Oct 2005

Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge

Scholarly Works

This paper addresses the fairness of securities arbitrations in the United States. A few decades ago, such a topic would have been relegated to the academic hinterlands. For the first fifty years following the enactment of the nation's securities laws, pre-dispute arbitration agreements between investors and the securities industry were not enforceable. In a series of decisions in the late 1980s, the Supreme Court reversed course and held that such disputes were indeed arbitrable. Following those decisions, arbitration quickly became the preferred method of dispute resolution for cases arising under the nation's securities laws, especially disputes between investors ...


Harry Potter & The Law: Status, Rules, And The Enslavement Of The House-Elves, James C. Smith Oct 2005

Harry Potter & The Law: Status, Rules, And The Enslavement Of The House-Elves, James C. Smith

Scholarly Works

Is elfin bondage morally justified, or is it as evil as the human institution of slavery? Rowling shows Hermione as a crusader, as an abolitionist. Yet as narrator Rowling does not interject a moral judgment. The reader is left to decide whether Hermione's cause has great merit, is half-cocked, or is somewhere in between.


Harry Potter & The Law: Family Life And Moral Character, James C. Smith Oct 2005

Harry Potter & The Law: Family Life And Moral Character, James C. Smith

Scholarly Works

Harry Potter's mistreatment by his Muggle family does not amount to a legal wrong. Notice that Dumbledore did not threaten the Dursleys with legal proceedings, either in Muggle or Wizard tribunals. The ethic of equitable treatment is societal and lacks a legal basis in Anglo-American family law. Family law has many facets; it is an amalgam of legal rules and principles. My focus is the lens of property law -- in particular, family property norms -- although it is also plain that the Dursleys have not violated non-property based family law norms.


U.S.-China Textile Trade: An Introduction, C. Donald Johnson Sep 2005

U.S.-China Textile Trade: An Introduction, C. Donald Johnson

Scholarly Works

In the spring of 1999, the Office of United States Trade Representative (USTR) in the Clinton administration was heavily engaged in completing the negotiations on the terms of China's accession agreement to becoming a member of the World Trade Organization (WTO). The Chinese Premier at the time, Zhu Rongji, was scheduled to visit Washington in April, which created an "action forcing event" to complete the agreement for a signing ceremony with President Bill Clinton. After nearly fifteen years of negotiations the end appeared to be near, but several critical issues remained unresolved--including the highly-charged political issue of textiles.


Regulating Section 527 Organizations, Gregg D. Polsky, Guy-Uriel E. Charles Aug 2005

Regulating Section 527 Organizations, Gregg D. Polsky, Guy-Uriel E. Charles

Scholarly Works

In this Essay, we consider whether the Federal Election Commission (FEC) has the authority to regulate independent 527 organizations (e.g., Swiftboat Veterans for Truth, Moveon.org, etc.) as political committees under the Federal Election Campaign Act. This issue, which was hotly debated during the last election cycle when it was considered and ultimately tabled by the FEC, is an extremely complex one that requires a deep understanding of election, tax, administrative, and constitutional law. After considering how these areas of law intersect, we conclude that the FEC lacks the authority to regulate independent 527 organizations as political committees.


Effective Disaster Mitigation Depends Upon Well-Coordinated Local Land Use Planning And Zoning, Patricia E. Salkin Jul 2005

Effective Disaster Mitigation Depends Upon Well-Coordinated Local Land Use Planning And Zoning, Patricia E. Salkin

Scholarly Works

No abstract provided.


Plea Bargaining At The Hague, Julian A. Cook Jul 2005

Plea Bargaining At The Hague, Julian A. Cook

Scholarly Works

Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before ...


Miranda And Reasonableness, Peter B. Rutledge Jul 2005

Miranda And Reasonableness, Peter B. Rutledge

Scholarly Works

Last term's decisions in Yarborough v. Alvarado and Missouri v. Seibert shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its “custody” determination was not “contrary to” or an “unreasonable application of” clearly established Supreme Court case law. In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at ...


Torts In Verse: The Foundational Cases, R. Perry Sentell Jr. Jul 2005

Torts In Verse: The Foundational Cases, R. Perry Sentell Jr.

Scholarly Works

This Article contains a "verse," "rhyme," or "poem" for each of the truly foundational cases ordinarily studied in first year Torts. The arrangement assumes a typical Torts casebook's order of presentation, but is fairly flexible. Each entry initially sketches the selected case's significance to the body of Tort law and then follows with the verse. The "rhymes" themselves are admittedly (indeed, intentionally) contrived and pedantic, seeking to elicit groans--but hopefully groans of recognition and familiarity. Ideally, the student will most "enjoy" a verse while reading and studying the case itself; indeed, some verse references make little sense otherwise.


Abu Ghraib, Diane Marie Amann Jun 2005

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's ...


International Income Allocation In The Twenty-First Century: The Case For Formulary Apportionment, Walter Hellerstein May 2005

International Income Allocation In The Twenty-First Century: The Case For Formulary Apportionment, Walter Hellerstein

Scholarly Works

From an international perspective, formulary apportionment has traditionally been viewed as little more than transfer pricing’s “poor relation” as a division-of-income methodology. It receives only grudging recognition as a method of attributing the profits to a permanent establishment under Article 7 of the OECD Model Tax Convention; it receives no mention at all in Article 9 as a method for distributing the profits of associated enterprises among the contracting states in which they conduct their activities; and it was assailed by the international business community and by the EU Member States as out of step with internationally excepted norms ...


Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon May 2005

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 harmless-error ...


Watch Out For Whistleblowers, Leslie C. Griffin Apr 2005

Watch Out For Whistleblowers, Leslie C. Griffin

Scholarly Works

No abstract provided.


Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin Apr 2005

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Scholarly Works

No abstract provided.


American Corporate Copyright: A Brilliant, Uncoordinated Plan, Paul J. Heald Apr 2005

American Corporate Copyright: A Brilliant, Uncoordinated Plan, Paul J. Heald

Scholarly Works

At first glance, American copyright law and policy seem to be dictated entirely by a monolithic block of corporate rightsholders. Over the last twenty years, powerful interests including Disney, the American Society of Composers, Authors, and Publishers (ASCAP), Microsoft, and the American Motion Picture Association (AMPA), have successfully lobbied Congress for copyright term extensions, copyright restoration, software anticircumvention legislation, protection against audio bootlegging, and a series of bilateral and international agreements designed to increase protection for American copyright owners overseas. Even the failure to protect databases in America, widely touted as a victory for the public interest, has been driven ...


What Do Flexible Road Signs, Children's Clothes And The Allied Campaign In Europe During Wwii Have In Common? The Public Domain And The Supreme Court's Intellectual Property Jurisprudence, David E. Shipley Apr 2005

What Do Flexible Road Signs, Children's Clothes And The Allied Campaign In Europe During Wwii Have In Common? The Public Domain And The Supreme Court's Intellectual Property Jurisprudence, David E. Shipley

Scholarly Works

Part I of this article discusses the impact of the Sears, Compco and Bonito Boats, and the uncertainty over whether the principles of federal intellectual property announced in these decisions serve as limitations on the scope of protection that can be afforded under trademark legislation enacted by Congress under its Commerce Clause power. Part II presents the Supreme Court's reaffirmation of fundamental principles intellectual property policy in a series of cases decided in the last decade: Qualitex, Wal-Mart, TrafFix, Mosley and Dastar. Part III summarizes some of the common themes emerging from these decisions and explains how the Court ...


Enhancing Patent Disclosure For Faithful Claim Construction, Joe Miller Apr 2005

Enhancing Patent Disclosure For Faithful Claim Construction, Joe Miller

Scholarly Works

Claim construction jurisprudence is in disarray. The U.S. Court of Appeals for the Federal Circuit reverses trial court claim construction decisions at a worryingly high rate. The proportion of Federal Circuit claim construction opinions that include separate concurrences or dissents continues to grow. And the muddled mix of issues the Federal Circuit framed for en banc review in the Phillips case suggests that the court is having trouble reaching consensus on what the central questions are, much less on how to answer them. Perhaps the path to adequately predictable claim construction is continued tinkering with the analytical constructs internal ...


The Proven Key: Roles And Rules For Dictionaries In The Patent Office And The Courts, Joseph Scott Miller, James A. Hilsenteger Apr 2005

The Proven Key: Roles And Rules For Dictionaries In The Patent Office And The Courts, Joseph Scott Miller, James A. Hilsenteger

Scholarly Works

The U.S. Court of Appeals for the Federal Circuit, in its continuing effort to develop a patent claim construction jurisprudence that yields predictable results, has turned to dictionaries, encyclopedias, and similar sources with increasing frequency. This paper explores, from both an empirical and a normative perspective, the Federal Circuit's effort to shift claim construction to a dictionary-based approach. In the empirical part, we present data showing that the Federal Circuit has, since its own in banc Markman decision in April 1995, used reference works such as dictionaries to construe claim terms with steadily increasing frequency. In addition, and ...


Taxing The Promise To Pay, Gregg D. Polsky, Brant J. Hellwig Apr 2005

Taxing The Promise To Pay, Gregg D. Polsky, Brant J. Hellwig

Scholarly Works

The IRS recently disclosed that it has identified more than 100 executives at 42 leading public corporations that participated in a tax shelter designed to defer the recognition of income from the exercise of stock options. While the agency thus far has identified approximately $700 million in unreported gains from these shelters, it predicts that the revenue loss to the government will ultimately exceed $1 billion. Compared to most tax shelters, this particular transaction (commonly known as the "Executive Compensation Strategy" or "ECS") is remarkably simple. Rather than exercise the options individually, a participating executive instead transfers the options to ...


Anatomy Of A Disaster Under The Internal Revenue Code, Francine J. Lipman Jan 2005

Anatomy Of A Disaster Under The Internal Revenue Code, Francine J. Lipman

Scholarly Works

No abstract provided.


Making Research A Requirement Of Treatment: Why We Should Sometimes Let Doctors Pressure Patients To Participate In Research, David Orentlicher Jan 2005

Making Research A Requirement Of Treatment: Why We Should Sometimes Let Doctors Pressure Patients To Participate In Research, David Orentlicher

Scholarly Works

In this article, Professor David Orentlicher argues that when a patient could be offered one of multiple established treatments, doctors should be able to offer treatment only if the patient agrees to participate in research aimed at determining which of the treatments is most effective. Making treatment conditional on research participation will help researchers complete badly needed studies.


Dealing With Hate In The Feminist Classroom, Kathryn M. Stanchi Jan 2005

Dealing With Hate In The Feminist Classroom, Kathryn M. Stanchi

Scholarly Works

The goals of this essay are two-fold. First, by describing the experience I had in Law and Feminism, the essay will show how hateful and harassing speech in a seminar devoted to issues of gender, race and sexuality can rob students of important educational experiences. The story of my class is meant to remind legal educators and administrators of the concrete harm, both personal and educational, of hate speech. Too often the hate speech debate focuses on the theoretical and the abstract; participants forget that the principles at stake have demonstrable consequences for real people.

Second, while this essay does ...


Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel Jan 2005

Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel

Scholarly Works

This Article describes the evolution of the perception of the modern class action from populist darling to greedy lawyer pariah, including recent passage of CAFA. It then examines the degree to which different types of cases present different potential benefits and detriments of class action treatment and explains why investor class actions, including those brought by institutional investors, are particularly likely to benefit from class treatment, are resistant to many of the perceived problems of class actions in other contexts, and should receive a warmer welcome from courts, both in absolute terms and relative to other types of class actions ...


Report Regarding The Pacific Mcgeorge Workshop On Globalizing The Law School Curriculum, Thomas O. Main Jan 2005

Report Regarding The Pacific Mcgeorge Workshop On Globalizing The Law School Curriculum, Thomas O. Main

Scholarly Works

No abstract provided.


Adr: The New Equity, Thomas O. Main Jan 2005

Adr: The New Equity, Thomas O. Main

Scholarly Works

No abstract provided.


Incorporating Literature Into A Health Law Curriculum, Stacey A. Tovino Jan 2005

Incorporating Literature Into A Health Law Curriculum, Stacey A. Tovino

Scholarly Works

Literature has had a long relationship with medicine through literary images of disease, literary images of physicians and other healers, works of literature by physician-writers, and the use of literature as a method of active or passive healing. Literature also has had a long relationship with the law through literary images of various legal processes, lawyers, and judges, works for literature by lawyer-writers, and the use of literature as therapy. At last count, eighty-four law schools in the United States and Canada reported offering some variations of a “law and literature” course and recent scholarship demonstrates that literature increasingly is ...


Enron And The New Disinterestedness - The Foxes Are Guarding The Henhouse, Nancy B. Rapoport Jan 2005

Enron And The New Disinterestedness - The Foxes Are Guarding The Henhouse, Nancy B. Rapoport

Scholarly Works

Discussion of the 2005 amendments to the U.S. Bankruptcy Code as those changes relate to conflicts of interest of investment bankers.


Discrimination In Our Midst: Law School's Potential Liability For Employment Practices, Ann C. Mcginley Jan 2005

Discrimination In Our Midst: Law School's Potential Liability For Employment Practices, Ann C. Mcginley

Scholarly Works

Studies and articles examining tenured, tenure-track and contract faculty in law schools have exposed the inequalities that women face when compared with their male counterparts. This article asks the legal academic community to consider these conditions in light of established Title VII doctrine which forbids discrimination because of sex. This article offers a hypothetical about the fictitious National Law School, whose labor relationships mimic those of many real law schools in a number of ways. Based on the facts in this hypothetical, the article explores different possible causes of action, either systemic or individual, that employees could reasonably win against ...