Law Commons^™

Book Review Of Universities And Copyright Collecting Societies, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Regulating Charities In The Twenty-First Century: An Institutional Choice Analysis, Lloyd Hitoshi Mayer, Brendan M. Wilson

Journal Articles

For more than fifty years scholars, practitioners, and government officials have debated whether the federal government, the state governments, or the charitable sector itself can best ensure that charity leaders fulfill their fiduciary duties. The dramatic growth of this sector, recent highly publicized governance scandals, and a push in Congress and the IRS for more federal involvement in this area have now brought this issue to a head. This article lays a foundation for resolving the dispute by developing an institutional choice framework for considering and comparing the various available options. Applying that framework, the article concludes that the best …

Fairness And The Willingness To Accept Plea Bargain Offers, Avishalom Tor

Journal Articles

In contrast with the common assumption in the plea bargaining literature, we show fairness-related concerns systematically impact defendants' preferences and judgments. In the domain of preference, innocents are less willing to accept plea offers (WTAP) than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Journal Articles

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Rethinking Tax Priorities: Marriage Neutrality, Children, And Contemporary Families, James M. Puckett

Faculty Scholarship

Tax scholarship has long struggled with whether married taxpayers should be taxed differently from unmarried taxpayers. Currently, married taxpayers are subject to different tax rates than unmarried taxpayers, and may file a joint tax return. A married couple may pay a higher or lower amount of tax than an unmarried couple with the same total income, and a single person generally pays more tax on a given income than a married couple with a single earner with the same income. These outcomes are difficult to reconcile with a commitment to income tax progressivity, which in theory requires that higher incomes …

A Primer On Protecting Tax Losses From A Section 382 Ownership Change, Mark C. Van Deusen

William & Mary Annual Tax Conference

No abstract provided.

Another Blow To Tribal Sovereignty: A Look At Cross-Jurisdictional Law-Enforcement Agreements Between Indian Tribes And Local Communities, Andrew G. Hill

American Indian Law Review

No abstract provided.

Wind-Energy Ventures In Indian Country: Fashioning A Functional Problem, Crystal D. Masterson

American Indian Law Review

No abstract provided.

Values In Transition: The Chiricahua Apache From 1886-1914, John W. Ragsdale Jr.

American Indian Law Review

Law confirms but seldom determines the course of a society. Values and beliefs, instead, are the true polestars, incrementally implemented by the laws, customs, and policies. The Chiricahua Apache, a tribal society of hunters, gatherers, and raiders in the mountains and deserts of the Southwest, were squeezed between the growing populations and economies of the United States and Mexico. Raiding brought response, reprisal, and ultimately confinement at the loathsome San Carlos Reservation. Though most Chiricahua submitted to the beginnings of assimilation, a number of the hardiest and least malleable did not. Periodic breakouts, wild raids through New Mexico and Arizona, …

The Conflict Between State Tests Of Tribal Entity Immunity And The Congressional Policy Of Indian Self-Determination, Aaron F.W. Meek

American Indian Law Review

No abstract provided.

When Canons Go To War In Indian Country, Guess Who Wins? Barrett V. United States: Tax Canons And Canons Of Construction In The Federal Taxation Of American Indians, John Lentz

American Indian Law Review

No abstract provided.

The Ncaa Rules Adoption, Interpretation, Enforcement, And Infractions Processes: The Laws That Regulate Them And The Nature Of Court Review, Josephine (Jo) R. Potuto

Vanderbilt Journal of Entertainment & Technology Law

This article takes a comprehensive look at how the NCAA is organized, describes the NCAA committee structure, and explains how the NCAA in its multitude of roles does its work. The article focuses particularly on the NCAA by law interpretation process and the policies, procedures, and scope of authority of the enforcement, infractions, and student-athlete reinstatement processes. In its description of the division of responsibility among enforcement, infractions and student-athlete reinstatement, the article emphasizes the independence of each. The article then assesses the functions and structure of the NCAA in light of the preogatives of a private, multi-state association and …

No Confusion Here: Proposing A New Paradigm For The Litigation Of Keyword Advertising Trademark Infringement Cases, Rachel R. Friedman

Vanderbilt Journal of Entertainment & Technology Law

Internet search engines such as Google and Yahoo! earn a majority of their profit from selling advertisements to appear next to search results. Google's coveted advertising space, however, causes nightmares for trademark holders when their trademarks are auctioned by Google to competitors as keywords to trigger the competitors' advertisements when the trademark is used as a search term. Advertisers strategically bid on trademarks of competitors to ensure that their ads appear whenever the trademark is used as a search term, instead of the advertisements of the trademark holder. For example, Nike could bid on the trademark for "Adidas," with the …

Guerrilla Radio: Has The Time Come For A Full Performance Right In Sound Recordings?, Lauren E. Kilgore

Vanderbilt Journal of Entertainment & Technology Law

Musicians and songwriters occupy a unique place in society as purveyors of composition and expression that impart an intangible benefit to society. Understanding the value of "Science and useful Arts," the Founders provided Constitutional protection for individuals spending time, money, and energy pursuing creative endeavors. Music defines generations and pivotal moments in history, and has rightfully taken its place at the forefront of human expression. When music began reaching the masses in the early twentieth century, both record labels and radio, even in its infancy, helped propel artists to the national spotlight. Johnny Cash, Ray Charles, and Pearl Jam all …

An "Absence Of Meaningful Appellate Review": Juries And Patent Obviousness, Theresa Weisenberger

Vanderbilt Journal of Entertainment & Technology Law

The rise in the number of patent infringement trials heard by juries has brought criticisms of the jury's expansive role to the forefront of patent law commentary. Under current Federal Circuit practice, the jury is permitted to deliver a verdict on patent obviousness. Especially in light of the 2007 Supreme Court decision KSR International Co. v. Teleflex, Inc., the role of the jury in obviousness determinations has come under particular scrutiny. This Note examines the effect of the jury's expansive role in obviousness determinations on appellate review of these verdicts. It begins by examining the two conflicting views of the …

Transformative Use And Cognizable Harm, Thomas F. Cotter

Vanderbilt Journal of Entertainment & Technology Law

In recent years, the question of whether the unauthorized use of a copyrighted work is "transformative" has become a dominant consideration in determining whether the use is fair or unfair. As critics have pointed out, however, this emphasis on transformative use is both underinclusive and indeterminate of the range of uses that fall within the scope of the fair use privilege. Worse yet, efforts to define or apply the concept of transformative use, or to distinguish fair transformative uses from transformative uses that infringe the copyright owner's exclusive right to prepare derivative works, often serve only to illuminate the concept's …

Copyright, Derivative Works, And The Economics Of Complements, Glynn S. Lunney, Jr.

Vanderbilt Journal of Entertainment & Technology Law

From an economic perspective, copyright is irrational. In defining the scope of a copyright owner's exclusive rights, it treats situations that have similar economic consequences differently, as infringement in one case and not in the other, and situations that have radically different economic consequences similarly. This essay explores such area in which copyright exhibits economic irrationality: Copyright's treatment of complements. Where a lower price on a substitute reduces demand for the original, a lower price on a complement increases it. So defined, copyright addresses whether a copyright owner will control three different types of complements: (i) complementary products, such as …

A Preliminary First Amendment Analysis Of Legislation Treating News Aggregation As Copyright Infringement, Alfred C. Yen

Vanderbilt Journal of Entertainment & Technology Law

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called "news aggregators" who compile newspaper headlines and provide links to stories posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy.

Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, …

A Generation Of Racketeers? Eliminating Civil Rico Liability For Copyright Infringement, Julie L. Ross

Vanderbilt Journal of Entertainment & Technology Law

This article addresses questions raised in recent years by the increasingly severe penalties for copyright infringement, focusing on potential civil RICO liability as illustrated by a hypothetical peer-to-peer file-sharing example. Because civil litigation has been, by a wide margin, the favored means for pursuing copyright violators, the criminal copyright infringement statute remains largely untested, and the few cases that address its provisions offer conflicting interpretations. Now that RICO penalties are available in civil copyright infringement cases, courts faced with resolving the ambiguities in the application of the criminal copyright infringement provisions will need to reconcile divergent policies. To effectuate its …

Abuse Under The Big Top: Seeking Legal Protection For Circus Elephants After Aspca V. Ringling Brothers, Emily A. Beverage

Vanderbilt Journal of Entertainment & Technology Law

The Asian elephants featured in the Ringling Brothers and Barnum & Bailey Circus are theoretically guaranteed humane treatment by the Animal Welfare Act, which ostensibly protects animals in exhibition, and by the Endangered Species Act, which covers the treatment of animals designated endangered species, including Asian elephants. Nevertheless, circus elephants have suffered extensive abuse because the agencies responsible for implementing the laws--the United States Departments of Agriculture and the Interior, respectively--have not done so aggressively, and because animal advocates have been unable to compel their enforcement or to establish standing to sue private parties. In 2000, animal welfare organizations, including …

Google Books: Page By Page, Click By Click, Users Are Reading Away Privacy Rights, Kathleen E. Kubis

Vanderbilt Journal of Entertainment & Technology Law

Google Books will likely become the world's most extensive book and magazine search and browsing resource, library, and bookstore--combined. However, as users necessarily reveal personal identifying information through their book searches and reading habits, this service poses a significant threat to personal privacy.

Because the Google Books Amended Settlement Agreement neglects to meaningfully address user privacy, the only available privacy protections are the limited rights bestowed by the Google Books Privacy Policy and the Google Privacy Policy. Unfortunately, these Privacy Policies protect the interests of Google at the expense of users.

The enactment of federal privacy statutes, which include provisions …

Front Matter

Michigan Law Review

No abstract provided.

Penumbral Thinking Revisited: Metaphor In Legal Argumentation, Chris Rideout

Faculty Articles

In the modern jurisprudence of the United States Supreme Court, the controversy over the place of metaphor came directly into the spotlight in Griswold v. Connecticut. Justice Douglas, writing for the majority and relying in part on metaphoric reasoning for his argument, located a right to privacy in the penumbral area formed by emanations from specific guarantees in the Bill of Rights. The various opinions in Griswold represent a divide regarding the place of metaphoric reasoning in legal argument. Justice Douglas employs metaphoric reasoning, while several of his fellow justices either avoid it or reject it. Because the case has …

Methademic: Drug Panic In An Age Of Ambivalence, Deborah Ahrens

Faculty Articles

The story of criminal sanctions in modern America is a familiar-and depressing narrative. According to the narrative, we live in an era where the dynamics of popular politics, the practices of the media, and the (often racialized) anxieties of modern life combine to create a one-way ratchet, in which we identify perceived new threats to public order and respond unthinkingly with harsh new criminal sanctions. On the surface, the wave of concern over methamphetamine that swept the nation in the middle part of this decade followed this script, as a media panic led to substantial popular concern and significant new …

Brilliant Disguise: An Empirical Analysis Of A Social Experiment Banning Affirmative Action, Deirdre M. Bowen

Faculty Articles

The notion of a colorblind society captured the imagination of voters who passed propositions banning affirmative action in higher education admissions in California, Washington, more recently in Michigan, and on November 4th, in Nebraska. Affirmative action is no longer required, proponents assert, because society no longer judges people by their skin color. They argue that the need for affirmative action is a vestige of a bygone era, and such a policy only creates resentment and stigma. This paper confronts the colorblind ideal myths of stigma and resentment, which appear at much greater rates in anti-affirmative action states. In analyzing data …

Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Nicol Bowman

Faculty Articles

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …

Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, Lisa Brodoff

Faculty Articles

In "Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings," Lisa Brodoff describes the administrative hearing system for public assistance recipients and applicants, and asserts that it is the primary social justice system for the poor. She discusses why public assistance appellants are always placed at a significant disadvantage in this system. The article proposes that the best way to even out the inequities in adjudications is to always place the burdens of production and persuasion by clear and convincing evidence on the government in these hearings. She argues that policy, efficiency, and fairness require a consistent and heavy …

Making Up Is Hard To Do: Race/Gender/Sexual Orientation In The Law School Classroom, Robert S. Chang, Adrienne D. Davis

Faculty Articles

This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered.' Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching …

Rock Climbing With The Gotandas, Robert S. Chang

Faculty Articles

No abstract provided.

Rodrigo's Portent: California And The Coming Neocolonial Order, Richard Delgado

Faculty Articles

No abstract provided.