Law Commons^™

The New Contract: Welfare Reform, Devolution, And Due Process, Christine N. Cimini

Articles

This Article analyzes the due process implications of the change in welfare administration from a federal statutory entitlement model to the devolved contractual model and posits that, despite the changes, due process protections still exist. These protections arise from the private law of contracts on two different levels. The first level is the macro, or implied, contract, that I refer to as the social contract between the government and the populace. The existence of this social contract is evidenced in numerous sources including: political theories that explore the use of governmental authority; foundational democratic legal sources, such as the Declaration …

Textual Imagination, Mary D. Fan

Articles

Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring …

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

Articles

Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …

Corporate Complicity: From Nuremberg To Rangoon - An Examination Of Forced Labor Cases And Their Impact On The Liability Of Multinational Corporations, Anita Ramasastry

Articles

Part I of this article outlines various levels of corporate complicity as a way of understanding the spectrum of conduct for which MNCs have been criticized.This provides a necessary background for examining how courts have treated corporate actors with respect to their alleged involvement in war crimes and crimes against humanity. This also helps to delineate where on this continuum MNC conduct should give rise to accomplice liability.

Part II of this article examines the post-World War II trials of German and Japanese civilian businessmen for war crimes and crimes against humanity. The war crimes prosecutions provide an important starting …

Taxes Vs. Fees: A Curious Confusion, Hugh D. Spitzer

Articles

Provides an analytical framework for categorizing varoius types of taxes and user charges and distinguishing between them, applying both economic and legal concepts.

Probability And Statistics In The Legal Curriculum: A Case Study In Disciplinary Aspects Of Interdisciplinarity, Michael Townsend

Articles

This Article considers interdisciplinarity and the legal curriculum in the context of probability and statistics. Section D of Part II begins the discussion by sketching some multidisciplinary, pluridisciplinary, interdisciplinary, and transdisciplinary approaches. Part III is the workhorse of this Article. The particular example used here is the well-known jury discrimination case of Castaneda v. Partida as described in Section A. This "case study" provides the basis for a crossdisciplinary experience that offers students an opportunity to think about law as a discipline. It is difficult for students to step back and look at law as a discipline when there is …

Cyberproperty And Judicial Dissonance: The Trouble With Domain Name Classification, Xuan-Thao Nguyen

Articles

The nature of cyberspace continues to be woven into the fabric of our daily existence. Not surprisingly, cyberspace and the expansion of e-commerce pose challenges to existing law, particularly the legal definition of cyberproperty domain names. The nature of cyberspace allows many e-companies to possess no traditional assets such as buildings and inventories. Some e-companies own few computers, often using service providers to maintain their web sites. In the virtual space that e-companies inhabit, the primary assets that e-companies own are intangibles such as domain names, customer information, and intellectual property that includes business method patents, copyrights, and trademarks.

Domain …

Commercial Law Collides With Cyberspace: The Trouble With Perfection – Insecurity Interests In The New Corporate Asset, Xuan-Thao Nguyen

Articles

The recent downturn in the economy, particularly in the e-commerce sector, reveals many e-companies heading toward bankruptcy with cyberassets, such as domain names, as their most valuable corporate assets. Lending institutions and other creditors that have extended loans to such e-companies obviously want to get their hands on these bankrupt estates. Which creditor will have priority in the new cybercollateral of domain names? The answer to creditor priority questions may depend on whether domain names are intangible property for purposes of secured transactions. If so, should security interests in domain names be perfected under the Uniform Commercial Code or under …

Atlantic Salmon, Pacific Bound: Initiative, Defiance, Courage, And Indian Tribes In Environmental Law, William H. Rodgers, Jr.

Articles

I want to address my remarks to the students of the University of Maine School of Law who will face a great deal of unfinished legal business on the topics of salmon, Indian tribes, and environmental law.

Elsewhere, I have derived what I describe as the five virtues of effective action (genius, high-leveraging, symbolism, optimism, courage). People of achievement, lawyers or otherwise, are familiar with these virtues and display them in many creative forms.

Next, I will peer through this lens of effective action at some key moments in the history of Atlantic-Pacific Salmon Interactions. This coming together has been …

American-Style Justice In No Man's Land, Peter Nicolas

Articles

This Article seeks to fill the gap in the existing literature by exploring the constitutional limits on federal court subject matter jurisdiction in the context of civil disputes arising in Indian Country and civil disputes arising elsewhere involving Indian tribes, tribal entities, and tribal members.

Part II of this Article catalogues the universe of "no forum" and "biased forum" jurisdictional quagmires with respect to civil disputes arising in Indian Country or those arising elsewhere involving Indian tribes, tribal entities, and tribal members, examining the existing legal obstacles that prevent federal, state, and tribal courts from exercising jurisdiction over the "no …

Commentary: Convergence As Movement: Toward A Counter-Hegemonic Approach To Corporate Governance, Kellye Y. Testy

Articles

No abstract provided.

The Beginning Of Herstory For Corporate Law, Kellye Y. Testy

Articles

In The Gender Implications of Corporate Governance Change, Janis Sarra presents what has until now seemed oxymoronic to many: a feminist economic analysis of corporate governance in the global marketplace. In so doing, she joins a growing chorus of corporate governance scholars who are seeking to advance an alternative vision to the neoclassical, shareholder-centered model that is not only dominant in the United States, but is also widely exported-even to nations that do not share similar institutional configurations that support such a model. This diverse group of scholars--whose approaches have been labeled variously as "progressive," "communitarian," and "socio-economic,"--do not …

Rethinking The United States First-To-Invent Principle From A Comparative Law Perspective: A Proposal To Restructure § 102 Novelty And Priority Provisions, Toshiko Takenaka

Articles

This Article first examines the novelty and priority provisions of first-to-file countries, and then compares them with U.S. counterparts to identify major differences and determine why these differences result. The Article discusses the origins of the complex structure adopted by § 102 to define prior art and the difficult interpretation given to terms used in the novelty definition. This Article then reviews the USPTO's practice of the novelty examination and the priority determination in interference proceedings. This review confirms the first-to-file patent professional's perception that the United States, in fact, follows the first-to-file principle, although it also provides an exception …

Social Networks And Electronic Commerce In China, Jane K. Winn

Articles

Communication technologies that make up the emerging global information infrastructure have the power to regulate online behavior. Social networks in Chinese society have survived the growth of formal legal institutions and liberalization of China's economy, but it is not clear whether they can survive the regulatory pressures created by global information technology networks.

The spread of electronic commerce technologies in China may strengthen legal institutions and open local markets to international competition, but is likely to be resisted by all the same interests that resist those changes in other contexts. The Chinese response to the spread of electronic commerce might …

Emerging Issues In Electronic Contracting, Technical Standards And Law Reform, Jane K. Winn

Articles

The explosive growth of electronic commerce transactions in recent years has added fuel to efforts to harmonize international commercial law. Organizations such as the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law are all participating in an emerging global debate concerning the changes that should be made to the form or substance of international commercial law to accommodate innovation in the technology of international trade.

Many of the important legal issues raised by cross-border electronic commerce in the 1970s and 1980s have …

Of Punctilios And Paybacks: The Duty Of Loyalty Under The Uniform Trust Code, Karen E. Boxx

Articles

Loyalty has been cited as the most desired of traits from those who serve others. One reason that loyalty is so highly valued is that it is impossible to guarantee and impossible to buy. The trust law concept of the duty of loyalty acknowledges that human nature will cause any person to favor his or her personal interests over the interests of another, and it is this assumption of disloyalty that gives rise to the strict prohibitions of trustee conflicts of interest required under the label of "duty of loyalty."

The duty of loyalty has been called "the essence of …

Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

Articles

My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law, Pace University School of Law.]

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.

Toward A Jurisprudence Of Cost-Benefit Analysis, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In his book, The Cost-Benefit State, democratic theorist Cass Sunstein urges regulatory agencies to make decisions based on numerical assessments of regulatory consequences, factoring in variables ranging from effects on consumer prices to lives saved. In this Review, I seek to illustrate Sunstein's conception of cost-benefit analysis and critique this conception by suggesting that cost-benefit analysis could serve a more important role than Sunstein would allow. I also argue for a more active judicial role in scrutinizing agency actions than Sunstein would recommend, though not necessarily a less deferential one. In Part I of this review, I outline Sunstein's defense …