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2003

Faculty Scholarship

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Institution
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Articles 1 - 30 of 413

Full-Text Articles in Law

The Takings Clause As A Comparative Right, John Fee Dec 2003

The Takings Clause As A Comparative Right, John Fee

Faculty Scholarship

No abstract provided.


Counselor, Gatekeeper, Shareholder, Thief: Why Attorneys Who Invest In Their Clients In A Post-Enron World Are "Selling Out," Not "Buying In,", A. Christine Hurt Dec 2003

Counselor, Gatekeeper, Shareholder, Thief: Why Attorneys Who Invest In Their Clients In A Post-Enron World Are "Selling Out," Not "Buying In,", A. Christine Hurt

Faculty Scholarship

No abstract provided.


American Offshore Business Tax Planning: Can Australian Lawyers Get A Piece Of The Action?, J Clifton Fleming, Jr. Dec 2003

American Offshore Business Tax Planning: Can Australian Lawyers Get A Piece Of The Action?, J Clifton Fleming, Jr.

Faculty Scholarship

No abstract provided.


You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen L. Norton Dec 2003

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen L. Norton

Faculty Scholarship

Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics.

This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive ...


From Schweizerhalle To Baia Mare: The Continuing Failure Of International Law To Protect Europe's Rivers, Aaron Schwabach Dec 2003

From Schweizerhalle To Baia Mare: The Continuing Failure Of International Law To Protect Europe's Rivers, Aaron Schwabach

Faculty Scholarship

Beginning on January 31, 2000, at least 100,000 cubic meters of highly polluted water escaped from a tailings dam at the Aurul gold mine in Baia Mare, Romania. The water flowed into the Somes, Tisza, and Danube Rivers, causing enormous environmental damage. Most of the damage occurred in Hungary, downstream from Baia Mare. Hungarian politicians called the spill “the first, most serious environment[al] catastrophe in the 21st century,” and “the worst ecological disaster in central Europe since Chernobyl in 1986.”

More striking than the resemblance to the Chernobyl disaster, though, was the resemblance to another 1986 environmental catastrophe ...


Understanding Conflict In A Postmodern World, Scott H. Hughes Dec 2003

Understanding Conflict In A Postmodern World, Scott H. Hughes

Faculty Scholarship

This article looks at new theories about the nature and dynamics of human systems in conflict.


Speaking Law To Power: Joan Fitzpatrick, 1950-2003 (Obituary), Jennifer Moore Dec 2003

Speaking Law To Power: Joan Fitzpatrick, 1950-2003 (Obituary), Jennifer Moore

Faculty Scholarship

Her scholarship embraced the rights of refugees and migrants, legal limits on the waging and methodology of war, due process before international tribunals, and essential restraints on the exercise of state power in self-proclaimed emergencies, including the war on terrorism.


Enforcing Internationally Recognized Human Rights Violations Under The Alien Tort Claims Act: An Analysis Of The Ninth Circuit’S Decision In Doe V. Unocal, Joshua E. Kastenberg Dec 2003

Enforcing Internationally Recognized Human Rights Violations Under The Alien Tort Claims Act: An Analysis Of The Ninth Circuit’S Decision In Doe V. Unocal, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes Doe II under a multi-tiered rubric. The first tier involves analyzing whether the Ninth Circuit was correct in its jurisdictional interpretation. The second tier studies the extent to which the Ninth Circuit's use of international law expanded previously accepted usage by United States courts. For example, after reading Doe II, a question arises as to whether the Ninth Circuit created a "complete" universal jurisdiction for torts under the ATCA. The final tier, involves analyzing foreseen legal consequences. That is, does Doe II expand causes of action for foreign human rights violations because the decision reduces possible ...


Consumer Expectations’ Last Hope: A Response To Professor Kysar, Aaron Twerski, J. A. Henderson Nov 2003

Consumer Expectations’ Last Hope: A Response To Professor Kysar, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.


For And Against Marriage: A Revision., Anita Bernstein Nov 2003

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.


The Copyright Divide, Peter K. Yu Nov 2003

The Copyright Divide, Peter K. Yu

Faculty Scholarship

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed ...


Ecocide And Genocide In Iraq: International Law, The Marsh Arabs, And Environmental Damage In Non-International Conflicts, Aaron Schwabach Oct 2003

Ecocide And Genocide In Iraq: International Law, The Marsh Arabs, And Environmental Damage In Non-International Conflicts, Aaron Schwabach

Faculty Scholarship

No abstract provided.


The Frictions Of Federalism: The Rise And Fall Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival Oct 2003

The Frictions Of Federalism: The Rise And Fall Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival

Faculty Scholarship

Prior to the erection in the 1970s of a comprehensive federal regulatory infrastructure to protect the environment, transboundary pollution disputes frequently were adjudicated by the U.S. Supreme Court, exercising its original jurisdiction over disputes between states. In a series of cases commencing at the dawn of the Twentieth Century, the Court served as a national arbiter of interstate pollution disputes. This paper reviews the history of the Supreme Court's use of these cases to develop a federal common law of interstate nuisance.

The paper argues that while federal common law initially performed a zoning function by encouraging polluters ...


Brief For American Association On Mental Retardation, The Arc, The Judge David L. Bazelon Center For Mental Health Law, American Academy Of Psychiatry And The Law, And Tash, Tennard V. Dretke, James W. Ellis, Norman C. Bay, Michael Browde, Christian G. Fritz, April Land, Robert Schwartz Oct 2003

Brief For American Association On Mental Retardation, The Arc, The Judge David L. Bazelon Center For Mental Health Law, American Academy Of Psychiatry And The Law, And Tash, Tennard V. Dretke, James W. Ellis, Norman C. Bay, Michael Browde, Christian G. Fritz, April Land, Robert Schwartz

Faculty Scholarship

The obstacles placed by the Fifth Circuit in the path of jurors' fair consideration of a defendant's condition are inconsistent with this Court's teachings about the fundamental importance of the jury's role in determining the appropriate penalty in capital cases.


Brief For American Association On Mental Retardation, The Arc Of The United States, The Judge David L. Bazelon Center For Mental Health Law, The Arc Of Georgia, And The Georgia Advocacy Office, Stripling V. Head, James W. Ellis, Carol M. Suzuki Ms., Norman C. Bay, Christian G. Fritz Oct 2003

Brief For American Association On Mental Retardation, The Arc Of The United States, The Judge David L. Bazelon Center For Mental Health Law, The Arc Of Georgia, And The Georgia Advocacy Office, Stripling V. Head, James W. Ellis, Carol M. Suzuki Ms., Norman C. Bay, Christian G. Fritz

Faculty Scholarship

Pursuant to Rule 37.2(b) of the Rules of this Court, The Arc of the United States, el al., move the Court for leave to file a Brief Amici Curiae in support of the petition in the above-entitled case. Counsel for Petitioner has granted his consent to the filing of this brief. Counsel for Respondent, however, has notified counsel for amici that Respondent does not consent.

Amici include national and state professional and voluntary associations concerned with criminA1 proceedings affecting people with mental disabilities. Amici thus have expertise concerning criminal defendants with mental disabilities and the impediments to fair ...


Marriage Markets, Martha M. Ertman Oct 2003

Marriage Markets, Martha M. Ertman

Faculty Scholarship

No abstract provided.


The Thin Line Between Love And Hate: Why Affinity-Based Securities And Investment Fraud Constitutes A Hate Crime, Lisa M. Fairfax Oct 2003

The Thin Line Between Love And Hate: Why Affinity-Based Securities And Investment Fraud Constitutes A Hate Crime, Lisa M. Fairfax

Faculty Scholarship

This article explores the parallels between the prototypical hate crime and affinity fraud—securities and investment fraud that targets identifiable religious, racial and ethnic groups—and asserts that those parallels justify treating affinity fraud as a hate crime.


Secrets And Spies: Extraterritorial Application Of The Economic Espionage Act And The Trips Agreement, Robin Effron Oct 2003

Secrets And Spies: Extraterritorial Application Of The Economic Espionage Act And The Trips Agreement, Robin Effron

Faculty Scholarship

No abstract provided.


Subsidized Guardianship: A New Permanancy Option, Cynthia Godsoe Oct 2003

Subsidized Guardianship: A New Permanancy Option, Cynthia Godsoe

Faculty Scholarship

No abstract provided.


China And The Wto: Progress, Perils, And Prospects, Peter K. Yu, Gordon G. Chang, Jerome A. Cohen, Elizabeth C. Economy, Sharon K. Hom, Adam Qi Li Oct 2003

China And The Wto: Progress, Perils, And Prospects, Peter K. Yu, Gordon G. Chang, Jerome A. Cohen, Elizabeth C. Economy, Sharon K. Hom, Adam Qi Li

Faculty Scholarship

In November 2001, member states of the World Trade Organization (WTO) approved the proposal to admit China to the international trading body. After fifteen years of exhaustive negotiations, China finally became the 143rd member of the WTO on December 11, 2001. To reflect on this event, this panel brings together six China experts to explore the ramifications of China's accession to the WTO. Among the issues addressed are whether China is making progress in its compliance with the WTO requirements, whether China is suffering setbacks in the socio-economic arena, whether there are any prospects for democratic reforms and stronger ...


Four Common Misconceptions About Copyright Piracy, Peter K. Yu Oct 2003

Four Common Misconceptions About Copyright Piracy, Peter K. Yu

Faculty Scholarship

Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem-political, social, economic, cultural, and historical.

This nuanced discussion, however, is missing in the current public debate. To capture the readers' emotion and to generate support for proposed legislative and executive actions, the debate often oversimplifies the complicated picture by overexagerrating a particular aspect of the piracy problem or by offering an abbreviated, easy-to-understand ...


Opposing Excessive Use Of Employer Bargaining Power In Mandatory Arbitration Agreements Through Collective Employee Actions, Michael Z. Green Oct 2003

Opposing Excessive Use Of Employer Bargaining Power In Mandatory Arbitration Agreements Through Collective Employee Actions, Michael Z. Green

Faculty Scholarship

When you review the modern employment relationship and the role of contract, you have to start with the default position of employment-at-will, which allows an employer, in general, to terminate an employee for good reason, bad reason, or no reason at all. A number of exceptions to the employment-at-will rule exist, including tort and statutory employment discrimination claims that allow employees to seek legal remedies and punitive damage awards from juries. As these exceptions have developed outside of contract law, employers have responded by a major contractual effort to shift these disputes away from the courts and into arbitration. The ...


The Pernicious Effect Of Employment Relationships On The Law Of Contracts, Franklin G. Snyder Oct 2003

The Pernicious Effect Of Employment Relationships On The Law Of Contracts, Franklin G. Snyder

Faculty Scholarship

The relationship between employment and contract law is peculiar. On the one hand, employment in modern American society seems to be a classic voluntary agreement among consenting adults. It is a "promise or a set of promises," in the wooden but circular language of the Restatement, "for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." Thus, employment relationships figure prominently in a great many landmark contract law decisions, in areas like capacity, duress, certainty, consideration, promissory estoppel, illegality and public policy, anticipatory repudiation, mitigation of ...


The Lawyering Process: An Example Of Metacognition At Its Best, John M.A. Dipippa, Martha M. Peters Oct 2003

The Lawyering Process: An Example Of Metacognition At Its Best, John M.A. Dipippa, Martha M. Peters

Faculty Scholarship

This article celebrates the 25th anniversary of the publication of Gary Bellow and Bea Moulton's The Lawyering Process by looking at the work from personal and theoretical perspectives. From the personal perspective, the authors discuss how The Lawyering Process influenced them as teachers and scholars. From the theoretical perspective, the authors show how the book modeled various metacognitive processes. Combining the personal with the theoretical, the article shows how The Lawyering Process challenged lawyers to be-come aware of their own thinking by demonstrating how it challenged the authors to do so.


A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie Oct 2003

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards ...


The Interior Department's Water 2025: Blueprint For Balance, Or Just Better Business As Usual?, Reed D. Benson Oct 2003

The Interior Department's Water 2025: Blueprint For Balance, Or Just Better Business As Usual?, Reed D. Benson

Faculty Scholarship

The U.S. Bureau of Reclamation (USBR or the Bureau) observed its centennial in 2002, and celebrated 100 years of building dams and supplying water for irrigation and other purposes in the western United States. In 2003, the U.S. Department of the Interior (the Interior) and the Bureau shifted their focus to the future of the West and its water supply needs, producing a document called Water 2025: Preventing Crises and Conflict in the West.


Environmental Justice: Stakes, Stakeholders, Strategies, Eileen Gauna, Shiela Foster Oct 2003

Environmental Justice: Stakes, Stakeholders, Strategies, Eileen Gauna, Shiela Foster

Faculty Scholarship

A quick review of the beginning prominence of and continued work for environmental justice.


Freeing The Innocent: Obtaining Post-Conviction Dna Testing In Florida, Catherine Arcabascio Oct 2003

Freeing The Innocent: Obtaining Post-Conviction Dna Testing In Florida, Catherine Arcabascio

Faculty Scholarship

No abstract provided.


Improving New Mexico's Water Management, Denise D. Fort, Tom Mcguckin Jul 2003

Improving New Mexico's Water Management, Denise D. Fort, Tom Mcguckin

Faculty Scholarship

This paper reviews several measures that New Mexico should pursue to improve its management of water. The crisis in New Mexico’s water affects all of the citizens of the state, but hasty responses may promise more than they can deliver. In this paper we present several measures that will allow better use of the resources that the state has, and rectify imbalances in how water has been managed in the state.


Federal Maritime Commission V. South Carolina State Ports Authority: Small Iceberg Or Just The Tip?, Gordon G. Young Jul 2003

Federal Maritime Commission V. South Carolina State Ports Authority: Small Iceberg Or Just The Tip?, Gordon G. Young

Faculty Scholarship

No abstract provided.