Law Commons^™

Easements On Tribal Sovereignty, Todd Miller

American Indian Law Review

No abstract provided.

Jurisdiction Of Ute Reservation Lands, John D. Barton, Candace M. Barton

American Indian Law Review

No abstract provided.

Cyberjacking, Mouse Trapping, And The Ftc Act: Are Federal Consumer Protection Laws Helping Or Hurting Online Consumers?, Kenneth Sanney

Vanderbilt Journal of Entertainment & Technology Law

Only the Federal Trade Commission (FTC) can bring a federal cause of action against a company whose business practices or actions deceive consumers. However, the FTC's power is limited; it can intervene on behalf of consumers only when there is a pattern of misconduct by the business that threatens the public interest. But where the scams themselves are difficult to spot, patterns may be virtually impossible to establish. Moreover, even successful FTC actions may yield little in the way of preventative or compensatory benefit for the individual user.

My aim in this Note, therefore, is to offer one possible means …

Digital Broadcasting: The Cost Of Copyright, Journal Staff

Vanderbilt Journal of Entertainment & Technology Law

Music copyright issues pervade the Internet these days, but few have roots as far back as 1915. Since that time, radio broadcasters and copyright owners have found themselves embroiled in a conflict over the extent to which copyright law should and can dictate the terms and cost of broadcasting music. Advances in dig- ital transmission technology, followed closely by the introduction of two important legislative enactments, have kept the debate fresh in recent years. Now, an inter- pretative ruling by the Copyright Office as to the applicability of the latter to the former threatens to extend the dispute well into …

The Price Of Fame: The Celebrity Image As A Commodity And The Right Of Publicity, Ty Ford

Vanderbilt Journal of Entertainment & Technology Law

This Note will examine several recent cases that illustrate how major stars are using the ever-widening scope of such doctrines to control their images in the media. These examples show how the right of publicity has evolved from a right designed to protect a performer's uniquely personal attributes and stylings from unauthorized (and unpaid for) exploitation into a legal fortress constructed around movie-star images that allows the star to separate unwanted attention from necessary popularity. Furthermore, it will explore the inherent contradictions in such a development, showing how it can be used to manipulate and control the very peripheral industries, …

Irreconcilable Congressional Treatment Of Internet Service Providers As Speakers, Raymond Shih Ray Ku

Vanderbilt Journal of Entertainment & Technology Law

This Article argues that under the CDA and OCILLA, Congress adopted facially inconsistent approaches towards ISP liability for expression. Nonetheless, despite the overt differences, it is possible to discern an underlying principle for determining when ISPs should be considered speakers that reconciles this inconsistency. Put simply, the CDA and OCILLA support an approach toward determining when ISPs are speakers that focuses on whether an ISP exercises editorial control over its network. This approach is evidenced by the fact that both statutes recognize that ISPs are able to exercise editorial control over any and all content on their networks, and both …

Why Traditional Insurance Policies Are Not Enough: The Nature Of Potential E-Commerce Losses & Liabilities, Anna Lee

Vanderbilt Journal of Entertainment & Technology Law

There are two general categories of insurance policies: first-party policies and third-party/liability policies. First-party polices provide benefits directly to policyholders for losses suffered by the policyholders. For example, fire damage to the policyholder's plant or financial loss resulting from the interruption of the policyholder's business would be covered under the first-party insurance. Generally, these first-party losses are covered under policies such as "all risk," "named peril," "business interruption," or "expense to reduce loss" coverages. Among these various types of first-party policies, "all risk" insurance policies provide the broadest coverages.

Third-party or liability policies provide protection for claims against the policyholder …

Flag On The Play: 25 To Life For The Offense Of Murder, Sean Bukowski

Vanderbilt Journal of Entertainment & Technology Law

This Note will consider the extent to which the "professional athletic" community should add its own sanctions to those imposed by public law. First, it asks whether athletes are getting into more trouble than in the past, as it is possible that athletes are just following a trend of society, and thus are no more prone to violence than anyone else. Nevertheless, violent crime, especially that committed by role models like athletes, is especially damaging to society. Therefore, the Note then addresses why the sports leagues should care whether their athletes are committing such offenses.

It will then examine how …

Beyond Eco-Imperialism: An Environmental Justice Critique Of Free Trade, Carmen G. Gonzalez

Faculty Articles

The article contributes to the trade and environment literature by assessing the claim that industrialized country proposals to integrate environmental protection into the WTO trade regime constitute environmental imperialism - the imposition of industrialized country values and preferences on less powerful nations. This claim is usually based on two distinct premises. The first is that environmental protection is a luxury that poor countries can ill afford. The second is that wealthy countries have played a leadership role in the protection of the global environment. The article questions these assumptions. It argues that environmental protection is essential to well-being of the …

Will The Wolf Survive?: Latino/A Pop Music In The Cultural Mainstream, Steven W. Bender

Faculty Articles

For years, White artists have dominated American pop music. With the notable exception of Black vocalists, non-White artists have rarely experienced sustained and substantial success in this market. Although Latino/a artists have made modest inroads into the pop music mainstream in the past, the current success of Latino/a singers is unprecedented for its sales figures, its domination of pop radio, the diversity of backgrounds of the Latino/a artists riding the same wave, and the degree of American media attention focused on this "phenomenon." In addition to the financial rewards enjoyed by artists (and their record companies) who succeed in the …

Game Theory And Customary International Law: A Response To Professors Goldsmith And Posner, Mark A. Chinen

Faculty Articles

In a pair of recent articles, Professors Jack Goldsmith and Eric Posner have used game theoretic principles to challenge the positivist account of customary international law. Their writings join other early attempts to apply game theory to the international law sources. This article has two purposes. The first is to evaluate game theory's potential for yielding greater insight into customary international law and international law more generally. The second is to respond to the conclusions about customary international law drawn by Professors Goldsmith and Posner. In Part I, Professor Chinen discusses the approach proposed by these two scholars. Traditionally, customary …

International Law, Human Rights Beneficiaries, And South Africa: Some Thoughts On The Utility Of International Human Rights Law, Ronald Slye

Faculty Articles

This article uses the case of South Africa to illustrate four effects of international human rights law on human rights beneficiaries. First, international human rights law acts as a constraint on state action. Second, it is a source of norms that can be incorporated into, and thus interpreted and implemented by, domestic legal institutions. Third, it acts as a direct or indirect constraint on the actions of international governmental and non-governmental organizations. Fourth, it directly empowers individual victims. The Article also uses the South African example to provide suggestions for additional areas of research and advocacy for international human rights …

Law Students' Undergraduate Major: Implications For Law School Academic Support Programs (Asps) Performance, Bryan Adamson, Mark Graham

Faculty Articles

This article addresses whether or not law students' comparative educational backgrounds affect their ability to solve general deductive reasoning problems. This question leads to two broader issues: (1) whether any comparative differences in general reasoning competency affect a student's ability to reason within a legal framework; and (2) whether a student's reasoning competency remains static over three years of law school. This article addresses the first issue. At present, a separate study is being conducted to explore how general reasoning differences may influence a student's ability to reason within a legal framework. This article contends that law school academic support …

Sentencing Reform In The Other Washington, David Boerner, Roxanne Lieb

Faculty Articles

Washington State's sentencing reform in the early 1980s encompassed all felonies, including those resulting in sentences to prison and jail; the state also enacted the first and only sentencing guidelines for juvenile offenders. Several lessons are suggested from Washington's experience: sentencing guidelines can change sentencing patterns and can reduce disparities among offenders who are sentenced for similar crimes and have similar criminal histories; a sentencing commission does not operate as an independent political force, except when such delegation serves the legislature's purpose; guidelines are policy-neutral technologies that can be harnessed to achieve the legislature's will; in states where citizen initiatives …

Los Angeles As A Single-Cell Organism, Robert S. Chang

Faculty Articles

In this article, Professor Robert S. Chang discusses the Los Angeles Police Department's Rampart scandal. Professor Chang compares Los Angeles to a single-celled organism that lives according to three basic survival rules. These three rules are: 1) keep out that which is undesirable, 2) isolate and control that which cannot be kept out, and 3) expel, whenever possible, undesirable elements. The author first discusses some of the historical antecedents to the Rampart scandal in Los Angeles. The author then discusses how the United States as a whole has historically acted according to the three basic survival rules exhibited by a …

Placid, Clear-Seeming Words: Some Realism About The New Formalism (With Particular Attention To Promissory Estoppel), Sidney Delong

Faculty Articles

This Article examines the recent doctrinal shift from realist jurisprudence to the “new formalism” as it arises in the creation of contract obligation. Many recent decisions involving promissory estoppel appear to display a trend away from reliance protection in the commercial world. While these decisions are formalist insofar as they favor textual forms over contextual forms, the Author argues that this trend is more properly characterized as a realist effort. This Article examines promissory estoppel in the commercial world and suggests that the “new formalism”, driven by the most “realist” of motives, will expunge liability for promissory estoppel in the …

Fair Use And The Digital Distribution Of Music - Recording Industry Association Of America V. Napster, Inc. (A Comparative Analysis Of A Restraint On Copyright In The United States Of America And Trinidad And Tobago), Michelle Lisa Alexander

LLM Theses and Essays

The purpose of this thesis is to undertake a critical analysis of the Napster judgment and its treatment of the doctrine of fair use, to determine whether the doctrine can retain its integrity in the internet age. It is proposed that as technology advances, U.S. policymakers are moving away from the constitutional objectives of U.S. copyright law and are equating copyright interests with property rights, to the detriment of noncommercial users of copyrighted works. Further, it is suggested that the decision in the Napster litigation is important for the evolving landscape of U.S. copyright law, as it signals the difficulty …

A Trade/Human Rights Linkage By The United States: Is Enforcing Human Rights By Use Of Trade Sanctions Effective?, Blaise Omondi Odhiambo

LLM Theses and Essays

Universally held basic human rights must remain separate from political rights. Such basic human rights are those that are so universal that all societies, systems, nations, and ideology could, and do espouse them. Conversely, political rights are those that are dependent upon compatibility with the system of government in place and arc therefore far less likely to gamer universal support. An effective multilateral enforcement mechanism can only succeed if there are universal agreement and acceptance of the protected rights. Accordingly, at the outset of such a mechanism, only basic human rights may be enforced through trade sanctions. Once such a …

Liberalization And Politics Of Environmental Management In Tanzania, Alicia Bosensera Magabe

LLM Theses and Essays

This thesis examines the factors that have prevented the development of an environmental protection legal and institutional regime in Tanzania. It argues that the central focus of economic reforms has been to kick-start the economy by increasing growth through the maximization of resource exploitation. As a result, concerns for environmental sustainability have been relegated to the periphery of the development agenda. Secondly, as a result of domestic resource scarcity brought on by the economic crisis, environmental policymaking has been held hostage to the influence of foreign donors whose agendas have often been at cross-purpose to environmental protection. Thirdly, the nature …

Evolution Of The Arm's Length Standard In The Us Transfer Pricing Legislation And Russian Arm's Length Perspective, Andrei A. Shutov

LLM Theses and Essays

This thesis analyzes the evolution of the arm's length standard (ALS) as the key element of the transfer pricing control system in the US. This thesis also addresses some issues on creation of transfer pricing legislation in the Russian Federation and focuses on three sets of problems. First, it provides the general outline of the legislative history of the ALS as well as the history of the ALS' application in the US, including an overview of landmark cases, which revealed some conceptual problems with respect to the ALS. Secondly, the thesis addresses core problems associated with the ALS, such as …

Reforming China's Partnership Law: Achievements, Problems And Prospects, Hongbing Fan

LLM Theses and Essays

This thesis proposes some measures to reform China's partnership law after providing an overview of China's partnership development in a historical perspective. After a brief introduction in Part I, Part II reviews the historical development of partnerships since the founding of the People's Republic of China. Much emphasis is put on significant changes since 1978. Part III examines the basic structure and content of the present laws and regulations on partnership in China. Part V highlights the problems and limits facing China's partnership law. Measures are proposed in Part IV with detailed reference to the United States partnership law. As …

The Impact Of Modernization And Development On Muslim Women In Egypt: A Legal Perspective, Mazahir Muhammed Ata El-Sid

LLM Theses and Essays

This study examines the effectiveness of the modernization theory in Egypt, a developing Muslim society. As in the case of other developing societies, Egypt's modernization is uneven. Therefore, I will examine modernization as it relates to Muslim women in Egypt in as far as they vary in their exposure to the modernizing influences of advanced technology. Egypt has experienced a variety of social, judicial, economic, demographic, and political modifications. These changes have greatly affected Muslim women in Egypt and their family life. Not all of the issues underlying modernization will be addressed in this research. Type of family structure and …

Legalize It? -Osp And Peer-To-Peer Network Liability For Online Music Copyright Infringements In The United States And Germany, Christian Nils Jochen Engelhardt

LLM Theses and Essays

It may be useful to explain why a comparative approach was chosen. It is easy and comfortable to get caught up in one's own legal system and not look abroad. It is often difficult enough to understand and apply one’s own laws accurately and the study of a foreign legal system may seem an effort too great. Yet, this reluctance to look beyond the familiar is fatal to legal development and improvement since entirely new ideas are rare in the field of law and the main source of change and new approaches is borrowing from another legal system. If one …

China And Wto: The Impact Of International Norms On China’S Foreign Trade Legal Reform, Yun Zeng

LLM Theses and Essays

This thesis examines the impact of the GATT/WTO system on China’s foreign trade legal reform and further explains the beneficial effects of China’s membership for themselves, the WTO, and other participating nations. The thesis elaborates briefly on the history of China’s effort to become a member of the WTO. It further examines major obstacles to China’s admission to WTO in terms of compatibility between the pre-form Chinese foreign trade regime and the WTO framework. The thesis then describes China’s reform efforts in its foreign trade legal regime since its application to the GATT in 1986 and assess the influence of …

A Place At The Table: Bush V. Gore Through The Lens Of Race, Spencer A. Overton

GW Law Faculty Publications & Other Works

Although African Americans cast a majority of ballots rejected by counting machines following the 2000 presidential election in Florida, legal academic commentators have not grappled with the significance of race in their discussions of Bush v. Gore. This Essay uses race to expose structural shortcomings of merit-based assumptions about democracy embedded in the U.S. Supreme Court's majority per curiam. The Court prohibited a manual count of imperfectly marked ballots, effectively conditioning membership in political community on individual capacity to produce a machine-readable ballot. Despite the Court's individualized focus, however, merit-based assumptions about democracy interfere primarily not with individual rights, but …

The Purposes Of Privacy: A Response, Jeffrey Rosen

GW Law Faculty Publications & Other Works

In this essay, Jeffrey Rosen responds to eight articles about his recent book, The Unwanted Gaze, published as part of a special symposium issue of the Georgetown Law Journal. The eight contributors to the symposium were Professors Anita Allen, Julie Cohen, Rosa Ehrenreich, Lawrence Lessig, Sanford Levinson, Robert Post, Jed Rubenfeld and Nadine Strossen. Rosen defends his argument that privacy protects against the dangers of being judged out of context, insisting that invasions of privacy can lead to social misinterpretations that constitute an injury distinct from injuries to dignity or autonomy. He expands on his claim that some of the …

Privacy And Power: Computer Databases And Metaphors For Information Privacy, Daniel J. Solove

GW Law Faculty Publications & Other Works

Journalists, politicians, jurists, and legal academics often describe the privacy problem created by the collection and use of personal information through computer databases and the Internet with the metaphor of Big Brother - the totalitarian government portrayed in George Orwell's Nineteen Eighty-Four. Professor Solove argues that this is the wrong metaphor. The Big Brother metaphor as well as much of the law that protects privacy emerges from a longstanding paradigm for conceptualizing privacy problems. Under this paradigm, privacy is invaded by uncovering one's hidden world, by surveillance, and by the disclosure of concealed information. The harm caused by such invasions …

Children's Interests And Information Disclosure: Who Provided The Egg And Sperm? Or Mommy, Where ( And Whom) Do I Come From?, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This essay focuses on the relationships between children, unknown donors, and biological parents. It argues that children deserve access to information about their biological pasts both when the donor's identity is known to the biological parent and when it is unknown. Once an adoption has been finalized or once known gamete donors have agreed not to assert parental rights, the donors should be unable to assert parental rights. But the finality of adoption or gamete provision (which includes eggs, sperm, or embryos) should not prevent the disclosure of information about the identity of biological parents and gamete providers to a …

Telling A Less Suspicious Story: Notes Toward A Non-Skeptical Approach To Legal/Cultural Analysis, Paul Schiff Berman

GW Law Faculty Publications & Other Works

In the generation of law and society research that emerged with the formation of the Law and Society Association, sociolegal scholars, building on the Legal Realist attack on formalism, told a story primarily about the possibility of social progress through law. Over the past two decades, however, sociolegal scholars have become increasingly disenchanted with the reformist project. These writers, influenced by Michel Foucault and other postmodern theorists, have begun to see law not as an instrument for dispensing justice, but as a constitutive societal force shaping social relations, constructing meaning, and defining categories of behavior. As part of the move …

The Long Lingering Shadow: Law, Liberalism, And Cultures Of Racial Hierarchy And Identity In The Americas, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This is an article on race relations and comparative legal history. It contrasts the law of race and slavery in three Latin American nations, Brazil, Colombia, and Venezuela, with the parallel history in the United States. The article examines the Afro-Latin experience as a critical issue in its own right and as a way to better inform our discussion of racial hierarchy, identity, and legal remedy in the United States. This article examines the paradoxical role played by liberal legal and cultural norms in the United States. It shows how liberalism helped create a system of castelike separation between black …