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The Virtues Of Command And Control Regulation: Barring Exotic Species From Aquatic Ecosystems, Sandra B. Zellmer

Faculty Law Review Articles

The Clean Water Act asserts the ambitious goal of eliminating water pollution and protecting the chemical, physical, and biological integrity of U.S. waters. Yet the EPA, in enforcing the Act, currently exempts from regulation a significant source of pollution in U.S. waters: ballast-water discharges from commercial shipping vessels. Ballast water from commercial vessels is a primary vector for the introduction of exotic plant and animal species into U.S. waters. The invasion of these species poses an increasing threat to native biodiversity; the invaders prey directly on native fish and wildlife, compete for food and habitat, and introduce disease and parasites …

From Pirates To Partners: Protecting Intellectual Property In China In The Twenty-First Century, Peter K. Yu

American University Law Review

No abstract provided.

The Chinese American Challenge To Court-Mandated Quotas In San Francisco's Public Schools: Notes From A (Partisan) Participant-Observer, David I. Levine

Faculty Scholarship

No abstract provided.

Telling Stories In School: Using Case Studies And Stories To Teach Legal Ethics, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

In this Foreword I will explore why we use stories and case studies (and whether stories and case studies are equal to the task) to examine ethical and moral issues in the practice of law and provide an introduction to the interesting tales which will enfold in this Symposium issue. I conclude with some thoughts about how stories and cases should be used to teach legal ethics.

Second Amendment Symposium: Commentary, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Commentary on the Second Amendment given as part of the “Symposium on the Second Amendment.”

The Value Of Dissent, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Dissent, Injustice, and the Meanings of America by Steven H. Shiffrin (1999).

Theorizing about the freedom of speech has been a central enterprise of contemporary legal scholarship. The important contributions to the debate are simply far too numerous to categorize. One ambition of this theorizing is the production of a comprehensive theory of the freedom of expression, a set of consistent normative principles that would explain and justify First Amendment doctrine. Despite an outpouring of scholarly effort, the consensus is that free speech theory has failed to realize this imperial ambition. Rather than searching for the global …

Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic …

Preemption & Human Rights: Local Options After Crosby V. Nftc, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its "Burma Law," Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts' Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition.

In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on …

The "Normal" Successes And Failures Of Feminism And The Criminal Law, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To write of feminist reform in the criminal law is to write of simultaneous success and failure. We have seen marked changes in the doctrines and the practice of rape law, domestic violence law, and the law of self-defense. There is not a criminal law casebook in America today, nor a state statute book, that does not tell this story. Yet for all of this success, we also live in a world in which reform seems to suffer routine failures. Many believe, for example, that feminist reforms have rid rape law of the resistance requirement; however, recent scholarship makes it …

Gay People, Trans People, Women: Is It All About Gender?, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A few gay rights theorists have long pointed out that discrimination on the basis of sexual orientation can be conceived of as discrimination based on sex. But those of us who play primarily in the legislative or litigation arenas have largely ignored the practical applications of that insight. In this brief essay, I want to consider whether it makes sense for gay rights legislative advocates and litigators to continue to downplay the gender non-conformity aspects of gay sexual orientation . . . the first part of this essay reviews activities that occurred between 1993 and 2001 regarding coverage of gender …

Adrift On The Sea Of Indeterminacy, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

Today's conflicts scholars no doubt consider themselves a diverse bunch, with widely differing views about how law should be chosen in multistate disputes. But from the trenches, most of them look alike. Each waxes eloquent about the search for the perfect solution-the most intellectually and morally satisfying choice of law for each dispute-and each ends the theorizing by embracing some proposition that will prove wholly indeterminate in practice.

Writing Off Race, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, …

The Rise Or The Fall Of International Law?, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

This Article argues that traditional international law is healthy in the sense that there are more international agreements than ever, and States continue to serve important roles in the international system. It is falling, however, as the sole focus of international legal efforts. It is necessary to redefine international law to include actors other than States among those who make international norms and who implement and comply with them, and to include legal instruments that may not be formally binding. These developments raise three important issues: the need for the new actors to be accountable and for the new norms …

Informed Consent For Neonatal Circumcision: An Ethical And Legal Conundrum, J. Steven Svoboda, Robert S. Van Howe, James G. Dwyer

Faculty Publications

No abstract provided.

The Evolving Judicial Role In Child Custody Disputes: From Fault Finder To Conflict Manager To Differential Case Management, Andrew Schepard

Hofstra Law Faculty Scholarship

The judiciary's role in divorce related child custody disputes has been transformed in the latter half of the twentieth century in response to the changing characteristics of American families, changing perceptions of the needs of children, and an overwhelming case load increase. The transformation occurred in two distinct phases, and a third is currently in process.

In Phase I, from the late 1960s (the beginning of widespread "no fault" divorce) to 1980, the child custody court was a fault finder functioning through adversary procedure. The court's job was to identify a single custodial parent and assign that parent primary legal …

Direct Public Offerings On The Internet: A Viable Means Of Obtaining Capital?, Jack A. Rosenbloom

Computer Law Review and Technology Journal

The high cost of capital has stymied many businesses in their attempts to survive and prosper. But the emergence of the Internet and the explosive growth of e-commerce have created new opportunities for some businesses to explore different sources of additional capital. Many small-to-medium-sized companies have not yet fully appreciated the potential of this rapidly growing global network.

In 1998, 33% of American households were online - a percentage that by 2003, should increase to 51%.] More important, the Securities and Exchange Commission (SEC) estimated that, at the end of 1999, as many as ten million investors had bypassed brokers …

Understanding Conflict And Human Capacity: The Role Of Premises In Mediation Training, Robert A. Baruch Bush, Sally G. Pope

Hofstra Law Faculty Scholarship

In this article, the authors, point out that underlying mediator practices and techniques, there are deeper premises and values that guide and shape practice. The authors argue that mediation training should include articulation and explanation of the premises that underlie the transformative orientation to mediation practice and give examples of how these premises can be conveyed within an overall training design, and how doing so enriches the teaching of skills and techniques themselves.

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Free Speech On The Internet: Regulating Web Authorship By Students, Rhoda J. Yen

Computer Law Review and Technology Journal

As Internet use increases, more websites authored by students will populate the World Wide Web (WWW). Indeed, about one-third of all personal websites now belong to students, who are mostly minors.' Students' increasing use of the web raises new questions about free speech. This article addresses one of them: May schools censor student-created websites? If so, under what circumstances may they delete pages, edit pages, or discipline students for website speech?

In answering this question, this article looks for guidance to the history of free speech in the classroom. And examining the problem from a free-speech perspective is appropriate. If …

Maverick Or Trendsetter - Fifth Circuit Addresses Slippery Questions In Employment Discrimination, William Trey Jones Iii

MC Law Review

No abstract provided.

Of Equity, Continuation And The De Facto Merger Doctrine: Reflections On Mississippi Law And Successor Liability, Cecile C. Edwards

MC Law Review

Mississippi Focus

The Market Power Requirement In Antitrust Rule Of Reason Cases: A Rhetorical History, Mark R. Patterson

San Diego Law Review

Under section 1 of the Sherman Act,' on which this Article will focus, a central position for market power has been mandated neither by statute nor by the Supreme Court. Section 1 refers only to "contract[s] ... in restraint of trade,"' language that suggests no market power requirement. Nor has the Supreme Court imposed any general market power requirement under section 1. To be sure, the Court has imposed market power requirements in certain categories of section 1 cases, but they are only those cases in which the plaintiff proceeds under a per se theory.' Indeed, the Court has on …

The Sanctity Of Association: The Corporation And Individualism In American Law, Liam Seamus O'Melinn

San Diego Law Review

American society and law display a deep reverence for the group, as long as it assumes corporate or quasi-corporate form. This reverence is not fleeting; rather, it has deep historical roots. In fact, it was there before the republic came into being and it played a profound role in the founding of the nation. Moreover, these roots are not only traditional, but philosophical and religious as well. This Article explores those roots, with three goals in mind. First, to correct the mistaken notion that American law has historically demonstrated a commitment to the individual at the expense of the group, …

Masthead

San Diego Law Review

No abstract provided.

Adequate Special Education: Do California Schools Meet The Test?

San Diego Law Review

This Comment argues that the demands for general education efficacy apply a fortiori to disabled children. This Comment further contends that while special education law based on federal statute may be insufficient to support such accountability, the California Constitution provides a legal basis without further statutory enactments. The basis is found in adequacy assurances of article IX, section 1 of the California Constitution: the Education Clause."

Integrating Spiritual Perspectives With The Law School Experience: An Essay And An Invitation, Lucia Ann Silecchia

San Diego Law Review

This Essay will reflect on the ways in which the traditional life of law schools may be colored by a new emphasis on spirituality. 10 This Essay will not delve into an extensive theological thesis about the definition of spirituality or the practical and philosophical nuances of the spiritual life. Rather, the pages that follow are an invitation to begin a discussion of spirituality within the life of American law schools. This Essay begins with a discussion of spirituality in professional life generally. It will become apparent very quickly that there are difficulties in defining what spirituality is and in …

"Waive" Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness

San Diego Law Review

This Article argues that waivers of tort liability should be permitted in connection with product sales. Currently, sellers cannot limit their liability under tort law for personal injuries caused by defective products even though such waivers are allowed, albeit reluctantly, under principles of negligence and warranty law.

State Constitutionalism And The Domain Of Normative Theory, Daniel B. Rodriguez

San Diego Law Review

Positive constitutionalism means not only describing but also theorizing about elemental questions of constitutional structure and theory. Key positive questions include: Why do certain constitutional forms emerge and survive? What is the role of political choice, by legislators and by citizen voters, in constructing constitutions and constitutional discourse? What is the relationship between constitutionalism and constitutional law? By normative constitutional theory, I mean the critical evaluation of constitutions. The key normative question is: What ought a particular constitution say? Those of us interested in both positive constitutionalism and normative constitutional theory would like to think that we are bringing together …

Alternative Liability In Litigation Malpractice Actions: Eradicating The Last Resort Of Scoundrels, Lawrence W. Kessler

San Diego Law Review

The legal malpractice tort, however, has managed to withstand the winds of legal change. Particularly crucial has been the refusal to apply alternative causation doctrines. The refusal to apply causation doctrines that have been embraced in other areas has significant social effects. As a result, the consumers of legal services receive less protection from the courts than do the consumers of products or medical services.

Masthead

San Diego Law Review

No abstract provided.