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Full-Text Articles in Law

From Harm To Robustness: A Principled Approach To Vice Regulation, Jim Leitzel Dec 2005

From Harm To Robustness: A Principled Approach To Vice Regulation, Jim Leitzel

ExpressO

John Stuart Mill’s harm principle maintains that adult behavior cannot justifiably be subject to social coercion unless the behavior involves harm or a significant risk of harm to non-consenting others. The absence of harms to others, however, is one of the distinguishing features of many manifestations of “vices” such as the consumption of alcohol, nicotine, recreational drugs, prostitution, pornography, and gambling. It is with respect to vice policy, then, that the harm principle tends to be most constraining, and some current vice controls, such as prohibitions on drug possession and prostitution, violate Mill’s precept. In the vice arena ...


Can Florida’S Legislative Standard Of Review For Small-Scale Land Use Amendments Be Justified?, Bernard R. Appleman Dec 2005

Can Florida’S Legislative Standard Of Review For Small-Scale Land Use Amendments Be Justified?, Bernard R. Appleman

ExpressO

This article examines the legal justification and practical application of recent Florida Supreme Court decisions classifying all comprehensive plan amendments as legislative decisions and all other zoning changes as quasi-judicial. The author outlines historical trends and concerns relating to the appropriate standard of judicial review for zoning actions, followed by a review of the evolution of the statutes and case law in Florida. The article challenges the standard of deference for legislative review of zoning actions based on separation of powers and due process. It also identifies inconsistencies in Florida case law and inequities in local government processes for reviewing ...


Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps Dec 2005

Good Faith Performance In Employment Contracts: A "Comparative Conversation" Between The Us And England, Katherine M. Apps

ExpressO

This paper asks two questions connected by the fact that they both stem from the inherent incompleteness of employment contracts: in American law, how can the terms in employment handbooks be variable, but sometimes only within reasonable procedurally fair circumstances; and in English law, why doesn’t the implied term of mutual trust and confidence in employment contracts fall foul of the strict test for implication of terms into contract? This paper finds the answer to both questions in the doctrine of good faith. An analysis of good faith as a “comparative conversation” between academic and judicial debates in the ...


Rediscovering The Economics Of Loss Causation , Richard Kaplan, Madge Thorsen, Scott Hakala Dec 2005

Rediscovering The Economics Of Loss Causation , Richard Kaplan, Madge Thorsen, Scott Hakala

ExpressO

Abstract This article explores the economic principles and theories underlying loss causation in the context of securities fraud litigation. It explains the difference between “investment loss” and recoverable “inflationary loss” and posits that the latter consists of the difference between inflation in stock prices caused by the fraud at the time of purchase and inflation in the price at the time of sale. It reviews scenarios in which inflationary loss due to fraud may occur and would be recognized as a matter of economic theory as well as a matter of law. It urges that Dura v. Broudo Pharmaceuticals, 125 ...


Accounting Fraud: Pleading Scienter Of Auditors Under The Private Securities Litigation Reform Act, Gideon Mark Dec 2005

Accounting Fraud: Pleading Scienter Of Auditors Under The Private Securities Litigation Reform Act, Gideon Mark

ExpressO

This paper examines the current judicial approach to assessing the scienter of auditors under the Private Securities Litigation Reform Act. The paper concludes that the current approach is inadequate and should be modified.


The Problems With Blaming, Theodore Y. Blumoff Dec 2005

The Problems With Blaming, Theodore Y. Blumoff

ExpressO

This work examines the social practice of blaming, beginning with a prominent view of the moral philosophy of blaming, the semantics of character that support this (and related) views, and the social and cultural biases we bring to the process of attributing blame. Our penchant for blaming is too often manifest in a hyper-willingness to attribute wrongdoing solely to the character of the wrongdoer, often overlooking the salience of the varied situations in which the wrongdoer finds himself. I synthesize the wealth of data, mostly from social psychology, showing that blaming actualizes our own dispositions for over-emphasizing the actor’s ...


Extending Predation Analysis To Monopolist's Bundled Discounts Under Section 2: An Economic, Legal, And Comparative Perspective, Seth B. Chertok Dec 2005

Extending Predation Analysis To Monopolist's Bundled Discounts Under Section 2: An Economic, Legal, And Comparative Perspective, Seth B. Chertok

ExpressO

In LePage’s v. 3M, the Third Circuit decided the first case at the federal appellate court level that dealt with the subject of bundled discounts by a monopolist under Section 2 of the Sherman Act in the period following the U.S. Supreme Court’s decision in Brooke Group Ltd. v. Brown & Williamson Tobacco Corporation. Prior to the decision in Brooke Group, the Third Circuit had only once before addressed this topic in Smithkline Corp. v. Eli Lilly and Company. Smithkline is only significant because it nearly suggested that any bundled discount, regardless of whether above or below cost ...


The Dual Purpose Of The American Jobs Creation Act Of 2004, Dennis J. Kokenos Dec 2005

The Dual Purpose Of The American Jobs Creation Act Of 2004, Dennis J. Kokenos

ExpressO

The American Jobs Creation Act of 2004 claims to help bring offshore investments back to the United States. In reality, the AJCA does much more. The AJCA of 2004 makes adjustments to the U.S. tax code which helps bring the U.S. in line with existing international trade obligations as well as stimulating the U.S economy.


Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves Dec 2005

Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves

ExpressO

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.

This article argues that Wirzburger ...


The Child Client: Representing Children In Child Protective Proceedings, Merril Sobie Dec 2005

The Child Client: Representing Children In Child Protective Proceedings, Merril Sobie

ExpressO

No abstract provided.


Help Wanted: The Constitutional Case Against Gerrymandering To Protect Congressional Incumbents, Walter M. Frank Dec 2005

Help Wanted: The Constitutional Case Against Gerrymandering To Protect Congressional Incumbents, Walter M. Frank

ExpressO

This article argues that the Supreme Court has been incorrect in treating incumbent protection gerrymanders as a traditional and acceptable redistricting principle. Part I of the article sets out 3 separate lines of attack on excessive incumbent protection gerrymanders. Part II makes the case for judicial regulation of such gerrymanders and proposes a standard that would create a presumption of unconstitutionality that could be rebutted. A process oriented remedy is proposed and potential obstacles to a suit are also addressed.


Some Preliminary Statistical, Qualitative, And Anecdotal Findings Of An Empirical Study Of Collegiality Among Law Professors, Michael L. Seigel Dec 2005

Some Preliminary Statistical, Qualitative, And Anecdotal Findings Of An Empirical Study Of Collegiality Among Law Professors, Michael L. Seigel

ExpressO

This article is an empirically-based follow-up to a piece I published last year in the Journal of Legal Education entitled, On Collegiality, 54 J. Legal Educ. 406 (2004). It provides insight into the process of conducting empirical research and sets forth some preliminary – yet very intriguing – data and qualitative information gleaned from a survey responded to by more than 1200 law professors nationwide. The survey addressed a wide range of topics related to collegiality and job satisfaction in the legal-academic profession.


Reforming The Appellate Process For Pennsylvania Capital Punishment, Paul R. Teichert Dec 2005

Reforming The Appellate Process For Pennsylvania Capital Punishment, Paul R. Teichert

ExpressO

The death penalty has long been a staple of governmental punishment. It has been incorporated in the Hammurabi Code of ancient Babylon on down to the current laws of many American States. In early America, capital punishment, exercised at the local level, was ubiquitous and widely accepted. Pennsylvania lists itself among the states currently employing the death penalty. The death penalty in Pennsylvania began in the late 1600’s when the first colonists carried out public hangings as a punishment for various crimes. The public nature of the punishment, initially, was intended to deter community members from committing the same ...


Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders Dec 2005

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new ...


An Analysis For The Valuation Of Venture Capital-Funded Startup Firm Patents, John Dubiansky Dec 2005

An Analysis For The Valuation Of Venture Capital-Funded Startup Firm Patents, John Dubiansky

ExpressO

In an era where forces such as the Bayh Dole act and the rise of the venture capital industry are reshaping the manner in which innovations are brought to market, the role of intellectual property in the financing of new ventures is becoming increasingly important. The investment community requires a better understanding of the risks of patent-based transactions as such deals become more prevalent. This paper addresses that need by explaining an analysis for the valuation of startup firm-held patents. The paper considers the commonly employed methods of patent valuation, and offers an analysis which considers Legal, Technical, and Technology-Market ...


A Comparison Analysis Between The Standards Used In The Dneiper River Basin Clean-Up And European Union Legislation, Hannah H. Naumoff-Dulski Dec 2005

A Comparison Analysis Between The Standards Used In The Dneiper River Basin Clean-Up And European Union Legislation, Hannah H. Naumoff-Dulski

ExpressO

A recent case study involved the clean-up efforts of the Dnieper River Basin by three countries, Belarus, Russia, and Ukraine. The objective of the study was to provide a method for the identification, assessment, and prioritization of the most significant sources of pollution based on their impacts and characteristics. Herein, the standards employed in the Dnieper case study are comparatively analyzed against the relevant EU directives. The purpose in doing so was to determine if the standards employed in this project could serve as a benchmark for the necessary environmental regulations that would be required if these three countries were ...


“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic Dec 2005

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner ...


The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty Dec 2005

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles ...


Human Rights Claims Vs. The State: Is Sovereignty Really Eroding?, Chandra L. Sriram Dec 2005

Human Rights Claims Vs. The State: Is Sovereignty Really Eroding?, Chandra L. Sriram

ExpressO

It is often argued that the increase in agreements, specialized courts, and litigation protecting human rights or responding to past abuses of human rights has begun to erode sovereignty. Contrary to traditional principles of non-interference in internal affairs, it is argued, genuine protection of human rights involves an invasion of the sovereign preserve of the state. While many examples might be adduced in support of this claim, ranging from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda to the European Court of Human Rights, this article examines two types of transnational procedures: civil accountability through the use ...


Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman Dec 2005

Reinvigorating First Year Criminal Law: Integrating Mental Disability Issues Into The Criminal Law Course, Linda C. Fentiman

ExpressO

This article explores how mental disability issues can be incorporated into a traditional criminal law class, in order to enrich student understanding of both mental disability law and criminal law doctrine. The intersection of mental disability with the doctrinal aspects of criminal law can be broken into five major categories: 1) the justifications for punishment; 2) the definition of crime in general, e.g., the requirements of a voluntary act, mens rea, and causation; 3) the definition of particular crimes, such as murder, manslaughter, rape, and burglary; 4) defenses to crime, including mistake of law and of fact, as well ...


A Theory Of Interpretation In The Realm Of Idealism, Larry A. Dimatteo Dec 2005

A Theory Of Interpretation In The Realm Of Idealism, Larry A. Dimatteo

ExpressO

No abstract provided.


Recalibrating The War On Terror By Enhancing Development Practices In The Middle East, Kevin J. Fandl Nov 2005

Recalibrating The War On Terror By Enhancing Development Practices In The Middle East, Kevin J. Fandl

ExpressO

This research paper suggests that the cart has been placed before the horse, that democratization and open markets in the Middle East are more likely the result of effective development than the catalyst for it. The war on terror has been justified by the United States as an effective means of reducing the possibility of terrorist attacks. This paper analyzes the validity of those justifications by reviewing the linkage between democracy and economic growth and that between democracy and peace.

The paper begins by hypothesizing that the war on terror and forced democratization of the Middle East are leading to ...


Jurisdictional Competition In The European Community, Seth B. Chertok Nov 2005

Jurisdictional Competition In The European Community, Seth B. Chertok

ExpressO

The main purpose of this article is to analyze how four company law cases (Daily Mail, Centros, Uberseering, and Inspire Art) in the European Community have expanded the Freedom of Establishment to potentially open the door to corporate jurisdictional competition in the European Community, similar to the sort that exists in the United States through the Delaware effect. However, in Europe, this type of jurisdictional competition has traditionally been thought of as undesirable, particularly in certain Member States such as Germany that have co-determination and minimum capital requirements. These Member States have continued to adhere to the real seat and ...


The Power Of An Indictment – The Legal Implications Of The Demise Of Arthur Andersen, James Kelly Nov 2005

The Power Of An Indictment – The Legal Implications Of The Demise Of Arthur Andersen, James Kelly

ExpressO

This article examines the impact an indictment can have against a limited liability partnership of professionals, in particular the Justice Department’s prosecution of accounting firm Arthur Andersen. Following a brief chronological description of the factual background of the case, the article then examines the weight an indictment is supposed to have, followed by the standards for issuing an indictment against an entire partnership rather than just the individuals who allegedly performed wrongful acts. The notion of prosecutorial discretion is heavily emphasized, and the factors that contributed to the prosecution of Andersen are discussed. Finally, the implications of this situation ...


Preparing For Cafta-Dr: The Need Of Commercial Law Reform In Central America, Omar E. Garcia-Bolivar Nov 2005

Preparing For Cafta-Dr: The Need Of Commercial Law Reform In Central America, Omar E. Garcia-Bolivar

ExpressO

This article explores the policies, laws and institutions that may prevent Central American States from exploiting the opportunities provided by the CAFTA-DR. In that sense, we examine several of the legal factors that appear to be important in determining economic growth as they apply to the commercial legal conditions of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.


A Tale Of Three Nations?: The Role Of United Nations Peacekeepers And Missions On The Concept Of Nation-State, Nationalism, And Ownership Of The State In Lebanon, The Democratic Republic Of The Congo, And Kosovo, Alexandra R. Harrington Nov 2005

A Tale Of Three Nations?: The Role Of United Nations Peacekeepers And Missions On The Concept Of Nation-State, Nationalism, And Ownership Of The State In Lebanon, The Democratic Republic Of The Congo, And Kosovo, Alexandra R. Harrington

ExpressO

The concept of nationalism of ideology and shared values has existed since Biblical times, and has only become more prominent in societal structure in the centuries which have followed . Many attempts to define what is and is not nationalism have been made throughout history, yet despite these attempts there is no perfect formula for what gives rise to nationalism or what makes a nation-state and how to create it. However, at its core a nation is made of people, and all nations, regardless of organization, ideology, or ethnicity, turn to law to control – if not shape – their societies. This duality ...


Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A "Blessed Event", Michael Thomas Murtaugh Nov 2005

Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A "Blessed Event", Michael Thomas Murtaugh

ExpressO

My article deals with the tort of wrongful birth. It is an action in negligence against a physician who failed to properly perform a sterilization or abortion procedure, after which an unplanned or unwanted child was born. My focus is on the damages that the plaintiff parents should recover from the tortfeasor based on the parents' purpose not to have the child.


Tracing, Peter B. Oh Nov 2005

Tracing, Peter B. Oh

ExpressO

Tracing is a method that appears within multiple fields of law. Distinct conceptions of tracing, however, have arisen independently within securities and remedial law. In the securities context plaintiffs must “trace” their securities to a specific offering to pursue certain relief under the Securities Act of 1933. In the remedial context victims who “trace” their misappropriated value into a wrongdoer’s hands can claim any derivative value, even if it has appreciated.

This article is the first to compare and then cross-apply tracing within these two contexts. Specifically, this article argues that securities law should adopt a version of the ...


Seeing Straight In The Workplace: An Examination Of Sexual Orientation Discrimination In Public Employment In The Aftermath Of Lawrence V. Texas, Devin A. Cohen Nov 2005

Seeing Straight In The Workplace: An Examination Of Sexual Orientation Discrimination In Public Employment In The Aftermath Of Lawrence V. Texas, Devin A. Cohen

ExpressO

Title VII does not explicitly protect homosexual employees from sexual orientation discrimination and the courts have generally refused to bootstrap sexual orientation discrimination into Title VII as a form of gender discrimination. Therefore, homosexual employees have had to depend on their constitutional rights to protect them from their public employers’ sexual orientation discrimination. Traditionally, the courts have allowed public employers to discriminate against homosexual employees so long as the employers’ reasons were rationally related to legitimate business purposes.

I argue that the Supreme Court’s reasoning in Lawrence v. Texas forces future courts to question the reasonableness of employers’ rational ...


Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher Nov 2005

Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher

ExpressO

This article identifies certain problems faced by parties to transnational merger transactions in view of the global proliferation in recent years of competition (and, specifically, merger review) laws. After considering the pros and cons of merger remedies (both structural and behavioral) that may be offered to mitigate potentially anticompetitive effects and illustrating (through a case study of the GE/Honeywell transaction) the pitfalls of divergent market definition even as between two legal regimes employing substantially similar standards, the article reviews and critiques proposals for establishing a supranational competition authority under the aegis of the World Trade Organization. While rejecting the ...