Law Commons^™

The Politics Of Memory/Errinerungspolitik And The Use And Propriety Of Law In The Process Of Memory Construction, Vivian Grosswald Curran

ExpressO

The post-Second World War trial for the crime against humanity from the start assumed pedagogical proportions, with the tribunals involved conscious that their legal verdicts would represent historical pronouncement and national values. The newly defined crime has been asked to institutionalize far more than the traditional task of adjudicating the guilt or innocence of the defendant. The trials themselves are meant to define the past, create and crystallize national memory, and illuminate the foundations of the future. I suggest that, by placing a burden on law that it is not designed to bear,we risk deforming law and legal principle. We …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

ExpressO

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

Virginia Bar Exam, July 2006, Section 1

Virginia Bar Exam Archive

No abstract provided.

Virginia Bar Exam, July 2006, Section 2

Virginia Bar Exam Archive

No abstract provided.

Jurisdictional Fact, Kevin M. Clermont

Cornell Law Faculty Publications

What kind of factual showing must the plaintiff make in order to establish, say, personal jurisdiction? While that question may seem simple enough, real difficulties in regard to the standard of proof arise when there is a similarity of the facts entailed in the jurisdictional determination and those on the merits. Surely, the plaintiff has to do more than allege that the defendant is the author of state-directed acts or omissions. Yet, almost as surely, the plaintiff should not have to prove the cause of action in order to establish jurisdiction. The plaintiff thus must have to show something between …

Swallows Holding As It Is: The Distortion Of National Muffler, Steve R. Johnson

Scholarly Publications

I like big ideas. The opportunity to work with them, and hopefully to add to them, is one of the joys of academic life. But perspective also is required. Not everything genuinely presents "macro" issues. As Freud supposedly said, “Sometimes a cigar is just a cigar.”

In Swallows Holding Ltd. v. Commissioner, the Tax Court, over three dissenting opinions, invalidated a return-filing timing rule in a Treasury regulation under section 882 of the !RC. It is clear that what drove the majority opinion was the perception that the timing rule was contrary to many previous cases interpreting the statute. As …

Don't Mourn --- Reorganize! An Introduction To The Next Wave Organizing Symposium Issue, Seth Harris

ExpressO

On January 27 and 28, 2005, New York Law School’s Labor & Employment Law Program, in cooperation with the Justice Action Center and the Institute for Information Law & Policy, presented the Next Wave Organizing Symposium. The Symposium brought together worker organizers, trade union officials, technologists, students, and scholars in law, industrial relations, economics, public policy, and other fields to tell the story of how, despite all of the forces arrayed against them, workers are organizing.

This article is the introduction to the Next Wave Organizing Symposium issue of the New York Law School Law Review. The purpose of the …

A Tenacious Fidelity To The Law, Susan G. Drummond

Editorials and Commentaries

No abstract provided.

Are Patented Research Tools Still Valuable? Use, Intent, And A Rebuttable Presumption: A Proposed Modification For Analyzing The Exemption From Patent Infringement Under 35 Usc 271 (E) (1), Vihar R. Patel

ExpressO

Briefly, the article proposes to have courts focus on the nature of an individual's use and apply the "UART" (Use As a Research Tool) factors to determine if a patented invention is being used as a research tool. If a patented invention is being used as a research tool, then the court is to presume that the activities are not covered by the FDA exemption. However, this presumption can be rebutted by a researcher's demonstration of the research tool owner using his patent to block efforts to develop a competing product. If the presumption is rebutted, then the court applies …

How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter

ExpressO

For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.

In this article, I examine the current state of the right of …

Brief For American Lung Association Et Al. As Amici Curiae Supporting Petitioners, Environmental Defense V. Duke Energy Corporation, No. 05-848 (U.S. Jul. 21, 2006), Hope M. Babcock, Kristi M. Smith

U.S. Supreme Court Briefs

No abstract provided.

Peace Is Not The Absence Of Conflict: A Response To Professor Rogers' Article: "Fit And Function In Legal Ethics", Kirsten D. Weisenberger

ExpressO

This paper takes the theoretical model Professor Catherine Rogers developed in her article “Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration,” 23 MICH. J. INT’L L. 341 (2002) as the starting point for an original argument that conflicts of laws analysis should be used to determine which legal ethics rules should apply to lawyers practicing international arbitration. The argument is supported by the new ABA Model Rules of Professional Conduct rule on choice of law explicitly applies conflicts of laws analysis to lawyers practicing in the multijurisdictional settings. This paper analyses the new ABA …

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance interest by …

Rosebud Sioux Tribe V. Bbc Entertainment, Inc., Frank Pommersheim

Tribal Court Opinions Authored by Emeritus Professor of Law Frank Pommersheim

No abstract provided.

“Thinking Globally, Acting Locally”: Recent Trends In The Recognition And Enforcement Of Foreign Judgments In Canada, Antonin I. Pribetic

ExpressO

The continuing evolution of the “real and substantial connection” test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the “real and substantial connection” test for jurisdiction simpliciter provides a flexible analytical framework for …

Military Commissions: Hamdan V. Rumsfeld: Testimony Before The S. Comm. On Armed Services, 109th Cong., July 19, 2006 (Statement Of Neal Kumar Katyal, Prof. Of Law, Geo. U. L. Center), Neal K. Katyal

Testimony Before Congress

No abstract provided.

Imposing Conditions On Developing Countries’ Tariff Preferences, Jennifer S. Jones

ExpressO

No abstract provided.

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

In Facetiis Verititas: How Improv Comedy Can Help Lawyers Get Some Chops, Steven Lubet

ExpressO

Lawyers can learn a lot from the theory of improvisational comedy, and it isn’t just a matter of thinking on your feet. As we will explain, the key concept in both disciplines is the creation of a new, temporary reality. In improvisation, the cast must draw the audience into sharing the constructed reality of the stage, such that they can actually “see” the objects and characters portrayed, without the use of props or costumes. In trial, the lawyer must draw the jury into sharing the re-constructed reality of past events, such that they “see” what happened, even though they were …

The End Of Net Neutrality, William G. Laxton Jr.

Duke Law & Technology Review

In 2005, the FCC changed the competitive landscape of the high-speed Internet access industry by classifying both DSL and cable modem service as "information services." While many hail this move as a victory for competition and free markets, others fear the ruling could jeopardize the future of the Internet. This iBrief examines the potential end of "net neutrality" and concludes that new federal regulations are unnecessary because antitrust laws and a competitive marketplace will provide consumers with sufficient protection.

Suspicionless Canine Sniffs: Does The Fourth Amendment Prohibit Public Schools From Using Dogs To Search Students Without Individualized Suspicion?, Todd J. Feinberg

ExpressO

Drugs plague our nation’s schools. Since traditional methods of fighting the problem are proving ineffective, some schools are trying new approaches. One such approach is using specially trained dogs to indiscriminately sniff students for the presence of illegal drugs. Using dogs to sniff students is controversial and has sparked a constitutional debate. The Supreme Court has not expressly ruled on whether suspicionless canine sniffs violate a public school student’s Fourth Amendment protection against unreasonable searches. In fact, the Court has acted in a manner that actually increases uncertainty around the issue. This uncertainty makes employing suspicionless canine sniffs difficult for …

Adult's Sexual Orientation And State Determinations Regarding Placement Of Children, Michael S. Wald

ExpressO

No abstract provided.

Premium Assistance In Medicaid And Schip: Ace In The Hole Or House Of Cards?, Cynthia Shirk, Jennifer Ryan

National Health Policy Forum

This issue brief explores the use of premium assistance in publicly financed health insurance coverage programs. In the context of Medicaid and the State Children’s Health Insurance Program (SCHIP), premium assistance entails using federal and state funds to subsidize the premiums for the purchase of private insurance coverage for eligible individuals. This paper considers the evolution of premium assistance and some of the statutory and administrative limitations, as well as private market factors, that have prevented widespread enrollment in Medicaid or SCHIP premium assistance programs. Finally, this issue brief offers some ideas for potential legislative and/or programmatic changes that could …

The Case Of The Extradition Of Luis Posada Carriles: Is The United States Harboring A Terrorist?, Ernesto Gonzalez

ExpressO

"The Case of the Extradition of Luis Posada Carriles: Is the United States Harboring a Terrorist?", is the product of an independent research and writing exercise that I undertook to satisfy a writing requirement as editor of the American University International Law Review. The comment analyses the international obligations of the United States in the face of Venezuela’s request for the extradition of Luis Posada Carriles, a Cuban-born anti-Castro militant accused by Venezuela of bombing a civil airplane in 1976. The comment argues that under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal …

Water Reallocation By Settlement: Who Wins, Who Loses, Who Pays?, Rosalind H. Bark

ExpressO

The 2004 Arizona Water Settlements Act (AWSA) is the current standard for what a comprehensive, negotiated settlement can achieve in terms of water rights reallocation, water resource management, and water supply reliability enhancement. This note reviews the flows of money and water specified in Titles I and II of the AWSA to identify the signatory and non-signatory parties that benefit from the settlement and the allocation of costs between the various parties to the agreement. Opportunity costs are also considered. Innovative elements of the agreement are discussed particularly those that improve water supply reliability for the Gila River Indian Community …

Cityland – Vol. 3, No. 6, Center For New York City Law

CityLand - 2006

The July 2006 issue of CityLand covers major land use and preservation developments across New York City. The City Council approved a 70-block rezoning in Jamaica Hill and Hillcrest, Queens, including the creation of a new R5D zoning district. Forest City Ratner’s 75-story development in Lower Manhattan will include a public school. The Council also approved a lease for the South Brooklyn Marine Terminal and a 12-story homeless housing facility on East Houston Street. The Planning Commission approved a rezoning and pedestrian bridge for Manhattan College’s parking garage and supermarket project, and a special permit for public parking at the …

Digital Attribution: Copyright And The Right To Credit, Francis G. Lastowka

ExpressO

In a 1951 article in Science magazine, librarian Ralph Shaw argued that copyright law paid insufficient attention to the attribution interests of authors. Shaw observed that the straightforward pecuniary interests of publishers diverged from the more complex reputation-based interests of authors. He noted how authors and publishers might have differing views regarding the benefits of providing thousands of copies of a work for “free distribution.” Of course, since Shaw had pointed out that no sensible publisher would be interested in giving away such free works, the example he used was fanciful at the time. Today times have changed. The World …

Ringing The Bell On The Nyse: Might A Nonprofit Stock Exchange Have Been Efficient?, Stephen F. Diamond

ExpressO

Abstract

This spring the New York Stock Exchange, Inc. (Exchange or NYSE) completed an historic restructuring. On March 7, 2006, the NYSE completed its merger with Archipelago Holdings Inc. (Archipelago), a publicly traded electronic trading platform. As a result, the old NYSE itself became the New York Stock Exchange LLC, a wholly owned subsidiary of NYSE Group, Inc. (NYSE Group). The former members, or seat holders, of the NYSE received one of three forms of consideration: all cash, all stock in NYSE Group, or a package of cash and stock. The NYSE Group then allowed those former members to offer …

The Deregulatory Valence Of Justice O'Connor's Federalism, Bradley W. Joondeph

ExpressO

When Justice O’Connor announced her retirement in July 2005, reflections on her career teemed with references to her role as a leader of the Rehnquist Court’s “federalism revival.” But the common perception of O’Connor as an ardent defender of the states’ independent policymaking authority is grounded in a narrow understanding of constitutional federalism—one that focuses primarily, if not exclusively, on the limits of the national government’s power. Constitutional federalism also involves a variety of structural constraints on state power, constraints that are designed to protect the interests of the nation as a whole. And in cases implicating these “union-preserving” provisions …