Law Commons^™

The Constitution And The New Deal, Richard D. Friedman

Reviews

The Supreme Court of the New Deal era continues to captivate American lawyers and historians. Constitutional jurisprudence changed rapidly during the period. Moreover, some of the most significant changes appeared - whatever the reality - to result from pressure imposed in 1937 by President Franklin Roosevelt's plan to pack the Court with Justices amenable to his programme. The structure of constitutional law that emerged within a few years of Roosevelt's death remains intact in significant respects today.

"How To Think About Equality." Review Of Sovereign Virtue: The Theory And Practice Of Equality, By R. Dworkin, Don Herzog

Reviews

Ronald Dworkin's' latest might well seem sharply discontinuous with his other work. The formal theoretical apparatus that kicks off the book is a forbiddingly abstract - some will say arcane - hypothetical auction, coupled with a hypothetical insurance market. There is simply nothing like it in Taking Rights Seriously, or A Matter of Principle, or Law's Empire, or Life's Dominion, or Freedom's Law. Then again, Dworkin first published the key papers on the auction some twenty years. ago and has never flagged, as far as I know, in his commitment to the basic project.2 Theorists have been waiting for the …

Why Tax The Rich? Efficiency, Equity, And Progressive Taxation, Reuven S. Avi-Yonah

Reviews

In Greek mythology, Atlas was a giant who carried the world on his shoulders. In Ayn Rand’s 1957 novel Atlas Shrugged, Atlas represents the “ prime movers”—the talented few who bear the weight of the world’s economy.1 In the novel, the prime movers go on strike against the oppressive burden of excessive regulation and taxation, leaving the world in disarray and demonstrating how indispensable they are to the rest of us (the “second handers” ).

"Business On Trial: The True Story." Review Of Business On Trial: The Civil Jury And Corporate Responsibility, Richard O. Lempert

Reviews

Jury trials are very much an affair of stories. Lawyers tell stories to juries. Evidence is more convincing when presented in story order. Jurors use stories to make sense of evidence. And litigants, particularly losing litigants, tell stories about juries. One of the favorite stories of losing business litigants, second only to the irrational jury story, is the Robin Hood story. Juries love to play Robin Hood, to steal from the rich (businesses and insurance companies) and to give to the poor (individual litigants, especially individual tort litigants). The storytellers see no mystery here. Jurors are "little guys," like the …

A Correct Analysis Of The Tax Treatment Of Contingent Attorney's Fee Arrangements: Enough With The Fruits And The Trees, Gregg D. Polsky

Scholarly Works

The tax treatment of contingent attorney's fee arrangements has been the subject of much recent debate and litigation. Some courts and commentators conclude that a plaintiff must include the entire settlement amount, including attorney's fees, in her gross income, while other courts and commentators conclude that a plaintiff must include only her recovery net of attorney's fees. Because of the alternative minimum tax, the resolution of this issue may have a significant effect on the plaintiff's tax liability. In analyzing the issue, courts and commentators have focused on the assignment of income doctrine by inquiring whether, upon execution of a …

The New Jurisprudence Of The Necessary And Proper Clause, J. Randy Beck

Scholarly Works

Several recent Supreme Court decisions evidence reinvigorated principles of federalism and an increased willingness to strike down legislation as beyond the power of Congress. In this article, Professor Beck considers this trend in light of the persistent debate surrounding the implied powers of Congress under the Necessary and Proper Clause. Because the Necessary and Proper Clause represents the outer boundary of congressional authority, consideration of this provision necessarily illuminates discussions of state sovereignty and reserved powers.

The article begins with an historical overview of the Framers' understanding of the Necessary and Proper Clause, leading up to the Supreme Court's decision …

Charities And The Constitution: Evaluating The Role Of Constitutional Principles In Determining The Scope Of Tax Law's Public Policy Limitation For Charities, David A. Brennen

Scholarly Works

This Article expands the discussion of whether tax-exempt charities, for constitutional law purposes, should be treated as government actors, as private actors or as something in between. While government actors are subject to constitutional law restrictions concerning discrimination and free speech, private non-government actors are not generally subject to these same restrictions. Although tax-exempt charities are often thought of as sovereigns and, thus, government-like, the fact remains that charities are private entities created to serve public purposes. As private entities, charities - like all other private entities - are not necessarily bound by constitutional law principles. Still, the many “public” …

Lawyers And Decisions: A Model Of Practical Judgment, Alexander W. Scherr

Scholarly Works

What do lawyers do, and how do they think in practice? Certainly, lawyers analyze law, and apply it to facts: the law school answer. This article proposes a more fluid notion: that lawyering prompts a mindfulness associated with decision-making, a mindfulness that engages and integrates a number of different capacities. Lawyers engage in a complex and unique thought process that relies only partially on rigorous analysis of legal principle. Lawyers must also integrate non-legal and even non-conceptual realities in considering client decisions. This integration emerges from the lawyer-client relationship and flexes to the demands characteristic of lawyering tasks. Lawyering is …

Intervention In Roman Law: A Case Study In The Hazards Of Legal Scholarship, Peter A. Appel

Scholarly Works

In this Article, I offer a case study of one of the hazards presented by legal scholarship in law reviews as it has evolved over the last century. The standard law review article typically begins with an overview of the author's subject, frequently involving a historical perspective or a chronology of the development of a doctrine. This background section stems from a number of causes, but many attribute it to the fact that most law reviews are student-edited. In order to evaluate an author's argument, students need a brief course in, say, the basics of trade law and pollution control …

Dissenting Opinions: In The Georgia Supreme Court, R. Perry Sentell Jr.

Scholarly Works

Under our system of justice, each jurisdiction necessarily evolves its own distinct tradition of judicial dissent. That evolution's impetus, history, pattern, and results all converge in an informative profile--affording yet another means of studying a state's highest appellate court. A dissent profile of the Georgia Supreme Court thus offers an additional evaluative view of the state's most important judicial cathedral.

The Writ Of Habeas Corpus, Donald E. Wilkes Jr.

Scholarly Works

A fundamental legal safeguard of freedom and the most important English common law writ, the writ of habeas corpus is a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. The writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law. Whenever imprisonment violates a constitutional or fundamental right, there is an infringement of the right …

Patterns Of Drafting Errors In The Uniform Commercial Code And How Courts Should Respond To Them, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This article identifies eight recurring patterns of drafting in the Uniform Commercial Code (UCC). For each of these patterns, and for other idiosyncratic errors, the article recommends specific judicial responses. These responses take advantage of many of the UCC's unique characteristics. While the problem of drafting errors in the UCC may seem minor in light of the model code's high overall quality, the suggested responses can lead to a more efficient and effective application of the statute.

Federal Courts, Overbreadth, And Vagueness: Guiding Principles For Constitution Challenges To Uninterpreted State Statutes, Mark L. Rienzi, Stuart Buck

Scholarly Articles

When a federal court is asked to declare an uninterpreted state law to be unconstitutionally overbroad or vague, it faces several tensions. On one side, the overbreadth and vagueness doctrines urge the court to strike down the statute on its face. On the other side, the related doctrines of constitutional avoidance, narrowing interpretations, abstention and certification all urge the court to find some way to save the statute at least as to some applications. But because of the cardinal principle that federal courts are not the final authority on the interpretation of state law, many federal courts err on the …

The Global Digital Divide: Focusing On Children, Susanna Frederick Fischer

Scholarly Articles

This article addresses the global aspect of the digital divide in two ways. First, I will focus primarily on the issue of school-aged children's access to information and communications technologies (ICT) globally. My focus is on children for the simple reason that children embody the future. Second, I will limit my assessment of this issue to a comparison of children's access to ICT in six countries around the world. Located on five continents, these six countries range from highly developed OECD countries to lesser developed countries. They are the United States, the United Kingdom, France, Australia, Mongolia, and Tanzania.

The United States Of America And The International Criminal Court, Diane Marie Amann, Mortimer N.S. Sellers

All Faculty Scholarship

No abstract provided.

Dealing With Complex Evidence Of Domestic Violence: A Primer For The Civil Bench, Jane C. Murphy, Jane H. Aiken

All Faculty Scholarship

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country throughout the last twenty years. The legal approaches taken to protect battered women and control family violence have brought about significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent’s fitness by considering past acts of violence to other family members results in …

America’S Death Penalty: Just Another Form Of Violence, John Bessler

All Faculty Scholarship

The author in this piece reflects on the death penalty in the U.S. in the aftermath of the 9/11 terrorist attacks. The writer goes on to argue that capital punishment is, in and of itself, a form of violence. Also discussed in the article are the gradual removal of executions from public view, issues of deterrence and violent crime, and the author's preference for life-without-possibility-of-parole sentences.

Thoughts On Dastar From A Copyright Perspective: A Welcome Step Toward Respite For The Public Domain, Lynn Mclain

All Faculty Scholarship

Though other questions remain unresolved and other leaks unstemmed, Dastar is a welcome step towards regaining the public domain, and towards establishing that the confines of the public domain, with regard to nondeceptive reproduction of public domain works, and preparation of derivative works based upon them, must be delimited by only the copyright and patent laws.

This article will provide a background discussion of the copyright and patent schemes and their delineation of the public domain. It then will discuss the role of trademark law in that balance, and some of the case law regarding both § 43 of the …

Comment: Federalism And Two Conceptions Of Rights, Christopher J. Peters

All Faculty Scholarship

No abstract provided.

Judicial Elections And Campaign Finance Reform, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In the judicial realm, the issue of campaign finance cuts across all states that use any form of election as part of their selection or retention system, whether the elections are partisan or non-partisan. The raising of money for campaigns is a task that has to be performed in all states that use any form of election. Like many other things that we have discussed today it seems to involve a sort of balancing act. The state certainly has a strong interest in protecting the integrity of its judiciary and encouraging the public perception of the judiciary as an institution …

Perjanjian Jual Beli Rumah Mengikut Perspektif Undang-Undang Muamalah Islam, Mohd Basyir Omar

Student Works (2000-2009)

This research intends to examine the contract of house purchase from the view of the Islamic Law of Transaction. The rational of this research is to view this contract according to the Islamic perspective. The statement of the problem in the current review acknowledges that there are inertia of comprehensive legal view from the Islamic perspective on the procedure of the bay' bithaman iijil (BBA) under the business scheme operated by the financial institutions, even though this scheme has been offered since 20 years ago in this country. In order to understand the problem clearly, legal principles of the sale …

War And The Problem Of Child Soldiers, Meng Yoong Yong

Student Works (2000-2009)

Askar kanak-kanak mernpakan satu fenomena yang jarang didebatkan di Malaysia. fetapi di banyak negara dunia ketiga ia mernpakan satu perkara biasa. Yang dikatakan askar anak-kanak adalah pejuang yang bernmur Japan belas tahun ke bawah. Apa yang menakjubkan alah seramai 300,000 kanak-kanak di sebanyak 60 buah negara melibatkan diri secara aktif di ialam konflik dan peperangan. Di Afrika sahaja terdapat lebih kurang 120,000. Jika dahulu canak-kanak ditugaskan dalam sektor sokongan dan logistik seperti tukang masak, pengangkut )arangan, penghantar mesej dan pengintip, kini oleh kerana teknologi pesat dalam bidang Jersenjataan, kanak-kanak ditugaskan di barisan hadapan bersama pejuang dewasa yang lain. Kanak-kanak perempuan …

Pelanggaran Hak Asasi Manusia Di Aceh Tahun 1989-1998 Menurut Syariah Dan Perlembagaan Indonesia, H. Munawar A. Djalil

Student Works (2000-2009)

This research attempts to find out human rights violations in Acheh during the period of 1989-1998 according to lslamic Laws and Indonesian Constitution. Chapter 1 highlights backgrounds of this research whereas chapter 2 discusses modem and Islamic human rights theories. AII these theories look at similarity, freedom and justice. The difference is only based on its principle Islamic theory is based on AI-Qur'an and Sunnah whereas modern theory is based on humanism. Furthermore, Chapter three talks about histories of Aceh and implementation of Military Operation Zone whereas Acehneses considered as rebels and Islamic fundamentalists by Indonesian Government. This situation has …

Analisis Perlaksanaan Siasah Syar'iyyah Di Bahagian Penguatkuasaan, Jabatan Undang-Undang, Majlis Bandaraya Shah Alam (Mbsa), Kajian Dari Tahun 1997-2000, Khairul Faezi Mohd Said

Student Works (2000-2009)

This thesis discusses on an aspect of analysis on the enforcement of "Siyasah, Syar'iyyah"  specifically behind the enforcement actions taken by the enforcement board. Enforcement duties that are carried out by particular board is a normal phenomenon in Islamic Administration System. "Siyasah, Syar'iyyah" is a method introduced by Islam to ease and guide the administration process of a country in which it provides guidelines that must be followed or obeyed by the administrator to ensure that all policies, laws and action taken by the government really abide by the Syariah Rules. ln general, this survey is to look objectively how …

Akad Al-Bay Bi Thaman Ajil Di Bank Rakyat Mengikut Perspektif Undang-Undang Kontrak Islam, Hamizan Mohd. Nor

Student Works (2000-2009)

Al-bay bi thaman ajil (BBA) is a financing contract according to Islamic principles. It is a well-known product and is offered by Islamic Banking System in Malaysia including Bank Rakyat itself. The product is an alternativies to the financing scheme of the conventional bank. Therefore, the dissertation studies the practice of SBA contract with attention given to the concept and nature of BBA contract in the Islamic transaction and its practise at Bank Rakyat. The study also discusses certain relevant concept such as debt, buy and selling (transaction), profits and usury in Islam all of which constitute some important aspects …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Recent Developments In Aviation Safety: Proposals To Reduce The Fatal Accident Rate And The Debate Over Data Protection, Evan P. Singer

Journal of Air Law and Commerce

No abstract provided.

Predation, Competition And Antitrust Law: Turbulence In The Airline Industry, Paul Stephen Dempsey

Journal of Air Law and Commerce

No abstract provided.

The Faa Tarnishes A National Park - Friends Of Gateway V. Slater: The Second Circuit Ignores Congressional Intent And Contradicts Its Own Holding In Natural Resources Defense Council, Inc. V. Marsh, Erwin Caban

Journal of Air Law and Commerce

No abstract provided.

The Dallas Court Of Appeals Holds That The Sabine Pilot Exception That Prevents An Employer From Terminating An At-Will Employee For The Sole Reason Of Refusing To Perform An Illegal Act Does Not Extend To Employees Protected By A Collective Bargaining Agreement - Simmons Airlines V. Lagrotte, Shannon R. Jones

Journal of Air Law and Commerce

No abstract provided.