Law Commons^™

Zoo Registrars: A Bewildering Bureaucracy, Irus Braverman

Duke Environmental Law & Policy Forum

No abstract provided.

Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond

University of Michigan Journal of Law Reform

It is a common misconception that there is a line between criminal and innocent conduct that is transparent and fixed. In fact, much of criminal law is fluid and elastic, free, if strategically applied, to label conduct as legal or illegal. In some cases, this reflects crimes that are vaguely defined or imprecise. In other cases, the prohibited conduct simply includes what is so conventionally accepted as legal that the criminal label is perceived as inapplicable until a prosecutor chooses to apply it. The problem of a fluid rather than a fixed line for criminality is that prosecutorial discretion becomes …

Protecting Nominative Fair Use, Parody, And Other Speech-Interests By Reforming The Inconsistent Exemptions From Trademark Liability, Samuel M. Duncan

University of Michigan Journal of Law Reform

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for "speech-interests" are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are "protected" by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor …

Willpower Taxes, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Self-control and related concepts appear regularly in tax discussions, but often they are invoked hazily or blurred together with other aspects of choice over time. Despite the evident relevance of willpower to consumption patterns, wealth accumulation, and, ultimately, well-being, there is no consensus about whether and how heterogeneity along this dimension should factor into tax policy. There is support in the tax literature for such divergent responses as funneling more resources to low-willpower people, penalizing them for their lapses, and limiting their choices. Whether we should follow one of these approaches, or some other approach entirely, requires a careful analysis …

Agency Design And Distributive Politics, Jacob Gersen, Christopher R. Berry

Coase-Sandor Institute for Law & Economics Research Paper Series

This paper targets the intersection of two generally distinct literatures: political control of administrative agencies and distributive politics. Based on a comprehensive database of federal spending that tracks allocations from each agency to each congressional district for every year from 1984 through 2007, we analyze the responsiveness of agency spending decisions to presidential and congressional influences. Our research design uses district-by-agency fixed effects to identify the effects of a district's political characteristics on agency spending allocations. Because most agencies distribute federal funds, we are able to provide empirical evidence about the relationship between structural features of administrative agencies and the …

From Harmelin To Graham - Justice Kennedy Stakes Out A Path To Proportional Punishment, Eva Nilsen

Faculty Scholarship

Graham v. Florida³ is a groundbreaking decision because it revives punishment doctrine on two issues that have lain dormant since Harmelin v. Michigan⁴: proportionality and individualized sentencing. Although it doesn't overrule Harmelin, by recognizing the continued vitality of Weems⁵ and Solem ⁶ the Graham decision appears to acknowledge that the Court's approach to proportionality since Harmelin may be too restrictive for the U.S. justice system today. In Solem, the Court affirmed its Constitutional role in ensuring just punishment; in Graham, the Court reaffirms that role.

Harmelin has had an enormous and regrettable impact …

Trimming The "Judicial Oak": Rule 10b5-2(B)(1), Confidentiality Agreements, And The Proper Scope Of Insider Trading Liability, Ryan M. Davis

Vanderbilt Law Review

In recent years the Securities and Exchange Commission, commonly known as the SEC, has been involved in a number of high- profile suits that have attracted a good deal of media attention. Among those prosecuted by the Commission are hedge fund billionaire and Galleon Group founder Raj Rajaratnam, investment/Ponzi- scheme guru Bernie Madoff, television host and magazine publisher Martha Stewart, and colorful Dallas Mavericks owner Mark Cuban. Although such notable suits may simply be the SEC's attempt to justify its own existence and role in the market it polices in light of the financial disasters of the past decade, these …

"Workers Of God": The Holy See's Liability For Clerical Sexual Abuse, Jacob W. Neu

Vanderbilt Law Review

In the 1970s, no Boston priest was more electrifying than Paul Richard Shanley. Ordained in 1960, he sought and received from his bishop, Boston cardinal Humberto Medeiros, a mission to minister to "sexual minorities" in 1970 and became a well-known Boston "street priest."' Wearing jeans and smoking Kool cigarettes, he gathered about him runaway gay teenagers and advocated fiercely for gay rights. Yet one of the boys drawn to him was the same one Shanley would be convicted of sexually abusing in 2005. In a civil suit seeking damages from the Archdiocese of Boston for its role in hiding Shanley's …

The “Original” Thirteenth Amendment: The Misunderstood Titles Of Nobility Amendment, Gideon M. Hart

Marquette Law Review

This Article provides one of the first truly comprehensive accounts of the “Titles of Nobility Amendment.” The Titles of Nobility Amendment is one of only a handful of proposed amendments to the Constitution that were passed by Congress, but then not ratified by a sufficient number of states. The Amendment would have revoked the citizenship of any individual who accepted a “title of nobility or honor” or who accepted any “present, pension, office, or emolument” from any foreign state without congressional permission.

Despite its failure during the ratification process, the Amendment was printed in the 1815 version of the Statutes …

Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler

Marquette Law Review

This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side, and influencing the types of legal reform those coalitions are able to pursue.

A series of state …

That The Waters Shall Be Forever Free: Navigating Wisconsin’S Obligations Under The Public Trust Doctrine And The Great Lakes Compact, Gabe Johnson-Karp

Marquette Law Review

The implementation of the Great Lakes Compact stands to be a true “watershed” event in the protection of water resources in and around the Great Lakes. Nowhere is the administration of the Compact and its narrow exceptions more relevant now than in Wisconsin, where the city of Waukesha is preparing to submit the first request for an out-of-basin diversion under the Compact. The contentiousness of Waukesha’s diversion request is amplified by Wisconsin’s long tradition of strong natural resource protections, particularly by the operation of the public trust doctrine. That doctrine has been liberally construed, and extends protections to the public’s …

Patent Term Adjustment And Terminal Disclaimers: Are The Terms Of Patents Being Decided Ad Hoc?, Emily M. Hinkens

Marquette Law Review

The intersection of statutory law, common law, and administrative rulemaking prevents any certain predictions regarding the term of a patent that has been adjusted, extended, and/or terminally disclaimed in various combinations. This Comment poses a hypothetical situation in which the term of a terminally disclaimed patent is linked to another patent with term adjustment, and discusses the implications of such a linkage were the term of the former patent to be litigated. This Comment explores whether case law on terminal disclaimers, term extension, term adjustment, and judicial deference can help predict the outcome of such litigation, and ultimately concludes that …

Justice Sector Reform In Rwanda: A Space Of Contention Or Consensus?, Maria Sebastian

Independent Study Project (ISP) Collection

Justice sector reform is an arena of competition, where international development partners and Rwandan government institutions introduce contending ideas of justice through different development projects. In this ensuing competition of influence, how do international players utilize their roles as development partners to affect the accepted standards within Rwandan courts through established systems of monitoring and evaluation? And moreover, how do individuals in the Rwandan government perceive these partners, projects, and indicators? This study aims to answer these questions through an in-depth literature review, an analysis of development projects in the justice sector, and finally semi-structured interviews with key individuals in …

The Federal Rule Of Civil Procedure That Was Changed By Accident: A Lesson In The Perils Of Stylistic Revision, James J. Duane

South Carolina Law Review

No abstract provided.

North Dakota Law, Rob Carolin

North Dakota Law

Alumni Magazine of the University of North Dakota School of Law

The Architectural Works Copyright Protection Act At Twenty: Has Full Protection Made A Difference?, David Shipley

Scholarly Works

Even though our copyright statutes were silent about architecture until 1990, it was well established that plans, blueprints and models were copyrightable writings under the 1909 Act's category of "drawings or plastic works of a scientific or technical character," and then as "pictorial, graphic, and sculptural works" under the 1976 Act. The scope of an architect's copyright protection was, however, quite limited. The unauthorized copying of plans or blueprints constituted infringement, but most authorities concluded that plans were not infringed by using them, without the architect's permission, to construct the building they depicted. Moreover, the prevailing view was that an …

A Tale Of Prosecutorial Indiscretion: Ramsey Clark And The Selective Non-Prosecution Of Stokely Carmichael, Lonnie T. Brown

Scholarly Works

During the height of the Vietnam War and one of the most volatile periods of the civil rights movement, then-Attorney General Ramsey Clark controversially resisted intense political pressure to prosecute Black Power originator and antiwar activist Stokely Carmichael. Taken in isolation, this decision may seem courageous and praiseworthy, but when considered against the backdrop of Clark’s contemporaneous prosecution of an all-white group of similarly situated anti-draft leaders (the so-called Boston Five), his exercise of prosecutorial discretion becomes suspect. Specifically, the Boston Five were prosecuted in 1968 for conspiracy to aid and abet draft evasion, a charge for which the evidence …

Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch

Scholarly Works

This short introduction to Dukes v. Wal-Mart Stores, Inc. aims to explain the case and to set the table for what promises to be thought-provoking roundtable discussion hosted by Vanderbilt Law Review En Banc. Accordingly, what follows is a concise overview of the legal background and current debate over the two procedural issues that the Ninth Circuit explored in detail – how to evaluate Rule 23(a)(2)’s commonality when common questions heavily implicate the case’s merits, and when a Rule 23(b)(2) class can include relief apart from injunctive or declaratory relief without endangering due process.

The European Union And International Maritime Organization: Eu’S External Influence On The Prevention Of Vessel-Source Pollution, Nengye Liu, Frank Maes

Research Collection Yong Pung How School Of Law

The European Union (EU), with its 27 Member States, has a coastline 70, 000 km along two oceans and four seas. Its well-being is therefore inextricably linked with the sea.' Europe plays a major role in today's shipping world, 41% of the world's total fieet (in dwt) is beneficially controlled by European companies.^ Ensuring that the use of the marine environment is genuinely sustainable is a prerequisite for the EU's sea-related industries to be competitive.

Accessing Truth: Marketplaces Of Ideas In The Information Age, Nima Darouian

Cardozo Public Law, Policy & Ethics Journal

The article argues that the Internet comprises numerous distinct virtual marketplaces, each with unique regulatory frameworks and dynamics, which are essential for the dissemination of information and public welfare. Current legal doctrines, such as those in the Uniform Commercial Code (UCC), the Uniform Computer Information Transactions Act (UCITA), and the Principles of the Law of Software Contracts (PLSC), are insufficient to protect the public interest in these virtual marketplaces. The article proposes that courts adopt the Reichman-Franklin standard, which requires mass-market contracts and non-negotiable access agreements to be fair, reasonable, and aligned with the public interest in education, science, research, …

In Pursuit Of Offshore Tax Evaders: The Increased Importance Of International Cooperation In Tax Treaty Negotiations After United States V. Ubs Ag, Samantha H. Scavron

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Receiverships In The Prison Litigation Context: Factors Necessary For An Effective Judicial Remedy Of Last Resort, Liat Weingart

Cardozo Public Law, Policy & Ethics Journal

This note examines the effectiveness of judicial receiverships as a last-resort remedy in institutional reform litigation, particularly in the context of prison systems. It argues that the success of receiverships depends on the court's ability to supervise effectively and ensure the receiver's independence from political influence. The analysis highlights that appointing executive agents as receivers often leads to conflicts of interest, undermining the remedy's effectiveness, and emphasizes the need for robust supervisory structures, such as Special Masters, to ensure accountability and alignment with court objectives.

Reaching Equilibrium In Tobacco Litigation, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Recent pro-plaintiff developments in tobacco litigation may lead to the conclusion that such litigation will go on endlessly and threaten the financial viability of the tobacco industry. This article takes the opposite position. Although the industry may take some near-term losses, it is far more likely that tobacco companies will survive short-term losses and that tobacco litigation will reach a stable equilibrium within the next fifteen to twenty years. The threat of third-party payer claims is no longer viable. Courts have unanimously rejected them. With the exception of cases pending in Florida and West Virginia, there are few individual personal …

A Distributive Theory Of Criminal Law, Aya Gruber

William & Mary Law Review

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment―retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …

Protecting The Homeless Under Vulnerable Victim Sentencing Guidelines: An Alternative To Inclusion In Hate Crime Laws, Katherine B. O'Keefe

William & Mary Law Review

No abstract provided.

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

William & Mary Law Review

The Supreme Court—along with the rest of the country—has long divided over the question whether the United States has yet achieved a “post-racial” society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker’s concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to …

Stateless Crimes, Legitimacy, And International Criminal Law: The Case Of Organ Trafficking, Leslie Francis, John Francis

Utah Law Faculty Scholarship

Organ trafficking—coercion for the purpose of removal of organs (United Nations 2000; GTZ 2004)—is recognized as a significant international problem. Yet unlike sex trafficking or trafficking in children, it is largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. It does not come within the jurisdiction of the ICC, except in very special cases such as when it is conducted in a manner that conforms to the definitions of genocide or crimes against humanity. Although the United States Code characterizes trafficking as “a transnational crime with national implications,” (22 U.S.C. …

Masculinities, Post-Racialism And The Gates Controversy: The False Equivalence Between Officer And Civilian, Frank Rudy Cooper

Nevada Law Journal

No abstract provided.

Animal Law In Nevada: All Bark And No Bite, Kathleen Wilde

Nevada Law Journal

No abstract provided.

Broadening Access To Justice In Nevada By Defining The Practice Of Law, Karlee M. Phelps

Nevada Law Journal

No abstract provided.