Law Commons^™

Anything Goes: Examining The State's Interest In Protecting Children From Controversial Speech, Catherine J. Ross

GW Law Faculty Publications & Other Works

Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government's interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court's test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and children by …

Dialogue Magazine, Winter 2000

Dialogue, the magazine of the DePaul University College of Law

No abstract provided.

Federal Environmental Law In The 'New Federalism' Era, Robert L. Glicksman, Stephen Mcallister

GW Law Faculty Publications & Other Works

As we wrote last year, the U.S. Supreme Court has shown considerable interest during the past decade in reconsidering many constitutional doctrines regarding federalism and congressional power. In a series of important decisions, always decided with the same five justices in the majority, the Court has begun to redefine the federal-state relationship and the scope of federal authority. The past term generally continued that trend, with one important commerce power decision, one significant Eleventh Amendment/Fourteenth Amendment decision, and a number of decisions that involve or affect federalism and the scope of federal power, although the Court sometimes relied on statutory …

Preslar V. Commissioner: Debt-Discharge Income And Its Rationale, Chad J. Pomeroy

Faculty Articles

In Preslar v. Commissioner, the Tenth Circuit examined the “disputed debt” exception and concluded that the result was at odds with similar holdings from the Third Circuit. The Third and Tenth Circuits interpret the underlying logic of debt discharge income differently. The Third Circuit invokes the disputed-debt exception when the original debt is either unenforceable or unliquidated, while the Tenth Circuit invokes the exception only when the original amount is unliquidated.

The Tenth Circuit stated that the exception “rests on the premise that if a taxpayer disputes the original amount of a debt . . ., a subsequent settlement of …

Markets, Myths, And A Man On The Moon: Aiding And Abetting America’S Flight From Health Insurance, Andre Hampton

Faculty Articles

The United States health care system is a tragic product of blind distrust of government and unquestioning faith in markets—the belief that the market will always do a more efficient job of allocating resources better than the government. However, health care is a peculiar commodity that differs from other goods and services that are distributed in the market. There is a real question about whether it is appropriate to provide health coverage pursuant to an insurance model, let alone provide it through an insurance model in the market. While the pooling of risks guarantees a greater number of people will …

Bitter Medicine: A Critical Look At The Mental Health Care Provider’S Duty To Warn In Texas, Charles E. Cantú, Margaret H. Jones Hopson

Faculty Articles

A quarter of a century has passed since Tarasoff v. Regents of the University of California first imposed a duty of care upon mental health care professions for third parties. In Tarasoff, the California Supreme Court held that once a therapist determines, or reasonably should have determined, a patient poses a significant danger of violence to others, the therapist bears a duty to exercise reasonable care to protect the foreseeable victim from that danger.

Tarasoff has since been widely accepted by both legislatures and courts as the basis for imposing the duty of reasonable care upon mental health care professionals …

Recovering Collectivity: Group Rights To Intellectual Property In Indigenous Communities, Angela R. Riley

Cardozo Arts & Entertainment Law Journal

No abstract provided.

When Is A Cd Factory Not Like A Dance Hall?: The Difficulty Of Establishing Third-Party Liability For Infringing Digital Music Samples, Rebecca Morris

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Software As Discourse: The Power Of Intellectual Property In Digital Architecture, Brian F. Fitzgerald

Cardozo Arts & Entertainment Law Journal

As software increasingly facilitates our living, we are drawn more and more to conceptualize software as discourse. While this may sound trite, it is a fundamental point to appreciate.

One of the most significant intellectual developments of the latter part of the twentieth century has been the poststrucoturalist writing of thinkers like Foucault, Derrida, and Baudril-lard, who explain the multitude of power relationships we experience in our daily lives, the indeterminacy of law, the construction of meaning, and the role of language, or discourse, in the construction of meaning and identity. According to the post-structuralists, we live in an environment …

License To Copyright: The Ongoing Dispute Over The Ownership Of James Bond, Keith Poliakoff

Cardozo Arts & Entertainment Law Journal

No abstract provided.

When Parental Interference Goes Too Far: The Need For Adequate Protection Of Child Entertainers And Athletes, Erica Siegel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 18, Iss. 3

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Innovation And Creativity In The Fine Arts: The Relevance And Irrelevance Of Copyright, Daniel J. Gifford

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Constitutionality Of Copyright Term Extension: How Long Is Too Long?, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Tax Treatment Of Defaulted Child Support: The Better Approach, Richard C.E. Beck

Other Publications

No abstract provided.

Reflections After Seattle, Renato Ruggiero

Fordham International Law Journal

The WTO cannot operate in isolation from the concerns of the world in which it exists. Our ability to advance trade, build a stronger system, and move forward in a new round will hinge on our ability to make simultaneous progression on these issues. How do we do this? First, we must move toward a more collective leadership, one that reflects the reality of a multipolar world and especially the emergence of developing-country powers. Second, we need to look at the policy challenges we face as pieces of an interconnected puzzle. Third, we need a new forum for the management …

The Future Of The Wto And The Reform Of The Anti-Dumping Agreement: A Legal Perspective, Konstantinos Adamantopoulos, Diego De Notaris

Fordham International Law Journal

This short contribution aims at identifying certain provisions of the Agreement that might be considered for amendment, in light of the general principles that, in our view, should inspire the reform of the ADA. Part I below deals with such general principles; Part II sets out suggestions concerning the determination of the product scope in an anti-dumping investigation; Part III deals with Article 5 of the ADA (initiation of the investigation); Part IV is concerned with amendments to Article 2 ADA (dumping); Part V deals with Article 3 ADA (injury); Part VI concerns the reform of Article 11 ADA (reviews …

Marxist Origins Of The "Anti-Third World" Claim, Raj Bhala

Fordham International Law Journal

This Essay is an experiment — a try-out — of an argument. The argument concerns what I regard to be the most serious of the claims made by the critics, namely, the claims concerning the relationship between the WTO and international trade law, on the one hand, and the Third World, on the other hand. The claim is this: the WTO is anti-development, and international trade law helps tilt the playing field on which the great game of trade is played against developing countries. It is the "most serious" of the claims, I think, because the giant and still growing …

Bargaining In The Shadow Of The Law: Early Settlement In Gatt/Wto Disputes, Marc L. Busch, Eric Reinhardt

Fordham International Law Journal

This Essay proceeds in four steps. Part I summarizes the quantitative evidence on the pattern of escalation and outcomes of more than 600 GATT/WTO disputes from 1948 through 1999. Part II elaborates on our theory of settlement bargaining within the context of an institution lacking enforcement power and shows how the hypotheses are consistent with the evidence introduced earlier. Part III discusses the theory's expectations regarding the effect of the 1989 and 1995 dispute settlement reforms and likewise compares those predictions with the evidence. Part IV highlights the implications of our perspective for proposed future reforms dealing with transparency and …

Pax Mercatoria: Globalization As A Second Chance At "Peace For Our Time", Jim Chen

Fordham International Law Journal

This Essay completes a scholarly cycle in which I have defended free trade and international economic cooperation against charges that globalization will harm the environment and drain jobs from the high-wage economies of western Europe, Japan, and the United States. The demolition of geographic and social barriers since the end of the Cold War has delivered not only material wealth but also physical tranquility, political stability, and personal freedom to vast portions of the world's population. The path to peace lies today, as it did in 1938, not in a retreat to obsolete notions of local sovereignty, but in a …

The Wto Dispute Settlement System---A Practitioner Perspective, Mark Clough

Fordham International Law Journal

The purpose of this Essay is to discuss the areas in which the World Trade Organization dispute settlement system may be improved in light of the first five years of experience from the practitioner point of view, and in particular, practitioners advising business or governments acting on behalf of domestic businesses. Key reforms relating to implementation and compensation may not necessarily require an amendment to the Understanding on Rules and Procedures Governing the Settlement of Disputes, since they could be answered by changes in practice.

A Journey From Havana To Paris: The Fifty-Year Quest For The Elusive Multilateral Agreement On Investment, Riyaz Dattu

Fordham International Law Journal

This Essay begins with a survey of the protection afforded to foreign investors under customary international law. This survey serves to demonstrate that the changing international political and social order, and international economic forces, affect the formulation of the standard of protection and compensation afforded to investors under international law. Next, the Essay traces the history of the post-World War II attempts to negotiate multilateral investment protection measures as part of the Havana Charter. As a result of the failure to implement the Havana Charter, negotiations over investment measures did not make their way into the General Agreement on Tariffs …

The Elimination Of Export Subsidies And The Future Of Net-Food Importing Developing Countries In The Wto, Tashi Kaul

Fordham International Law Journal

Before providing an overview of the current situation, Section I of this Essay examines past trends in the world agricultural trade in order to demonstrate how the share of the world's agricultural trade from developing and least-developed countries has stagnated compared to those of the industrialized countries. Section II discusses the factors which have led to this stagnation, including one of the most significant factors — the use of export subsidies, as exemplified by CAP. Section III analyzes the implications of eliminating such protectionism for NFIDCs, which form the main focus of this Essay. Section IV briefly addresses the implementation …

Homage To A Bull Moose: Applying Lessons Of History To Meet The Challenges Of Globalization, Theodore R. Posner, Timothy M. Reif

Fordham International Law Journal

It would appear that some critics' cure for the World Trade Organization (“WTO”) is to build it up, while for others, the cure is to tear it down, or at least to diminish its competence. This seeming contradiction makes it difficult to assess and respond to legitimate criticisms of the WTO. The purpose of this Essay is to address this apparent conundrum. In particular, we attempt to shed light on it by (1) describing the nature of the imbalance that exists in the world trading system today (Part I); (2) offering an historical and legal framework for understanding the seemingly …

China's Accession To The Wto: How Will This Benefit European Undertakings?, Olivier Prost, Song Li Wei

Fordham International Law Journal

China's accession to the World Trade Organization ("WTO") will help open up the Chinese market for European undertakings and will boost China's role as a major partner of the European Community. Accordingly, China's accession primarily can be seen as a factor in liberalizing Sino-European trade relations. China's accession to the WTO also will cause this country to lose progressively its "exception" status. As a result, Europe, on the one hand, will treat China just like its other trading partners, while China, on the other hand, will benefit fully from its WTO membership, not only with regard to its WTO obligations, …

Wto Blue-Green Blues: The Impact Of U.S. Domestic Politics On Trade-Labor, Trade-Environment Linkages For The Wto's Future, Gregory Schaffer

Fordham International Law Journal

Part I of this Article provides a brief overview of the dominant discourse on linkages, which focuses on whether World Trade Organization (“WTO”) rules should be modified (or interpreted) to permit trade restrictions on environmental and labor rights grounds. Those fully familiar with the competing conventional approaches to trade-environment and trade-labor debates may either skim Part I or move directly to Part II. Parts II through V examine the political economy of trade-environment and trade-labor policy, particularly in the United States. Part II addresses the politics of trade-environment agenda setting and the reasons why U.S. critics more likely direct their …

The Banana Split: Has The Stalemate Been Broken In The Wto Dispute? The Global Trade Community's "A-Peel" For Justice?, Aisha L. Joseph

Fordham International Law Journal

This Comment examines the latest developments of the banana trade dispute, which threatens to disrupt, the economies of Third World countries and international relations on a general scale. Part I reviews the background of the legal treaties and the international organizations involved in the dispute, as well as the parties involved, and the dispute's basic history. Part II examines the dispute's procedural history, as presented before the World Trade Organization (“WTO”), and also highlights recent developments. Part III evaluates the WTO's legal rulings and analyzes key aspects of the banana dispute. Part III also suggests that while the system of …

Presumed Guilty?: Criminal Justice And Human Rights In Mexico, Luke Mcgrath

Fordham International Law Journal

This Report is divided into five parts, which track the main issues that the mission examined. Part I examines the arbitrary arrest and detention practices that are widespread in Mexico. Part II explores the conditions and standards that lead to the taking of coerced confessions, as well as the ready use of such confessions at trial. In Part III, this Report turns to issues relating to legal representation in Mexico, especially the denial of access to counsel at critical points of the criminal process. The intimidation of defense attorneys, persons of confidence, and human rights advocates furnishes the subject of …

Adjudicating Disappearance Cases In Turkey: An Argument For Adopting The Inter-American Court Of Human Rights' Approach, Irum Taqi

Fordham International Law Journal

This Note examines the different approaches of the European and Inter-American Courts in assessing state liability for a violation of the right to life in disappearance cases. Part I discusses the phenomenon of disappearances. It also provides background on the European and Inter-American systems of human rights as well as on the concept of the right to life in the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention") and in the American Conventions on Human Rights ("American Convention"). Finally, Part I examines the Inter-American Court's approach to assessing state responsibility for disappearances in the Velasquez Rodriguez …

Dispute Resolution In International Project Finance Transactions, Christopher Dugué

Fordham International Law Journal

This essay discusses how the legal practice in international financial problems has slowly evolved towards a better recognition of international arbitration in the field of project financing. While it is useful to compare the different types of dispute resolution mechanisms that are to be considered by participants for the implementation of their contracts, it is this author's view that international arbitration is the most effective means of resolving international project finance transactions. Indeed, the assessment of the most effective forum cannot dismiss what this author considers as an essential feature of international project financing, i.e., its transactional unity. As a …