Law Commons^™

Got "Hormone-Free" Milk?: Your State May Have Enough Interest To Let You Know, Jennifer R. Thornley

Indiana Law Journal

No abstract provided.

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

Articles

The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld

Faculty Scholarship

The restriction on church participation in political campaigns contained in the Internal Revenue Code operates uneasily. It appears to serve the useful purpose of separating the spheres of religion and electoral politics. But the separation often is only apparent, as churches in practice signal support for a particular candidate in a variety of rays that historically have not cost them their exemptions. Although the limited enforcement by the Internal Revenue Service has reflected the sensitive nature of the First Amendment values present, the federal government should provide more formal elaboration by statute or regulation. Focus on the use of funds …

The Rule Of Law And The Legitimacy Of Constitutional Democracy, Michel Rosenfeld

Articles

The rule of law is a foundational principle of constitutional democracy, requiring the state to govern through publicly promulgated laws, separate legislative and adjudicative functions, and ensure accountability for all. While the rule of law is essential for legitimate governance, its meaning and implementation remain contested, varying significantly across legal traditions such as the Anglo-American rule of law, German Rechtsstaat, and French état de droit. The article argues that while the rule of law in its narrow sense—emphasizing legal predictability and procedural fairness—is insufficient for legitimate constitutional democracy, it must also incorporate democratic accountability and substantive rights protection to address …

A "Jewish State ... To Be Known As The State Of Israel": Notes On Israeli Legal Historiography, Pnina Lahav

Faculty Scholarship

Israeli legal history is a discipline much younger than the history of its fifty-three-year-old state. It began developing in the 1980s and gained momentum in the late 1990s. ³ In the entire state with its four major law schools and several law colleges⁴ only five scholars consider legal history to be their main field of expertise. ⁵ And yet, Israeli legal history has proven to be an extremely exciting intellectual discipline, attracting many more scholars than these five. Asher Maoz and Leora Bilsky are only two of a growing number who find legal history an intellectually stimulating enterprise. The …

Cyber E-Mail Negotiation Vs. Traditional Negotiation: Will Cyber Technology Supplant Traditional Means Of Settling Litigation, Lynn A. Epstein

Tulsa Law Review

No abstract provided.

Community Sentencing In Oklahoma: Offenders Get A Second Chance To Make A First Impression, Linda G. Morrissey, Vickie S. Brandt

Tulsa Law Review

No abstract provided.

Does Adr Offer Second Class Justice, Martin A. Frey

Tulsa Law Review

No abstract provided.

Finding The Blight That's Right For California Redevelopment Law, George Lefcoe

UC Law Journal

This Article makes the case for liberalizing California's restrictive definition of blight, contending that no concept of blight can capture the salient costs and benefits of redevelopment. Present definitions of blight are failing to protect schools and counties from the fiscal drain resulting from the widespread use of tax increment financing to support redevelopment. Definitions of blight are also tangential to the underlying policy debate over whether local governments should take an active hand in shaping the urban environment by becoming land developers. This Article examines two recent cases striking down redevelopment projects for not meeting California's stringent blight standards …

"Thou Shalt Not Put A Stumbling Blick Before The Blind": The Americans With Disabilities Act And Public Transit For The Disabled, Michael E. Lewyn

UC Law Journal

By using transportation and housing policy to redistribute development from central cities to suburban areas without effective public transit, government at all levels has effectively excluded millions of transit-dependent disabled Americans from employment, shopping, and other opportunities. In the 1990s, the federal government sought to remedy this problem by enacting the Americans with Disabilities Act (ADA), which ordered local transit systems to make bus and train systems more accessible to the disabled. The ADA imposed costly requirements upon local public transit systems, but did not give local governments funds with which to satisfy this mandate. By effectively reducing the funds …

Research To Practice: National Day And Employment Service Trends In Mr/Dd Agencies, Danielle Dreilinger, Dana Scott Gilmore, John Butterworth

Research to Practice Series, Institute for Community Inclusion

To what extent have changes in philosophy translated into changes for state agencies and the people they serve? This brief analyzes MR/DD agencies' day and employment service trends from 1988 to 1999 and discusses relevant trends in policy and legislation.

Poking Along In The Fast Lane On The Information Super Highway: Territorial-Based Jurisprudence In A Technological World, Brian E. Daughdrill

Mercer Law Review

When Icarus slipped the surly bonds of Earth for the boundless expanses of heaven, he suffered the limitation of wings made of wax. Every school child knows the story of how, enamored with the power and freedom of soaring with the gods, Icarus flew closer and closer to the sun until its heat melted the wax and he fell into the sea.' Though he had transcended the territorial boundaries of Earth, he was limited by the man-created materials with which he escaped.

Today, Icarian adventurers slipping the bonds of a world defined by territories and countries via their departure into …

Admiralty, Robert S. Glenn Jr., Colin A. Mcrae

Mercer Law Review

The Court of Appeals for the Eleventh Circuit decided fourteen admiralty cases with written opinions in 2000. These cases can generally be divided into three broad categories: (1) cases involving the interpretation of federal statutes such as The Americans with Disabilities Act, ("ADA"), the Foreign Sovereign Immunities Act ("FSIA"), the Suits in Admiralty Act ("SAA"), The Carriage of Goods By Sea Act ("COGSA"), and the Federal Maritime Lien Act ("FMLA"); (2) cases involving the interplay of admiralty law and state law in suits involving claims for attorney fees, the application of laches, and marine insurance issues; and (3) cases involving …

Federal Sentencing Guidelines, Rosemary T. Cakmis, James T. Skuthan

Mercer Law Review

Compared to the previous two years, the Eleventh Circuit issued relatively few published opinions relating to the United States Sentencing Guidelines ("U.S.S.G.") during 2000. This decline could be the result of fewer guidelines cases being presented to the Eleventh Circuit or more guideline cases being disposed of in unpublished opinions. An equally likely explanation, however, may be that the court has been inundated with cases involving the application of the landmark United States Supreme Court decision in Apprendi v. New Jersey. Courts across the nation have been grappling with the ripple effects of the potentially far reaching applications of …

Federal Taxation, Suellen M. Wolfe, Jennifer N. Moore

Mercer Law Review

The Eleventh Circuit Court of Appeals examined prominent and controversial tax issues during 2000. The technically difficult concept of cancellation of indebtedness income as it relates to the basis of a Subchapter S shareholder's interest was examined just prior to the United States Supreme Court's interpretation of this tax concept. The Supreme Court agreed with the interpretation of Internal Revenue Code ("I.R.C.") section 1366 espoused by the Eleventh Circuit. The Eleventh Circuit also examined an issue that the Supreme Court may soon consider when the circuit court followed the lead of an early 2000 Tax Court case examining the tax …

Labor And Employment Law, Richard Gerakitis, James P. Ferguson Jr., Dorothy E. Larkin

Mercer Law Review

This Article surveys the 1999 and 2000 decisions of the United States Court of Appeals for the Eleventh Circuit in which the court addressed issues in the areas of labor and employment law. Specifically, this Article examines decisions by the Eleventh Circuit under the (1) Family Medical Leave Act ("FMLA"); (2) Age Discrimination in Employment Act ("ADEA"); (3) Title VII of the Civil Rights Act of 1964 ("Title VII"); (4) Employee Retirement Income Security Act ("ERISA"); (5) Fair Labor Standards Act ("FLSA"); and (6) Americans With Disabilities Act ("ADA").' During the past two years, the Eleventh Circuit decided numerous cases …

Judicial Jabberwocky In The Presidential Election 2000: When Law And Facts Collide With Politics, Theresa H. Hammond

Mercer Law Review

Long before the United States Constitution was ratified, Americans displayed a deep skepticism of the judiciary. Codification of extremely detailed and complex laws was the palliate to judicial activism. People believed that if the laws were all published and readily accessible, judges would have less ability to substitute their own personal values and predilections for the will of the people, established through the legislation promulgated by their chosen representatives. Hamilton's first essay on the judiciary assured New Yorkers that "the judiciary is beyond comparison the weakest of the three departments of power" and that "the liberty of the people can …

Apprendi V. New Jersey: Should Any Factual Determination Authorizing An Increase In A Criminal Defendant's Sentence Be Proven To A Jury Beyond A Reasonable Doubt, Jason Ferguson

Mercer Law Review

In Apprendi v. New Jersey, the United States Supreme Court held, with the exception of the fact of prior criminal convictions, that any factual determination that authorizes an increased sentence beyond the statutory maximum must be proven to a jury beyond a reasonable doubt.

The Inherent Constitutionality Of The Police Use Of Deadly Force To Stop Dangerous Pursuits, Michael Douglas Owens

Mercer Law Review

Every day in our country, police agencies pursue criminal suspects who are unlawfully attempling to elude them. Reality-based television shows, such as Cops and the Police Videos series on the Fox Network, bring home to the public some measure of the adrenaline-producing excitement that automobile pursuits engender. Rarely, however, does one see the tragedy that often results from these pursuits. While reliable nationwide statistics on police pursuits are not available, various studies depict the rate of accidents as ranging from twenty-nine percent to seventy percent, with a rate of injury ranging from eleven percent to twenty-seven percent. Injuries and deaths …

The United States Becomes A Signatory To The Rome Treaty Establishing The International Criminal Court: Why Are So Many Concerned By This Action?, A. Diane Holcombe

Montana Law Review

The United States Becomes a Signatory to the Rome Treaty Establishing the International Criminal Court

Burlington Northern Railroad Company V. Red Wolf, Alanah Griffith

Montana Law Review

Burlington Northern Railroad Company v. Red Wolf

The Illusory Death Penalty: Why America's Death Penalty Process Fails To Support The Economic Theories Of Criminal Sanctions And Deterrence, Allan D. Johnson

UC Law Journal

The central tenet of the economic approach to criminal law is deterrence. This approach provides a useful tool to analyze the theoretical justifications of capital punishment. From an economic view, the death penalty is a logical extension of the criminal justice system's primary goal of deterrence and is arguably necessary to solve inherent deterrence problems such as marginal deterrence and discounting. Nevertheless, current empirical research on capital punishment in America has shown that, in practice, capital punishment provides, at best, very little deterrence to serious crimes. This Note discusses a few of the possible reasons why America's death penalty process …

Why The Increasing Role Of Public Policy In California's Unfair Competition Law Is A Slippery Step In The Wrong Direction, Joshua D. Taylor

UC Law Journal

California's Business and Professions Code section 17200, a.k.a. "California's Unfair Competition Law," is being misapplied and abused. Specifically, members of the plaintiffs bar are beginning to regularly join a 17200 claim to any suit that is tangentially related to unfair competition. Additionally, the statute is being used by private citizens as a vehicle to assert their own policy agendas. There are several shortcoming in section 17200 that allow these abuses to occur: 1) The statute has no standing requirement-anyone may assert a suit on behalf of the general public. The plaintiff does not even have to suffer any actual injury …

Loser-Pays—Or Whose “Fault” Is It Anyway: A Response To Hensler-Rowe’S “Beyond ‘It Just Ain’T Worth It’”, Marc I. Gross

Law and Contemporary Problems

No abstract provided.

Ulysses Tied To The Generic Whipping Post: The Continuing Odyssey Of Discovery “Reform”, Jeffrey W. Stempel

Law and Contemporary Problems

No abstract provided.

A Modest Reform For Federal Procedural Rulemaking, Carl Tobias

Law and Contemporary Problems

No abstract provided.

Embryonic Stem Cell Research As An Ethical Issue: On The Emptiness Of Symbolic Value, Kevin Quinn

Faculty Publications

The ability to generate a wide variety of stem cell lines (in relatively renewable tissue cultures) opens up a whole new world of breathtaking possibilities for science and medicine. The possibilities include: "in vitro studies of normal embryo-genesis, human gene discovery, and drug and teratogen testing and as a renewable source of cells for tissue transplantation, cell replacement, and gene therapies." But it also opens up a world of complications.

Human EG and ES cells must be recovered from aborted fetuses or live embryos. Because primordial gonadal tissue is removed from fetuses after their death, the derivation of EO cells …

Probing "Life Qualification" Through Expanded Voir Dire, John H. Blume, Sheri Lynn Johnson, A. Brian Threlkeld

Cornell Law Faculty Publications

The conventional wisdom is that most trials are won or lost in jury selection. If this is true, then in many capital cases, jury selection is literally a matter of life or death. Given these high stakes and Supreme Court case law setting out standards for voir dire in capital cases, one might expect a sophisticated and thoughtful process in which each side carefully considers which jurors would be best in the particular case. Instead, it turns out that voir dire in capital cases is woefully ineffective at the most elementary task--weeding out unqualified jurors.

Empirical evidence reveals that many …

Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey

Cornell Law Faculty Publications

Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture.

Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …

Employment Law In A Changing Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.