Law Commons^™

The Troublemaker's Friend: Retaliation Against Third Parties And The Right Of Association In The Workplace, Alex B. Long

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Title VII theoretically provides virtually unlimited protection from retaliation for one kind of workplace troublemaker - the employee who files a formal charge of discrimination. However, the protection from retaliation enjoyed by such individuals is significantly less when the troublemaker resorts to an employer's internal process for resolving discrimination complaints prior to the filing of a formal charge of discrimination. And what of the coworker who assists the troublemaker in pursuing such an internal grievance? Or the coworker who simply has some type of relationship with the troublemaker who files a formal charge of discrimination? What protection from retaliation do …

Judging Plaintiffs, Jason M. Solomon

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With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral …

Finding International Law: Rethinking The Doctrine Of Sources, Harlan G. Cohen

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The doctrine of sources has served international law well over the past century, providing structure and coherence during a time when international law was expanding rapidly and dramatically. But the doctrine's explanatory power is increasingly being challenged. Current doctrine tells us that treaties are international law; empirical evidence, however, suggest that treaties are poor predictors of state practice. The expansion of the international community, the rise of human rights, developments in international legal theory, and the international system's need to adapt to changing circumstances, have all also put pressure on the reified role of "treaty" in identifying rules of international …

The Price Of Misdemeanor Representation, Erica J. Hashimoto

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Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …

Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky

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From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics -- at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments – not only absolute targets, …

The Commerciality Doctrine As Applied To The Charitable Tax Exemption For Homes For The Aged: State And Local Perspectives, David A. Brennen

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This essay examines the question of how state and local government officials should consider federal tax law principles, like the commerciality doctrine, when they challenge state and local property tax exemptions that rely, at least in part, on tax-exempt charitable status for federal income tax purposes. In particular, this essay uses the example of CCRCs [continuing care retirement communities] to consider tax-exempt law's commerciality doctrine in an attempt to discern distinctions between “homes for the aged” that are “charitable,” and thus entitled to exemption, and those that are too commercial, and thus not entitled to exemption. In fact, one might …

Thin But Not Anorexic: Copyright Protection For Compilations And Other Fact Works, David E. Shipley

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Questions about the copyrightability of compilations and other low authorship fact works, and about the scope of protection, have continued to trouble courts long after the Supreme Court's landmark decision in Feist Publications, Inc. v. Rural Telephone Services Co. in 1991. Justice O'Connor's opinion, explaining why a standard white pages telephone directory did not meet the constitutional and statutory requirements for copyright protection, defined an original work of authorship as one that is independently created by its author and that evidences at least a minimal level of creativity. The latter requirement has been elusive, in part because Justice O'Connor defined …

Blood And Turnips In School Funding Litigation, John Dayton, Anne Proffitt Dupre

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There are always winners and losers in school funding reforms, which often leads to protracted litigation in these cases. School funding reforms directly affect tax burdens, the distribution of resources, and the allocation of educational opportunities. Competition over limited resources is inevitable. Although win-win scenarios are ideal, they are not likely in school funding disputes. Limited resources generally make school funding reforms a zero-sum game, with significant systemic changes redefining who wins and loses under the new system.

After the initial exuberance that occurs with a court victory, reform advocates must still face the challenge of translating their court victory …

What Do We Really Know About The American Choice-Of-Law Revolution?, Hillel Y. Levin

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This Book Review reviews Symeon Symeonides's recent book, The American Choice-of-Law Revolution: Past, Present and Future. I conclude that the book is required reading in the field and that it pushes the law in the right direction in significant ways. However, I suggest that it falls short in its effort to tell the full story of the Revolution, for two reasons. First, the data set is limited to published opinions. Second, we cannot evaluate the Revolution simply by looking at judicial opinions. I argue that scholarship and practice in Conflicts must reengage with one another, and offer a framework for …

Guns And Gay Sex: Some Notes On Firearms, The Second Amendment, And 'Reasonable Regulation', Glenn Harlan Reynolds

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In light of the Supreme Court's grant of certiorari in Heller v. District of Columbia, this Essay contains some thoughts inspired by Adam Winkler's "Scrutinizing the Second Amendment," 105 Mich. L. Rev. 683 (2007). Winkler argues, correctly, that judicial acceptance of an individual-rights interpretation of the Second Amendment would not end all firearms regulation. However, Winkler's understanding of what constitutes "reasonable regulation" is excessively broad. In "Guns and Gay Sex," I look at two overlapping lines of Tennessee cases on the right to arms and the right to privacy and conclude that even a "reasonable regulation" model of the right …

Mortgage Law In China: Comparing Theory And Practice, Gregory M. Stein

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The first Chinese law focusing specifically on property rights became effective on October 1, 2007, which means that China's breakneck real estate development before that date occurred in a nation with no published law of real estate. Thus those who have been buying, selling, and lending against Chinese real estate have been operating in a world of significant legal uncertainty. Even with the new code, property law as it is practiced is likely to diverge significantly from the published rules.

This Article examines Chinese mortgage law as it actually operates in the field, focusing on both legal and business issues. …

Do Judges Systematically Favor The Interests Of The Legal Profession?, Benjamin H. Barton

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This Article answers this question with the following jurisprudential hypothesis. Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment law, …

Overcoming Noneconomic Barriers To Loyal Disclosure, Paula Schaefer

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No abstract provided.

Successor Liability In Pennsylvania, George Kuney

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No abstract provided.

Representing Saddam Hussein: The Importance Of Being Ramsey Clark, Lonnie T. Brown, Jr.

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This article examines the professional life of former United States Attorney General Ramsey Clark in an effort to understand the many controversial representations and causes that he has undertaken during his post-government career. I do so through the vehicle of perhaps his most perplexing client choice - deposed Iraqi President Saddam Hussein. Although Hussein had other competent attorneys prepared and willing to represent him, Ramsey Clark nevertheless felt compelled to volunteer his services to the defense team. Why would he do so, and was his decision an ethically proper one under the circumstances?

These are the specific questions that this …

Successor Liability In New York, George Kuney

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No abstract provided.

The Chinese Land Use Right Is It Property, Gregory M. Stein

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No abstract provided.

The Legal Reader, The Legal Writer And The All-Important Thesis Sentence, Michael J. Higdon

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No abstract provided.

Successor Liability In Maryland, George Kuney

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No abstract provided.

Controlling Executive Compensation Through The Tax Code, Gregg D. Polsky

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This article analyzes Internal Revenue Code § 162(m), which in general denies public companies a deduction for annual non-performance-based compensation in excess of $1,000,000 paid to senior executive officers. Congress enacted § 162(m) with the intent to reduce the overall level of executive compensation and to influence the composition of executive compensation in favor of components that are more sensitive to firm performance. Notably, § 162(m) represents the most direct Congressional effort to influence executive compensation design. In light of recent events, Congress is being called upon to once again address the perceived problem of overgenerous executive pay packages. Accordingly, …

"Sociological Legitimacy" In Supreme Court Opinions, Michael Wells

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Analysis of a Supreme Court opinion ordinarily begins from the premise that the opinion is a transparent window into the Court's thinking, such that the reasons offered by the Court are, or ought to be, the reasons that account for the holding. Scholars debate the strength of the Court's reasoning, question or defend the Court's candor, and propose alternative ways of justifying the ruling. This Article takes issue with the transparency premise, on both descriptive and normative grounds. Especially in controversial cases, the Court is at least as much concerned with presenting its holding in a way that will win …

"Lawyers" Not "Liars": A Modified Traditionalist Approach To Teaching Legal Ethics, Lonnie T. Brown

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As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us …

Sex, Trust, And Corporate Boards, Joan Macleod Heminway

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This article collects and interprets social science research on sex and trust and uses this work to shed new light on the emerging case for gender diversity on corporate boards. Specifically, the article describes social science research findings indicating (1) that men and women trust and are trustworthy on different bases and (2) that there is a bias against women in chief executive officer (and potentially other corporate leadership) positions. Based on this research, the nature of corporate management and control, and current legal scholarship on corporate governance, the article asserts that gender diversity on corporate boards may be desirable …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

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This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

Failure To Connect: The Massachusetts Plan For Individual Health Insurance, Elizabeth Weeks Leonard

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This Article briefly describes the key features of the Massachusetts Health Care Reform Act, focusing particularly on the Connector. It then offers preliminary thoughts on the expected effect of that mechanism for creating quality, affordable health insurance products for individuals. Observers anticipate that commercial insurers will offer scant coverage and high-premium, high-deductible plans through the Connector, which coverage ultimately may be neither more affordable than products currently or more helpful to covering the cost of health care than no coverage at all. If the Connector fails to facilitate the individual insurance mandate, Massachusetts's promise of universal coverage may begin to …

The Status Of The Notice/Prejudice Rule For Liability Insurance Claims In Nevada, Timothy S. Menter, Jeffrey W. Stempel

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No abstract provided.

Studying The Death Penalty In Tennessee, Dwight Aarons

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No abstract provided.

Successor Liability In Tennessee, George Kuney

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No abstract provided.

Freedom To Explore: Using The Eleventh Amendment To Liberate Researchers At State Universities From Liability For Intellectual Property Infringements, Gary Pulsinelli

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In its 1999 decision in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Supreme Court held that the Eleventh Amendment protected states from suit for patent infringement, effectively making state universities immune from intellectual property suits. This Article analyzes how the Florida Prepaid decision affects researchers at state universities, and how those researchers may avoid liability under existing law. It first concludes that researchers at state universities might still be subject to injunctions against future infringement. The Article next observes that individual researchers at state universities might also face personal liability for damages, but then suggests that …

The Essential Holding Of Casey: Rethinking Viability, J. Randy Beck

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The Planned Parenthood of Southeastern Pennsylvania v. Casey plurality acknowledged an obligation to "justify the lines we draw." The corollary would seem to be an obligation to eschew lines that defy principled justification. In the decades since Roe v. Wade, the Court has offered no adequate rationale for the viability standard, notwithstanding persistent judicial and academic critiques. Exacerbating this country's divisions over abortion and placing us out of step with the world community, the viability rule seems a strong candidate for abandonment as the Court continues to rethink its abortion jurisprudence in the aftermath of Casey.