Law Commons^™

Originality, Alex Stein, Gideon Parchomovsky

Alex Stein

In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules …

Reconceptualizing Trespass, Alex Stein, Gideon Parchomovsky

Alex Stein

This Essay addresses an anomaly in trespass law. Trespass law is generally understood as the paradigmatic example of property-rule protection: an owner can obtain an injunction against the trespasser and have him removed from her land. The property-rule protection enjoyed by the owner protects her right to exclude others and to set the price for the use of her property. However, the property-rule protection only exists ex ante: it avails only against imminent or ongoing trespasses. Ex post, after a trespass ends, the owner can only recover compensation measured by the market value of the unauthorized use, i.e., the going …

Bakke, With Teeth?: The Implications Of Grutter V. Bollinger In An Outcomes-Based World, Ann M. Killenbeck

Ann Killenbeck

The (Overlooked) Consequence Of Easing The Prohibition Of Expert Legal Testimony In Professional Negligence Claims, Jill W. Lens

Jill Wieber Lens

A Comment On James Grimmelmann’S Saving Facebook, Susan Freiwald

Susan Freiwald

This paper comments on Professor James Grimmelmann’s article Saving Facebook (94 Iowa L. Rev. 1137 (2009) http://http://works.bepress.com/james_grimmelmann/20). provides a useful analysis of the privacy debates surrounding this social networking web site. Grimmelmann provides valuable sociological and psychological material for future legislators to draw on in considering legislative control of Facebook and similar sites. Grimmelmann uses Facebook to provide concrete examples of privacy concerns to build on the more general framework provided by the works of Daniel Solove. The comment does take exception to Grimmelmann’s analysis in several points. Chief among these is Grinnlemann’s lack of evidence in support of his …

Nsw Court Of Appeal: Is Public Liability Created Under Oh&S Legislation?, Neil J. Foster

Neil J Foster

Case note on a recent decision of the NSW Court of Appeal dealing with civil liability for breach of OHS legislation.

Comentario Al Libro "Testamento: Disposizioni Generali" Del Profesor Stefano Delle Monache, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

En el presente comentario se efectúa una brevísima micro comparación entre los desarrollos efectuados en los sistemas italiano y peruano sobre el testamento. Para ello se tomará como base las temáticas presentadas por el profesor Delle Monache en el libro bajo comentario.

Overcoming Fears Of Erisa Preemption To Cover The Working Uninsured: Lessons Learned From Hawaii, California, And Massachusetts, Angela Tokuda

Angela Tokuda

As the debate for national health care reform continues to evolve, the question remains to what extent will national reform leave room to preserve state-level experimentation, especially in light of ERISA (Employee Retirement Income Security Act) preemption. ERISA preemption has remained a formidable obstacle to state efforts. However, three states, Hawaii, California and Massachusetts, have been successful in expanding health insurance coverage at the local level. Although each state utilizes different objectives to cover their uninsured population, each faces the same threat of ERISA preemption. Nonetheless, these states have come up with unique ways to avoid ERISA preemption. This paper …

“A Mad Man Is Punished By His Madness Alone” – A Defence Of Insanity, G.V Mahesh Nath

G.V Mahesh Nath

The article studies some of the glaring differences between the medical and legal understanding of the term Insanity. With this understanding of insanity, the article traces the roots of insanity defense and discusses the much famous Mc Naughten Rule recognized world over as the mother of insanity laws in modern times. Subsequently, the article takes up the comparative study of penal laws across the major countries concerning the defence of insanity. Further the Indian position regarding insanity defence is analyzed in the light of Indian Penal Code along with case studies. Finally the article concludes with an assertion that Indian …

The Impact Of Interstates On Historic Preservation Law, Will Cook

Will Cook

No abstract provided.

13 Nationality And Citizenship In Cyprus Since 1945: Communal Citizenship, Gendered Nationality And The Adventures Of A Post-Colonial Subject In A Divided Country, Nicos Trimikliniotis

Nicos Trimikliniotis

This paper examines the issues relating to citizenship and nationality in Cyprus since 1945 from the colonial times to independence. It examines the historical context and evolution of citizenship in Cyprus and then it analyses the legal aspects of the modes of acquisition and loss of citizenship. Finally it looks at the current debates and the challenges of gender equality, migration, Europeanisation and reunification.

The Cypriot Roma And The Failure Of Education:Anti-Discrimination And Multiculturalism As A Post-Accession Challenge, Nicos Trimikliniotis

Nicos Trimikliniotis

This covers the period prior to 2008. At its outset, this study explores the general context of the Roma in Cyprus and their identity as Cypriot citizens, their legal classification, cultural identity and population concentration. It then examines the legal framework within which the Roma of Cyprus are educated by describing the provisions regarding access to education, as well as recent legislation transposing the anti-discrimination acquis. According to the Constitution of the Cyprus Republic, the vast majority of Roma are classified as belonging to the ‘Turkish community’ without a minority rights status and as such their access to education in …

Annan V: Rethinking The Viability Of The Constitutional Arrangement And Its Future Importance, Nicos Trimikliniotis

Nicos Trimikliniotis

This chapter argues that despite the post-colonial Zurich-London legacy and the flaws contained in the final version of the Annan Plan its central pillars provided the basis for a viable, workable and fair constitutional arrangement for both Greek Cypriots and Turkish Cypriots. The plan’s philosophy is in line with human rights conventions, UN resolutions, the EU Acquis and the High Level agreements of 1977 and 1979. It defines ‘a bizonal bicommunal federation with a single sovereignty, international personality and citizenship’. The alternative – the indefinite continuation of de facto partition, or a de jure partition, or a ‘return’ to a …

New Female Migration And Integration Related Policies In Cyprus [Co-Authored With Mihaela Fulias Souroulla], Nicos Trimikliniotis

Nicos Trimikliniotis

This chapter is a state of the art on the national context of Cyprus on the subject of integration and migration of mifgrant women. This is a rather problematic venture given that the literature available on the subject is mostly ‘international’ and as such we are forced to erect artificial ‘national’ or ‘state boundaries’ in order to confine the ambit of our work. Secondly, there is an inherent contextual problem relating to the de facto division of the country in which we are faced with the fact that Cyprus is a bi-communal and bilingual country, but due to budgetary reasons …

The Use And Abuse Of Undeclared And Unprotected Labour: Migration, Europeanisation And The Role Of Trade Unions, Nicos Trimikliniotis

Nicos Trimikliniotis

This paper considers the processes, the mechanisms and the social agency involved in what is a widespread phenomenon in Europe and the globe. The paper draws on experiences and knowledge from across Europe and beyond to illustrate the use and abuse of undeclared labour, particularly undocumented migrant labour within the process of European integration in order to consider ways to tackle it.

Concept And Practice Of Laws Relating To Adoption In Different Religion And Modern Societies: Special Reference To The Law Of Islam, Abu Noman Mohammad Atahar Ali, Zafrin Andaleeb

Abu Noman Mohammad Atahar Ali

No abstract provided.

The Development Of Consumer Protection Law In Bangladesh: A Critical Comparative Study, Zafrin Andaleeb, Abu Noman Mohammad Atahar Ali

Abu Noman Mohammad Atahar Ali

ABSTRACT Consumer protection is a very important issue all over the world. Specially in third world countries it is more important where the life and liberty of the people are often intruded. It deserves mention that even 35 years after the independence of Bangladesh, the country is yet to have a comprehensive consumer protection law. Though it is true that many of the political governments promised in their manifesto to have a consumer protection law but after empowerment they seldom take care of it. In many countries of the South Asian region consumer protection is a very important movement and …

Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen G. Gonzalez

Carmen G. Gonzalez

Giving the poor legal title to the lands they occupy extra-legally (informally) has been widely promoted by the World Bank and by best-selling author Hernando de Soto as a means of addressing both poverty and the scarcity of affordable housing in the urban centers of the global South. Using Bogotá, Colombia, as a case study, this article interrogates de Soto’s claims about the causes of informality and the benefits of formal title. The article concludes that de Soto’s analysis is problematic in three distinct respects. First, de Soto exaggerates the benefits of formal title and fails to consider its risks. …

Version Française: On The Constitutionalisation Of The Convention: The European Court Of Human Rights As A Constitutional Court, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Constitutionalism, Legal Pluralism, And International Regimes, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Learning From Our History: Evaluating The Modern Housing Finance Market In Light Of Ancient Principles Of Justice, Brian M. Mccall

Brian M McCall

Since I first accepted an invitation to join this symposium, the subprime mortgage crisis has exploded into a systemic financial crisis. Analysis and pundits alike seem on a quest to outdo each other in using dramatic phrases to describe its historic proportions. The causes of a crisis so large must have a multiplicity of causes lying in the realms of bank regulation and supervision, the operation and regulation of the securitization market and the derivatives and insurance markets. Yet, the root and spark of the various financial reverberations initiated in the home mortgage finance market. My presentation will focus on …

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

The Architecture Of Law: Building Law On A Solid Foundation The Eternal And Natural Laws, Brian M. Mccall

Brian M McCall

It's Just Secured Credit: The Natural Law Case In Defense Of Some Forms Of Secured Credit, Brian M. Mccall

Brian M McCall

For decades scholars have been debating whether of not the institution of security can be explained and justified. After much discussion from varying points of view and hermeneutics, although some insights have been gained, the answer to the original question remains unresolved. This article attempts to bring new life to this debate by building on Professors Mooney and Harris’ idea of security interest as property right while taking account of the valid concerns of scholars such as Elizabeth Warren and Lyn Lopucki that certain results produced by the current system seem unjust. This reconciliation of these two strands of secured …

Sur La Constitutionnalisation De La Convention Européenne Des Droits De L'Homme : Cinquante Ans Après Son Installation, La Cour Européenne Des Droits De L’Homme Conçue Comme Une Cour Constitutionnelle, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Bad Apples, Bad Lawyers Or Bad Decisionmaking: Lessons From Psychology And From Lawyers In The Dock, Leslie C. Levin

Leslie C. Levin

Richard Abel’s book, Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings, presents six detailed case studies of New York lawyers who engaged in serious misconduct. He uses these case studies to carefully explore the social, psychological and structural conditions of lawyer deviance that lead to betrayals of trust. This essay considers what additional light some of the psychological literature, in particular, might shed on the behaviors of Abel’s lawyers for the purposes of better understanding how to prevent lawyer misconduct. More specifically, it considers how social and psychological processes may help to explain the trajectory of lawyer misconduct and …

With A Little Help From The Courts: The Promises And Limits Of Weak Form Judicial Review Of Social And Economic Rights, Adam Shinar

Adam Shinar

This is a review of Mark Tushnet's "Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law". The review outlines the main arguments in the book and then moves to elaborate on two preconditions, which, I think, are necessary for Tushnet's project to succeed – the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet's broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet's "Taking the Constitution Away from the Courts", a work …

Collective Bargaining As A Dispute-Reduction Vehicle Accommodating Contrary Animal Welfare Agendas, Michael N. Widener

Michael N. Widener

Animal activists and animal enterprise managers share little common ground debating science and values. Activists are frustrated with the pace of improvements in animal welfare. Enterprise managers tire of activists’ increasingly threatening, urban-guerilla tactics. Meanwhile, legislation is ineffective to bring meaningful improvements to animal treatment or to stop activist civil disobedience-driven acts of property damage and public vilification of perceived animal “enemies.” Lawsuits filed to sanction a camp’s behavior tax patience and resources on both sides. Violence against persons appears imminent between the factions. This essay advocates implementing collective bargaining processes along certain animal enterprise sector lines to engage enterprise …

The Citation Of Wikipedia In Judicial Opinions, Lee F. Peoples

Lee Peoples

No abstract provided.

Soft Law As Delegation, Timothy L. Meyer

Timothy Meyer

This article examines one of the most important trends in international legal governance since the end of the Cold War: the rise of “soft law,” or legally non-binding instruments that are given legal effect through domestic law or internationally binding agreements such as treaties. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as …