Law Commons^™

V.45-4, 2008 Masthead

San Diego Law Review

No abstract provided.

Introduction To The 2008 Editors' Symposium: National Borders And Immigration, Larry Alexander

San Diego Law Review

The outstanding collection of articles and comments thereon that follows this Introduction constitutes the 2008 Editors' Symposium of the San Diego Law Review.

Immigration, Political Community, And Cosmopolitanism, Thomas Christiano

San Diego Law Review

In this Article, I want to suggest one important way to take the above issues seriously that is consistent with a thoroughgoing cosmopolitanism. The idea develops a consideration that has been discussed, but not sufficiently explored, by some cosmopolitans. It starts from the observation that one can be a moral cosmopolitan without being a political cosmopolitan in the sense of advocating for a global political community in the near-term future. To be sure, given the role of the political community in establishing justice among persons, it seems clear that in the long term, moral cosmopolitans must hope for a global …

Equal Justice: Comment On Michael Blake's Immigration And Political Equality, Lori Watson

San Diego Law Review

What does justice require in regards to immigration policy? This question presses upon us-citizens of developed, Western democracies-with a profound degree of moral urgency. The number of people seeking to immigrate into the world's liberal democracies is only likely to increase in the foreseeable future; immigration due to the impact of global warming, armed conflict, and food shortages, just to name a few precipitous causes, is expected to increase dramatically in the next generation. Add to this the fact that those groups most disadvantaged by global inequality, women in particular, tend to bear the impact of such causes to a …

In Search Of Market Discipline: The Case For Indirect Hedge Fund Regulation, Paul M. Jonna

San Diego Law Review

Part I of this Comment will provide an overview of hedge funds, describe the failure of direct regulation of hedge funds, and analyze the failure of free market restraints. Part II will discuss the theory of indirect regulation, compare and contrast it to direct hedge fund regulation, and apply the theory of indirect regulation to hedge funds. Part III will discuss the mechanics of the proposed indirect regulatory scheme which places the regulatory focus on market participants. This Part will also explain how pension funds fit into an indirect framework and then offer an international solution to the task of …

Legitimating Criminal Justice Through Community Engagement: Lessons From The Jury Experience, Mark Findlay

Research Collection Yong Pung How School Of Law

Fundamentally justifying the jury is the opportunity it provides for community participation in criminal justice and the legitimation function that offers. Indeed, a strong political motivation for the recent introduction of jury trial in several transitional jurisdictions is the public confidence it transfers to the system at large. Recent research on juror comprehension and satisfaction suggests the possibility of interrogating the participation/confidence nexus more intricately. This note argues that it is the quality of the participation and the participant satisfaction which eventuates that predicts juror confidence. Where the legitimacy of criminal justice through juror participation is to be maximised then …

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Vanderbilt Law Review

Section 1331, Title 28 of the United States Code is the general federal question jurisdictional statute, which grants federal district courts with original subject matter jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States."' This statute grounds the majority of civil actions heard in federal court. Given the weighty doctrinal3 and pragmatic consequences that flow from determining whether a claim falls within the scope of § 1331, it is surprising to learn that we lack a coherent view of what statutory federal question jurisdiction entails. Professor Mishkin famously forwarded the classic theory that …

An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Jonathan R. Nash, Rafael I. Pardo

Vanderbilt Law Review

What is the ideal structure for appellate review? Without providing a definitive answer to the question, commentators have suggested several factors that may improve the process, and thus perhaps the accuracy, of appellate review. First, it is said that panels of judges are preferable to review by a single judge. Second, expertise in the relevant area of law is a benefit. Third, other indicia of lawfinding ability-such as the ability of lawyers and judges to focus on legal issues without the distraction of factual conflicts and the amenability of judges' schedules to careful contemplation and reflection-contribute to the quality of …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law Review

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and …

If The "Shoe" Fits: Reconciling The "International Shoe" Minimum Contacts Test With The Anticybersquatting Consumer Protection Act, John A. Greer

Vanderbilt Law Review

The desire to assume a false identity is one that transcends cultures and time periods. Even the most socially confident and successful person has, at some point, contemplated the possibility of changing or masking his or her identity-if only temporarily-with the hope of gaining some sort of competitive advantage. History and popular culture are replete with instances of such conduct, with varying degrees of success. One of the most famous historical examples, originating in Greek mythology, is the legend of the Trojan horse: the Greeks' surprise invasion of Troy using a hollow, wooden horse.

This same desire to gain a …

"Brady" Obligations, Criminal Sanctions, And Solutions In A New Era Of Scrutiny, Andrew Smith

Vanderbilt Law Review

Six days after terrorist attacks shook New York City and Washington, D.C., the FBI raided an apartment complex in a suburb of Detroit and apprehended three North African men.1 Among the men's possessions were hand-drawn sketches potentially detailing targets for terrorist attacks abroad. Four men were charged with providing material support for terrorism and document fraud and were brought to trial two years later. Richard Convertino, an assistant United States attorney with a strong track record in the DOJ, was tapped to prosecute the case and won convictions against three of the four defendants. Attorney General John Ashcroft personally and …

The Past, Present, And Future Of The United Nations: A Comment On Paul Kennedy And The Parliament Of Man (El Pasado Como Prologo: El Futuro Glorioso Y El Turbio Presente De Las Naciones Unidas (Revista De Paul Kennedy, El Parlamento De La Humanidad)), Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

American University, WCL Research Paper No. 2008-72 Abstract: This is the original Spanish language version of an essay (10,000 words) appearing in the Revista de Libros (Madrid), considering the history and future of the United Nations and global governance through the lens of Paul Kennedy's recent work, The Parliament of Man. The essay is highly skeptical of what it describes as platonism about the future of the UN as the seat of global governance. It offers an alternative view of how to consider the work of the UN, in three areas: security, economic development, and values. The essay argues that, …

Overvaluing Uniformity, Amanda Frost

Scholarly Articles in Law Reviews & Journals

"E NSURING the uniform interpretation of federal law has long been considered one of the federal courts' primary objectives, and uniformity is regularly cited in some of the most intractable debates about the structure and function of the federal court system. For example, specialized courts are lauded for their ability to ensure uniformity in the areas of law over which they have jurisdic- tion. Similarly, proponents of exclusive federal jurisdiction contend that the federal courts provide greater consistency in the interpre- tation of federal law than could fifty different state courts. Some commentators claim that Congress' power to create exceptions …

Table Of Contents - Cardozo Law Review, Volume 30, Issue 2

Cardozo Law Review

No abstract provided.

Nothing Improper? Examining Constitutional Limits, Congressional Action, Partisan Motivation, And Pretextual Justification In The U. S. Attorney Removals, David C. Weiss

Michigan Law Review

The forced mid-term resignations of nine U.S. Attorneys was an unprecedented event in American history. Nearly one year after the administration executed the removals, the House Judiciary Committee was still reviewing and publicizing emails, memoranda, and other documents in an effort to understand how the firings were effectuated. This Note examines many of those documents and concludes that the removals were likely carried out for partisan reasons. It then draws on the Constitution, Supreme Court precedent, and separation of powers principles to argue that Congress is constitutionally empowered to enact removal limitations for inferior officers such as U.S. Attorneys so …

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

Are Artificial Tans The New Cigarette? How Plaintiffs Can Use The Lessons Of Tobacco Litigation In Bringing Claims Against The Indoor Tanning Industry, Andrea Y. Loh

Michigan Law Review

Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against …

Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz

Michigan Law Review

This Article examines whether U.S. district court judges improve their skills at patent claim construction with experience, including the experience of having their own cases reviewed by the Court of Appeals for the Federal Circuit. In theory, higher courts teach doctrine to lower courts via judicial decisions, and lower courts learn from these decisions. This Article tests the teaching-and-learning premise on the issue of claim construction in the realities of patent litigation. While others have shown that the Federal Circuit reverses a large percentage of lower court claim constructions, no one has analyzed whether judges with more claim construction appeal …

One Share, One Vote And The False Promise Of Shareholder Homogeneity, Grant M. Hayden, Matthew T. Bodie

Cardozo Law Review

No abstract provided.

Unprofitable Lending: Modern Credit Regulation And The Lost Theory Of Usury, Brian M. Mccall

Cardozo Law Review

No abstract provided.

Keynote Lecture For Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - 2008, Wendy J. Gordon

Scholarship Chronologically

One of the things that unifies many of the scholars in IP generally, and in this room in particular, is an interest in what you might call noncommercial models cooperative sharing, peer-to-peer creativity-a yearning for a different kind of life, perhaps, one that's less commercial, more focused on dialogues, both democratic and personal, and a mode of life that emphasizes the process and product of work rather than its monetary payoff. We all know from the work of Teresa Amabile and Alfie Cohen and our own experience that if you are keeping your eye on a monetary goal or getting …

October 31, 2008: John Mccain Versus Barack Obama, Bruce Ledewitz

Hallowed Secularism

Blog post, “John McCain versus Barack Obama“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Harmless Boundary Crossings: Their Role In Comparative Institutional Analysis - Lecture Transcript - 10-31-2008, Wendy J. Gordon

Scholarship Chronologically

I also thank this morning's panelists. What I'm going to do is, first, say a little bit of an overview about what brings us all together and then talk about a particular project that many of you already have heard about, but it is something that has bothered me ever since I entered the field. It is the problem of harmless use, or what you might call a beneficial spillover that causes no loss to the person who is causally responsible for it, either in whole or in part.

Rowan, John, 1773-1843 (Sc 1787), Manuscripts & Folklife Archives

Manuscript Collection Finding Aids

Finding aid and scan (Click on "Additional Files" below) for Manuscripts Small Collection 1787. Photocopy of will of prominent Kentucky jurist and Congressman John Rowan, written 28 June 1840 in Louisville, Kentucky.

Reynolds, Charles H., 1924-1996 (Sc 1778), Manuscripts & Folklife Archives

Manuscript Collection Finding Aids

Finding aid only for Manuscripts Small Collection 1778. Tributes to Charles H. Reynolds, justice of the Kentucky Supreme Court, on his death. Includes eulogy by Chief Justice Robert F. Stevens, funeral homily by his son Rev. James Patrick Reynolds, and a resolution adjourning the Kentucky State Senate in his memory. Also includes a subsequent tribute by his son Mike Reynolds at the unveiling of his portrait at the Warren County Justice Center.

Komunitas Asean: Penyelesaian Sengketa Dan Penegakkan Hukum, Hesty D. Lestari

Indonesian Journal of International Law

ASEAN will turn to an ASEAN Community by 2015. The ASEAN Community shall consist of three pillars, namely political and security cooperation, economic cooperation, and socio-cultural cooperation. It aims to deepen the ASEAN integration and to ensure durable peace, stability, and shared prosperity in the region. The ASEAN Community will also have its own legal order, which should be implemented by its member states.

Trips Agreement And Pharmaceutical Patent Protection, Cita Citrawinda

Indonesian Journal of International Law

Promotion and improvement protections in intellectual property rights (IPRs), particularly in the developing countries with weak tradition in the protection of IPRs has become new major factor that potentially affecting state’s ability to guarantee the access to drugs. Access to drugs is the main issue in public health, especially regarding to patent that has impact on drugs prices. This article discusses how Indonesia, as one of developing countries, can ensure access and protection of the IPRs in drugs issues.

Current Trends And New Approches For Ip Education Training And Research: (Indonesian Perspective), Agus Sardjono

Indonesian Journal of International Law

Trend in Intellectual Property Rights (IPRs) is mainly influenced by certain situation that attracts public attention. In Indonesia, Trend is more oriented on the issues regarding to the recognition and protection of genetic resources and traditional knowledge and folklore. Cases such as maize varieties, avian influenza and genetic resources have brought impact and became trend in public discussion. This article is limited to share information about Trend in IPR Education, Training and Research based on the experience in Indonesia.

The Optimization Of Knowledge Resources Through Tailor-Made Intellectual Property And Contract Law In Indonesia, Hayya Ul-Haq

Indonesian Journal of International Law

This article tries to elaborate legal protection for the optimalisation of production and dissemination of sources and products of knowledge such as information, knowledge, biodiversity, genetic resources, traditional knowledge and folklore. This protection was aimed to create wider public access towards sources and products of essential knowledge particularly in the field of food, agriculture, health and education in order to ensure the living sustainability. The main issue in this article is to review the existence of exclusive rights and freedom of the contract and to elaborate the regime model of intellectual property rights and contract that is suitable to the …

Perlindungan Atas Merk Terkenal, Frans H. Winata

Indonesian Journal of International Law

The function of a mark is not only distinguish a product from another product, but also to be priceless asset for a company, especially for a well-known mark. What is still being debated today is the definition of a well-known mark. The measure to be used is still unclear. The government really needs to be pushed to immediately issue a Government Regulation regarding well-known mark. This Government Regulation on well-known marks will not only become a proof of the government’s seriousness in protecting the owner of intellectual property rights, but it will also be regarded as the government’s effort to …