Law Commons^™

Fear And Loathing: Combating Speculation In Local Communities, Ngai Pindell

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Local governments commonly respond to economic and social pressures on property by using their legal power to regulate land uses. These local entities enact regulations that limit property development and use to maintain attractive communities and orderly growth. This Article argues that government entities should employ their expansive land use powers to limit investor speculation in local markets by restricting the resale of residential housing for three years. Investor speculation, and the upward pressure it places on housing prices, threatens the availability of affordable housing as well as the development of stable neighborhoods. Government regulation of investor speculation mirrors existing, …

Uniform Commercial Code Survey: Sales, Keith A. Rowley, Carolyn L. Dessin, Larry T. Garvin, Robyn L. Meadows

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2005 Uniform Commercial Code Survey: Sales

The Often Imitated, But Not Yet Duplicated, Revised Uniform Commercial Code Article 1, Keith A. Rowley

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Unlike Revised Uniform Commercial Code Article 9 (1999), which every state and the District of Columbia enacted within roughly two years of its promulgation, states have been slower to warm to Revised UCC Article 1 (2001). Nearly seven years after the American Law Institute and the National Conference of Commissioners on Uniform State Law promulgated it, thirty-three states have enacted their own versions of Revised UCC Article 1. None of the thirty-three has enacted the uniform version in its entirety. All thirty-three enacting states have rejected the uniform choice-of-law provision (§ 1-301) in favor of retaining language based on pre-Revised …

Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens

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Building on the findings of the New Jersey Reentry Roundtable and a growing concern around the state about how to improve outcomes for the more than 70,000 individuals expected to return home from prison over the next five years, the roundtable examined the complex role that families – broadly defined – play in the lives of prisoners during incarceration and after their release. This document presents a set of recommendations emerging directly from roundtable sessions and provides a road map for individual and collaborative efforts accepted by a range of key players in New Jersey, including government officials, community and …

From North To South Country: Race, Gender And Immigration And The Role Of Unions In The Sanitized Workplace, Ruben J. Garcia

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Professor Vicki Schultz's ground-breaking article, The Sanitized Workplace, questions whether all sexual conduct is inappropriate in the workplace, whether sexually-charged work environments necessarily disadvantage women, and whether sanitizing the workplace of sexuality impedes gender equality. Her article proposes that a less sanitized workplace with less over-reaction to sexuality would allow for more freedom of sexual expression and be more advantageous to women. According to Professor Schultz, the misuse of sexual harassment law may lead to increased segregation and employers' unwillingness to hire women. In many workplaces today, where office romances are seen as a litigation threat instead of a …

Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner

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The Delaware General Corporation Law was amended in 1986 to permit shareholder-approved exculpatory charter provisions shielding corporate directors from monetary liability for certain fiduciary duty breaches not including (among other things) breaches of the duty of loyalty and acts not in good faith. This article examines the development of corporate fiduciary duty doctrine in Delaware leading up to and following this statutory amendment, focusing particularly on the Delaware courts' evolving conception of the meaning anddoctrinal status of the good faith concept employed in recent cases to permit a non-exculpable cause ofaction for conscious nonfeasance.

The article argues that Delaware's good …

Women In Corporate Law Teaching: A Tale Of Two Generations, Margaret V. Sachs

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This Article is divided into three parts. Part I focuses on [Margaret Harris] Amsler and Part II addresses the second generation. Part III explores a question that was prompted by the second generation and that goes to the heart of this Symposium: Do women corporations professors damage their standing in the academic community by examining the interface between corporate law and gender?

Origin, Scope, And Irrevocability Of The Manifest Disregard Of The Law Doctrine: Second Circuit Views, Christian Turner, Joshua Ratner

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After arbitration has occurred, parties may seek judicial enforcement of the arbitral award, converting the private determination into an enforceable judgment. Parties that did not prevail in the arbitration may, at the same time, seek to have the arbitral award vacated. This article concerns the doctrine that permits courts to vacate an arbitral award when the arbitrators “manifestly disregarded” the law, focusing on recent developments in the Second Circuit. Despite the exceedingly deferential scope of this doctrine, the Second Circuit has actually vacated a handful of arbitrations on grounds of manifest disregard, and the doctrine is routinely raised by litigants. …

Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen

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In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how …

Cuno And Congress: An Analysis Of Proposed Federal Legislation Authorizing State Economic Development Incentives, Walter Hellerstein

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If anything is clear about Cuno and the controversy the opinion has spawned, it is that Congress has the last word on the matter. Whether Congress will speak to the issues Cuno has raised is currently an open question, although in one narrow respect Congress already has. Broader legislation, however, has been introduced into Congress as the "Economic Development Act of 2005," and debate over the efficacy and wisdom of this proposal is as intense as the debate over the defensibility of Cuno itself. My purpose here is not to join that debate, although I am already on record as …

Does One Need To Be An International Lawyer To Be An International Environmental Lawyer?, Daniel M. Bodansky

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The question I want to address is whether one can now say that IEL [International Environmental Law] represents a distinct field. Of course, it is a distinct field in the sense that it addresses a distinct set of problems and has developed a wide body of primary rules in response. However, is it a distinct field in the stronger sense of having its own characteristic methodologies and techniques?

Staffing For Law School Computing Services, Second Edition, Ann Puckett

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Report summarizing survey responses from 158 of 191 law schools, reporting on fundamental questions pertaining to computing services within the law school.

International Law In Black And White, Daniel M. Bodansky

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Is the study of international law an art or a science? Can the role of international law be explained by general rules, with predictive value? Or does it require the exercise of judgment, in order to account for the richness and complexity of international life? Traditionally, international lawyers have gravitated to the latter view, analyzing issues in an essentially ad hoc and eclectic manner. In their controversial new book, THE LIMITS OF INTERNATIONAL LAW, Jack Goldsmith and Eric Posner argue forcefully for a more scientific approach, relying on the methodology known as rational choice theory. The article examine the book's …

A Negative Proof Of International Law, Peter J. Spiro

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Important legal scholars have launched assaults against both the consequence and legitimacy of international law. These challenges are useful by way of testing international law's theoretical underpinnings, which, in the modern period at least, have never been very secure. With THE LIMITS OF INTERNATIONAL LAW, Jack Goldsmith and Eric Posner have done a service to those who put more faith in international law as a meaningful quantity. Especially in these the field's early renaissance years, understandings of international law should be considerably strengthened by the attack. Though I doubt the authors would thus conceive of their project, THE LIMITS OF …

Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton

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This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive …

Protecting Children From The Dark Side Of The Internet, Anne Dupre, John Dayton, Christine Kiracofe

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This article examines the history of judicial and legislative responses to the issue of consumption of pornography and other harmful materials over the Internet by children. The article begins by giving a brief overview of free speech law in the US. Next, summaries of relevant U.S. legislation and corresponding litigation on Internet free speech are given. Highlighted are: 1) the Communications Decency Act (CDA) and the U.S. Supreme Court’s response in Reno v. ACLU; 2) The Child Pornography Prevention Act (CPPA) and Ashcroft v. Free Speech Coalition; 3) the Children’s Internet Protection Act (CIPA) and United States v. American …

Foreword: Why Open Access To Scholarship Matters, Joe Miller

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On March 10, 2006, the Lewis & Clark Law Review sponsored a day-long symposium entitled Open Access Publishing and the Future of Legal Scholarship. That gathering led to eight papers that are forthcoming in Volume 10, Issue No. 4, of the Lewis & Clark Law Review. In this short Foreword, I offer some thoughts about why all law professors should take an interest in the movement promoting open access to scholarship. The principal reason, based in current circumstances, is the way that using an open access platform extends one's reach. The aspirational reason is that open access platforms enable us …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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In 2005 the Eleventh Circuit courts addressed issues of regulatory interpretation of the Clean Air Act (“CAA”); compliance with the National Environmental Policy Act (“NEPA”) in connection with the development of wetlands; and a conflict between the Federal Emergency Management Agency’s (“FEMA”) coastal flood insurance program and the Endangered Species Act (“ESA”). First, the Eleventh Circuit Court of Appeals invalidated a rule of the Alabama Department of Environmental Management that exempted certain stack emissions that otherwise violated the State Implementation Plan under the CAA. Also, the United States District Court for the Northern District of Alabama heard one of several …

The Under-Appreciated Value Of Advisory Guidelines, Erica J. Hashimoto

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The Sentencing Reform Act of 1984 provided that the trial court "shall impose a sentence of the kind, and within the range" set forth in the United States Sentencing Guidelines ("Guidelines") issued by the Sentencing Commission. With that one phrase, the Act created a system of guidelines that was binding upon judges, rather than simply advisory. Concerns about excessive disparity and undue leniency in sentencing unquestionably drove the political coalition that passed the Act. It is not clear, however, why Congress believed that mandatory-as opposed to advisory-guidelines were necessary to address those concerns. With the benefit of hindsight, it is …

Libel In The Blogosphere: Some Preliminary Thoughts, Glenn Harlan Reynolds

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This brief essay attempts to account for the paucity of libel litigation relating to weblogs, and to explore ways in which the law of libel may change in response to the different character of weblogs, and new media in general.

The Detention Of Material Witnesses And The Fourth Amendment, Joseph G. Cook

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No abstract provided.

Harry Potter And The Law, Benjamin H. Barton

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The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories. The contributions of James Charles Smith and Danaya Wright address the depiction of families in the narratives and the limited role and development of family law. Benjamin H. Barton's contribution considers the failings …

In Booker's Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie Wilson

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This article explores the question left unanswered by the Supreme Court's January, 2005, decision in United States v. Booker. Specifically, it looks at whether the Mandatory Victims Restitution Act of 1996 (MVRA), which governs restitution in federal criminal cases, violates the Sixth Amendment. The MVRA expressly requires that judges, rather than juries, decide issues of restitution. The process mandated by the MVRA often results in orders of restitution that are much harsher than a defendant could have reasonably predicted from the indictment, the evidence presented at trial, and/or the defendant's admission of guilt. This article concludes that such unexpected consequences …

Martha Stewart Saved! Insider Violations Of Rule 10b-5 For Misrepresented Or Undisclosed Personal Facts, Joan Macleod Heminway

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This article analyses the criminal securities fraud charges brought against Martha Stewart. Stewart was acquitted of these charges by a federal district court judge in February 2004. Specifically, the article initially focuses on whether the securities fraud charges brought against Stewart were valid as a matter of prosecutorial discretion and substantive law and whether the court was correct in granting Stewart's motion for acquittal before handing the rest of her case to the jury for deliberation. The article then offers substantive and procedural observations about Rule 10b-5 cases like the one brought against Stewart.

Caught In (Or On) The Web: A Review Of Course Management Systems For Legal Education, Joan Macleod Heminway

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Like other teaching innovations, course management software has been somewhat slow to take hold in legal education. Yet, as law teachers, we cannot deny that our current students are children of a technological age that centers on electronic communication. Although there is a lack of empirical evidence strongly supporting the pedagogic case for the use of technology in law teaching, some of us in the law academy have ventured forth with the use of teaching technologies on the theory that the current demographics of the law student population demand our interaction with students on this basis.

Course management systems are …