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Articles 1 - 30 of 53
Full-Text Articles in Law
The Need For Speed (And Grace): Issues In A First-Inventor-To-File World, Margo A. Bagley
The Need For Speed (And Grace): Issues In A First-Inventor-To-File World, Margo A. Bagley
Faculty Articles
“One is the loneliest number that you’ll ever do.” This lyric applies to the United States which, since 1998, stands alone among the world’s patent systems in awarding patents to the first person to invent a claimed invention (first to invent, or “FTI”) as opposed to the first inventor to file an application claiming the invention (“FITF”). But its lonely days may soon be over: a provision in pending patent reform legislation will (if passed) move the United States from FTI to FITF and end its solitary stance.
Some argue that the U.S. already has a de facto FITF system, …
The Hidden Influence Of Jewish Law On The Common Law Tradition: One Lost Example, Michael J. Broyde
The Hidden Influence Of Jewish Law On The Common Law Tradition: One Lost Example, Michael J. Broyde
Faculty Articles
Professor Berman is undoubtedly correct that the surviving literature shows little such influence of Jewish jurisprudence. Over the course of numerous conversations I had with Professor Berman at Emory, we discussed another possibility, namely that the Jewish tradition indeed had a distinct influence on the common law; however, due to the general lack of enthusiasm for the Jewish legal tradition throughout the medieval Christian world, even when Jewish sources were consulted, they were not cited. I wish to show what I think is one such example --the enigmatic origins of the common law rule that the holder of lost property …
Economic Efficiency Versus Public Choice: The Case Of Property Rights In Road Traffic Management, Jonathan R. Nash
Economic Efficiency Versus Public Choice: The Case Of Property Rights In Road Traffic Management, Jonathan R. Nash
Faculty Articles
This Article argues, using the case of responses to traffic congestion, that public choice theory provides a greater explanation for the emergence of property rights than does economic efficiency. The traditional solution to traffic congestion is to provide new roadway capacity, but that is not an efficient response in that it does not lead to internalization of costs and may actually exacerbate congestion problems by inducing travel that would not have taken place but for the new construction. By contrast, congestion charges, which impose tolls designed to internalize the costs of driving, offer an efficient way to address the problem …
Prophets, Priests, And Kings: John Milton And The Reformation Of Rights And Liberties In England, John Witte Jr.
Prophets, Priests, And Kings: John Milton And The Reformation Of Rights And Liberties In England, John Witte Jr.
Faculty Articles
In this Article, I focus on the development of rights talk in the pre-Enlightenment Protestant tradition. More particularly, I show how early modem Calvinists-those Protestants inspired by the teachings of Genevan reformer John Calvin (1509-1564)-developed a theory of fundamental rights as part and product of a broader constitutional theory of resistance and military revolt against tyranny. With unlimited space, I would document how various Calvinist groups from 1550 to 1700 helped to define and defend each and every one of the rights that would later appear in the American Bill of Rights and how these Calvinists condoned armed revolution to …
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
Faculty Articles
The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …
Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner
Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner
Faculty Articles
This article traces the Nuremberg trials' influence on human rights litigation in the United States under the Alien Tort Statute, especially in the area of corporate complicity, and argues that the use of the Nuremberg trials as precedent in modern domestic human rights litigation is appropriate.
Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin
Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin
Faculty Articles
This article provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace. The same-actor principle, in its most potent form, provides that where the same decision-maker engages in an alleged adverse employment action within a short period of time of making a positive employment decision, such evidence creates a strong presumption that the decision-maker harbored no unlawful discriminatory animus. The same-actor doctrine was first recognized by the Fourth Circuit in Proud v. Stone, in which the court deemed the nature …
Texas Annual Survey: Securities Regulation, George Lee Flint Jr
Texas Annual Survey: Securities Regulation, George Lee Flint Jr
Faculty Articles
Many courts rendered opinions during the Survey period affecting the reach of the Texas Securities Act (“TSA”). The Texas Supreme Court acknowledged the TSA’s reach over dealers selling from Texas to non-residents of the state, as well as over registration of securities sold. In contrast, the Fifth Circuit continued Congress’s campaign to limit regulation of interest rate swaps to federal regulatory bodies by defining “security” in the TSA to exclude interest rate swaps. In Kastner v. Jenkens & Gilchrist, P.C., a Texas appellate court determined that lawyers are not subject to liability for aiding and abetting when they merely prepare …
The Glass Half-Full: A Rational/Radical Approach To Immigration Reform, Bill Piatt
The Glass Half-Full: A Rational/Radical Approach To Immigration Reform, Bill Piatt
Faculty Articles
The problems the United States faces in redirecting immigration policies cannot be successfully addressed by a quick fix immigration “reform.” The legal, economic, sociological, political, racial, and moral issues are too complex and have been largely unresolved. As a result, it is unrealistic to expect political leaders to develop an easy solution that will satisfy the myriad competing and conflicting concerns.
Most of the calls for reform are not issued by individuals completely aware of the extent of immigration regulation and of its impact on American society. Rather, calls come from those with relatively narrow interests from all ranges of …
What Hath Faith Wrought? (Book Review), Michael S. Ariens
What Hath Faith Wrought? (Book Review), Michael S. Ariens
Faculty Articles
A number of academic lawyers have explored the relationship of religion (and religious belief) and law. Ostensibly starting with the late Harold Berman’s The Interaction of Law and Religion, the “religious lawyering” movement evaluates the role religious faith has in how lawyers practice law. Extended by subsequent works such as Christian Perspectives on Legal Thought, the discussion has expanded beyond the question whether a religious lawyer is a contradiction.
This essay serves as a commentary on Robert F. Cochran’s Faith and Law: How Religious Traditions from Calvinism to Islam View American Law, a compilation of sixteen essays from legal academics …
Criminal Rules Amendments Effective As Of December 2007, David A. Schlueter
Criminal Rules Amendments Effective As Of December 2007, David A. Schlueter
Faculty Articles
A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2007. Criminal Rule 11 was amended to conform the rule to the Supreme Court’s decision in United States v. Booker, which held that the sections in the federal sentencing statute that made pleas mandatory violated the fifth and sixth constitutional amendments. Criminal Rule 32 was made to conform to United States v. Booker by making it clear that the court may require the probation office to include in the presentence report information relevant to factors set out in 18 U.S.C § 3553(a). The …
Corruption In Education: A Global Legal Challenge, Vincent R. Johnson
Corruption In Education: A Global Legal Challenge, Vincent R. Johnson
Faculty Articles
In every educational institution, in every country and generation, there is a struggle between corrupt practices and the continuing quest for high ethical standards. An educational institution is poorer if its members engage in corrupt practices. Such misfeasance wastes limited resources, demoralizes participants, and adversely affects productivity. The nature of this corruption is multi-faceted, and observes no geographic boundaries. It exists in every culture.
In some of these cases, educational corruption can be quite subtle. This is true where conduct that is neither criminal, fraudulent, nor a breach of fiduciary duty nevertheless undercuts the moral foundations of the educational enterprise. …
Data Security And Tort Liability, Vincent R. Johnson
Data Security And Tort Liability, Vincent R. Johnson
Faculty Articles
Established tort principles carefully applied to the contemporary problems of cybersecurity and identity theft can perform a key role in protecting the economic foundations of modern life. Tort law offers an appropriate legal regime for allocating the risks and spreading the costs of database intrusion-related losses. It can also create incentives, on the part of both database possessors and data subjects, to minimize the harm associated with breaches of database security.
In considering this field of tort law, it is useful to differentiate three questions. The first issue is whether database possessors have a legal duty to safeguard data subjects’ …
Updated Lessons In Conducting Basics Legal Research By Pro Se Litigants Who Cannot Afford An Attorney, Mike Martinez Jr, Michael P. Forrest, Paul S. Miller
Updated Lessons In Conducting Basics Legal Research By Pro Se Litigants Who Cannot Afford An Attorney, Mike Martinez Jr, Michael P. Forrest, Paul S. Miller
Faculty Articles
The first generation of this article was written and published by The Scholar in 2006.1 Because the trend to accessing legal materials is geared more and more toward the Internet, the tour of the book world that was the focus of the original article requires expansion to include those sources available on the World Wide Web.2 Thus, this article contains most of the content in the original article, and then is supplemented by discussions of content currently available from online legal resources.
The Protect America Act Of 2007: A Framework For Improving Intelligence Collection In The War On Terror, Jeffrey F. Addicott, Michael T. Mccaul
The Protect America Act Of 2007: A Framework For Improving Intelligence Collection In The War On Terror, Jeffrey F. Addicott, Michael T. Mccaul
Faculty Articles
The most important weapon in the War on Terror is intelligence. The Protect America Act of 2007, a modification of the Foreign Intelligence Surveillance Act (FISA), was favored by Congress for providing a positive framework for ensuring the proper rule of law kept pace with changes in technology. FISA closed the intelligence gaps that had arisen because of the application of the Act to foreign persons in foreign countries.
FISA codifies in federal law the procedures associated with how electronic surveillance and searches of acquisition of foreign intelligence is conducted. In order to conduct electronic surveillance, a court order must …
The Political Question Doctrine And Civil Liability For Contracting Companies On The “Battlefield”, Jeffrey F. Addicott
The Political Question Doctrine And Civil Liability For Contracting Companies On The “Battlefield”, Jeffrey F. Addicott
Faculty Articles
While the use of civilian contractors to support military operations is not a new phenomenon, their use in the War on Terror is unprecedented. The numbers of civilian contractors in active combat zones and the specific activities they perform have significant legal and policy ramifications.
Recent case law associated with civil complaints brought in American courts against contracting companies operating in battlefield environments has given rise to a “political question” doctrine. This doctrine excludes from judicial review all controversies involving policy choices and other value determinations that the Constitution reserves to the Congress and the Executive for resolution.
Due to …
The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod
The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod
Faculty Articles
Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.
The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …
Autonomy And Acute Psychosis: When Choices Collide, Dora W. Klein
Autonomy And Acute Psychosis: When Choices Collide, Dora W. Klein
Faculty Articles
Professor Elyn Saks is a well-recognized expert in mental health law, and is training to become a psychoanalyst. Her latest book reflects her continued interest in mental health issues, but this book differs from her previous works because it is written in the voice of someone who has a personal stake in the topic.
In The Center Cannot Hold: My Journey Through Madness, Saks recounts her own experience of schizophrenia, the most serious of all mental illnesses. Beginning with some “little quirks” in childhood and progressing to full-fledged psychosis by her first year at Yale Law School, Sak’s illness caused …
Henry F. Johnson, Professor Of Law (1981-2008), St. Mary’S University School Of Law, Bonita K. Roberts
Henry F. Johnson, Professor Of Law (1981-2008), St. Mary’S University School Of Law, Bonita K. Roberts
Faculty Articles
As a way to deal with his loss, this eulogy honors Henry Johnson (1942-2008) by focusing on ten good things about him. As a former English teacher, he valued clarity and precision, which reflects another good thing about Henry: the importance of strong organization. His zest for travel enabled him to share voluminous details about countless countries around the world, including where the best restaurants and wineries were. No description would be complete without emphasizing his love for golf, but the most important thing about Henry was the way he cared for his family, friends, and animals.
Panel: Ethics-Based Decision-Making In Societal Water Management, Amy Hardberger
Panel: Ethics-Based Decision-Making In Societal Water Management, Amy Hardberger
Faculty Articles
There is an ethical overlay to water-related decision-making and management, frequently drawing on personal experiences with water and the ubiquitous need for water. The modern South African Bill of Rights, ensuring its people’s access to water; the movement towards recognizing water as a basic human right; and even occurrences in Texas, including the passage of “environmental flows legislation” and the efforts to preserve and protect the Edwards Aquifer, reflect the presence of ethics in decision-making with respect to water management. Ethics are a part of water management decision-making.
Why We Do The Things We Do? The Role Of Ethics In Water Resource Planning, Amy Hardberger
Why We Do The Things We Do? The Role Of Ethics In Water Resource Planning, Amy Hardberger
Faculty Articles
Water provides a natural framework in the role of ethics because ethical issues are present in every facet of water management. The value of water and the creation of ethics dictate decisions regarding water resource management. Value can be assessed from factors including happiness, well-being, or intrinsic value. Once a value is assessed, obligations that dictate actions regarding this issue are generated, and an ethic is created.
Various domestic and international policies have, both explicitly and implicitly, called for a human right to water. The presence of domestic and international policies that recognize or protect a person’s right to water …
A Tribute To Ernest A. Raba, Dean (1946 – 1978), St. Mary’S University School Of Law, Aloysius A. Leopold
A Tribute To Ernest A. Raba, Dean (1946 – 1978), St. Mary’S University School Of Law, Aloysius A. Leopold
Faculty Articles
Dean Ernest A. Raba was instrumental in establishing and building St. Mary’s University School of Law during his thirty-two year tenure as Dean of the Law School. He obtained accreditation for the law school from the American Bar Association and membership in the Association of American Law Schools. He obtained financing for three new buildings with the help of Governor John Connally, and then President Johnson. He also started the framework for $7.5 million grant from the Sarita Kenedy East Foundation for a new law library, and a new faculty building was named in his honor. In 1967, he helped …
The Chinese Takings Law From A Comparative Perspective, Chenglin Liu
The Chinese Takings Law From A Comparative Perspective, Chenglin Liu
Faculty Articles
When acquiring private property, governments may exercise one of three options: confiscation, consensual exchange, or eminent domain. Under the first approach, the government can confiscate private land without seeking consent from private owners and without paying compensation to them. Alternatively, under the consensual exchange approach, the government can only acquire private property through arm’s-length negotiations in an open market. It requires the government to obtain consent from private owners and pay mutually agreed purchase prices, determined by both the government as a willing buyer and private owners as willing sellers. The third approach is through eminent domain, which denotes when …
When Borders Cross People: Whose [Who’S] Poor, Or The Spirit Of Immigration, Emily A. Hartigan
When Borders Cross People: Whose [Who’S] Poor, Or The Spirit Of Immigration, Emily A. Hartigan
Faculty Articles
Borders and fences limit the opportunity to engage the Other. Society’s ability to engage the unknown is essential to comprehend personal identity, and an unfunded, incomplete fence on one border questions America’s ability to know itself. A fence establishes a boundary distinguishing the safety of the known from fear of the unknown, but the exchange between the two is essential to genuine self-discovery. The lives of Mexican immigrants, marginalized Palestinian mothers, and Australian aborigines reveal a common motive to support their families and culture. Understanding their stories, struggles, and desires transforms them from immigration statistics to human beings worthy of …
From Policy To Reality: Maximizing Urban Water Conservation In Texas, Amy Hardberger
From Policy To Reality: Maximizing Urban Water Conservation In Texas, Amy Hardberger
Faculty Articles
Ensuring that Texas is sustainable in the 21st century depends in large part on smart management of the state’s water resources. A central element of that challenge is improving the efficiency of water use in the rapidly growing urban areas of the state. More efficient water use technologies, more sophisticated understanding of water pricing, and the ability to more carefully measure water use at both the individual and municipal level provide new opportunities to reach advanced levels of water use efficiency.
Water supply planning is constantly evolving and forces such as population growth and climate change are making it more …
All For One: A Review Of Victim-Centric Justifications For Criminal Punishment, Adam J. Macleod
All For One: A Review Of Victim-Centric Justifications For Criminal Punishment, Adam J. Macleod
Faculty Articles
Disparate understandings of the primary justification for criminal punishment have in recent years divided along new lines. Retributivists and consequentialists have long debated whether a community ought to punish violators of legal norms primarily because the violator has usurped communal standards (the retributivist view), or rather merely as a means toward some end such as rehabilitation or deterrence (the consequentialist view). The competing answers to this question have demarcated for some time the primary boundary in criminal jurisprudential thought.
A new fault line appears to have opened between those who maintain the historical view that criminal punishment promotes the common …
In Memoriam: Joseph M. Williams, Chris Rideout
In Memoriam: Joseph M. Williams, Chris Rideout
Faculty Articles
Professor Chris Rideout pays tribute to Joseph M. Williams, 1933-2008, Professor Emeritus, University of Chicago and author of Style: Ten Lessons in Clarity and Grace, among other highly influential works. Professor Rideout shows his appreciation for Williams' generous support and many contributions to the world of writing instruction, especially legal writing.
Storytelling, Narrative Rationality, And Legal Persuasion, Chris Rideout
Storytelling, Narrative Rationality, And Legal Persuasion, Chris Rideout
Faculty Articles
Professor Chris Rideout has long been interested in persuasion, and for many years he has included theories of persuasion in an advanced legal writing seminar that he teaches. He always asks his students the same question—“what persuades in the law?”—and after looking at different theories of persuasion, they then develop their own theory of legal persuasion. When he first taught the course, he had in mind rhetorical models of persuasion, starting with Aristotle and Cicero and moving toward more contemporary rhetorical work. Very quickly, however, he had to add narrative models of persuasion, plus a second question—“what is it about …
Documenting Gender, Dean Spade
Documenting Gender, Dean Spade
Faculty Articles
This article provides an analysis of gender reclassification policies - policies that determine when an administrative agency will change an individual's gender marker on its records - in three contexts: policies related to placement in gender-segregated facilities, policies related to changing gender marker on ID, and policies related to the state provision of healthcare that is prohibited based on the gender on record for the person seeking care. The article looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification and to ask whether the assumed usefulness of …
Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill
Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill
Faculty Articles
Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA's inquiry, therefore ought to have been differently framed, given tribes' unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes' fishing rights, rather than consider these rights as a mere afterthought. EPA 's process, too, should have been differently conducted EPA should have consulted with tribes from …