Law Commons^™

The Full Realization Of Our Rights: The Right To Health In State Constitutions, Cynthia Soohoo, Jordan Goldberg

Case Western Reserve Law Review

No abstract provided.

From The Bottle To The Grave: Realizing A Human Right To Breastfeeding Through Global Health Policy, Benjamin Mason Meier, Miriam Labbok

Case Western Reserve Law Review

No abstract provided.

Comparative Tales Of Origins And Access: Intellectual Property And The Rhetoric Of Social Change, Jessica Silbey

Case Western Reserve Law Review

No abstract provided.

China, Wei Cui

All Faculty Publications

The Chinese indirect tax system is on the eve of a major overhaul, with the integration of the VAT and business tax (BT) to start in select industries in Shanghai on January 1, 2012. This paper provides an overview of China's idiosyncratic VAT as well as the BT as they stood towards the end of 2010. BT law and practice are discussed only in connection with select conceptual issues such as the exclusion from the VAT/BT base, place of supply, etc. This decision is based on the considerations that many of the legal issues arising under the VAT cannot be …

The Case For Employee Referenda On Transformative Transactions As Shareholder Proposals, Matthew T. Bodie

All Faculty Scholarship

This Comment describes and advocates for employee referenda as implemented through a SEC Rule 14a-8 shareholder proposal. The proposal provides for a nonbinding referendum amongst all employees whenever the corporation's shareholders must vote to approve a merger, acquisition, sale of substantially all assets, or other transformative transaction. The purpose of the referendum is to provide employees with a voice in the transaction and to provide shareholders with a mechanism for tapping into employee sentiment. Because the referendum would be nonbinding, it is best viewed as an informational tool for shareholders and employees to use in policing management's transactions. Given the …

When Selling Your Personal Name Mark Extends To Selling Your Soul, Yvette Joy Liebesman

All Faculty Scholarship

Identifying one’s business with one’s personal name has long been a practice in the United States. As Personal Name Marks have become increasingly commodified, however, bargaining and deal-making has led more and more to transfers of rights which had previously been considered to be closely tied to the individual as a private person. This article posits that freedom of contract doctrine should not allow the complete alienation of all aspects of one’s name, but rather there should be limitations on how far parties may bargain, so that the purchaser cannot acquire the right to control the seller’s private activities. This …

A Service Learning Project: Disability, Access And Health Care, Elizabeth Pendo

All Faculty Scholarship

Last summer, I was thinking about a public service project for my disability discrimination law course. I teach the course in fall, and try to incorporate a project each year. At the same time, I was working on a project looking at barriers to health care for people with disabilities. Some of the barriers are well known, such as lower average incomes, disproportionate poverty, and issues with insurance coverage, to name just a few. I was looking at barriers of a different type, however: those posed by physically inaccessible facilities and equipment. This was a new area for me. Like …

Accrediting The Accreditors: A New Paradigm For Correctional Oversight, Lynn S. Branham

All Faculty Scholarship

Correctional accreditation processes can be revamped to bring more transparency and accountability into the operation of correctional facilities and to help ensure that they comport with sound correctional practices, legal requirements, and basic human-rights precepts. Becoming accredited is now largely optional, and correctional accreditation processes are fee-based. Consequently, correctional accrediting entities are vulnerable to pressures to water down accreditation standards and make accreditation procedures more lax. The federal government should therefore adopt two requirements. First, prisons, jails, and other correctional facilities should have to be accredited by a certified accrediting entity in order to be eligible to receive federal funds. …

Can Retributivism Be Progressive? A Reply To Professor Gray And Jonathan Huber, Chad Flanders

All Faculty Scholarship

Professor David Gray and Jonathan Huber have done a great service in their Response to my Article, “Retribution and Reform.” They have helped me to see the wrong turns in my argument and the areas in which my argument needs to be clarified and amplified. In this brief Reply, I attempt to respond to some of their concerns.

Retribution And Reform, Chad Flanders

All Faculty Scholarship

What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we …

Local Rules And The Limits Of Trans-Territorial Procedure, Samuel P. Jordan

All Faculty Scholarship

Local rules have been unfairly cast as procedural villains. Their qualifications for the role are purportedly numerous, but chief among them is that they violate a fundamental principle embedded in our post-1938 procedural regime: that the procedural rules applied in a federal case should not be sensitive to location. It must of course be conceded that local rules do produce territorial variations in procedure. But in practice, the principle of trans-territoriality is aspirational, and is undermined by an array of factors – ranging from competing interpretations of written rules to the supplementation of those rules through exercises of inherent power …

Civil Procedure: Appellate Practice And Procedure, Ledawn H. Conway, Devon D. Sharp

SMU Law Review

No abstract provided.

The Ilc And The Reconstruction Of U.S. Banking, Mehrsa Baradaran

SMU Law Review

No abstract provided.

Regis W. Campfield: Colleague, Mentor, And Friend, Joshua C. Tate

SMU Law Review

No abstract provided.

The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig

Canadian Journal of Law and Technology

In this article, I explore the important body of scholarship that has emerged over this time on the substance, nature, and role of the public domain. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a fairly comprehensive, but concise, review of this academic movement that has been directed towards substantiating and politicizing the concept of the public domain; and second, I hope to re-situate …

Fessing Up To Facebook: Recent Trends In The Use Of Social Network Websites For Civil Litigation, Pamela D. Pengelley

Canadian Journal of Law and Technology

For professional “fact-gatherers” such as lawyers, insurance adjusters, claims handlers and private investigators, the vast wealth of information that people volunteer on Facebook can be a goldmine or a smoking gun, depending on your perspective. The personal information contained in a Facebook profile may be highly relevant to matters at issue in litigation; when dealing with claims, particularly in the personal injury context, the information contained on a Facebook page can make or break a case. It is, therefore, crucial that legal and insurance professionals stay informed of new developments in this emerging area of law. This article, written with …

Google Adwords And Canadian Trademark Law, Reed W. Taubner

Canadian Journal of Law and Technology

This article aims to answer two questions: should business competitors be allowed to use each other’s goodwill in this way and, if so, can trademark law police the program without stifling competition? Part I examines the technical aspects of the AdWords program. Part II explores the underlying rationales of trademark law to start developing a normative position. Part III reviews the American jurisprudence and commentary to hone that normative position and to identify a compatible legal framework. Part IV compares that framework against Canadian law.

This article endorses the work of Misha Gregory Macaw who, unlike some trademark expansionists, argues …

Book Review: E-Discovery In Canada, Robert J. Currie

Canadian Journal of Law and Technology

It is not hyperbolic to say that the proliferation of electronically stored information (ESI) is probably the most prominent change-harbinger and potential havoc-wreaker in civil litigation today — second only, perhaps, to the spiralling costs of litigation itself. Indeed, the practical and legal difficulties associated with the storage, gathering, preservation, disclosure and evidentiary use of ESI have the potential to act as a Trojan Horse, causing what would previously have been ordinary cases to implode under their weight. Increasing recognition of this is evident; electronic discovery (e-discovery) cases have begun to emerge in the reports, a successful co-operative effort by …

Downloading Personhood: A Hegelian Theory Of Copyright Law, Karla M. O'Regan

Canadian Journal of Law and Technology

This article will examine these responses, identifying the competing interests at work in both traditional copyright schemes and contemporary Internet-based criticisms, and put forth a theory of copyright law capable of ad- dressing the needs of these rival interests in an advanced technological era.

Part I delineates some of the more prominent theories copyright scholars have offered in response to the “IP-IT crisis.” Part II attempts to identify the source of these problems by first examining conventional justifications for copyright and the competing interests inherently at work in its conception. Part III identifies three specific factors I argue are particularly …

Summary Judgment And The Influence Of Federal Rulemaking, Bernadette Bollas Genetin

Con Law Center Articles and Publications

No abstract provided.

Debunking The Purchaser Welfare Account Of Section 2 Of The Sherman Act: How Harvard Brought Us A Total Welfare Standard And Why We Should Keep It, Alan J. Meese

Faculty Publications

The last several years have seen a vigorous debate among antitrust scholars and practitionersa bout the appropriates tandardf or evaluating the conduct of monopolists under section 2 of the Sherman Act. While most of the debate over possible standards has focused on the empirical question of each standard's economic utility, this Article undertakes a somewhat different task: It examines the normative benchmark that courts have actually chosen when adjudicating section 2 cases. This Article explores three possible benchmarks-producer welfare, purchaser welfare, and total welfare-and concludes that courts have opted for a total welfare normative approach to section 2 since the …

Dohsa's Commercial Aviation Exception: How Mass Airline Disasters Influenced Congress On Compensation For Deaths On The High Seas, Stephen R. Ginger, Will S. Skinner

Journal of Air Law and Commerce

No abstract provided.

Private Commercial Space Transportation's Dependence On Space Tourism And Nasa's Responsibility To Both, Thomas Brannen

Journal of Air Law and Commerce

No abstract provided.

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

Articles

This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …

Fourth Amendment Remedial Equilibration: A Comment On Herring V. United States And Pearson V. Callahan, David B. Owens

Articles

In two recent decisions, the Supreme Court addressed remedies under the Fourth Amendment by assuming that this remedial construction did not alter the value of the underlying right meant to be protected by the Constitution. First, in Herring v. United States, the court broadened exceptions to the exclusionary rule and implied that suppression may not be required for "negligent" errors generally. Then, in Pearson v. Callahan, the Court abandoned it's "battle-of-order" rule - which required courts to consider the right before inquiring whether that right was "clearly established" at the time of the violation - when considering qualified …

Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

This article examines the federal income tax regime governing intellectual property using normative criteria in evaluating taxes: equity and efficiency. The article first evaluates the current intellectual property tax scheme in terms of horizontal equity, identifying differences in tax treatment of what appear to be similar intellectual property activities. It argues that disparate tax treatments between seemingly similar intellectual property owners signal that flaws may exist in the tax system. The article then assesses the efficiency of the intellectual property tax system, examining numerous tax subsidies for intellectual property and their effectiveness in promoting economic growth. It argues that many …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

Articles

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

The Role Of Patent Protection In (Clean/Green) Technology Transfer, Bronwyn H. Hall, Christian Helmers

Santa Clara High Technology Law Journal

No abstract provided.

Wikipedia And The European Union Database Directive, Jacqueline D. Lipton

Santa Clara High Technology Law Journal

No abstract provided.

Crowdsourcing And Open Access: Collaborative Techniques For Disseminating Legal Materials And Scholarship, Timothy K. Armstrong

Santa Clara High Technology Law Journal

No abstract provided.