Law Commons^™

Technology, Competition, And Values, Frank Pasquale

Faculty Scholarship

No abstract provided.

Irrationality And Animus In Class-Of-One Equal Protection Cases, William D. Araiza

Faculty Scholarship

No abstract provided.

Attempt, Reckless Homicide, And The Design Of Criminal Law, Michael T. Cahill

Faculty Scholarship

No abstract provided.

The Empire Of Illness: Competence And Coercion In Health-Care Decision Making, Marsha Garrison

Faculty Scholarship

No abstract provided.

The Calamitous Law Of Notes, Neil B. Cohen

Faculty Scholarship

No abstract provided.

The Myth Of Copyright's Fair Use Doctrine As A Protector Of Free Speech, Lee Ann Lockridge

Journal Articles

This article debunks the myth that the fair use doctrine exists to protect the freedom of speech within copyright. Using the history of fair use in the courts and in Congress, as well as recent case law, the Article demonstrates that.fair use is not, and never has been, intended or designed to restrain copyright in the face of the First Amendment. The conflict between copyright and free speech could be lessened by reforming the balance of interests within fair use to eliminate the focus on commercial use and to expand the understanding of the broader public-benefit purpose underlying the Supreme …

Promoting And Establishing The Recovery Of Endangered Species On Private Lands: A Case Study Of The Gopher Tortoise, Blake Hudson

Journal Articles

Important species are increasingly threatened on private lands and remain largely unregulated by federal and state laws. The gopher tortoise, present within six south-eastern states, is one such species. The tortoise is a keystone species, meaning that upon its existence numerous other species depend. Despite its ecological importance, tortoise populations have declined by 80%, partly due to development pressures, but primarily due to forest management practices which reduced the longleaf pine ecosystem upon which it depends by 96%. This article focuses on legal and policy issues associated with both urban development and forest management of lands containing the gopher tortoise. …

At The Intersection Of Race And History: The Unique Relationship Between The Davis Intent Requirement And The Crack Laws, Christopher J. Tyson

Journal Articles

No abstract provided.

The Superior Position Of The Creditor In The Community Property Regime: Has The Community Become A Mere Creditor Collection Device?, Andrea B. Carroll

Journal Articles

This article is a first step in an effort to critically examine the continued vitality of the community regime for regulating spousal property. Specifically, the article examines the American community property regimes in light of how they measure up against non-community property states in terms of creditor protection. The results are often surprising. The community regime grants creditors access to a variety of property for all manner of debts. For instance, the entirety of the community property, including the non-debtor spouse's wages, may be seized in some community property states for the other's premarital debts. That the non-debtor spouse has …

Coercion, Causation, And The Fictional Elements Of Indirect State Responsibility, James D. Fry

Vanderbilt Journal of Transnational Law

This Article provides an in-depth analysis of Article 18 of the 2001 ILC Draft Articles on State Responsibility, which holds a coercing state indirectly responsible for an injurious act committed by a coerced state. Not only does this provision lack support from state practice, but the structural and logical flaws within the current formulation ensure that this provision does not significantly influence the evolution of state practice. Indeed, it would have been better for the ILC to have left Article 18 out of the Draft Articles, given that other, less problematic provisions could have covered such situations involving coercion. In …

Paths To Local Food Security: A Right To Food, A Commitment To Trade, Marsha A. Echols

Vanderbilt Journal of Transnational Law

International bodies and nation-states attending international meetings on the subject have agreed that there is a "right to food." The first Millennium Development Goal, in which members of the United Nations General Assembly agreed to halve the number of persons without adequate food by the year 2015, complements this right to food. Many persons believe that the right to food--especially at the national level--is linked to national food self-sufficiency. Opponents of this view argue that self-sufficiency is economically irrational in many territories. Others believe that for many countries, particularly nations in sub-Saharan Africa, a government's obligation to ensure food security …

The Legality Of The West Bank Wall: Israel's High Court Of Justice V. The International Court Of Justice, Victor Kattan

Vanderbilt Journal of Transnational Law

This Article offers a critique of the decision reached by Israel's High Court of Justice in the Mara'abe Case (2005) as well as some aspects of the International Court of Justice's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004). The Article takes a socio-legal and facts-based approach to analyzing the decisions' discussions of settlements, self-determination, and self-defense, examining all three topics in light of several recent legal and political developments.

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

Journal Articles

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

Rankings, Standards, And Competition: Task Vs. Scale Comparisions, Avishalom Tor, Stephen M. Garcia

Journal Articles

Research showing how upward social comparison breeds competitive behavior has so far conflated local comparisons in task performance (e.g. a test score) with comparisons on a more general scale (i.e. an underlying skill). Using a ranking methodology (Garcia, Tor, & Gonzalez, 2006) to separate task and scale comparisons, Studies 1–2 reveal that an upward comparison on the scale (e.g. being surpassed in rank), rather than in the mere task (e.g., being outperformed), is necessary to generate competition among rivals proximate to a standard (e.g. ranked #3 vs. 4, near “the top”); rivals far from a standard (e.g. ranked …

Taxing Citizens In A Global Economy, Michael S. Kirsch

Journal Articles

This Article addresses a fundamental issue underlying the U.S. tax system in the international context: the use of citizenship as a jurisdictional basis for imposing income tax. As a general matter, the United States is the only economically developed country that taxes its citizens abroad on their foreign income.

Despite this broad general assertion of taxing jurisdiction, Congress allows citizens abroad to exclude a limited amount of their income earned from working outside the United States. Influential lobbying groups, including businesses that employ significant numbers of U.S. citizens abroad, argue that this exclusion is necessary in order to keep American …

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Faculty Scholarship

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

Cost-Based And Rules-Based Regulatory Competition: Markets For Corporate Charters In The U.S. And The E.U., Marco Ventoruzzo

Faculty Scholarship

Regulatory competition in corporate law is increasing in Europe and, not differently from what happens in the US, a market for corporate charters is developing in Europe. This article examines the differences between the US corporate law market, and the European one - to the extent that one exists. The basic idea is that, in Europe, there is a stronger competition for the (first) incorporation of rather small, closely-held corporations; while in the US a small closely-held corporation usually incorporates locally, where its shareholders and directors are located, and reincorporates - often in Delaware - when it is growing and, …

Suburbs As Exit, Suburbs As Entrance, Nicole Stelle Garnett

Journal Articles

Most academics assume that suburbanites are exiters who have abandoned central cities. The exit story is a foundational one in the fields of land-use and local-government law: Exiters' historical, social, and economic connections with their center cities are frequently used to justify both growth controls and regional government. The exit story, however, no longer captures the American suburban experience. For a majority of Americans, suburbs have become points of entrance to, not of exit from, urban life. Most suburbanites are enterers - people who were born in, or migrated directly to, suburbs and who have not spent time living in …

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

Journal Articles

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 …

Assessing The Universal Declaration On Bioethics And Human Rights: Implications For Human Dignity And The Respect For Human Life, O. Carter Snead

Journal Articles

As advances in biomedical science and biotechnology continue to confer vast new powers to subdue nature for “the relief of man’s estate,” vexed moral and ethical questions inevitably arise about the use of such capacities. To what ends should they be applied? How might they be abused? Are they safe? What is the human meaning of such new powers? Might their use threaten human dignity? What does scientific freedom demand? What does justice require? Who should have access to the fruits of such scientific advances?

In democratic regimes, these questions do not long remain the subject of mere academic reflection …

The Right To A Reader, Douglas E. Abrams

Faculty Publications

No abstract provided.

Hosting Galileo Ground Stations, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

At this moment, the European GNSS Supervisory Authority, the public agency-half of the Public-Private Partnership principally in charge of the Galileo system, is built up, and the first full-fledged operations on a global scale are currently envisaged by 2010 or shortly thereafter. Thus, one set of legal questions which now becomes of interest concerns those surrounding the possibility for third countries to host Galileo ground stations.

The present paper seeks to analyse these issues from the perspective of space law, in particular as regards issues of international responsibility and liability under the Outer Space Treaty and the Liability Convention, and …

Regional Advocacy Networks And The Protocol On The Rights Of Women In Africa, Melinda Adams, Alice J. Kang

Department of Political Science: Faculty Publications

While there has been a significant amount of research on transnational feminist activism at the global level, many feminist transnational advocacy networks are mobilizing within world regions. The lack of attention to the regional level has created a considerable imbalance in research on transnational activism. This article's first objective is to define regional advocacy networks (RANs) as a collection of individuals and organizations from the same world region working together toward a common goal. The article's second objective is to explore the conditions under which RANs are influential. We investigate conditions for RAN success through a case study of an …

The 'S' Of 'Security’: Europe On The Road To Gmes, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

In November 2001, by means of a Resolution, the European Union officially launched 'Global Monitoring for the Environment and Security' (GMES), the second European space programme (after Galileo) essentially driven by the Union. The Resolution inter alia calls for the European Commission to coordinate with the European Space Agency (ESA) the realisation of "an operational and autonomous European capability for global monitoring for environment and security" by 2008, crucially involving a satellite system. Relevant data which are to form part of such a capability may, in principle, come from a number of different sources: space-based data, airborne data, and in …

A Reply On "Charter Dialogue Revisited", Peter W. Hogg, Allison A. Bushell Thornton, Wade K. Wright

Osgoode Hall Law Journal

No abstract provided.

Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin

Osgoode Hall Law Journal

In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …

Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach

Osgoode Hall Law Journal

The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author's approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three …

Free Writing, Steve Thel

Faculty Scholarship

No abstract provided.

State Practice In The Management And Allocation Of Transboundary Groundwater Resources In North America, Gabriel Eckstein, Amy Hardberger

Faculty Articles

Throughout the world, international and state political boundaries divide groundwater resources into politically convenient jurisdictions. Subsurface water, however, does not recognize such borders and flows freely without regard to overlying politics. This disregard for the political dimension, coupled with the growing global importance of fresh water, has the potential for aggravating disputes and conflicts over the use, allocation, and preservation of such resources. To date, widely accepted norms of international law applicable to transboundary aquifers have yet to emerge. However, local and regional agreements, including both formal and unofficial arrangements, suggest the emergence of state practice that should be considered …

Pilgrim To Nowhere - The Mysterious Journey Of Robert Rodes, Emily A. Hartigan

Faculty Articles

Notre Dame Law Professor Robert Rodes advocates for Pilgrim Law, which is based on the preferential option for the poor. Pilgrim Law is the jurisprudential manifestation of liberation theology. Rodes used Milovan Djilas, author of anti-socialist works such as Conversations with Stalin and The New Class, for insight. Drawing from Djilas, Rodes concludes that class will always count, but count in a nuanced way. This revelation was discovered within Djilas’ self-aware and trenchant analysis amid the reality of the theoretically “classless” societies of Soviet (and Yugoslav) socialism. This empirical insight is what Rodes finds crucial to his Pilgrim Law advocacy. …