Law Commons^™

Reconceptualising Legal Education After War, Christopher P. Waters

ExpressO

This paper considers the impact of war on legal education and assesses the contributions of legal education to post-conflict reconstruction and reconciliation.

Broadening The Scope Of Electronic Reproductions: The Interpretation Of Section 201(C) In Faulkner V. National Geographic Enterprises Inc., Shan Sivalingam

Washington Journal of Law, Technology & Arts

This Article analyzes the implications of the recent decision of the United States Court of Appeals for the Second Circuit in Faulkner v. National Geographic Enterprises Inc. The court interpreted § 201(c) of the federal Copyright Act to permit National Geographic to compile print issues of its magazine into a CD-ROM digital archive without explicit permission from freelance authors who contributed to the print issues. The court’s decision has raised concern among freelance journalists and photographers who contribute works to newspapers and other periodicals that compile copyrighted works. This Article outlines significant features of the Faulkner decision and analyzes it …

Podcasting Pop Songs?: Licensing Concerns With Podcasts That Contain Mainstream Music, Jared Barrett

Washington Journal of Law, Technology & Arts

Podcasting is a new distribution medium that allows a vast array of users to transmit audio or video programs (“podcasts”) to wide audiences. Typically, recipients use handheld devices, such as an iPod, or personal computer to capture and retain a podcast for later playback. Podcasts are diverse in form and content, ranging from talk-radio shows to political speeches to educational programs. One area of content that has been slow to develop, however, is the inclusion of mainstream music in podcasts. Many podcasters have avoided the use of mainstream music altogether because of difficulties in determining how podcasting music fits within …

Don't Send That E-Mail To A Minor!: Compliance With State Child Protection Registry Statutes, Laura Dunlop

Washington Journal of Law, Technology & Arts

In July of 2004, Michigan and Utah enacted child protection registry laws that prohibit businesses from sending e-mail advertisements for certain types of goods and services to “contact points” (e.g. individual or school e-mail domains) listed on registries maintained by each state. The prohibited goods and services include alcohol, tobacco, pornography, and illegal drugs. This Article summarizes these statutes and provides guidance to businesses concerning statutory compliance. The Article also highlights certain concerns about the scope and ambiguities in the statutory language. Despite ongoing debate surrounding these statutes, companies that choose to market via the Internet must understand their statutory …

The Union Workplace Meets Big Brother: Advising Clients On Employer Conduct With Regard To Hidden Surveillance, Jamila Asha Johnson

Washington Journal of Law, Technology & Arts

Hidden cameras may guide a union employer to find employee misconduct, but at what cost? Since the late 1990s, two federal appeals courts and the National Labor Relations Board (NLRB) have required employers to bargain with unions before using hidden video surveillance to observe employees. Until more recently, however, it was less apparent how lawyers should advise clients when an employer wished to use hidden cameras or had already installed non-disclosed video surveillance. In August 2005, the D.C. Circuit Court of Appeals decided a case surrounding surveillance at an Anheuser-Busch facility, which provided further guidance on these issues. This Article …

Successor Liability For Defective Products: A Redesign Ongoing, Richard L. Cupp

ExpressO

Successor products liability – cases where an injured plaintiff sues a successor business for a defective product sold by a predecessor business -- is a doctrine still under development in the courts, and the doctrine’s unsettled nature seems destined to continue over the next several years. Jurisdictions may be roughly divided into three categories. Several take a restrictive approach toward liability in such cases (sometimes called the “traditional approach”), allowing it only when relatively rare exceptions to a general no-liability rule apply. Several other jurisdictions are less restrictive with successor products liability, allowing recovery under the “product line” or “continuity …

Two Cases Of Apostasy In Dubno In 1716 Jews, Christians, And Family Life, Magda Teter

Early Modern Workshop: Resources in Jewish History

This text relates a trial of two Christian women who accepted to Judaism that took place in the city of Dubno in eastern Poland in 1716. The text presented here comes from a collection of primary sources published in Kiev [now Kyiv] in 1869, as part of effort by scholars at the time to collect and publish primary source materials about Ukraine. The collection is called Arkhiv Iugo-zapadnoi Rossii, or The Archive of South-Western Russia, and contains documents from the South-Western part of Ukraine.

This presentation is for the following text(s):

• Two Cases of Apostasy in Dubno in 1716

An Empirical Assessment Of Federal Question Jurisdiction, Jack F. Preis

ExpressO

For ages, judges and legal academics have claimed that federal question jurisdiction has three purposes: to provide litigants with a judge experienced in federal law, to protect litigants from state court hostility toward federal claims and to preserve uniformity in federal law. Although one could fill a small library with books and articles endorsing this conception of federal question jurisdiction, one would be hard-pressed to find a single article testing these rationales empirically.

This Article seeks to be the first such piece of scholarship. Based on a study of thousands of state court cases across fifteen different states, it first …

Beyond Broadcasting: The Constitutionality Of Indecency Regulation On Cable And Direct Broadcast Satellite Services, Matthew S. Schwartz

ExpressO

This paper argues that if the federal government is serious about its stated goals of protecting children and the sanctity of the home, then the Federal Communications Commission should expand indecency regulations to cable and satellite services. The current enforcement system – fining the handful of free broadcasters hundreds of thousands of dollars for each instance of indecency they air, while completely ignoring the much more extreme indecency commonplace on cable and satellite – is arbitrary and nonsensical. After discussing the relevant laws and precedent, the paper analyzes the regulatory history of broadcast, cable and satellite over the past few …

Human Worth As Collateral, Rashmi Dyal-Chand

ExpressO

Human worth has taken on a surprising new role: that of market asset. Specifically, lenders in radically different contexts are using their borrowers’ human worth as collateral in loan transactions. The two examples of this new collateralization that I examine are credit card lending in the United States and microlending programs in the Third World. I conclude that the use of human worth in these two contexts is too similar to be coincidental. Rather, this new collateralization is a product of globalization. For those interested in the effect of law on globalization, this convergence in the market for credit teaches …

Ironic Misnomer: How The Term, "Partial-Birth Abortion," Reveals Why Attempts To Ban The Practice Have (So Far) Been Largely Unsuccessful, Samuel W. Calhoun

ExpressO

No abstract provided.

The Law, Marketing And Behavioral Economics Of Consumer Rebates, Matthew A. Edwards

ExpressO

This paper deals with mail-in consumer rebates — a significant, yet controversial marketing practices that has generated thousands of consumer complaints, inspired countless articles in major periodicals, and begun to attract the interest of state and federal legislators. The paper first aims to provide an understanding of the purposes of consumer rebate offerings. It then surveys the main categories of consumer rebate complaints, including that firms impose onerous rebate redemption requirements and that they fail to pay rebate rewards in a timely manner. The paper draws on recent marketing, psychological and behavioral economics research to address the potent claim that …

[Insert Song Lyrics Here]: The Uses And Misuses Of Popular Music Lyrics In Legal Writing, Alex B. Long

ExpressO

Legal writers frequently utilize the lyrics of popular music artists to help advance a particular theme or argument in legal writing. And if the music we listen to says something about us as individuals, then the music we, the legal profession as a whole, write about may something about who we are as a profession. A study of citations to popular artists in law journals reveals that, not surprisingly, Bob Dylan is the most popular artist in legal scholarship. The list of names of the other artists rounding out the Top Ten essentially reads like a Who’s Who of baby …

Reverse Monitoring: On The Hidden Role Of Employee Stock Ownership Plans, Sharon Hannes

ExpressO

This paper develops a new understanding of equity-based compensation schemes, such as employee stock option plans. Current literature views such schemes as a measure aimed at motivating the recipient employees to work harder for the firm. Under such a view, this remuneration method either complements or substitutes other measures used to monitor the performance of the recipient employees. In contrast, this paper proposes that the recipient employee be viewed as the potential monitor of other employees and that stock options (or similar types of compensation) motivate her to fulfill this task. This view has many applications and can shed light …

The Social Obligation Of Property Ownership: A Comparison Of German And U.S. Law, Rebecca Lubens

ExpressO

Although both Germany and the United States have strong market-based economies characterized by rigorous protection of private property rights, the two countries have different conceptions of land ownership based on distinct notions of the individual’s place in society. Whereas property protection under the U.S. Constitution emphasizes individual freedom, German law explicitly considers the individual’s place in and relationship to the social order in defining ownership rights. The property clause in the German Grundgesetz (The Basic Law, the German constitution) contains an affirmative social obligation alongside its positive guarantee of ownership rights. The U.S. Constitution, on the other hand, does not …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

ExpressO

This article examines the recently disclosed, presidentially authorized program of warrantless electronic surveillance by the National Security Agency (NSA). Critics of the program say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Supporters counter that it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on an aspect of the controversy to which neither critics nor supporters have paid much attention: the connection between the issues of whether the NSA program violates FISA and whether it violates the Fourth …

Recent Defined Benefit Pension Reform: Reasons And Results, Daniel B. Klaff

ExpressO

In the face of corporate bankruptcies, the Pension Benefit Guaranty Corporation (“PBGC”) assures workers that their defined benefit pensions will be protected. It is this fact which has motivated recent reform of the PBGC and the overarching defined benefit plan system by Congress. This paper explores those reforms by addressing the reasons for and results of the most recent reform which had as its primary aim restoring the fiscal solvency of the PBGC. The paper challenges popular accounts of the reform process while examining the results of such reform for important stakeholders without resorting to an overly technical discussion of …

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …

Regulating Evolution For Sale: An Evolutionary Biology Model For Regulating The Unnatural Selection Of Genetically Modified Organisms, Mary Jane Angelo

ExpressO

In the past ten years there has been an explosion in the genetic manipulation of living organisms to create commercial products. This genetic manipulation has, in effect, been a directed change in the evolutionary process for the purpose of profit. This deliberate alteration of the path of evolution has brought with it a panoply of novel environmental, human health, and economic risks that could not have been foreseen when U.S. environmental and health protection laws evolved. Many products of genetic engineering have been modified to possess traits that increase their ability to reproduce and survive in the environment. By genetically …

Judith Johnson Ada Article, Judith Johnson

ExpressO

No abstract provided.

Liberalism And Religion, Steven H. Shiffrin

ExpressO

No abstract provided.

A Friendly Approach To Reducing Medical Malpractice Litigation, Aaron A. Bucco

ExpressO

A Friendly Approach to Reducing Medical Malpractice Litigation focuses on practical and feasible solutions to the rising threat of medical malpractice litigation by establishing that psychological principles are fundamental to point-of-care physician-patient interaction. Several universities discussed in the article have recognized the benefits of incorporating bedside manner techniques into the curriculum. The article attempts to extend the logic understood by those universities to medical malpractice insurance providers as a means to effectively preempt litigation as opposed to maintaining a reactive posture, or worse, limiting the rights of patients, thereby raising their guard and weakening their tolerance for error.

Towards A Common Law Originalism, Bernadette A. Meyler

Cornell Law Faculty Publications

Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law suggested …

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

ExpressO

This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in …

Courts, Cops, Citizens, And Criminals, Justin David Heminger

ExpressO

The Supreme Court's 4-1-4 split decision in Missouri v. Seibert causes confusion with regard to question-first Miranda violations. Courts apply a Marks narrowest ground analysis to decide which opinion in Seibert is controlling. However, the majority approach to Seibert, which finds Justice Kennedy's concurrence controlling, is incorrect. Instead, lower courts should resolve question-first Miranda violations by applying legal principles expressed in the plurality's decision.

The Corporate Governance Industry, Paul Rose

ExpressO

This paper considers the role of the corporate governance industry as a voluntary regulator. The corporate governance industry influences (and in some cases effectively controls) the vote of trillions of dollars of equity, and affects the governance policies and fortunes of thousands of companies through proxy voting recommendations and governance ratings. This paper considers the increasing influence of the corporate governance industry, and argues that potential conflicts of interest within some governance firms cast doubt on the reliability of their proxy advice and governance ratings. Additionally, governance firms may be overstepping their expertise in proxy voting decisions and in governance …

Patent Reform And Differential Impact, Matthew J. Sag, Kurt Rohde

ExpressO

This article presents a new method of analyzing patent reform proposals through the use of differential impact analysis.

Congressional efforts to address the crisis of confidence in the U.S. patent system have failed up to the present day. If Congress is to have any hope of passing much needed legislative reform to the Patent Act, the supporters of patent reform will have to unite behind a streamlined set of proposals that directly address the most pressing and unambiguous defects of the current patent system. To that end, we have proposed applying a test of differential impact to enable Congress to …

Authorship, Audiences, And Anonymous Speech, Thomas F. Cotter

ExpressO

A series of United States Supreme Court decisions establishes that the First Amendment provides a qualified right to speak and publish anonymously, or under a pseudonym. But the Court has never clearly defined the scope of this right. As a result, lower courts have been left with little guidance when it comes to dealing both with the Internet-fueled growth of torts and crimes committed by anonymous speakers, and with the increasing number of lawsuits aimed at silencing legitimate anonymous speech. In this Article, we provide both positive and normative foundations for a comprehensive approach to anonymous speech. We first draw …

Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali

ExpressO

As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …

Individual Rights And Group Rights In The European Union's Approach To Minority Languages, Robert F. Weber

ExpressO

The European Union rights discourse is dominated by talk of individual, and not group, rights. Individual market actors have been the constitutive atoms of European Union law. Within this legal framework, the onus has been on the Member States to protect and contribute to minority language groups. This paper examines some of the ways Member States accommodate and recognize the minority language groups residing within Europe, and subsequently analyzes the compatibility of these measures with the EC Treaty in light of the European Court of Justice's (ECJ) willingness to invoke the Treaty in an increasing array of situations. Specifically, the …