Law Commons^™

The Populist Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on …

The Structure Of Search Engine Law, James Grimmelmann

Cornell Law Faculty Publications

Search engines are the new linchpins of the Internet, and a new body of law - search engine law - will increasingly determine the shape of the Internet. Making sensible search policy requires a clear understanding of how search works, what interests are at stake, and what legal questions intersect at search. This article offers the first comprehensive overview of search engine law, which it organizes into a systematic taxonomy. It then demonstrates the dense legal interrelationships created by search by discussing a series of important themes in search engine law, each of which cuts across many doctrinal areas.

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …

"You Fall Into Scylla In Seeking To Avoid Charybdis": The Second Circuit's Pragmatic Approach To Supervised Release For Sex Offenders, Frank E. Correll Jr.

William & Mary Law Review

No abstract provided.

Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman

William & Mary Law Review

An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …

Property Tests, Due Process Tests And Regulatory Takings Jurisprudence, Steven J. Eagle

BYU Law Review

No abstract provided.

Third-Party Profit-Taking In Tax Exemption Jurisprudence, Darryll K. Jones

BYU Law Review

No abstract provided.

Battling In The Name Of Balance: Evaluating Solutions To Copyright Conflict In Viacom International V. You Tube, Alexis Allen

BYU Law Review

No abstract provided.

I Want My Mtv ... And My Abc, Cbs, Nbc, And Fox: Cbs Broadcasting, Inc. V. Echostar Communications Corp., The Satellite Home Viewer Act Of 1988, And An Argument For Consumer Choice In Distant Network Broadcasting, Kevin W. Harris

BYU Law Review

No abstract provided.

The Discretionary Function Exception To The Federal Tort Claims Act: A Proposal For A Workable Analysis, Andrelv Hyer

BYU Law Review

No abstract provided.

Table Of Contents

BYU Law Review

No abstract provided.

Reality Check: How Practical Circumstances Affect The Interpretation Of Depraved Indifference Murder, John C. Duffy

Duke Law Journal

This Note examines the treatment of depraved indifference murder across the thirty-six states that include the concept in their criminal codes. The Note identifies the broad range of practical circumstances that shape the development of depraved indifference murder statutes, and argues that it is not possible to develop a single interpretation that will function effectively across all jurisdictions. Finally, this Note identifies the three most important practical circumstances that affect the development of depraved indifference murder statutes.

The Costs Of A “Free” Education: The Impact Of Schaffer V. Weast And Arlington V. Murphy On Litigation Under The Idea, Kelly D. Thomason

Duke Law Journal

The Individuals with Disabilities Education Act guarantees to children with disabilities the right to receive a "free appropriate public education." This Note argues that the Supreme Court decisions Schaffer v. Weast and Arlington v. Murphy, cases dealing with procedural aspects of the Act, undermine a prior trend in IDEA litigation-a trend that had increased the substantive and procedural rights of children with disabilities. Considered together, the Schaffer and Arlington decisions ignore the realities of the litigation process and impose significant burdens on parents attempting to ensure that their children receive the free appropriate education to which they are entitled.

Forgotten Racial Equality: Implicit Bias, Decisionmaking, And Misremembering, Justin D. Levinson

Duke Law Journal

In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this phenomenon perpetuates racial bias in case outcomes. To test the hypothesis that judges and jurors misremember case facts in racially biased ways, I conducted an empirical study in which participants were asked to recall facts of stories they had read only minutes earlier. Results of the …

The Origins Of Article Iii “Arising Under” Jurisdiction, Anthony J. Bellia Jr.

Duke Law Journal

Article III of the Constitution provides that the "judicial Power" of the United States extends to all cases "arising under" the Constitution, laws, and treaties of the United States. What the phrase "arising under" imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III "arising under" jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction-principles that animated early American jurisprudence regarding the scope of "arising under" jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood "arising …

Citing The Elite: The Burden Of Authorial Anxiety, Shane Tintle

Duke Law Journal

Academic legal writing is known for extensive citation. Generally, scholars who study citation practices are increasingly likely to link citation with authors' attempts to manage their impression. This Note offers an explanation of why authors of law review articles use citation as a means of managing impression. It combines a historical analysis that shows why excessive citation became conventional with a literary analysis that shows why excessive citation was unique in its ability to aid academics in substantively contributing to the bench and bar. It further shows how, because of the historic and literary significance of citation, a norm compelling …

Finding International Law: Rethinking The Doctrine Of Sources, Harlan G. Cohen

Scholarly Works

The doctrine of sources has served international law well over the past century, providing structure and coherence during a time when international law was expanding rapidly and dramatically. But the doctrine's explanatory power is increasingly being challenged. Current doctrine tells us that treaties are international law; empirical evidence, however, suggest that treaties are poor predictors of state practice. The expansion of the international community, the rise of human rights, developments in international legal theory, and the international system's need to adapt to changing circumstances, have all also put pressure on the reified role of "treaty" in identifying rules of international …

Judging Plaintiffs, Jason M. Solomon

Scholarly Works

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral …

The Commerciality Doctrine As Applied To The Charitable Tax Exemption For Homes For The Aged: State And Local Perspectives, David A. Brennen

Scholarly Works

This essay examines the question of how state and local government officials should consider federal tax law principles, like the commerciality doctrine, when they challenge state and local property tax exemptions that rely, at least in part, on tax-exempt charitable status for federal income tax purposes. In particular, this essay uses the example of CCRCs [continuing care retirement communities] to consider tax-exempt law's commerciality doctrine in an attempt to discern distinctions between “homes for the aged” that are “charitable,” and thus entitled to exemption, and those that are too commercial, and thus not entitled to exemption. In fact, one might …

Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky

Scholarly Works

From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics -- at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments – not only absolute targets, …

Summary Of Dewey V. State, 123 Nev. Adv. Op. No. 47, Nevada Law Journal

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Matter Of Halverson, 123 Nev. Adv. Op. No. 29, Jennifer Arias

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Boulder Oaks Cmty. Ass’N V. B & J Andrews Enterprises, 123 Nev. Adv. Op. No. 46 , M. Charles Seaton

Nevada Supreme Court Summaries

No abstract provided.

November Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

“Disaster Capitalism: The New Economy of Catastrophe” by Naomi Klein. Harper’s. October 2007.

If It Were Only That Simple, Katherine Gockel

Human Rights & Human Welfare

Reading “Disaster Capitalism,” one would think that the current dire situation in Iraq and the lingering effects of Hurricane Katrina are all because of an emphasis on “small” government, privatization, and partnerships with the business sector. If only it were that simple.

A Democratic Disaster, Michael Goodhart

Human Rights & Human Welfare

Naomi Klein’s “Disaster Capitalism” paints a grim and compelling portrait of an emerging American dystopia: Large corporations making huge profits on non-bid contracts to handle the government’s response to natural and political disasters (like Katrina and Iraq). She envisions “a collective future of disaster apartheid, in which survival is determined primarily by one’s ability to pay.” The catalogue of outrages Klein supplies is enough to make even the local chamber of commerce president blush. Yet as I read her piece, I found myself angry not so much with the corporations as with my fellow citizens. How can we allow this …

The Personal Side Of Disaster Capitalism, Susan Waltz

Human Rights & Human Welfare

Two weeks ago a tornado ripped through my small hometown in rural Michigan (population 3,500), unexpectedly providing fresh perspective on the phenomenon Naomi Klein has called “Disaster Capitalism.” While I was writing this commentary, work crews were out with chainsaws and chippers, cutting up the remains of fallen trees and clearing mountains of debris from roads and sidewalks.

The End(S) Of The State(?), Daniel J. Whelan

Human Rights & Human Welfare

Last February, New York Times columnist Paul Krugman wrote an op-ed that anticipated Klein’s article, in part. In his view, the Bush administration has been engaged in an effort to “Green-Zone” the United States government by gutting the professional civil service—dubbed as “the enemy” by the American Enterprise Institute—and replacing its ranks with political appointees who have little interest or experience in running a state, but quite a bit of interest in enriching the private sector with public largesse. Klein’s “Disaster Capitalism” takes Krugman’s theme and pumps up the volume ten-fold.

American Capitalism - Disasterous Consequences?, Richard Falk

Human Rights & Human Welfare

Naomi Klein’s depiction of late-capitalism as feeding off a disaster-prone planet and state-system is provocative and illuminating, even if it seems to be itself a form of “shock and awe” journalism. The great cultural critic of the 1960s, Norman O. Brown, memorably said of psychoanalysis, “[o]nly the exaggerations are valuable,” and so it might be with this critique of the dark sides of recent tendencies in world economic activity. It is notable that the book version of Klein’s article bears the title The Shock Doctrine: The Rise of Disaster Capitalism, which itself can be read as a sly admission that …

Marten Zwanenburg On Un Peacekeeping In Lebanon, Somalia And Kosovo: Operational And Legal Issues In Practice By Ray Murphy. New York: Cambridge University Press, 2007. 392 Pp., Marten Zwanenburg

Human Rights & Human Welfare

A review of:

UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and Legal Issues in Practice by Ray Murphy. New York: Cambridge University Press, 2007. 392 pp.