Law Commons^™

Killing The Internet To Keep America Alive: The Myths And Realities Of The Internet Kill Switch, Scott M. Ruggiero

SMU Science and Technology Law Review

No abstract provided.

A Review Of 2011 Video-Game Litigation And Selected Cases, Kent Jordan, Robert Wilkinson

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Science and Technology Law Review

No abstract provided.

What's Mine Is Mine But What's Yours Is Ours: Ip Imperialism, The Right Of Publicity, And Intellectual Property Social Justice In The Digital Information Age, Lateef Mtima

SMU Science and Technology Law Review

No abstract provided.

The Offline Defense Of The Internet: An Examination Of The Electronic Frontier Foundation, Johnny Nhan, Bruce A. Carroll

SMU Science and Technology Law Review

No abstract provided.

The America Invents Act: A Brave New World Of Patent Laws And Procedure, Nathan Kelley, Marc Hubbard, Colin Cahoon, Sarah Tran

SMU Science and Technology Law Review

No abstract provided.

The America Invents Act: Target, The Eastern District Of Texas, Jim Harlan, Chad Everingham, Douglas M. Kubehl, Lisa A. Dolak

SMU Science and Technology Law Review

No abstract provided.

Enhancement Or Recovery: The Scientific And Legal Paradox Of Performance-Enhancing Substances, Robert M. Gallman

SMU Science and Technology Law Review

No abstract provided.

Down With The Dmca, Andrew Johnson

SMU Science and Technology Law Review

No abstract provided.

The Constitutional Right Not To Kill, Mark L. Rienzi

Scholarly Articles

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the …

The Technological Edge, Elizabeth I. Winston

Scholarly Articles

To grant a patent to natural phenomena hinders innovation, taking back from the public that which the public has a right to possess. To deny a patent to man’s manufacture undercuts the fundamental bargain of the patent system. All inventions, at their core, may be deemed natural, rendering it difficult to distinguish between man’s manufacture and natural phenomena. Determining whether the innovative aspect of the product is a technological one, rather than a natural one, can clarify whether the patent grant promotes the progress of science and the useful arts. The higher the level of skill in the art required …

Judicial Challenges To Mandatory Minimum Sentences: A New Frontier In Debate Over Child Pornography Sentencing?, Mary Graw Leary

Scholarly Articles

Over the past decade, federal sentencing issues concerning child pornography have produced considerable legal debate, much of it focused on the application of federal sentencing guidelines as set forth by the United States Sentencing Commission (U.S.S.C.). Many judges have opined that the factors used to calculate the adjusted offense level for some child pornography offenses may be out of date, impracticable, and/or in conflict with 18 U.S.C. 3553(a), which requires, among other things, “just punishments.” Particular concerns have been expressed that strict application of the sentencing guidelines can produce results in which possessors of child pornography (i.e. those who commit …

Response: There Is No Common Law Of Severability, Kevin C. Walsh

Scholarly Articles

In this solicited response to The New General Common Law of Severability, I first offer an interpretation of Ayotte and subsequent Supreme Court decisions as continuous with existing doctrine instead of a departure from it. I then suggest that much of Scoville’s evidence for a federalization of severability doctrine is better viewed as evidence of doctrinal looseness rather than of doctrinal change. I conclude by returning to the lessons of severability’s doctrinal history, suggesting that the prehistory of severability doctrine may supply a better guide for how courts should deal with problems of partial unconstitutionality in the future.

Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami

Scholarly Articles

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …

In Re Toft; Section 1506 Public Policy Exception Trumps General Grant Of Comity, Malerie Ma

Bankruptcy Research Library

(Excerpt)

Chapter 15 of the Bankruptcy Code allows courts in the United States to recognize the judgments of foreign courts on the basis of comity. Chapter 15's “public policy” exception, however, prevents recognition of such judgments if they are “manifestly contrary to the public policy of the United States.” In re Toft is one of the few cases to deny relief on the basis of the public policy exception. While courts will continue to apply this exception narrowly, In re Toft shows that the public policy exception can be a powerful impediment to requests for aid in foreign insolvency proceedings. …

Who Has Standing To Object To A Debtor’S Reorganization Plan? Analyzing Section 1128(B)’S “Party In Interest” Bankruptcy Standing Requirement And The “Persons Aggrieved” Appellate Standing Test, Michael Battema

Bankruptcy Research Library

(Excerpt)

In a decision with important implications for parties listed in debtor reorganization plans, the United States Court of Appeals for the Third Circuit recently reiterated its position that section 1128(b) of the Bankruptcy Code (the “Code”) should be interpreted broadly to permit any listed party whose rights might be implicated by a debtor’s reorganization plan the ability to object to the plan’s terms in bankruptcy court. In its decision, the Third Circuit distinguishes between a party’s right to object to a debtor’s confirmation plan in bankruptcy court (“Bankruptcy Standing”) versus that party’s ability to appeal the debtor’s confirmation ruling …

In Re Awal Bank: Expanding Ability To Avoid Setoff In Chapter 15 Bankruptcy Cases, Jacob Chase

Bankruptcy Research Library

(Excerpt)

Foreign bankruptcy representatives seeking to avoid setoff of fund transfers pursuant to section 553 of the Bankruptcy Code may enjoy more flexible standards than ever before. In a recent decision by the United States Bankruptcy Court of the Southern District of New York, In re Awal Bank, Judge Gropper allowed the foreign representative for Awal Bank to avoid a setoff by HSBC even though the bank had not filed a plenary chapter 7 or 11 bankruptcy proceeding within 90 days of the setoff, holding that Awal Bank’s filing under Chapter 15 within the relevant 90 day look-back period …

Joyce Apsel On The Oxford Handbook Of Genocide Studies. Edited By Donald Bloxham & A. Dirk Moses. New York, Ny: Oxford University Press, 2010. 675pp., Joyce Apsel

Human Rights & Human Welfare

A review of:

The Oxford Handbook of Genocide Studies. Edited by Donald Bloxham & A. Dirk Moses. New York, NY: Oxford University Press, 2010. 675pp.

Edzia Carvalho On Human Rights In The Global Political Economy: Critical Processes. By Tony Evans. Boulder, Co: Lynne Rienner Publishers, 2011. 232pp., Edzia Carvalho

Human Rights & Human Welfare

A review of:

Human Rights in the Global Political Economy: Critical Processes. By Tony Evans. Boulder, CO: Lynne Rienner Publishers, 2011. 232pp.

Lina Acalugaritei And Karen Mingst On From Human Trafficking To Human Rights: Reframing Contemporary Slavery. Edited By Alison Brysk & Austin Choi-Fitzpatrick. Philadelphia, Pa: University Of Pennsylvania Press, 2012. 280pp., Lina Acalugaritei, Karen Mingst

Human Rights & Human Welfare

A review of:

From Human Trafficking to Human Rights: Reframing Contemporary Slavery. Edited by Alison Brysk & Austin Choi-Fitzpatrick. Philadelphia, PA: University of Pennsylvania Press, 2012. 280pp.

Carlos Figueroa On State Power And Democracy: Before And During The Presidency Of George W. Bush. By Andrew Kolin. New York, Ny: Palgrave Macmillan, 2011. 251pp., Carlos Figueroa

Human Rights & Human Welfare

A review of:

State Power and Democracy: Before and During the Presidency of George W. Bush. By Andrew Kolin. New York, NY: Palgrave Macmillan, 2011. 251pp.

A Reply To David Richards’ Review Of Measuring Human Rights, Todd Landman, Edzia Carvalho

Human Rights & Human Welfare

Professor Richards highlights, in his generous review of our book Measuring Human Rights that one of the aims of the book is to bring to the forefront the importance of conceptualization before operationalization – that conceptual clarity (or lack of it) is at the heart of the problems concerning the measurement of human rights. He draws out three key issues from the book as the springboard for further discussion on measurement of the concept – a) the “Respect, Protect and Fulfill” (RPF) framework, b) the lack of reliable data sources, and c) the conceptual links between human rights, human development, …

International Organization And Poverty Alleviation, William F. Felice, Diana Fuguitt

Human Rights & Human Welfare

A review of:

The World Trade Organization and Human Rights: Interdisciplinary Perspectives. Edited by Sarah Joseph, David Kinley & Jeff Waincymer. Cheltenham, UK: Edward Elgar. 2009.

and

Global Poverty, Ethics and Human Rights. By Desmond McNeill & Asunción St. Clair. New York, NY: Routledge. 2009.

and

Hypocrisy Trap: The World Bank and the Poverty of Reform. By Catherine Weaver. Princeton, NJ: Princeton University Press. 2008.

Confronting “Indivisibility” In The History Of Economic And Social Rights: From Parity To Priority And Back Again, Roland Burke

Human Rights & Human Welfare

A review of:

Indivisible Human Rights. By Daniel Whelan. Philadelphia: University of Pennsylvania Press. 2010. 269pp.

Making Peace Or Pacifying?, Therese O'Donnell

Human Rights & Human Welfare

Notions of a culture of impunity surrounding the violence perpetrated by the Brazilian police have lingered ever since the largely unsuccessful prosecutions of those suspected to be involved in the notorious Candelária massacre of 1993. Eight young people, six of whom were under eighteen, were killed by an adult group comprised of several members of the police. Despite the security forces coming under increasing scrutiny ever since, the 2005 Concluding Observations of the Human Rights Committee on Brazil's Periodic Report made disheartening reading. The Committee expressed its continuing concerns regarding the widespread use of excessive force by Brazilian law enforcement …

January Roundtable: Crime And Human Rights In Brazil: The Police Pacification Units, Introduction, Claudia Fuentes Julio

Human Rights & Human Welfare

An annotation of:

“Brazil slum raids impress, but what's the impact?” By Bradley Brooks. Huffington Post, November 14, 2011.

Is Your Retainer Safe?: How In Re Two Gales Ensures That Bankruptcy Professionals Keep Their Retainer Fees, Jonathan Abramovitz

Bankruptcy Research Library

(Excerpt)

In a decision that bankruptcy professionals are certain to applaud, the United States Bankruptcy Appellate Panel of the Sixth Circuit held that bankruptcy courts must not order disgorgement of attorneys’ retainers in bankruptcy cases if the attorney has perfected a lien in the retainer under state law. Prior to In re Two Gales, some bankruptcy courts had justified disgorgement as necessary to comply with 11 U.S.C. § 726(b), which requires administrative claimants to be compensated through pro rata distributions upon administrative insolvency. In re Two Gales confirmed what some other bankruptcy courts have already held: section 726(b) is …

Same-Sex Married Debtors May File A Joint Petition For Bankruptcy, Jennifer Arcarola

Bankruptcy Research Library

(Excerpt)

Legally married couples may file a petition for bankruptcy jointly under section 302(a) of the Bankruptcy Code (“the Code”). The choice to file jointly is limited to only include married spouses, excluding partners and people in civil unions. Across virtually all jurisdictions, courts have explicitly rejected joint filings under section 302(a) filed by unmarried debtors. For example, an adult child cannot file for bankruptcy jointly with a parent, nor can a cohabiting unmarried couple file together. While the Bankruptcy Code does not purport to define who may qualify as a married couple, the Defense of Marriage Act (“DOMA”) does, …

Trustees Beware: Reviewing The Circuit Split On Bankruptcy Trustee Personal Liability, Barry Z. Bazian

Bankruptcy Research Library

(Excerpt)

Imagine that you have been appointed to serve as a trustee in a bankruptcy case. As the “representative of the estate,” one of your responsibilities is to properly manage the estate’s assets. You decide to invest the estate’s funds in several risky penny stocks, relying on minimal research you performed online. Unfortunately, these investments quickly decrease in value, substantially diminishing the value of the estate. Now, of course, the debtor and his creditors are angry and want to sue you for mismanaging the estate’s funds. Can you be held personally liable? In other words, will you have to pay …

An Exercise In Economics: Determining “Value” Under § 548 Of The Bankruptcy Code, Gregory R. Bruno

Bankruptcy Research Library

(Excerpt)

Determining whether a debtor receives value for a constructively fraudulent prepetition transfer under section 548 of the Bankruptcy Code can prove troublesome when a debtor receives only an indirect, intangible benefit. Section 548 allows a bankruptcy trustee to avoid and recover a debtor’s prepetition transfers for which the debtor did not receive “reasonably equivalent value.” However, judicial interpretation of the term “value” has greatly limited the kinds of benefits to the debtor that might qualify.

Gold v. Marquette (In re Leonard) both illustrates the limitations that courts have placed on the term “value” for purposes of section …