Law Commons^™

Theorizing The Law/Politics Distinction: Neutral Principles, Affirmative Action, And The Enduring Legacy Of Paul Mishkin, Robert C. Post, Neil S. Siegel

Faculty Scholarship

Paul Mishkin was a colleague and a teacher to us, and we each esteem him as a master craftsman of the law: learned, wise, and far-sighted. To re-read his publications is to enter an astonishing world of clarity and integrity, a world in which no word is wasted and insight is deep and revealing.

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a …

Crimes That Count Twice: A Reexamination Of Rico's Nexus Requirements Under 18 U.S.C. §§ 1962(C) And 1964(C), Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeering Influenced and Corrupt Organizations Act makes it difficult to determine when “ordinary” crimes spill over into RICO violations. This Article examines and synthesizes various “nexus” requirements that courts have devised to separate non-RICO crimes from full-blown RICO violations. The Article concludes with a discussion of the United States Supreme Court’s recent holding in Anza v. Ideal Steel Supply Corporation, 126 S. Ct. 1991 (2006), which sharply limits certain types of civil RICO claims.

Measures To Encourage And Reward Post-Dispute Agreements To Arbitrate Employment Discrimination Claims, Michael Z. Green

Faculty Scholarship

Since the Gilmer decision in 1991, the vast potential from using arbitration to resolve statutory employment discrimination has expanded into a burgeoning reality. Although employers rushed in to adopt so-called mandatory pre-dispute agreements to arbitrate statutory discrimination claims, advocates for employees criticized these agreements as being unfair and primarily because the agreements were made before any dispute arose. Employers could use their bargaining power to require as a condition of employment that employees opt out of the jury trial system allowing compensatory and punitive damage awards by requiring arbitration before knowing anything about an actual dispute. Because of continuing criticism …

The International Enclosure Movement, Peter K. Yu

Faculty Scholarship

Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and …

Has India Addressed Its Farmers' Woes? A Story Of Plant Protection Issues, Srividhya Ragavan, Jamie Mayer O'Shields

Faculty Scholarship

The paper examines issues relating to establishing breeders rights in developing nations by taking India as an example. At the outset, the paper examines the international obligations relating to protecting plant breeder’s rights by examining the requirements under Article 27.3 of the TRIPS agreement. In doing so, the paper examines analyzes what amounts to an effective sui generis system as required under TRIPS.

Further, the paper analyzes the constituents of the models currently touted by developed nations and outlined under the Union for Plant Variety Protection (UPOV, 1991) to determine the model’s ability to fulfill the TRIPS requirement. In determining …

Odious Debt, Old And New: The Legal Intellectual History Of An Idea, James V. Feinerman

Law and Contemporary Problems

In a sense, all debts are odious; that is, to use dictionary definitions, "hateful; disgusting; offensive." Yet insofar as international economic law today is concerned, only a certain few debts can be considered "odious debts" in order to contest and perhaps eventually to repudiate them. Here, Feinerman examines the concepts of odious debt and related international legal phenomena, in both historical and contemporary context, with a view of determining the role that denomination of certain debts as odious may play in the overall process of sovereign debt rescheduling.

The Odious Debt Doctrine After Iraq, Jai Damle

Law and Contemporary Problems

The odious debt doctrine has experienced renewed popularity in the past few years; it has been heralded by academics, political commentators, economists, and politicians as a mechanism to alleviate burdens imposed by illegitimate rulers. In its classic formulation, the doctrine provides that a regime's debt is odious, and thus unenforceable, if the state's people did not consent to the debt, the proceeds from the debt were not used for the benefit of the people, and the regime's creditors had knowledge of the first two conditions. In 2003, the newly instated Iraqi regime began negotiations to restructure that country's debt, much …

Legislative Malpractice: An Analysis Of Ohio's Proposed Mandatory Medical Malpractice Arbitration Program, Joseph Krella

University of Dayton Law Review

No abstract provided.

The Regulator Strikes Back: A Look At The Sec's Most Recent Attempt To Regulate Hedge Funds And What It Missed, Alexander R. Roche

University of Dayton Law Review

No abstract provided.

Race And Recalcitrance: The Miller-El Remands, Sheri Johnson

Cornell Law Faculty Publications

In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus …

Human Genetics Studies: The Case For Group Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

How The Residential Mortgage-Backed Securities Market Impacts Dirt Lawyers And Their Clients, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

Group Think: The Law Of Conspiracy And Collective Reason, Jens David Ohlin

Cornell Law Faculty Publications

Although vicarious liability for the acts of co-conspirators is firmly entrenched in federal courts, no adequate theory explains how the act and intention of one conspirator can be attributed to another, simply by virtue of their criminal agreement. This Article argues that the most promising avenue for solving the Pinkerton paradox is an appeal to the collective intention of the conspiratorial group to commit the crime. Unfortunately, misplaced skepticism about the notion of a "group will" has prevented criminal scholars from embracing the notion of a conspiracy's collective intention to commit a crime. However, positing group intentions requires only that …

Unjust Enrichment And Creditors, Emily Sherwin

Cornell Law Faculty Publications

The constructive trust remedy plays an important role in bankruptcy because it places restitution claimants in a position of priority over creditors. According to traditional rules governing constructive trusts, restitution claimants who can identify particular assets in the debtor's hands as products of an unjust enrichment recover in full, to the exclusion of other unsecured creditors. The draft Restatement (Third) of Restitution and Unjust Enrichment endorses this outcome with only minor qualifications.

The supposed basis for a constructive trust is unjust enrichment: courts grant the remedy to prevent the defendant from profiting at the claimant's expense. In bankruptcy, the parties …

Thoughts On Commercial Speech: A Roundtable Discussion, Ronald K.L. Collins, Steven H. Shiffrin, Erwin Chemerinsky, Kathleen M. Sullivan

Cornell Law Faculty Publications

Adam Liptak, the legal affairs writer for The New York Times, moderates a lively discussion about commercial speech between three esteemed constitutional scholars: Professor Erwin Chemerinsky of Duke University School of Law; Professor Kathleen Sullivan of Stanford Law School; and Professor Steve Shiffrin of Cornell Law School. These scholars debate the proper definition of defining commercial speech, how the corporate identity of a speaker and the content of the speech determines the level of First Amendment protection, whether it is possible to demarcate commercial speech from political speech, and the problems of paternalism and viewpoint discrimination in this complex and …

Local Agriculture Perspectives In The Middle Rio Grande Valley, Cecilia Rosacker-Mccord

Publications

No abstract provided.

Is The Rule Of Moderation The Golden Goose Or Fleece Counterpoints Introduction, Perry A. Zirkel

The Journal of Law and Education

No abstract provided.

Flying In The Face Of The Law Or The Lord: Is The U.S. Air Force Academy Acting In Good Faith - Counterpoints, Perry A. Zirkel

The Journal of Law and Education

No abstract provided.

Supreme Court Decisions - Recent Developments In The Law

The Journal of Law and Education

No abstract provided.

University Tort Liability And Student Suicide: Case Review And Implications For Practice, Joy Blanchard

The Journal of Law and Education

No abstract provided.

Universities And Other Institutions Of Higher Learning - Recent Developments In The Law

The Journal of Law and Education

No abstract provided.

Full Disclosure Or Fingerprints: Standardizing The Landscape Of Nursing Program Admissions Requirements - Chalk Talk, Charles Bradley

The Journal of Law and Education

No abstract provided.

Blood And Turnips In School Finance Litigation: A Response To Building On Judicial Intervention - Counterpoints, John Dayton, Anne Dupre

The Journal of Law and Education

No abstract provided.

Primary And Secondary Education - Recent Developments In The Law

The Journal of Law and Education

No abstract provided.

Primary And Secondary Education - Law Review Digests

The Journal of Law and Education

No abstract provided.

Envisioning The Constitution, Thomas P. Crocker

Faculty Publications

If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution …

Justifying An Analysis Of The Ecclesiological Development Of Subsidiarity Via Civil And Common Law Jurisprudential Epistemology, William Pieratt Demond

Seton Hall University Dissertations and Theses (ETDs)

This article seeks to justify an examination of subsidiarity's development within Catholicism. Due to the fact that the European Union ["EU"] codified subsidiarity via the Treaty of Maastricht, subsidiarity is now a part of EU law. Although seemingly intended to resolve questions concerning the proper allocation of powers, its codification has generated substantial debate concerning the proper meaning(s) (if any) and/or application(s) of subsidiarity within the EU. Due to the facts that 1) the EU's legal traditions are heavily influenced by both the civil and common law traditions, 2) both of these traditions advocate the use of established jurisprudential methodologies …

Title And Copyright Pages, North Carolina Journal Of Law & Technology

North Carolina Journal of Law & Technology

No abstract provided.

Viacom V. Youtube: Preliminary Observations, Russ Versteeg

North Carolina Journal of Law & Technology

No abstract provided.

Doe V. Sexsearch.Com: Placing Real-Life Liability Back Where It Belongs In A Virtual World, Jon Burns

North Carolina Journal of Law & Technology

No abstract provided.