Law Commons^™

Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett

Journal Articles

The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in More is one that the various Justices who wrote in the case never squarely addressed: What is the "basic education mission" of public schools, and what are the implications of this "mission" for officials' authority and students' free-speech rights. Given what we have come to think the Free Speech clause means, and considering the values it is thought to enshrine and …

The Memory Gap In Surveillance Law, Patricia L. Bellia

Journal Articles

U.S. information privacy laws contain a memory gap: they regulate the collection and disclosure of certain kinds of information, but they say little about its retention. This memory gap has ever-increasing significance for the structure of government surveillance law. Under current doctrine, the Fourth Amendment generally requires government agents to meet high standards before directly and prospectively gathering a target's communications. The law takes a dramatically different approach to indirect, surveillance-like activities, such as the compelled production of communications from a third party, even when those activities yield the same information as, or more information than, direct surveillance activities. Because …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Journal Articles

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

Whose Money Is It Anyway? The Case For A Mortality Discount For Cash Balance Plan Early Termination Lump Sum Distributions, William Handley Woolston

Student Award Winning Papers

No abstract provided.

New Asylum Chance For Gay Egyptian, Arthur S. Leonard

Other Publications

No abstract provided.

Is There A Moral Justification For Redressing Historical Injustices?, Katrina M. Wyman

Vanderbilt Law Review

In recent years, there have been lively popular and academic debates in the United States and elsewhere about whether injustices committed decades or even centuries ago should be redressed through official apologies, commissions of inquiry, reparations, and restitution. In the American context, the historical injustices for which redress has been pursued, and in some cases granted, include the internment of Japanese Americans during World War II, the Holocaust, and the mistreatment of Native Americans. Recently, the most prominent debate in the United States has been about whether federal and state governments and corporations should pay reparations to African Americans for …

Offender Profiling And Expert Testimony: Scientifically Valid Or Glorified Results?, James A. George

Vanderbilt Law Review

A hallmark of Sherlock Holmes is his ability to solve complex crimes with well-staged performances. His flair for the shrewd and dramatic apprehension of a suspect in an inscrutable case often left his loyal companion Watson in awe, the local police investigators mystified, and the perpetrator thwarted. Holmes's admirers speculated that he must have had a special gift, maybe even psychic powers, which allowed him to solve any case. In reality, as Holmes always explained to his slow-witted companions, it was his insightful, rational, and logical approach to solving the mystery that inexorably led him to the solution.

Depictions of …

Key Concepts In The Finding, Definition And Consideration Of Custom Law In Tribal Lawmaking, Pat Sekaquaptewa

American Indian Law Review

No abstract provided.

Sunshine In Indian Country: A Pro-Foia View Of Klamath Water Users, Sean Hill

American Indian Law Review

No abstract provided.

Governance Of Arctic Marine Shipping, David Vanderzwaag, Aldo Chircop, Erik Franckx, Hugh M. M. Kindred, Moira Mcconnell, Angus Hugh Mcdonald, Ted Mcdorman, Tony George Puthucherril, Phillip Saunders, K. Joseph Spears

Reports & Public Policy Documents

The governance of shipping activities in the Arctic might be described as a “complicated mosaic.” The 1982 United Nations Convention on the Law of the Sea (UNCLOS), often referred to as the constitution of the oceans, sets out the overall legal framework for the regulation of shipping. The Convention sets out coastal state legislative and enforcement powers over foreign ships according to the maritime zones of jurisdiction laid out in the Convention. A fragmented array of international agreements attempts to address specific challenges raised by shipping such as marine pollution prevention standards, ship safety, seafarer rights and qualifications, and liability …

Law And Policy Options For Strategic Environmental Assessment In Canada, Hugh J. Benevides, Denis Kirchhoff, Robert B. Gibson, Meinhard Doelle

Reports & Public Policy Documents

This research paper has been produced for the Canadian Environmental Assessment Agency on behalf of the sub-committee on Strategic Environmental Assessment (the SEA sub-committee) which is in turn mandated by the Minister of the Environment’s Regulatory Advisory Committee (RAC). The immediate need for the report is a request from RAC to the SEA sub-committee to research and report on law and policy options for improving the conduct of Strategic Environmental Assessment (SEA) in Canada, with a focus on the federal level.

The purpose of the paper is to provide an impartial, research-based assessment of the best approaches to designing and …

Spousal Support Advisory Guidelines, Rollie Thompson, Carol Rogerson

Reports & Public Policy Documents

In 2001 the federal Department of Justice identified the need for a project to explore the possibility of developing some form of advisory spousal support guidelines. The aim of the project was to bring more certainty and predictability to the determination of spousal support under the Divorce Act.1 The project was a response to growing concerns expressed by lawyers, judges, mediators and the public about the lack of certainty and predictability in the current law of spousal support, creating daily dilemmas in advising clients, and negotiating, litigating or—in the case of judges—deciding spousal support issues. We were retained to direct …

Access This: Why Institutions Of Higher Education Must Provide Access To The Internet To Students With Disabilities, Nina Golden

Vanderbilt Journal of Entertainment & Technology Law

No one questions whether the ADA applies to institutions of higher education. Title II applies to public colleges and universities, while Title III applies to private ones. With some exceptions, colleges and universities must make their programs and services accessible by providing reasonable accommodations to students with disabilities. What is significantly less clear, and thus the topic of dispute among courts and commentators, is whether the ADA requires colleges and universities to provide access to the Internet to students with disabilities. Much of the dispute revolves around the meaning of the term "place of public accommodation." Some courts have required …

Take The Training Wheels Off The League: Major League Soccer's Dysfunctional Relationship With The International Soccer Transfer System, Omar H. Ayad

Vanderbilt Journal of Entertainment & Technology Law

Currently in its eleventh season, Major League Soccer (MLS) is struggling to establish its identity and niche in the international soccer community. In particular, issues of player control and transfer regulations continue to distinguish and alienate the league from the elite soccer associations of Europe, as well as the overall global soccer community. Since Fraser v. Major League Soccer, the league has been defined as a single entity and, thus, is free to wield substantial control over player contracting and placement, while avoiding charges of monopolistic behavior. MLS has taken advantage of this freedom when executing international transfers of MLS …

Yours, Mine, And Ours: The Joint Authorship Conundrum For Sound Recordings, Abbott M. Jones

Vanderbilt Journal of Entertainment & Technology Law

In 2013, authors of sound recordings will have their first opportunity to exercise their right to terminate assignments made to record companies. Congress has yet to settle just who may claim authorship in, and thus the right to terminate assignments of, sound recordings. Record companies have responded to this uncertainty by including language in standard recording contracts purporting to declare sound recordings made under the contracts works made for hire, such that authorship would vest initially in the record companies themselves. If sound recordings fit within the scope of a work made for hire, these recording contracts would seal the …

Sparing Internet Radio From The Real Threat Of The Hypothetical Marketplace, Mark D. Robertson

Vanderbilt Journal of Entertainment & Technology Law

In early 2007, the newly minted Copyright Royalty Board(CRB) handed down its first ruling, which set royalty rates for the digital performance of sound recordings. The CRB's ruling ignited a firestorm of concern among Internet radio broadcasters (webcasters) and their listeners. For some webcasters, the change to royalty rates constituted a 300-1200% increase over what was due under the previous scheme. This massive increase in royalties is attributable to the willing buyer/willing seller standard that the CRB is statutorily required to employ. This standard directs the CRB to construct one hypothetical marketplace and establish rates to which most buyers and …

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Vanderbilt Journal of Entertainment & Technology Law

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

User-Generated Content And The Future Of Copyright: Part One--Investiture Of Ownership, Steven Hetcher

Vanderbilt Journal of Entertainment & Technology Law

While user-generated content (UGC) has been around for quite some time, the digital age has led to an explosion of new forms of UGC. Current UGC mega-sites, such as YouTube, Facebook, and MySpace, have given UGC a new level of significance, due to their ability to bring together large numbers of users to interact in new ways. The "user" in UGC generally refers to amateurs, but also includes professionals and amateurs aspiring to become professionals. "Generated" is synonymous with created, reflecting the inclusion of some minimal amount of creativity in the user's work. Finally, "content" refers to digital content, or …

A Libel Law Analysis Of Media Abuses In Reporting On The Duke Lacrosse Fabricated Rape Charges, David A. Elder

Vanderbilt Journal of Entertainment & Technology Law

The broad outlines of the monumental injustices involved in the Duke lacrosse rape-that-never-happened case are well known. An unethical local prosecutor, Michael B. Nifong, for partisan political reasons, pursued the Duke lacrosse team and ultimately indicted three of its members based almost solely on the accusations of a wholly unreliable, self-proclaimed victim. Nifong received generous support and sustenance from many left-leaning, politically active Duke faculty, an extraordinarily inept (or worse) Duke administration, and almost the entirety of the mainstream media. Ultimately, following a detailed analysis by his office, North Carolina Attorney General Roy A. Cooper publicly excoriated Nifong in concluding …

Another Ny Civil Union Recognition Loss, Arthur S. Leonard

Other Publications

No abstract provided.

Book Review Of Dalia Mitchell’S Architect Of Justice: Felix S. Cohen And The Founding Of American Pluralism, Edward A. Purcell Jr.

Other Publications

No abstract provided.

Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi

Michigan Law Review

This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine …

Front Matter

Michigan Law Review

No abstract provided.

Focus On Batson: Let The Cameras Roll, Mimi Samuel

Faculty Articles

While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …

John Calmore’S America, Robert S. Chang, Catherine Smith

Faculty Articles

In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court's Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court's Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify …

The Poetry Of Law, Sidney Delong

Faculty Articles

This article examines the literature of statutory drafting. This underappreciated genre is perhaps the last place one would expect to find a sensitive soul struggling to escape the prison house of language. Yet the economic realities facing today's graduate students mean that many former lit majors will find their way onto legislative drafting committees, whence they peek out at us from under the sub-sections of their lives. It is time that this genre was formally recognized. Of course, its artists struggle against the challenge of the form and their achievements must be measured in millimeters rather than miles. This article …

The Parent Trap: Differential Familial Power In Same-Sex Families, Deirdre Bowen

Faculty Articles

Do intact same-sex couples where one member of the couple became pregnant with assisted reproduction or was the primary adopter, and the other member became a parent through second parent adoption, understand the legal protections afforded them? In short the answer is no. An interesting family dynamic arises around those who can claim the true status as parent based on their legal understandings of parenthood and their interactions with the dominant culture. The result of research conducted on this issue indicated that second parent adopters had much less emotional power in the family, but often had more economic power. Even …

You Are Not In Kansas Anymore: Orientation Programs Can Help Students Fly Over The Rainbow, Paula Lustbader

Faculty Articles

Analogizing Oz to Law School, this article discusses the role of orientation in the law school curriculum and offers implementation strategies to develop an effective orientation. An effective and comprehensive orientation program for law school would have many goals: it should attempt to construct the profession as a calling; create syntactical, substantive, and pedagogical context; communicate care and model empathy and compassion; cultivate community to promote mutual respect, cultural competence, and interdependence; and confirm student self-confidence. In addition to explaining why these are important goals, the article explores possible ways of achieving those goals. It ends with models of different …

In Memoriam: Joseph M. Williams, Chris Rideout

Faculty Articles

Professor Chris Rideout pays tribute to Joseph M. Williams, 1933-2008, Professor Emeritus, University of Chicago and author of Style: Ten Lessons in Clarity and Grace, among other highly influential works. Professor Rideout shows his appreciation for Williams' generous support and many contributions to the world of writing instruction, especially legal writing.

Remedial Approaches To Human Rights Violations: The Inter-American Court Of Human Rights And Beyond, Thomas Antkowiak

Faculty Articles

A sustained reflection upon remedial obligations and possibilities is particularly necessary at this juncture in the development of international law, where important mechanisms with reparative functions have recently sprung up around the world: the International Criminal Court, the African Court of Human Rights, and several national schemes, as a result of proliferating transitional justice initiatives. This article argues for a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition. The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding …