Law Commons^™

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

ExpressO

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

Vol. 57, No. 1, August 28, 2006, University Of Michigan Law School

Res Gestae

•Tips for Early Interview Week and Beyond •All I Ever Needed to Know About OCI I Learned Doing My Laundry •Get Your Dream Job in Your Dream City •Top 10 Things Not to Say on Callbacks •If You Can Dodge the Wrench You Can Dodge These Interview Questions •The OCI Drinking Game! •The Opening of Law School Dating Season •10 Things Not to Do as a Summer Associate •Crossword •Green OCI

Swallows As It Might Have Been: Regulations Revising Case Law, Steve R. Johnson

Scholarly Publications

This is the second of two reports on the Swallozvs Holding decision. 1 In that case, the Tax Court, over three dissenting opinions, invalidated a timing rule contained in a Treasury regulation under IRC section 882. That timing rule provided that some foreign corporations could not claim otherwise available deductions if their returns for the tax year were filed outside an 18-month grace period. The majority and the dissenters clashed over which line of authority – Chevron 2 or the pre-Chevron tax-specific line of decisions typified by National Muffier3 – provides the governing standard for evaluating the validity of …

Vol. 31, No. 01 (August 28, 2006)

Indiana Law Annotated

No abstract provided.

Appeal No. 0756: Dalton Smith V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2006-36

Appeal No. 0758: John C. Brown V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2006-56

Appeal No. 0760: A.W Tipka Oil & Gas, Inc. V. Division Of Mineral Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Chief's Order 2006-76

Contribution To The Understanding Of The Public Domain, Vincenzo Vinciguerra

ExpressO

The purpose of this article is to understand how the public domain has been construed by the Courts. In the first part of the article, the different ways the public domain has been qualified and construed by scholars are briefly sketched out- for descriptive and introductory purposes to the analyzed cases law. In light of the different ways the public domain has been qualified and characterized by scholars, in the second part of the article, several well-known and often-quoted cases law are analyzed. In this article, it is argued that the public domain, contrary to authoritative schools of thought, is …

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

ExpressO

In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a shift …

Saving Trade Secret Disclosures On The Internet Through Sequential Preservation, Elizabeth A. Rowe

ExpressO

When a trade secret is stolen from its owner and posted on the Internet, the default rule is that it becomes a free for all. By virtue of the fact that it has been posted, it becomes public, and consequently loses its trade secret protection. The ensuing result is that independent third parties, including competitors, are entitled to use it, and the trade secret owner, despite years of laudable efforts to maintain the secret, suffers a fatal loss at the hands of a wrongdoer. The apparent injustice in that conclusion does not go unnoticed.

Given that trade secret law is …

The Crimmigration Crisis: Immigrants, Crime, & Sovereign Power, Juliet P. Stumpf

ExpressO

This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. Although the connection between immigration and criminal law, or “crimmigration law,” is now the subject of national debate, scholarship in this area is in a fledgling state. This article begins to fill that void. It proposes a unifying theory – membership theory – for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract …

A Battle Between Geography Indication And Trademark, Jia Xu

Cornell Law School J.D. Student Research Papers

In 2005, Administration for Quality, Supervision, Inspection and Quarantine (AQSIQ) issued “Administrative Regulation on Indications of Original Source and Regulation on Protection of Products from Original Sources,” but “Implementing Rules of the Trademark Law of the People's Republic of China” has included the protection of Geography Indication into the trademark law. The two separate tracks of protection of GI have caused much confusion to the intellectual property right holders regarding their property rights. This thesis introduces and compares the concept of trademark and geography indications, analyzes the current protection mode both in China and abroad and discusses how to eliminate …

A Reflection On The Chinese Green Card System, Jia Xu

Cornell Law School J.D. Student Research Papers

The issuance of Regulations on Examination and Approval of Permanent Residence of Aliens in China marks the establishment of the green card system in China. It aims to attract world talents as well as foreign investment. It is a very important step concerning China’s open-up policy, but we still have a long way to improve the newly-established system.

Stuck In The Thicket: Struggling With Interpretation And Application Of California's Anti-Gang Step Act, Martin Baker

ExpressO

California’s Street Terrorism Enforcement and Prevention Act (Penal Code Sections 186.20 et seq.) was enacted in 1988 in response to a perceived “state of crisis . . . caused by violent street gangs” throughout the state. The “STEP” Act created a distinct crime of active participation in a criminal street gang, as well as providing enhanced penalties for any crime committed with the intent to facilitate criminal gang activity.

Since its enactment, the poorly drafted Act—described by the California Supreme Court as a “thicket of statutory construction”—has produced an array of conflicting and vague appellate opinions. This article examines the …

Applying General Tort Law To The Indirect Infringement Of Patents, Copyrights, And Trademarks, Charles W. Adams

ExpressO

This article examines the general tort law governing liability for torts committed by others and compares it to the law of indirect infringement for patents, copyrights, and trademarks. There are a number of circumstances in which the law imposes liability for torts committed by other persons. Liability is imposed on an aider and abettor who gives substantial assistance or encouragement to another person’s commission of a tort, provided the aider and abettor actually knows the other person’s conduct is tortious. Liability is also imposed on a party who induces another person to commit a tort if the inducer either knows …

Forgotten Racial Equality: Implicit Bias, Decision-Making And Misremembering, Justin D. Levinson

ExpressO

This Article argues that judges and jurors unknowingly propagate racism through their legal decisions because they misremember case facts in implicitly biased ways. Such an argument bridges discourse in implicit social cognition, memory studies, and legal decision-making. Social cognition research indicates that implicit racial biases are automatic, pervasive, and often operate without conscious awareness. Memory studies demonstrate that memory errors are meaningful and systematic, and are often facilitated by stereotypes. Decision-making theory teaches that memory errors can not only affect the results of individual decision-making processes, but also that group deliberations are unlikely to resolve these errors. The author argues …

Brief Of Intellectual Property Law Professors As Amici Curiae Supporting Petitioner, Ksr International Co. V. Teleflex Inc., No. 04-1350 (U.S. Aug. 26, 2006), John R. Thomas

U.S. Supreme Court Briefs

No abstract provided.

On The Legal Consequence Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable, Christopher J. Buccafusco

ExpressO

This article is devoted to copyright protection for one of the restaurant industry’s most valuable assets – original recipes. The two most recent appellate courts to consider the issue have been hostile to the notion that recipes are copyrightable, but given the enormous amount of money at stake, litigation in this area is likely about to expand. The article begins by critiquing the courts’ conclusions. Following an analogy to musical composition, I argue that recipes are simply the means of fixation for culinary works of authorship, i.e, dishes. Next, based on interviews with some of America’s leading chefs, including Thomas …

Disability Discrimination In Long-Term Care: Using The Fair Housing Act To Prevent Illegal Screening In Admissions To Nursing Homes And Assisted Living Facilities, Eric M. Carlson

ExpressO

Nursing homes and assisted living facilities routinely require applicants to disclose an extensive amount of medical information. Not infrequently, these long-term care facilities use the information to deny admission to those applicants with relatively greater care needs. These denials constitute illegal discrimination under the Americans with Disabilities Act and the Rehabilitation Act, but generally consumers are unaware of these protections or find litigation too expensive and time-consuming under their generally difficult circumstances.

These illegal denials of service could be limited by active enforcement of the Fair Housing Act’s no-inquiry regulation, which prohibits a housing provider from inquiring into an applicant’s …

Impotence Of Being Earnest: Status Of The United Nations Standard Minimum Rules For The Treatment Of Prisoners In Europe And The United States, Sara A. Rodriguez

ExpressO

The Standard Minimum Rules for the Treatment of Prisoners were approved with the most earnest of good intentions at the First United Nations Crime Congress in 1955, in an attempt to establish “what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.” In spite of their noble purpose, implementation of these rules has been somewhat of a disappointment. Europe has adopted the Standard Minimum Rules wholesale. The United States, by contrast, has declined to adopt a set of standards patterned after the Standard Minimum Rules, relying instead on pre-existing correctional …

Why Do We Know What We Know? Reevaluating The Economic Case Against Pre-Contractual Disclosure Duties And For Break-Up Fees, Barak Medina, Ofer Grosskopf

ExpressO

The economic analysis of contract law offers influential arguments against pre-contractual disclosure duties and for break-up fees, based on the presumption that pre-contractual duties are (or should be) set to provide sufficient incentives to optimally invest in acquiring information at the negotiation stage. We suggest, however, that the existing analysis is flawed, since it overlooks an important incentive for investing in information gathering.

According to the conventional wisdom, a negotiating party will be motivated to invest resources in information gathering only on the basis of its expectation to extract the contractual surplus that the investment may generate. As a result, …

Crisis Bureaucracy: Homeland Security And The Political Design Of Legal Mandates, Mariano-Florentino Cuellar

ExpressO

Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion. We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are …

Lawful Personal Use, Jessica D. Litman

Law & Economics Working Papers Archive: 2003-2009

Whenever someone makes a copy of a copyrighted work, that copy is either authorized by the copyright owner, permitted by some express provision of the copyright statute (such as the ephemeral copy provision in section 112 or the fair use provision in section 107), or infringing. That's what we tell our colleagues and what we teach our students. But most of us don't actually believe it, and this article argues that that understanding of the copyright law is wrong.

I make this argument by examining the copyright law through the lens of personal use. Unlike many other jurisdictions, the United …

Necessary Knowledge For Communications Policy: Information Inequalities And Commercial Data Access And Usage In The Policymaking Process, Philip M. Napoli, Michelle Seaton

ExpressO

Communications policymaking increasingly relies upon large-scale databases manufactured and marketed by commercial organizations. Data providers such as BIA Research, Nielsen Media Research, and Arbitron play a vital role in aggregating the data that policymakers, policy analysts, and policy advocates rely upon in policy deliberations. In many ways, these data providers supplement the limited data gathering capacity of government bodies such as the FCC and NTIA and thereby help to bring a greater quantity of relevant data to bear on policy issues than would otherwise be possible. Indeed, these data are utilized extensively by stakeholders with an interest in policy outcomes …

Who Decides?: A Critical Look At Procedural Discretion, Robert G. Bone

ExpressO

Federal civil procedure today relies extensively on trial judge discretion to manage litigation, promote settlements, and otherwise tailor process to individual cases. Even those rules with decisional standards leave trial judges considerable interpretive freedom to make case-specific determinations. This Article criticizes these choices and recommends stricter rules. Many judges and procedure scholars applaud the discretionary approach, and the Advisory Committee seems content to draft vague rules that implement it. The assumption seems to be that trial judges have the expertise and experience to do a good job of tailoring procedures to the needs of particular cases. The assumption is wrong, …

Varied Carols: Legislative Prayer In A Pluralist Polity, Robert J. Delahunty

ExpressO

The article grows out of my research in writing an amicus brief for a group of distinguished theologians and religious scholars in Hinrichs v. Bosma, a case currently pending before the Seventh Circuit. That litigation involves a challenge to the practice of the Indiana House of Representatives of inviting chaplains of various faiths to lead the House in prayer before the start of each day’s official business. The trial court interpreted the Supreme Court’s 1983 decision, Marsh v. Chambers, to prohibit “sectarian” legislative prayer, and accordingly enjoined the Indiana House’s chaplains from invoking the name of Jesus, or otherwise praying …

Revitalizing Our Urban Core Without Marginalizing Our Core People: Closing Tax Credit Loopholes For The Wealthy While Generating Ethnic Entrepreneurial Self Help Alternatives To Subsidized Gentrification, Roger M. Groves

ExpressO

This article provides the most comprehensive analysis to date of the New Markets Tax Credits program established by Congress. The purpose of the NMTCs is to use tax credits as incentives for investors to provide equity funds into low income areas. The article reveals that over $2 billion of federal tax subsidies that have been allocated to gentrified projects for the wealthy, rather than the intended beneficiaries – low income residents in the urban core – as Congress intended. The article proposes amendments to the statute and regulations to close unintended loopholes.

The article also creates a model for a …

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

ExpressO

The Liberal Assault on the Fourth Amendment Christopher Slobogin As construed by the Supreme Court, the Fourth Amendment’s reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects–-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today’s law on the Warren Court’s adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings …

Clouds, Cameras, And Computers: The First Amendment And Networked Public Places, Timothy Zick

ExpressO

Public places are becoming highly networked environments. Municipalities are draping wireless clouds and meshes over vast public spaces, facilitating always-on internet connectivity. Surveillance cameras are now a pervasive presence in many public places. The people who gather in public and use public spaces are wearing and carrying ever more sophisticated computing devices. An integrated grid of networked connectivity is being built into traditional bricks-and-mortar public places. This Article examines the First Amendment implications of the progression toward networked public places. Wireless clouds will raise substantial property, public forum, and privacy issues. The networking of public places will also challenge traditional …

Law And The Science Of Networks: An Overview And An Application To The "Patent Explosion", Katherine J. Strandburg

ExpressO

The network may be the metaphor of the present era. A network, consisting of “nodes” and “links,” may be a group of individuals linked by friendship; a group of computers linked by network cables; a system of roads or airline flights -- or another of a virtually limitless variety of systems of connected “things.” The past few years have seen an explosion of interest in “network science,” which seeks to move beyond metaphor to analysis in fields from physics to sociology. Network science highlights the role of relationship patterns in determining collective behavior. It underscores and begins to address the …