Law Commons^™

Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis J. Ventry Jr

Indiana Law Journal

One of the most famous Supreme Court tax cases celebrated its eightieth birthday last year. In Poe v. Seaborn, the Court reified two principles of the federal income tax: ownership determines tax liability and state law determines ownership. This Article affirms that family taxation continues to follow ownership, not marriage, despite the federal government’s position that the “ownership equals taxability” rule applies almost exclusively to heterosexual spouses. Verifying the vitality of this principle carries significant implications for all families, particularly nontraditional families. Under the aegis of Seaborn, the principle authorizes certain members of state-recognized relationships—marriages, domestic partnerships, civil unions—to file …

Reviled Mothers: Custody Modification Cases Involving Domestic Violence, Megan Shipley

Indiana Law Journal

No abstract provided.

Rationalizing Religious Exemptions: A Legislative Process Theory Of Statutory Exemptions For Religion, Zoe Robinson

William & Mary Bill of Rights Journal

This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result …

Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe

William & Mary Bill of Rights Journal

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicabilityin the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? If …

Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu

William & Mary Bill of Rights Journal

The writ of habeas corpus activates courts’ duty to check arbitrary or unlawful restraints by the Executive on individual liberty. In times of war, courts have been compelled to determine whether the writ is available to individuals held by the Executive outside of the territorial boundaries of the United States. In Johnson v. Eisentrager, in which World War II detainees were held in Germany, the Supreme Court answered in the negative, while in Boumediene v. Bush, involving post–9/11 detainees housedat Guantánamo, the Court reached the opposite conclusion. Operating within these two guideposts, the U.S. Court of Appeals for the District …

Extending Hope Into "The Hole": Applying Graham V. Florida To Supermax Prisons, Joseph B. Allen

William & Mary Bill of Rights Journal

No abstract provided.

The Religious Liberty Of Judges, Daniel R. Suhr

William & Mary Bill of Rights Journal

This Article begins by reviewing the government employee line of cases, starting with United Public Workers v. Mitchell in 1947.29 The first section concludes that the modified Pickering balancing test set forth in United States v. National Treasury Employees Union (NTEU) is the appropriate level of scrutiny for judicial conduct rules. The body of this Article reviews ways in which the four canons of the ABA Model Code of Judicial Ethics and official interpretations of and rulings regarding them limit the religious activities of judges. I conclude that numerous applications of the Model Code are unconstitutional infringements on judges’ First …

The Auto-Authentication Of The Page: Purely Written Speech And The Doctrine Of Obscenity, Ryen Rasmus

William & Mary Bill of Rights Journal

No abstract provided.

Rising Together: Clarifying The International Environmental Marketing Claim Regulatory Landscape So That Developing Country Exporters May More Effectively Market Their Environmentally Responsible Products, Jeffrey J. Minneti

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Genocide Convention And Unprotected Groups: Is The Scope Of Protection Expanding Under Customary International Law?, David Shea Bettwy

Notre Dame Journal of International & Comparative Law

No abstract provided.

Cohen: Hard Case Makes (Semi) Bad Law, Steve R. Johnson

Scholarly Publications

The first Justice Harlan famously cautioned that hard cases can lead to bad law. United States v. Clark, 96 U.S. 37, 49 (1878) (dissenting opinion). This aphorism captures the reality that, when confronted with litigating equities strongly favoring one party, judges tend to massage doctrine to support judgment for that party.

Indonesia: Problem Encountered In Some Unresolved Boundaries And The Outermost Island Issues, Etty R. Agoes.

Indonesian Journal of International Law

Within the framework of national integrity the ocean possesses two key aspects that is, of security and prosperity. The demarcation of the outer limits of national mari- time territory and jurisdiction including delimitation of boundaries with neighboring countries will provide a legal basis for a number of marine activities such as defense, fisheries, navigation, seabed and subsoil exploration and exploitation, marine tourism and others. Boundary issues for Indonesia, whether on land, at sea even in the air, have always been a matter of national priority. At present, Indonesia still have some unresolved boundary delimitation with its neighboring countries. The completion …

Once More Unto The Breach: Some Thoughts On The Future Of The Eez, Guy Des Rosiers

Indonesian Journal of International Law

By public international law standards, the Exclusive Economic Zone (EEZ) maintains a relative newcomer, the product of State practice following the end of the Second World War and multilateral negotiations culminating with the entry into force, in November 1994, of the 1982 United Nations Convention of the Law of the Sea, In defining the EEZ, the Convention has created a sui generis legal regime over vast areas that were previously part of the high seas. Neither Grotian nor Seldenian in spirit, the EEZ regime forgoes the absolute language of territory and sovereignty in favor of discrete sets of rights and …

Geographical Indications Under International Intellectual Property Law: An Indonesian Perspective, Mariana Molnar Gabor Warokka

Indonesian Journal of International Law

There are currently two systems for the registration of GI and Appellations of Origin. First, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958. Second, the Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol of 1989 for countries that protect GI under the trade mark regime. Indonesia has provided for GI protection under its Trade Mark Law No. 15 of 2001, and the appertaining Government Regulation No. 51 of 2007 concerning Geographical Indication. Several cases have been reported of Indonesian GI potential products, such as Kopi Toraja and Kopi …

Principle Of Responsibilities And Sanctions In Pollutions Of The Marine Environment By Offshore Minning, Dina Sunyowati

Indonesian Journal of International Law

In a period of 5 (five) years of pollution of the marine environment caused by exploration and exploitation on the continental shelf and the area (the seabed) is increasing. Like the marine pollution in the Timor Sea which transnational pollution, because it involves three countries, namely Australia, Timor Leste, and Indonesia. Settlement efforts to revolve the impact caused by too have done well by the Australian Government nor by the Indonesian Government. Pollution of the marine environment also occurs in blasting offshore mining that pollute the Gulf of Mexico. As mentioned in the 1982 UNCLOS, Article 208 that one of …

The Abuse Of Guaranteed Pending Trial In The Chinese Criminal Process: A Violation Of International Human Rights Law, Li Enshen

Indonesian Journal of International Law

Guaranteed pending trial (Qubao Houshen) is one of the coercive measures used by the Chinese authorities to release suspects on bail in the criminal process. Unlike the western general practices, this instrument is not characterized as a legal right of suspects, but an effective means to circumvent the procedural requirements of investigation and prosecution in the laws. Further, the abuse of guaranteed pending trial is in fragrant violation of minimal international standards of human rights protection in the criminal justice system. The article first examines the procedural and practical deficiencies of this measure in the Chinese context. It then argues …

The Right To A Fair Trial And Combatting Terrorism: The Case Of Indonesia, Amira Paripurna

Indonesian Journal of International Law

After the 9/11 attack, the US government called upon global war on terror (GWOT). Then terrorism has been considered as a threat of global security. It is, therefore, has led both national and international concern under US hegemony. Furthermore, it has affected the proliferation of many national counter-terrorism laws. The terrorist attacks have threatened Indonesia over years. Under the act No.15/2003 jo No.1/Prp/2002 the Indonesian government has successfully conducted prosecutions to the terrorism perpetrators. However, it is identified that there are such violations regarding to international human rights rules and standards. The concern in handling terrorism demands a balance concern …

Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985-2010, Saurabh Vishnubhakat

Faculty Scholarship

This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication.

By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and …

When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle

Faculty Publications

No abstract provided.

Law On The Books Vs. Law In Action: Under-Enforcement Of Morocco's Reformed 2004 Family Law, The Moudawana, Ann Marie Eisenberg

Cornell Law Library Cantwell Prize for Exemplary Student Research Papers

This Note focuses on women’s family law rights in Morocco, a country located in northwestern Africa, and often regarded as the western boundary of the Muslim-Arab world. Significantly, despite Morocco’s shared roots with nations such as Saudi Arabia in culture, religion, and language, the Moroccan government has interpreted similar traditions to yield a starkly different stance: gender equality is desirable. Morocco’s new Moudawana, the 2004 legislation on family law with provisions largely derived from Islamic sources, confers unprecedented rights on Moroccan women.

Part I of this Note evaluates the Moudawana in light of its break with traditional Shari’a, alongside its …

What Is Wrong About Wrongdoing, Anthony J. Sebok

Articles

This short article, which was prepared for a conference on civil recourse theory at Florida State University School of Law, asks whether Blackstone’s rejection of maintenance is inconsistent with the theoretical commitments of modern civil recourse theory. Blackstone strongly believed that third parties should not help victims of wrongdoing discover that they have been wronged, this article asks whether modern civil recourse theory is committed to the position (now in retreat throughout common law nations) that third parties who help strangers’ lawsuits are acting against the public interest (or, as Blackstone put it, are “pests of society . . . …

Journal Staff

Duke Law Journal

No abstract provided.

Conservation Easement Reform: As Maine Goes Should The Nation Follow? , Jeff Pidot

Law and Contemporary Problems

No abstract provided.

Incentives For Conservation Easements: The Charitable Deduction Or A Better Way , Daniel Halperin

Law and Contemporary Problems

Halperin talks about tax-policy concerns relating to the charitable deduction for conservation easement donations. The conflict of interest between charity and other owners raises a concern that the charitable deduction would not reflect the ultimate charitable benefit. The deduction for conservation easements is the principal exception to this rule despite the significant potential for abuse and the distinct possibility that the public benefit may be less than anticipated.

Conservation Easements As Tools To Achieve Regulatory Environmental Goals, Laurie A. Wayburn

Law and Contemporary Problems

Wayburn talks about conservation easements as tools to achieve regulatory environmental goals. The traditional approach to protecting public-trust resources, such as wildlife found on private lands, is predominantly regulatory and proscriptive. Environmental regulation -- such as the Endangered Species Act, Clean Water Act, or Clean Air Act -- has focused on restricting or prohibiting resource management by landowners.

A Tradable Conservation Easement For Vulnerable Conservation Objectives, W. William Weeks

Law and Contemporary Problems

Weeks talks about tradable conservation easement for vulnerable conservation objectives. The critical conservation objectives in some conservation easements will probably be compromised by the effects of climate change in the relatively near future. Conservation easements broadly intended and drafted to serve those kinds of general purposes are, as a group, unlikely to be so acutely affected by changing ecological conditions that their broad purposes will cease, over time, to be served.

Board Diversity And Proxy Disclosure, Thomas C. Hazen, Lissa Lamkin Broome

University of Dayton Law Review

No abstract provided.

Afterword—Increasing Gender Diversity On Corporate Boards: It's Gonna Be A Long War, Harry S. Gerla

University of Dayton Law Review

No abstract provided.

The Last Male Bastion: In Search Of A Trojan Horse, Joan Macleod Heminway

University of Dayton Law Review

No abstract provided.

The Zero-Sum Game Of Language Accommodations In The Workplace, James Leonard

Cardozo Law Review

No abstract provided.