Law Commons^™

Regulation Fd: Sec Reestablishes Enforcement Capabilities Over Selective Disclosure., John P. Jennings

St. Mary's Law Journal

This Recent Development focuses on the potential effects Regulation Fair Disclosure (FD) will have on the participants in the American capital market and on the stock markets themselves. Congress and the Securities Exchange Commission (SEC) seek to achieve confidence in the integrity and fairness of the American stock market and protection of investors from fraud by promoting equal opportunities for investors. In order to maintain a competitive edge, vis-à-vis its foreign counterparts, the United States must continually refine its financial systems to maximize fairness and integrity. This Recent Development focuses on selective disclosure—allowing a limited segment of investors access to …

Reining In Property Owners' Associations' Power: Texas's Need For A Comprehensive Plan., Karen Ellert Pena

St. Mary's Law Journal

Abstract Forthcoming.

Texas, Step Up To The Plate And Compensate: Face To Face With Joyce Ann Brown, Wrongfully Convicted Never To Receive Compensation, Natasha L. Brooks

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming

Attention Deficit Hyperactivity Disorder (Adhd): A Childhood Diagnosis Or A Criminal Defense?, Bertha Nelda Garza

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming

Interpretation Of The Definition Of 'Refugee' Under Art. 1(A)(2) Of The Convention Relating To The Status Of Refugees, With A View To The Elaboration Of A Community Instrument To Guide The Application Of The Refugee Convention Pursuant To Art.63(1)(C) Of The Treaty Of The European Communities, James C. Hathaway

Other Publications

In approaching the task of recommending how to structure a Directive on common minimum standards for the recognition ofrefugee status in the Member States of the European Union, I have struggled to avoid two extremes. On the one hand, my recommendations might simply have reflected a search for the common denominator of relevant practice. The risk of this sort of analysis is, of course, that it clearly promotes a "race to the bottom," in which those States which presently fully implement their international obligations are encouraged to reduce the standard of protection. The alternative extreme would have been to define …

Kathleen A. Sullivan: A True Teacher's Teacher, Christine N. Cimini

Articles

This essay is part of a group of five memorial tributes to Professor Kathleen A. Sullivan of the Yale Law School. The group of tributes reflect on the numerous contributions Professor Sullivan made to her colleagues, students, clients and the clinical education community. In this memoriam tribute, the authors explore three themes that Professor Sullivan cared deeply about: thinking critically about confidentiality, privacy and autonomy; incorporating issues of difference into our teaching and practices; and encouraging people (students, clients and colleagues) to find and assert their own voices, even – and especially – when those voices are different than ours.

Responsible Regulation: A Sensible Cost-Benefit, Risk Versus Risk Approach To Federal Health And Safety Regulation, Steve Calandrillo

Articles

Federal health and safety regulations have saved or improved the lives of thousands of Americans, but protecting our citizens from risk entails significant costs. In a world of limited resources, we must spend our regulatory dollars responsibly in order to do the most we can with the money we have. Given the infeasibility of creating a risk-free society, this paper argues that a sensible cost-benefit, risk versus risk approach be taken in the design of U.S. regulatory oversight policy. The goal should always be to further the best interests of the nation, rather than to satisfy the narrow agenda of …

Forward To Fundamental Alteration: Addressing Ada Title Ii Integration Lawsuits After Olmstead V. L. C, Steve Calandrillo, Jefferson D.E. Smith

Articles

In 1999, the Supreme Court reviewed the case of Olmstead v. L.C. by Zimring, which has been called the Brown v. Board of Education for the law of disability discrimination. The Court ultimately agreed with the Department of Justice ("DOJ") and held that the Americans with Disabilities Act ("ADA"), along with its supplementary Integration Regulation, requires a State that offers treatment to persons with disabilities to provide such treatment in a community setting where such a placement would not be an unreasonable change or a fundamental alteration in the State's program. Advocates of community care have long argued that such …

Blame It On The Cybersquatters: How Congress Partially Ends The Circus Among The Circuits With The Anticybersquatting Consumer Protection Act?, Xuan-Thao Nguyen

Articles

Congress blamed the cybersquatters for the need to pass another trademark cyberlaw. Congress enacted the Anticybersquatting Consumer Protection Act (“ACPA”) on November 29, 1999. The ACPA aimed to protect consumers and businesses, to promote the growth of electronic commerce, and to provide clarity in the law for trademark owners by prohibiting cybersquatting activities on the Internet. Prior to the enactment of the ACPA, the Federal Trademark Dilution Act (“FTDA”), which was passed by Congress in 1995 and became effective on January 16, 1996, was hailed as a powerful tool to combat cybersquatters on the Internet. That presumed powerful tool turned …

Shifting The Paradigm In E-Commerce: Move Over Inherently Distinctive Trademarks, The E-Brand, I-Brand And Generic Domain Names Ascending To Power?, Xuan-Thao Nguyen

Articles

“What's in a name!” laments Juliet at her Shakespearean balcony. Four hundred years later, in the world of e-commerce, Juliet's question would be “What's in a domain name?” After spending all of the Montague's wealth, Romeo might be able to respond, “Call me but love.com.” The price tag for some generic domain names cost a small fortune: Sex.com for $250 million, Business.com for $7.5 million, Broadband.com for $6 million, Loans.com for $3 million, Flu.com for $1.4 million, and Bingo.com for $1.1 million.

In 1995, Procter and Gamble registered hundreds of generic domain names and offered them for sale at auction …

Should It Be A Free For All? The Challenge Of Extending Trade Dress Protection To The Look And Feel Of Web Sites, Xuan-Thao Nguyen

Articles

In the e-commerce world, a company's web site becomes the primary communication center with the customer. The web site is where the company displays products, presents marketing materials, and provides sales and post-sales support. Increasingly, companies are spending valuable resources to build and maintain their web sites. With the rapid change in web technology, many web sites now feature more than just ordinary text. Color, clipart, graphics, designs, animations, and sounds are now part of the overall appearance of web sites. Yet copying an image from a web site is just one click away. What protection is available to the …

Executive Orders And Presidential Commands: Presidents Riding To The Rescue Of The Environment, William H. Rodgers, Jr.

Articles

Presidential executive orders are legal and political documents. They are also uniquely personal utterances of the president and the administration. The right words at the appropriate time can motivate and move the human spirit, and they can link this president and this moment to the strongest of ideas. Being personal and tending to the heroic, the executive order can thus be perceived as accomplishing a great public good.

This article will explore the pros and cons of the executive order tool. I will then evaluate a number of executive orders that have impacted contemporary environmental policy. I will conclude by …

Commentary: International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection—or variations in that protection—hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

Curing Conflicts Of Interest In Clinical Research: Impossible Dreams And Harsh Realities, Patricia C. Kuszler

Articles

This article will explore conflicts of interest in the context of clinical research, focusing on the incentives and practices that foster such conflicts. Part I will briefly define and categorize the revenue streams at play in clinical research—both contemporaneous with the clinical trial, and the downstream, long-term gains available to the researcher and research university. Part II will discuss how these entangled revenue streams result in financial and non-financial conflicts of interest that affect the nature and balance of the research enterprise and potentially endanger patients and human subjects. Part III will summarize current conflicts of interest regulations and policies, …

Victimized Twice -- The Intersection Of Domestic Violence And The Workplace: Legal Reform Through Curriculum Development, Lea B. Vaughn

Articles

Domestic violence is at least a two-fold problem for American society. On the one hand, it is one of the leading causes of violence at the workplace against women. On the other, it prevents many women from attaining the economic security that would enable them to escape violence. After describing the background of this problem, this paper will canvass current legal remedies that are available to help battered women achieve economic security. This survey leads to the conclusion that the current pastiche of remedies is often ineffective because of their piecemeal approach to the problem, or because current doctrine does …

International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Articles

This commentary will focus on the participants' proposals relative to the laws of other countries. Particularly, assuming that the same proposals were to be made in an international negotiation, my commentary reflects potential reactions and responses from Japanese and European delegates.

Protecting The Oceanic Gardens Of Eden: International Law Issues In Deep-Sea Vent Resource Conservation And Management, Craig Allen

Articles

This article seeks to stimulate the nascent discussion on legal questions presented by access to, and use of, deep-sea hydrothermal vent sites and resources and to help guide ocean policy analysts in their efforts to formulate and implement appropriate conservation and management measures adapted to the unique multiple-use conflicts posed by the vent phenomena. The inquiry is timely and important for the vent communities, some of which are already showing signs of the human footprint—a footprint that may in the not too distant future include the tracks of submarine bulldozers as they set about the job of seabed mining.

The …

Forum Allocation In Toxic Tort Cases: Lessons From The Tobacco Litigation And Other Recent Developments, Mark Weber

College of Law Faculty

No abstract provided.

The Manipulation Of Indigenous Status: The Federal Government As Shape-Shifter, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

"The federal-Indian relationship is like no other in the world. Indian tribes are denominated 'domestic-dependent nations' but their practical relationship with the United States 'resembles that of a ward to his guardian.' Indian tribes appear to have the same political status as the independent states of San Marino, Monaco, and Liechtenstein, yet they have little real self-government and seem to be forever mired in a state of political and economic pupilage."

This fifteen-year-old statement from Vine Deloria, Jr., the preeminent Indian political and legal scholar, still accurately reflects the convoluted nature of indigenous political, legal, and economic statuses in the …

Religion And American Political Judgments, Kent Greenawalt

Faculty Scholarship

This Article addresses the extent to which officials and citizens should rely directly on their religious convictions to reach political judgments and make political arguments. Reviewing opposing "exclusive" and "inclusive" positions, this Article suggests that officials generally should not articulate arguments in religious terms. Many officials should have a greater freedom to rely on religious bases of judgments, and private citizens should not regard themselves as constrained in the manner of officials. This approach, defended initially from the perspective of detached political philosophy, fits comfortably with a variety of overarching religious views. The constraints it suggests should be regarded as …

Intergovernmental Mediation : A Technique For Successful Local Government Partnerships, W. Thomas Wiseman

Dissertations

Problem. Statement Local government officials are faced with ever-increasing citizens' demands and unfunded Federal and State mandates while competing with neighboring governments for dwindling federal and state monies. Both of these tend to fuel intergovernmental conflicts. Research is necessary, therefore, to determine the most effective ways of addressing the alarming rate at which intergovernmental conflict is occurring in order to meet the needs of local government officials.

Methodology. This study examined the relationship between local government organizations in terms of intergovernmental mediation, conflict resolution, and the sharing of revenues and resources. Data were collected from county commissioners in Ohio, …

Institutional Arrangements And Individual Rights: A Comment On Professor Tribe's Critique Of The Modern Court's Treatment Of Constitutional Liberty, Dan T. Coenen

Scholarly Works

Professor Coenen analyzes Professor Tribe's contention that the present day Supreme Court's constitutional work is marked by an unjustified two-track approach. Professor Tribe has built this claim on an elaborate assessment of Saenz v. Roe, in which the Court -- to the surprise of many prognosticators -- invalidated a state statute that imposed temporary limitations on welfare benefits for new residents. He contends that the Court employed the open-stanced constitutional methodology of “structural inference” in deciding Saenz only because that case involved institutional arrangements. According to Professor Tribe, the modern Court has carefully (and unjustifiably) confined its use of structural …

Tax Expenditures, Social Justice, And Civil Rights: Expanding The Scope Of Civil Rights Laws To Apply To Tax-Exempt Charities, David A. Brennen

Scholarly Works

In recent years, courts have decided a number of cases in which private organizations discriminated against people based solely on their race, gender, sexual orientation, or other immutable traits. For example, in 2000, the Boy Scouts of America revoked a New Jersey man's membership in the Boy Scouts because he was gay. New Jersey's supreme court held that the Boy Scouts' action violated New Jersey's anti-discrimination law. Notwithstanding the state court's holding, the United States Supreme Court concluded that the First Amendment prevented any court from forcing the Boy Scouts to keep a gay man as a member of its …

Clean Air, Clean Processes? The Struggle Over Air Pollution Law In The People's Republic Of China, William P. Alford, Benjamin L. Liebman

Faculty Scholarship

This Article commences in Part I by introducing law-making in China before reconstructing the drafting process and attendant political battles leading up to the revision of China's principal air pollution law in 1995 – which, as Ackerman and Hassler observed with reference to the United States, can be every bit as messy as the soiled air such efforts are intended to address. Part II then examines the institutional factors that ultimately are critical to an understanding of why the 1995 APPCL, as promulgated, fell well short of its original authors' objectives but set in motion a process that over time …

Legal Education Reform: Modest Suggestions, Alan Watson

Scholarly Works

No approach to legal education will be perfect, given that (in my opinion) a law school should serve various purposes. But I should like to offer a few modest and practical suggestions. They are modest in that they do not require additional time for law studies. They are practical in that they will increase the exposure of students both to law as practice and to law as an intellectual discipline. In addition they involve no greater burden on law schools.

First, and this should not be controversial -- but I fear will be the most controversial -- would be the …

Foreword: Joint Conference On Legal/Ethical Issues In The Progression Of Dementia, Edward D. Spurgeon

Scholarly Works

The Joint Conference on Legal/Ethical Issues in the Progression of Dementia grew out of the pressing need to address the very real legal and ethical dilemmas that arise in situations like the one of Marie McDonough Larson and her family. Five groups joined forces to sponsor the Conference: the Borchard Foundation Center on Law and Aging; the Alzheimer's Association; the American Bar Association's Commission on Legal Problems of the Elderly; the National Academy of Elder Law Attorneys; and the University of Georgia School of Law. Held at the Center for Continuing Education at the University of Georgia, the Conference spanned …

Sentencing Eddie, Gerard E. Lynch

Faculty Scholarship

The mandatory minimum sentences attached to federal narcotics violations have come in for plenty of criticism. The United States Sentencing Commission in 1991 submitted a lengthy report critical of the mandatory minimum provisions. A political protest organization, Families Against Mandatory Minimums, has been formed, and has gotten some media attention. Newspaper columnists,professional commentators, judges, and academics, have criticized the statutes. Amidst the controversy over President Clinton's last-minute pardons of various offenders, his pardons of a number of marginal defendants sentenced to lengthy terms under these statutes have drawn little or no objection. Even Chief Justice Rehnquist, a strong voice for …

Allchin’S Folly: Exploring Some Myths About Open Source Software, Joe Miller

Scholarly Works

The twists and turns in the government’s antitrust case against Microsoft – from the D.C. Circuit’s stormy questioning at the two day oral argument in late February 2001 to its affirmance of the lion’s share of the government’s case in June 2001, and then from the settlement between the United States and Microsoft to the continuing battle by nine states for tougher sanctions – have garnered their share of press attention. But the high-profile antitrust case has not been the only Microsoft-centered controversy during the past year. Another involves the open source software movement about which Microsoft has professed grave …

Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article argues that the Supreme Court’s majority opinion in Davis v. Monroe County Board of Education did not do enough to explicitly assuage the dissenters’ concerns and aims to do so itself. Davis permitted liability for school districts that purposely ignore instances of student-on-student sexual harassment that deprived a student of the opportunity for education. The three issues raised by the dissent were federalism, whether the conduct at issue is sexual harassment, and First Amendment concerns about the aggressor’s speech being protected. In response, I argue that the majority opinion does not violate federalism principles, the harassment qualifies as …

Race And Negotiation Performance, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the correlation between race and negotiation performance with respect to the results achieved on Negotiation course exercises. It initially discusses empirically established differences between whites and blacks that might influence bargaining encounters, and then examines nine years of data in my Negotiation class. It is interesting to note that no statistically significant differences were found between black and white student negotiation results. This article is significant, because it counteracts the apparent belief among African-American athletes that white agents should do better when they negotiate with team owners who are usually white than black agents.