Law Commons^™

Introductory Note To The United States Supreme Court: Graham V. Florida & The Federal Court Of Australia: Habib V. Australia, Chris Jenks

Faculty Journal Articles and Book Chapters

This introductory note considers two different and completely unrelated cases: Graham, a U.S. Supreme Court criminal case on the cruel and unusual punishment clause of the U.S. Constitution and Habib, an Australian civil case involving a former Guantanamo Bay detainee. This note focuses on one aspect of the disparate nature of the cases, starkly contrasting judicial attitudes towards the role of “foreign law” in domestic jurisprudence. Juxtaposed, the two cases offer an interesting view of not only the obvious differences between the U.S. inward and the Australian outward looking judicial philosophies, but perhaps a broader sense of how the two …

Not Child's Play: Revisiting The Law Of Child Soldiers, Chris Jenks

Faculty Journal Articles and Book Chapters

This brief commentary discusses child soldiers in general and Omar Khadr, a 15 yr old whom the United States military captured during armed conflict in Afghanistan, in particular. I suggest the conversation should be broadened and to move past misperceptions of the applicable law and norms concerning detention and prosecution of child belligerents.

Correspondents' Reports: A Guide To State Practice In The Field Of International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in 2010.

Ramifications Of Joint Infringement Theory On Emerging Technology Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

Two cases decided by the U.S. Court of Appeals for the Federal Circuit articulate the standards for joint infringement. In BMC Resources, Inc. v. Paymentech, L.P., the court ruled that to find liability in situations where steps of a method claim are performed by multiple parties, the entire method must be performed at the control or direction of the alleged direct infringer — the mastermind. Approximately one year later, in Muniauction, Inc. v. Thomson Corp., the Federal Circuit clarified that “the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously …

(When) Should Family Status Matter In The Criminal Justice System, Jennifer M. Collins, Ethan J. Leib, Dan Markel

Faculty Journal Articles and Book Chapters

Last year, we published a book entitled Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009). Recently, the New Criminal Law Review published a series of provocative and challenging reviews of this book by Professors Doug Berman, Naomi Cahn, and Jack Chin. Needless to say, we appreciate their very kind words about our project and its contributions.

In this Essay, however, our focus will be on responding to the interesting criticisms lodged against our book; we hope to do so in a way that is helpful in advancing the conversation about the intersection between criminal justice …

Should Charitable Trust Enforcement Rights Be Assignable?, Joshua C. Tate

Faculty Journal Articles and Book Chapters

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are …

The Future Of Oil And Gas Law, John S. Lowe

Faculty Journal Articles and Book Chapters

Author’s thesis is simple: Oil and gas jurisprudence has a bright future. We live in a hydrocarbons world, and our economic system is not going to change dramatically overnight; we will continue to live in a world powered and heated by hydrocarbons for at least the next twenty years. In fact, world demand for oil and gas is likely to increase substantially. From the turn of the twenty-first century until mid-2008, the world watched as oil prices first inched upwards and then surged. The high energy costs that energized us until a year and a half ago (and that appear …

The Assault On Section 11 Of The Securities Act: A Study In Judicial Activism, Marc I. Steinberg, Brent A. Kirby

Faculty Journal Articles and Book Chapters

This article focuses on the federal courts' restrictive interpretation of Section 11 of the Securities Act of 1933, the most investor-friendly express remedy that the "New Deal" Congress enacted. This judicial erosion has resulted in a cause of action that extends to fewer investors and is riddled with uncertainty at the pleading stage. The authors posit that recent federal court decisions that have added reliance as an element of Section 11 claims and rejected the use of statistical evidence to prove tracing are inconsistent with Section 11's text and legislative history. The article then explores the inconsistencies associated with pleading …

Review Of The Rhetoric Of Intellectual Property: Copyright Law And The Regulation Of Digital Culture, By Jessica Reyman, Jessica Silbey

Faculty Scholarship

A short book review of Jessica Reyman’s, The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture.

Tax Fraud In The Sales Tax: Zappers — What Are They? How Can Puerto Rico Block Them?, Richard Thompson Ainsworth

Faculty Scholarship

The Sales and Use Tax is an essential part of Puerto Rico’s revenue profile. Effective only recently (November 15, 2006) the Impuesto a las Ventas y Uso (IVU) was expected to raise between $2.3 and $1.05 billion annually, and has already become the Commonwealth’s fourth largest revenue source. Actual revenue results for 2007-2008 came in at $1.1 billion, which admittedly is closer to the low end than the high end of what is possible, but now that the tax is in place the next pressing question is how can its performance be improved?

This paper generally proposes that Puerto Rico …

International Law And African Judiciaries: The Example Of South Africa, Erika George

Faculty Scholarship

In recent years, commentators have questioned the extent to which African courts would rely upon foreign law or resort to rules of international law in their domestic decision making. I Comparatively, the African continent offers an interesting and important point of departure for exploring the influence of international law on domestic legal systems. While Africa boasts a number of new constitutional democracies, Africa is also home to a number of countries that remain burdened by colonial legacies and conflict.

It would not be unreasonable to expect international and foreign law to meet with considerable resistance or to be rejected as …

Liberty Lost: The Moral Case For Marijuana Law Reform, Eva Nilsen

Faculty Scholarship

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …

Calling Bullshit On The Lanham Act: The 2 (A) Bar For Immoral, Scandalous, And Disparaging Marks, Megan M. Carpenter, Kathryn T. Murphy

Faculty Scholarship

As the Lanham Act approaches the age of sixty-five, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. The consumer-search theory of trademarks posits that the purpose of trademark law is to promote fair competition by reducing consumer search costs and preventing confusion in the minds of consumers as to the source of goods and services.' However, section 2(a) of the Lanham Act expands trademark law well beyond its basic goals by preventing registration of marks that are "immoral," "scandalous," or "disparaging."

There are two primary questions …

Enhancing Enforcement Of Economic, Social And Cultural Rights Using Indicators: A Focus On The Right To Education In The Icescr, Sital Kalantry, Jocelyn E. Getgen, Steven Arrigg Koh

Faculty Scholarship

Nearly fifteen years ago, Audrey R. Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, the violations approach is even more salient given the recent adoption of the ICESCR’s Optional Protocol, a powerful tool to hold States parties accountable for violations.

Indicators are essential tools for assessing violations of economic, social and cultural rights (ESCRs) because they are often the best way to measure progressive realization. Proposed guidelines on using indicators give guidance on the content of States parties reports to treaty monitoring …

An Empirical Study Of Aaa Consumer Arbitrations, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

This article extends our knowledge of consumer arbitration by presenting results from the first detailed empirical study of consumer arbitration as administered by the AAA. Primarily using a sample of 301 AAA consumer arbitrations that resulted in an award between April and December 2007, it considers such issues as the costs incurred by consumers in arbitration, the speed of the arbitral process, and the outcomes of the cases-the very topics of most interest in the policy debate.

Prudentialism In Mcdonald V. City Of Chicago, Neil S. Siegel

Faculty Scholarship

At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake.

The Court’s recent decision in McDonald v. City of …

Much Uncertainty About Uncertain Tax Positions, Robert D. Probasco

Faculty Scholarship

The Internal Revenue Service (IRS) announced in January 2010 a new initiative to require certain businesses to report “uncertain tax positions” on a new schedule filed with their annual tax returns. Draft schedules and instructions issued in April 2010 clarified some of the mechanical aspects of the new requirement but left many open issues and questions. The IRS proposal built on requirements by the Financial Accounting Standards Board (FASB) in FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes (“FIN 48”). The standard requires companies, in their financial statements, to reserve some of the benefits from any position taken …

Consumer Protection In Transnational Contexts, Jacques Delisle, Elizabeth Trujillo

Faculty Scholarship

This Article provides an overview of United States consumer protection law in the growing number cases with an international dimension that arise with economic globalization, expanding transnational corporations, worldwide production chains, manufacturing outsourcing and more efficient international communication. U.S. consumer protection law remains primarily state law, including tort and product liability law, contract and warranty law, and general and product-specific consumer protection statutes. (This refers to the private law remedies for consumer goods which are the substantive laws addressed in this article.) There is little treaty-based, constitutional or federal law except for federal regulatory law that largely adopts state law …

My Homeland, My Diaspora: Iranian Jewish Identity In Modern Times, Orly R. Rahimiyan

Journal of Hate Studies

One of the essential questions arising from the plurality of ethnic and religious groups in the Middle East, and specifically Iran, concerns the relationship between “diaspora” and “homeland.” What do these two concepts signify? What criteria define these terms? Do these concepts have permanent, uniform criteria? Who determines these criteria? Furthermore, can religious, ethnic, linguistic, and/or national criteria define the identity of one group for the geographic region considered that group’s “homeland” or “diaspora”?

Last Man Standing: The American Who Stayed During The Rwandan Genocide - An Interview With Carl Wilkens, Jerri Shepard

Journal of Hate Studies

Carl Wilkens is a peace activist and an educator who headed up the Adventist Development and Relief Agency International in Rwanda (ADRA). He was the only American who chose to remain in Kigali, Rwanda during the genocide of 1994. His choice to remain in the country during that time of brutal atrocities resulted in the prevention of the murder of hundreds of children. Wilkens was featured in Frontline’s “Ghosts of Rwanda” and in “The Few Who Stayed: Defying Genocide,” an American Radio Works documentary broadcast on National Public Radio. He has received several humanitarian awards, including awards from Saint John’s …

Assessing The Argument For Specialized Courts: Evidence From Family Courts In Spain, Nuno Garoupa, Natalia Jorgensen, Pablo Vazquez

Faculty Scholarship

Specialized courts have become a key component of the legal reform packages implemented in civil law countries, particularly, in the area of family law. One argument for this policy is that they are able to reach a decision faster than the regular courts, which are normally congested. We use data from a survey of Spanish family courts in the region of Madrid to test this claim. After controlling for other relevant variables, the econometric results did not provide strong support for specialized courts.

The Graduated Response, Peter K. Yu

Faculty Scholarship

In the past few years, the entertainment industry has deployed aggressive tactics toward individual end-users, online service providers, and other third parties. One of the latest proposals that the industry has been exploring is the so-called “graduated response” or “three strikes” system, which threatens to suspend the service of internet users after they have received two warnings from their ISPs about potentially illegal online file-sharing activities.

In December 2008, the RIAA made a formal public announcement of its change of focus toward greater cooperation with ISPs. This new collaborative effort seeks to replace the highly unpopular lawsuits the industry has …

Do Constitutions Make A Difference In The Protection Of Fundamental Human Rights? Comparing The United States And Israel, Susan M. Akram

Faculty Scholarship

This is a tale of two states: one with a constitution and one without. It is a tale that has no moral but ends with the question whether, from the perspective of fundamental human rights, a constitution makes a significant difference? The tale compares the United States of America, a country with a robust, well-entrenched federal Constitution that forms the fundamental compact of its society, with Israel, a country without a formal constitution, but with a set of ‘basic laws’, that operates with two distinct legal systems for the two national entities residing within its jurisdiction.

This chapter can only …

Bonding Bankers: Notes Toward A Governance Approach To Risk Regulation, Frederick Tung

Faculty Scholarship

Important regulatory failures have been identified in the wake of the recent financial crisis, and comprehensive regulatory reform has been much on the minds of policymakers. Reform proposals call for a number of significant changes to the scope and structure of financial regulation to address systemic risk. With banking regulation, however, the twin tools of capital requirements and external supervision seem to remain the dominant regulatory levers. In this short discussion, I introduce the contours of an important supplement to the existing approach, a governance approach that uses bank executives' compensation arrangements as a policy lever. I propose that bank …

A Tale Of One Cali Lesson: Librarians Share A New Approach, Ronald E. Wheeler

Faculty Scholarship

Here at Georgia State University College of Law, teaching librarians initially adopted classroom technology more in response to student demand than based on any established practices in instructional technology pedagogy. In an effort to remain relevant to our students, we arbitrarily adopted every technology that was available—online course management systems, electronic reserves, discussion lists, digital cameras, presentation software, classroom polling systems, interactive whiteboards, and on and on. We chose to err on the side of technology saturation, incorporating each technology into our courses without asking what pedagogical value the tool offered or what was being accomplished by using it.

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a “prior substantial connection” to the United States.

I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …

Ten Questions On National Security, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This essay was written in response to an invitation by the editors of the William Mitchell Journal of the National Security Forum to answer one or more of ten questions concerning national security law and policy. This essay provides the author's answer to the question: "Would President Obama have the authority to hold a United States citizen without charge in a military brig for six months if that citizen - who lives in Minnesota - is suspected of links to al Qaeda following a one-month trip to Somalia?"

No-Limit Texas Hold 'Em, Or, The Voir Dire In Dallas County, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Voir dire is Law French for “to speak the truth.” In the United States and a few other common-law countries that still use juries, the term describes the process of selecting jurors who will hear the evidence presented at trial, render a verdict, and sometimes determine punishment. The translation suggests a search for jurors who can render a fair and impartial verdict. Attorneys try to discover and remove jurors who seem unable or unlikely to speak the truth, such as those who nurture irrational prejudices or harbor private grievances.

In most federal courts, the judge is the primary conduit for …

Presentation Of Jeffrey Kahn, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This short essay is based on remarks given at the Kennan Institute at the conference ‘The Russian Constitution at Fifteen: Assessments and Current Challenges to Russia’s Legal Development’. A central focus of these remarks is the undoing of the federal system described in the 1993 Constitution.

Green Cards For Foreign House Buyers: A Way To Help Stabilize Housing Prices, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

The continuing decline in US housing prices is making it difficult to effectively address our nation’s financial and economic problems. Any measures that would serve to help stabilize housing prices without requiring substantial government expenditures merit serious consideration. Richard Lefrak and Gary Shilling have recently set forth in the Wall Street Journal the broad outlines of a proposed change in immigration law that would confer conditional residency and eventually permanent residency upon foreign purchasers of US houses. In this article I present and discuss a modified version of their proposal that is more comprehensive and that seeks to avoid the …