Law Commons^™

The World Summit On The Information Society: Making The Case For Private Industry Filtering To Control Extraterritorial Jurisdiction And Transnational Internet Censorship Conflicts, Jay Wahlquist

Brigham Young University International Law & Management Review

No abstract provided.

The Failure Of The Rule Of Law In Cyberspace: Reorienting The Normative Debate On Borders And Territorial Sovereignty, H. Brian Holland

Faculty Scholarship

The ultimate goal of this article is to suggest a different perspective on the issue of extraterritorial regulation in cyberspace.

Between 1996 and 2002, over the course of several law review articles, professors David R. Johnson, David Post, and Jack L. Goldsmith engaged in a highly influential debate addressing the significance and legitimacy of physical, geographically-defined borders and territorial sovereignty in the regulation of cyberspace. At bottom, it was a contest between internal or indigenous regulation and the imposition of existing external regimes. At its heart lay two overarching areas of disagreement: First, descriptively, whether and to what extent the …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

The Use Of "Request," "Wish," "Desire": Precatory Trust Or Not?, Frank L. Schiavo

ExpressO

No abstract provided.

Finding The Contract In Contracts For Law, Forum, And Arbitration, William John Woodward

ExpressO

Contract provisions specifying the law or forum (either judicial or arbitration) have begun appearing in litigated cases, as businesses have pressed many courts for their enforcement against consumers. In at least some of the cases, enforcement of a choice of law provision results in the displacement of the consumer’s home state protection by the lesser consumer protection of the State of the form drafter’s choosing. This phenomenon raises serious problems of federalism and local control of consumer protection. But while considerable scholarly attention has been lavished on so-called “mandatory arbitration” in this context, much less has attempted to improve our …

Cityland – Vol. 2, No. 7, Center For New York City Law

CityLand - 2005

The August 2005 issue of CityLand highlights significant land use and zoning actions across New York City. Key developments include the City Council’s approval of rezoning in East Flushing, Pelham Gardens, Cambria Heights, and Staten Island neighborhoods to curb overdevelopment and preserve community character. The Council also approved a new primary/intermediate school in Canarsie. Landmark actions include the designation of the Plaza Hotel’s interiors, the re-calendaring of Seaman Cottage, and hearings on the Drake-DeHart House and the Austin, Nichols & Co. Warehouse. BSA decisions feature approvals for residential conversions in College Point, Bay Ridge, and Astoria, and withdrawals of controversial …

Digital Vat And Development: D-Vat And D-Velopment, Richard Thompson Ainsworth

Faculty Scholarship

This article suggests that the time is right for developing countries to consider adopting a comprehensive, fully digital VAT, (complete with certified software and trusted third party intermediaries who could assume all of the taxpayer's VAT responsibilities) within the limited group of enterprises encompassed by the large taxpayer group.

Since the e-commerce revolution began in the 1990's, tax policy discussions in developed economies have enlisted "e-solutions" to streamline consumption tax administration, as well as to resolve technical problems.

Inspiration came from the marketplace. Policy-makers observed widespread, business-initiated e-solutions to consumption tax compliance problems in a wide spectrum of jurisdiction. There …

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

The Geography Of Climate Change Litigation: Implications For Transnational Regulatory Governance, Hari Osofsky

ExpressO

ABSTRACT: This article aims to forward the dialogue about transnational corporate regulation by mapping the power dynamics that infuse litigation over energy production’s externalities and their implications for sovereign regulatory authority. The piece’s core argument is that appropriately constraining the externalities of energy production demands a nuanced, spatial understanding of the relationship among governmental regulatory entities, corporations, and the other actors that influence them. Part II begins by considering the multi-layered regulatory dilemmas posed by the transnational energy production process, the uncertain status of corporations under international law, and the law and economics debate over appropriate and effective environmental regulation …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Rfk, Day Of Affirmation Speech And Human Rights In America, Stuart Weinstein

ExpressO

An examination of Robert Kennedy historic Day of Affirmation speech made forty years ago. Is the role he envisioned for the US to play in international affairs and in advancing the cause of freedom and social justice for all humanity relvant in a post-Iraq abu Gharaib world?

Two Concepts Of Liberalism In Establishment Clause Jurisprudence, Kevin Pybas

ExpressO

The political theorist William Galston argues that the liberal political tradition contains two distinct strands of philosophical thought. One emphasizes the principle of autonomy, while the other stresses the principle of diversity. These principles, according to Galston, are in tension with each other and as guiding criterions lead to quite different public policies. Autonomy-centered liberalism seeks to promote autonomy or “individual self-direction”; it reflects a “commitment to sustained rational examination of self, others, and social practices.” As such, autonomy-centered liberals are generally suspicious of religious belief and seek to confine it to the private sphere. Diversity-centered liberalism, on the other …

Interdisciplinary Trends In Evidence Scholarship, Roger C. Park, Michael J. Saks

ExpressO

Abstract In recent decades, evidence scholarship published in leading law reviews has become markedly interdisciplinary, while treatises and texts continue to fill the need for doctrinal analysis. The authors describe this trend and set forth its recent history. They review and critique scholarship that applies concepts and insights from psychology, probability theory, philosophy, feminism, and economics to the law of evidence. They also comment on the pitfalls, benefits and prospects of interdisciplinary evidence scholarship

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

Turning Offense Into Defense: Making Sense Of Public Citizen's Arguments Against The Wto, Branden A. Bell

ExpressO

ABSTRACT

The World Trade Organization (WTO) is under considerable fire from nearly every quarter. Undoubtedly, the biggest gun currently belongs to Public Citizen’s Global Trade Watch (GTW). GTW is the undisputed leader of the coalition that derailed the Millennium Round of WTO talks in Seattle. In 2004, GTW published a second edition of its book, Whose Trade Organization? that had been the manifesto of the Seattle protesters.

The WTO Dispute Settlement Body (DSB) is one of the most frequent target of the anti-WTO crowd (and sometimes the pro-WTO crowd.) One chapter of GTW’s book is reserved for its criticism of …

The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

ExpressO

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress under apartheid. …

Expressive Association After Dale, David E. Bernstein

George Mason University School of Law Working Papers Series

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of …

Defining Spyware: Necessary Or Dangerous, Andrew T. Braff

Washington Journal of Law, Technology & Arts

State legislation attempting to define and proscribe spyware has been criticized for either being under-inclusive or over-inclusive. This article provides an overview of the technology that is commonly considered spyware and examines the potential effects of attempting to legislatively define and curtail spyware as a specific technology. It concludes that a more appropriate method to regulate spyware would focus on prohibiting conduct associated with placing monitoring software on a computer and enforcing existing law regarding such conduct.

Bigger Fish, Deeper Pockets: Business Blogs, Defamation And The Communications Decency Act, Emma Scanlan

Washington Journal of Law, Technology & Arts

Blogging is a form of online communication that encourages instantaneous postings and viewer comments. More and more businesses are creating blogs to talk about and promote their products and services. This article will focus on a business’ potential exposure to defamation liability stemming from content posted on a company-sponsored blog. The history of the Communications Decency Act in the courts indicates that companies will likely be immune from liability for defamation when the suit treats the company blog as the publisher of third party defamatory content. However, businesses that host blogs should be aware that this immunity may not extend …

Trademarkdilution.Com: Nissan Motor Co. V. Nissan Computer Corp., And The Evolving Law Of Trademark Dilution On The Internet, Lawrence F. Rosznyai

Washington Journal of Law, Technology & Arts

The Ninth Circuit recently held that an individual, Mr. Uzi Nissan, infringed the trademark of Nissan Motors when he registered and posted commercial content on www.nissan.com. An injunction was granted, barring Mr. Uzi from using the site commercially. Although the trademark dilution claim was remanded, the Ninth Circuit’s opinion favors a finding of dilution on remand. Additional arguments involving the property-right-in-gross theory of dilution, reverse domain name hijacking, and actual consumer behavior on the Internet should be used by the parties to bolster their cases and encourage a decision from the district court that will advance trademark law on the …

E-Discovery—Can The Producing Party Expect Cost-Shifting?: The New Trend And What Can Be Done To Reduce Production Costs, Mafé Rajul

Washington Journal of Law, Technology & Arts

Now that computers and the Internet have radically changed the way businesses create and transmit information, questions about discovery rules in litigation continue to arise, such as which party should pay for producing electronic discovery. The courts are now considering cost shifting when the cost of production is unduly burdensome on the producing party by applying a seven-factor test. However, cost shifting is not always considered or granted, which is why it is important to have electronic documents relevant to anticipated litigation accessible in order to minimize the cost of producing electronic discovery. This Article will examine how courts are …

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

ExpressO

This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, …

Lost In Translation: The Economic Analysis Of Law In The United States And Europe, Kenneth G. Dau-Schmidt

ExpressO

In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt …

The Duty To Bargain In Good Faith: Nlrb V. Truitt Manufacturing Co. And Nlrb V. Insurance Agents’ International Union, Kenneth G. Dau-Schmidt

ExpressO

This article discusses two classic Supreme Court cases from the 1950's that explore the contours of the obligation to bargain in good faith: NLRB v. Truitt Manufacturing Co. and NLRB v. Insurance Agents' International Union. In the Truitt case, the Supreme Court held that the obligation to bargain in good faith requires an employer to open its books to the union when the employer refuses a request for a wage increase on the basis that such an increase will drive the employer out of business. In the Insurance Agents' case, the Supreme Court held that union slow-down tactics were consistent …

Negotiating Sex, Michelle J. Anderson

Working Paper Series

“Negotiating Sex” is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the “No Model.” Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim’s words or conduct, a proposal I call the “Yes Model.” Under this model, according to Schulhofer, if a woman does not say “no,” and “her silence is combined …

Summary Of Hosier V. State, 121 Nev. Adv. Op. 41, Robert Henriksen

Nevada Supreme Court Summaries

This case is an original proper person petition for extraordinary relief, challenging the validity of Hosier’s 1990 judgment for conviction citing to Article 6, Section 4 of the Nevada Constitution.

Summary Of Bellon V. State, 121 Nev. Adv. Op. 45, 117 P.3d 176, Wayne Klomp

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Gordon V. State, 121 Nev. Adv. Op. 51, Bryce C. Loveland

Nevada Supreme Court Summaries

In this case, the Court considered two issues related to DUI charges against appellant. First, whether a jury may return a general guilty verdict based upon several legally sufficient theories of driving under the influence if at least one theory had sufficient evidentiary support. Second, whether the appellant was prejudiced by the State’s failure to gather evidence during its investigation. After a review of the evidence presented at trial, the Court concluded that a jury may return a general guilty verdict even when only one of several theories had sufficient support, and that the appellant here was not prejudiced by …

Summary Of Bass-Davis V. Davis, 122 Nev. Adv. Op. 39, Charles R. Cordova, Jr.

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Sheehan & Sheehan V. Nelson Malley & Co., 121 Nev. Adv. Op. 49, Kimberly Lou

Nevada Supreme Court Summaries

In this case, the Nevada Supreme Court reviews the district court’s interpretation of a contractual covenant not to compete and a liquidated damages clause. The Court states that unless clearly erroneous, it will affirm a district court’s decision on whether a contract was breached or not. However, the Court does not have to use the district court’s construction of a contract to make that determination. The Court may use independent appellate review to construe contracts.