Law Commons^™

Book Reviews, Christine E. Williamson, Ed Urie, Michael Savasta, Robin L. Thompson, D.M., Edward M. Roche

Journal of Strategic Security

Critical Thinking and Intelligence Analysis. By David T.Moore.

At The Center Of The Storm: The CIA During America's Time of Crisis. By George Tenet with Bill Harlow.

Female Suicide Bombers. By Rosemarie Skaine.

Information Operations: Doctrine and Practice. By Christopher Paul.

The Secret Sentry: The Untold History of the National Security Agency. By Matthew M. Aid.

The Blood of Lambs: A Former Terrorist's Memoir of Death and Redemption. By Kamal Saleem with Lynn Vincent.

Attaché Extraordinaire: Vernon A. Walters in Brazil. By Frank Márcio De Oliveira.

Cover & Front Matter

Journal of Strategic Security

No abstract provided.

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

William & Mary Law Review

No abstract provided.

V.46-4, 2009 Masthead

San Diego Law Review

No abstract provided.

Introduction To The 2009 Editors' Symposium: Isaiah Berlin, Value Pluralism, And The Law, Larry Alexander

San Diego Law Review

The outstanding collection of articles and comments thereon that follows this Introduction constitutes the 2009 Editors' Symposium of the San Diego Law Review.

On This Side Of The Law And On That Side Of The Law, Maimon Schwarzschild

San Diego Law Review

Value pluralism is the idea that legitimate human values and goals are many, often incompatible, and not reducible to any single overarching principle or Good. Value pluralism is probably the central idea - you could say the single overarching idea - in the work of Sir Isaiah Berlin, the English philosopher and historian of ideas. Berlin's theme is that individuals, and societies as well, have ideals and aspirations that conflict, and that therefore cannot all be fully realized. Thus a society cannot have perfect equality and perfect liberty because some people will exercise freedom to differentiate themselves, and hence to …

Pluralism, Liberalism, And Distributive Justice, George Crowder

San Diego Law Review

My general task in this paper is to argue that Ronald Dworkin is incorrect about the indeterminate and paralyzing character of pluralism. The background worry that motivates Dworkin's attack on the truth of pluralism is misplaced. Pluralism is not the field of indeterminacy and reform paralysis that he supposes it to be. More specifically, I argue this point with reference to the question of justice in economic distribution. Using the liberal-pluralist approach I have developed elsewhere, I try to show that a value-pluralist approach to distributive justice, far from leading to inaction or acquiescence in existing patterns of power, commends …

What Value Pluralism Means For Legal-Constitutional Orders, William A. Galston

San Diego Law Review

I begin by summarizing my version of liberal pluralism, emphasizing that the notion of pluralism implies not only value conflicts and hard choices but also a set of normative principles that are capable of guiding public policy. I then use that framework to adjudicate between rival approaches to distributive justice within liberalism, starting with the basic division between laissez-faire and egalitarian-redistributive approaches and proceeding to the leading alternatives within egalitarianism.

Berlin's Methodological Parsimony, Daniel M. Weinstock

San Diego Law Review

In this Article, I want to suggest a third line of argument that can be retrieved from Two Concepts. It is primarily methodological. It enjoins political theorists to define the extension of normative concepts in a manner that makes as perspicuous as possible the various normative considerations that are relevant to political decisionmaking. Although related to the pluralist defense of negative freedom briefly alluded to above, I will suggest that it is distinct from it, and that it allows us to address important but under appreciated lacunae that beset the argument from value pluralism, as well as the argument according …

The Path Between Value Pluralism And Liberal Political Order: Questioning The Connection, Patrick Neal

San Diego Law Review

After a few terminological preliminaries in Part II, I turn to two primary tasks. First, in Part III, I raise questions that seem to me to confront the basic logic of the connection between value pluralism and liberalism. Second, in Part IV, I discuss at length the "argument from diversity" articulated by George Crowder in support of the view that value pluralism supports liberalism. This line of argument is only one of a number that Crowder advances in support of that view, and so doubts about its success do not necessarily implicate the other lines of argument he pursues. However, …

The Plural Implications Of Value Pluralism: A Comment On Maimon Schwarzschild's On This Side Of The Law And On That Side Of The Law, Iddo Porat

San Diego Law Review

I suggest that there are two main views that can be found in Professor Schwarzschild's paper. The first is a strong suspicion of any type of centralized power, especially judicial power, as potentially stifling the plurality of values in society and imposing a monolithic view from above. This theme makes federalism and judicial activism especially central issues in the paper, and I will concentrate on both of them in my comment. The second view regarding the application of value pluralism is more subtle. It is a Burkean defense of traditional institutions, arguing that they represent a way of life in …

Value Pluralism And The Two Concepts Of Rights, Horacio Spector

San Diego Law Review

In Part II, I will indicate how the Will Theory and the Interest Theory each capture distinct features of the usage of right in contemporary moral and legal discourse. However, I will also argue that neither of the two theories is successful in explaining all the properties of rights. In Part III, I will argue that the debate between the two theories is irresolvable because the Will Theory and the Interest Theory reflect the meaning of rights within rival and incommensurable value paradigms existing in today's moral and legal culture. The incommensurability of the underlying value paradigms leads to radical …

Normative Conflict In International Law, Carmen Pavel

San Diego Law Review

In Part II, I will illustrate the problem of conflict in international law by drawing on two cases in international trade law. I will then argue in Parts III and IV that legal conflict often represents a genuine normative conflict grounded in our multiple, incommensurable, and potentially conflicting moral commitments. In doing so, I will deflect potential skepticism about the reality of normative conflict in international law. Drawing from existing international legal practice, I will show in Part IV that we can resort to a substantial toolbox of rules and principles to reconcile legal norms that are in tension with …

Urbanization, The Intelligentsia, And Meaning Change: A Comment On Horacio Spector's Value Pluralism And The Two Concepts Of Rights, Christopher T. Wonnell

San Diego Law Review

In my view, Professor Spector's paper is more persuasive in identifying the rhetorical change that has taken place than in providing a causal account of its genesis. The traditional rights of private property and freedom of contract do seem a long way from the new rights to receive medical care or safe and affordable housing. However, the rural-to-urban hypothesis for the cause of this change is not especially persuasive. Laissez-faire thinking of autonomous private spheres was at its height in the late eighteenth and early nineteenth centuries, among conditions far more urban and commercial than had historically been the case …

Barriers To Representation For Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, Peter L. Markowitz

Articles

There is an evolving crisis in the immigration courts and federal courts of appeals caused by the lack of quality representation for immigrants facing deportation. The problem is particularly acute for immigrants who are detained during their removal proceedings. As part of the Study Group on Immigrant Representation (Katzmann study group), the Subcommittee on Enhancing Mechanisms for Service Delivery undertook a case study of the institutional and legal barriers to quality legal representation for immigrants held at the Varick Street Detention Facility in New York City. Through this lens we hope to offer some useful insights into the core factors …

The Effectiveness Of Acceptances Communicated By Electronic Means, Or – Does The Postal Acceptance Rule Apply To Email, Eliza Mik

Research Collection Yong Pung How School Of Law

The ‘traditional’ classi?cation into ‘instantaneous’ and ‘non-instantaneous’ methods of communication must be abandoned. As all Internet transmissions are instantaneous, the choice between the principle of receipt and the postal exception must be based on other criteria. The focus must be shifted from communication devices to the characteristics of the communication process. The latter resembles either dealings face-to-face or dealings at a distance. This simple division should remain the basis for all analyses. Instantaneity and control are two of many characteristics of face-to-face dealings and are not the only factors to be taken into account when making the choice between the …

Patent Examination Priorities, Michael J. Meurer

Faculty Scholarship

Measures that discourage excessive patenting and claiming, propose shared examination responsibilities, and increase staffing all have potential to raise examination quality and alleviate the patent application backlog. So far these measures have been too limited to have much impact, and there is insufficient evidence to reliably judge their effectiveness. In this Article, I consider a different approach to examination reform. I take as given a significant scarcity of examiner time, and I ask how the PTO should set examination priorities. In other words, how much of their eighteen hours should examiners devote to the various tasks they are expected to …

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven A. Dean

Faculty Scholarship

Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity--could provide a viable alternative. Achieving tax deharmonization potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.

Does Copyright Law Promote Creativity? An Empirical Analysis Of Copyright's Bounty, Raymond S. Ray, Jiayang Sun, Yiying Fan

Vanderbilt Law Review

Modern copyright law is based upon a theory: increase copyright protection and you increase the number of creative works available to society. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. And with this expansion, we are told that the costs associated with copyright are worthwhile because of the bounty it produces. What if this theory could be tested? After all, this is not a question of faith or morality, nor is it a statement on how humans should behave; it is a …

The Liberal Tradition Of The Supreme Court Clerkship: Its Rise, Fall, And Reincarnation?, William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo

Vanderbilt Law Review

This Article presents the first comprehensive empirical study of the post-clerkship employment of law clerks at the Supreme Court from 1882 to the present, and it uses that data to flesh out a historical and institutional interpretation of the clerkship and the recent political polarization of the Court more generally. The liberal tradition of the clerkship arose out of Louis Brandeis's vision of former law clerks serving a progressive legal agenda, a tradition that Felix Frankfurter helped institutionalize while striving to remove ideological bias. With the advent of a conservative bloc on the Court, this tradition has waned, due to …

Trademarks As A Media For False Advertising, J. Shahar Dillbary

Cardozo Law Review

This Article explores an unnoticed aspect of trademark law which in some instances may constitute a license to cheat. It shows that under certain circumstances a seller can use its own trademark to mislead its customers, free from legal sanction, in contexts where the same behavior would be sanctioned if the seller used other advertising media. The Article then explores how an alternate conception of the economic function of trademarks can be used to understand the informational value of trademarks and their advertising function. After identifying circumstances appropriate for legal intervention, the Article concludes with a proposal for a new …

Free Speech Federalism, Adam Winkler

Michigan Law Review

For decades, constitutional doctrine has held that the Constitution's guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict …

Private Production Of Public Goods: Liability For Unrequested Benefits, Ariel Porat

Michigan Law Review

This Article explores why the law treats negative externalities (harms) and positive externalities (benefits) differently. Ideally, from an economic perspective, both negative and positive externalities should be internalized by those who produce them, for with full internalization, injurers and benefactors alike would behave efficiently. In actuality, however, whereas the law requires that injurers bear the harms they create (or wrongfully create), benefactors are seldom entitled to recover for benefits they voluntarily confer on recipients without the latter's consent ( "unrequested benefits"). One aim of this Article is to explore the puzzle of the law's differing treatment of negative and positive …

A Sea Of Confusion: The Shipowner's Limitation Of Liability Act As An Independent Basis For Admiralty Jurisdiction, Amie L. Medley

Michigan Law Review

The Shipowner's Limitation of Liability Act of 1851 allowed the owner of a vessel to limit his liability in the case of an accident to the value of the vessel and its cargo if he could show he had no knowledge of or participation in the negligent act that resulted in the loss. In 1911, the Supreme Court decided Richardson v. Harmon, a case which was interpreted for several decades to hold that the Limitation Act formed an independent basis for admiralty jurisdiction. In a 1990 case, the Supreme Court stated in a footnote that it would not reach …

Loss Causation And Class Certification, Steven Serajeddini

Michigan Law Review

Courts have long faced difficulty interpreting loss causation under Section 10b-5 of the Securities Act of 1934. This difficulty stems from the seemingly irreconcilable conflict between this core element of common law fraud and the procedural demands of Rule 23 of the Federal Rules of Civil Procedure, the typical vehicle for a 10b-5 class action. Recently, some courts and commentators have begun to consider loss causation as an individualized inquiry that is not common among class members, and one that therefore warrants consideration at the class certification stage. The existing justifications center on the conceptually distinct 10b-5 element of reliance, …

In Re Sigma Finance Corporation (In Administrative Receivership) And In Re The Insolvency Act 1986 [2009] Uksc 2 (29 Oct 09): Commentary, Chao-Hung Christopher Chen

Research Collection Yong Pung How School Of Law

The case of Sigma Finance Corp was about the priority of payment under a Security Trust Deed for a structured investment vehicle (SIV). In essence, the key issue in the case was about whether debts due within the ‘realisation period’ after the occurrence of an ‘enforcement event’ should be paid ahead of other shortterm creditors.

Sigma Finance Corporation And In Re The Insolvency Act 1986 [2009] Uksc 2 (Contract, Contractual Terms): Commentary, Chao-Hung Christopher Chen

Research Collection Yong Pung How School Of Law

The case of Sigma Finance Corp1 was about the priority of payment under a Security Trust Deed for a structured investment vehicle (SIV). In essence, the key issue in the case was about whether debts due within the ‘realisation period’ after the occurrence of an ‘enforcement event’ should be paid ahead of other short-term creditors.

Negotiation And Mediation In 3d: Completing The Models For Practice And Education, Jill Howieson, Nadja Alexander

Research Collection Yong Pung How School Of Law

Reflecting on two major conferences held in September 2009 at the LEADR conference, Kongress, and the 36th Australian Legal Convention around the same time, it appears that ADR in Australia might be going ‘back to the future’. Discussion of the 1970s concept of the ‘multi-door courthouse’ as a model for Australian courts in the 21st century and an acknowledgment of the enduring essence of the 1980s interest-based negotiation model at both conferences, created a curious sense of déjà vu — and raised the question: where do we go from here?

Early Liquidation And Compensation Of Otc Derivatives In Bankruptcy Cases: Law And Economic Analysis Of Article 74 Of The Law 1328 Of 2009, Nydia Remolina Leon

Research Collection Yong Pung How School Of Law

The increasing importance of OTC (Over The Counter) or tailor-made derivatives, makes it necessary to analyse Colombian legislation in this area. The current financial reform regulates the compensation and liquidation of these instruments intended to encourage the development of this market. However, a legal review of article 74 of Act 1328, 2009, joined with an observation made based on an economic analysis perspective of contract law, will provide alternatives to introduce more efficient and effective legal instruments that will hopefully incentive agents to use OTC derivatives as instruments for speculation or hedging.

Table Of Contents - Cardozo Law Review, Volume 31, Issue 2

Cardozo Law Review

No abstract provided.