Law Commons^™

Recent Developments In Copyright Law: Technology And International Trade Play Starring Roles, Mary Lafrance

Scholarly Works

The once staid field of copyright law has undergone a dramatic revolution in recent years, as new technologies and international trade pressures have spurred legislative change, while challenging the federal courts to find answers to those questions that Congress has not resolved or, in some cases, to questions that recent acts of Congress have created. This article explores recent developments in copyright law in 2002.

Law School Externships: Building Another Bridge Over Troubled Waters, Martin A. Geer

Scholarly Works

A commitment to an excellent externship program in which students are intensely engaged in learning lawyering skills, values, responsibilities, and how the law and legal systems affect communities, families, and individuals, further advances William S. Boyd School of Law’s goals. It is another bridge over gaps between legal education, the profession, and the community. This article discusses the externship program at William S. Boyd School of Law.

Endowment Effects Within Corporate Agency Relationships, Jennifer H. Arlen, Matthew L. Spitzer, Eric L. Talley

Faculty Scholarship

Behavioral economics is an increasingly prominent field within corporate law scholarship. A particularly noteworthy behavioral bias is the "endowment effect" – the observed differential between an individual's willingness to pay to obtain an entitlement and her willingness to accept to part with one. Should endowment effects pervade corporate contexts, they would significantly complicate much common wisdom within business law, such as the presumed optimality of ex ante agreements. Existing research, however, does not adequately address the extent to which people manifest endowment effects within agency relationships. This article presents an experimental test for endowment effects for subjects situated in an …

It's A Question Of Market Access, Kyle W. Bagwell, Robert W. Staiger, Petros C. Mavroidis

Faculty Scholarship

In this paper, we argue that market access issues associated with the question of the optimal mandate of the World Trade Organization should be separated from nonmarket access issues. We identify race-to-the-bottom and regulatory-chill concerns as market access issues and suggest that the WTIO should address these concerns. We then describe ways that WTO principles and procedures might be augmented to do so. As for nonmarket access issues, we argue that as a general matter these are best handled outside the WTO, and that, while implicit links might be encouraged, explicit links between the WTO and other labor and environmental …

Policing Guns And Youth Violence, Jeffrey A. Fagan

Faculty Scholarship

To combat the epidemic of youth gun violence in the 1980s and 1990s, law enforcement agencies across the United States adopted a variety of innovative strategies. This article presents case studies of eight cities' efforts to police gun crime. Some cities emphasized police-citizen partnerships to address youth violence, whereas others focused on aggressive enforcement against youth suspected of even minor criminal activity. Still others attempted to change youth behavior through "soft" strategies built on alternatives to arrest. Finally, some cities used a combination of approaches. Key findings discussed in this article include:

• Law enforcement agencies that emphasized police-citizen cooperation benefited …

The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner

St. Thomas Law Review

No abstract provided.

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 14, Issue 3, Spring 2002.

Reconciling African Customary Law And Human Rights In Kenya: Making A Case For Institutional Reformation And Revitalization Of Customary Adjudication Processes, Laurence Juma

St. Thomas Law Review

African Customary Law is the totality of norms comprised of what has variously been described as "native law," "native customary law," "primitive law," "folk law," "informal law," "non state law," "indigenous law" and even "tribal law." The nomenclature conceptualizes the perception of customary law as being inferior to other laws within a legal system.' It also affirms the distinctiveness with which African Customary Law has been regarded, while evaluating the response of African legal polities to normative developments in the international arena. This form of isolation of African Customary Law has obscured its dynamism, shackled its potential as a possible …

The Role Of Comparative Law In Statutory And Constitutional Interpretation, Jens C. Dammann

St. Thomas Law Review

This article argues that comparative law can legitimately be used as a standard tool in the context of legal interpretation. Part I establishes a terminological framework for the analysis undertaken in this article. Part II examines existing attempts at justifying the use of comparative arguments in legal interpretation. It is shown that the approaches in question can only legitimize the use of comparative law in specific circumstances but fail to provide a general basis for the use of comparative reasoning. Part HI identifies possible objections to the legitimacy of comparative justification. To do so, it analyzes both the relevant literature …

The Accordion Of The Thirteenth Amendment: Quasi-Persons And The Right Of Self-Interest, Richard M. Lebovitz

St. Thomas Law Review

The subjects of this article are the nhos, especially non-human animals, for the reason that they are the most difficult class to reign in with the right of self-interest. But it is true that self-interest has far broader application to human embryos, human stem cells, and human cloning. These quasi-person candidates are put aside for now. In this article, a fusion of biology and law is used to suggest this new theory for extending U.S. Constitutional rights to quasi-person nhos. In evoking the Thirteenth Amendment, it does not mean that animal ownership is being equated with slavery. This is not …

Bad Women Deserve Equal Protection: A Look At The Constitutionality Of The Florida Prostitution Statute, Patricia Padrino

St. Thomas Law Review

Laws against prostitution are antiquated and based primarily on moral considerations. While there is moral outcry against the proliferation of prostitution, prostitutes themselves are allowed to take the blame and suffer the punishment for its practice. Although prostitution is often referred to as a victimless crime, the criminalization of prostitution certainly victimizes prostitutes. Laws criminalizing prostitution in the United States do nothing to benefit society and everything to harm prostitutes themselves. One way to attack these laws in Florida is to show that they violate the equal protection rights guaranteed by the Constitution of the United States. By approaching the …

The Need For The Expansion Of Military Reservists' Rights In Furtherance Of The Total Force Policy: A Comparison Of The Userra And Ada, Andy P. Fernandez

St. Thomas Law Review

The call to arms has sounded! The militia awaits and the citizen-soldier must stop all his daily activities and chores. His industrial pursuits, projects, and presentations are only half done. There are bills that are unpaid; insurance, credit cards, car payments, house payments, and loan payments. What income will my family have to sustain them through the deployment? There are still so many chores left undone, the citizen-soldier thinks as he reaches for his equipment. Who will take care of my home? Will my family be fine? Can they manage? I hope so. There will be so much more to …

The Universal Declaration Of Human Rights And The Domestic Courts, Edward D. Re

St. Thomas Law Review

As we approach the Fiftieth Anniversary of the adoption of the Universal Declaration of Human Rights by the General Assembly of the United Nations, it is fitting to commemorate that historic event, and to assess the progress that has been made in achieving the fundamental principles of human rights and freedoms that it proclaims. Upon its adoption on December 10, 1948, it was hailed "as a common standard of achievement for all peoples and for all nations." High hopes were expressed that this Declaration would soon become a new Magna Carta of human rights and fundamental freedoms for all people …

Regulating The Five Steps To Death: A Study Of Death Penalty Direct Appeals In The Florida Supreme Court, 1991-2000, Ken Driggs

St. Thomas Law Review

Between 1991 and 2000 the Florida Supreme Court published at least 343 direct appeal opinions on 288 men and women sentenced to death in circuit court, Florida's felony trial court. All but nineteen, 266 or 92% of the individuals, saw a conviction affirmed. One hundred seventy seven, or 61% of the individuals, also saw their death sentence affirmed while the remainder won various forms of relief, though often only temporary. This article and the accompanying appendix will examine those 288 cases, try to quantify them, and consider what they say about recent Florida death penalty jurisprudence. In a few instances, …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, and Table of Contents for St. Thomas Law Review Volume 15, Issue 1, Fall 2002.

The Reliance On Federal Preemption Law By Managed Care Organizations And Group Plan Insurers To Create An Impenetrable Shield Against Patients' State Law Claims, Jack E. Karns

St. Thomas Law Review

No abstract provided.

Big Boats, Big Crews, The Biggest Seas And Little Licenses - Exposing The Regulatory Paradox Allowing The Existence Of The Uninspected Fish Processing Vessel, Rory Bahadur

St. Thomas Law Review

This article explores the regulatory paradox allowing these large, crew-intensive vessels, operating in extreme maritime conditions, to be classified as uninspected vessels. Section I of the article explores the legislative history of the current regulatory scheme and its possible relationship to the Magnuson Act while Section H examines the difference in the qualification requirements between crewmembers on inspected and uninspected vessels Section III considers any possible mitigation of safety discrepancies between inspected vessels and uninspected fish processing vessels because fish processing vessels require certification by the American Bureau of Shipping. Finally, section IV briefly examines the significance of the fishing …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 15, Issue 2, Winter 2002.

Von Eiff V. Azicri: An Important Step In The Refinement Of Grandparent Visitation Analysis, Joan Catherine Bohl

St. Thomas Law Review

This article first examines Von Eiff's legal predecessors: earlier Florida cases that defined the constitutional dimension of familial rights and first attempted to reconcile grandparent visitation with those rights. Indeed, the stage was actually set for Von Eiff by two cases that rejected constitutional challenges to the grandparent visitation statute. The first used no supporting authority. The second equated the rights of single parents with those of married parents prior to dismissing both as unsubstantial. By chance the omissions of each of these cases left precisely the logical gap, which it seems was needed to accommodate the decisions supporting parental …

The Disenfranchisement Of Federal Employee: Why The Federal Government Does Not Follow The Fair Labor Standards Act, D Aaron Lacy

St. Thomas Law Review

The largest employer in the nation is violating the bedrock of employment law. Although several laws govern the regulation of overtime in the federal sector, federal employees are often unaware of them. The Fair Labor Standards Act ("FLSA" or "Act") regulates overtime provisions in employment in the private and public sectors. The FLSA provides for overtime to be paid at a rate of time and one-half of the employee's normal hourly rate. Federal statutes regulate overtime pay with regard to federal employees. These statutes call for an overtime rate for certain employees that is less than the required time and …

The Collapsing "No Damages For Delay" Clause In Florida Public Construction Contracts: A Call For Legislative Change, Alain Lecusay

St. Thomas Law Review

The purpose of this comment is to provide a reasonable and persuasive argument in support of the proposition that Florida should abolish the draconian "No Damages for Delay" clause, as against public policy, in public construction contracts. In particular, this comment attempts to show a pervasive national trend favoring the clause's non-enforceability through myriad judicial exceptions and statutory restrictions. Part I is a primer on the public construction process. It introduces the reader to each of the facets that make up the construction process: design, bidding, award, and construction. Part II argues in favor of invalidating the NDFD clause through …

Australian Medico-Legal Issues In Sport: The View From The Grandstand, Hayden Opie

Marquette Sports Law Review

No abstract provided.

The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill

Faculty Scholarship

Both conventional price theory and standard economic accounts of tort and contract law assume fixed property rights. In fact, however, property regimes are not static but change over time. Given the assumption of fixed property that otherwise prevails in economic literature, explaining the evolution of property rights is one of the great challenges for the economic analysis of law.

The point of departure for virtually all efforts to explain changes in property rights is Harold Demsetz’s path‐breaking article, “Toward a Theory of Property Rights.” The article is still widely cited and reproduced, especially in first‐year property courses in law schools. …

A Jackson Portrait For Jamestown, "A Magnet In The Room", John Q. Barrett

Faculty Publications

As Robert H. Jackson gained prominence in law practice and national government, he had particularly close ties to the city of Buffalo and to its University and School of Law. Jackson briefly practiced law in Buffalo for a year near the start of his career. He continued thereafter to handle Buffalo cases and represent Buffalo clients even though his practice was based in Jamestown. In 1946, Jackson received an honorary degree from the University of Buffalo at its centennial commemoration and spoke then about his just-completed Nuremberg experiences, including the evidence on German persecution of minorities. In 1951, Justice Jackson's …

Teacher, Student, Ticket: John Frank, Leon Higginbotham, And One Afternoon At The Supreme Court--Not A Trifling Thing, John Q. Barrett

Faculty Publications

A path to greatness often begins with a special teacher, and this is such a story. In the fall of 1949, John P. Frank was a new associate professor at the Yale Law School. This story also involves a young student. In autumn 1949, A. Leon Higginbotham, Jr., was a first year law student at Yale. Higginbotham, a 21-year-old black man from Trenton, New Jersey, had attended Purdue University and, after transferring, graduated from Antioch College in 1949. Leon Higginbotham was one of three black students who entered Yale Law School in fall 1949. Higginbotham met John Frank when he …

Enron's Legislative Aftermath: Some Reflections On The Deterrence Aspects Of The Sarbanes-Oxley Act Of 2002, Michael A. Perino

Faculty Publications

Since Enron's implosion, an astounding string of accounting scandals have stunned the securities markets. Global Crossing, WorldCom, Adelphia, and a host of other companies have seen plummeting share prices and SEC and criminal investigations. Congress's reaction has been equally stunning and surprisingly swift. It passed with near unanimity the Sarbanes-Oxley Act of 2002 (the "SOA" or the "Act"), and President Bush quickly signed it into law. The President billed the Act as one of the "the most far-reaching reforms of American business practices since the time of Franklin Delano Roosevelt." While the SOA is certainly lengthy, with eleven titles and …

Past Violence, Future Danger?: Rethinking Diminished Capacity Departures Under Federal Sentencing Guidelines Section 5k2.13, Eva E. Subotnik

Faculty Publications

Under section 5K2.13 of the Federal Sentencing Guidelines, a judge is permitted to reduce a defendant's sentence on the grounds of diminished capacity. Most courts construing this provision have ruled that defendants whose offenses involved violence or the threat of violence are ineligible for a reduction in sentence. This Note argues that such an interpretation, which makes past violence a proxy for predicting future dangerousness, is problematic. Medically or psychologically treated, defendants may no longer pose a danger to society. This Note urges that, in accordance with section 5K2.13's language and history, courts should focus more broadly on whether the …

Two Cheers For Freedom Of Contract, Mark L. Movsesian

Faculty Publications

Once, they say, freedom of contract reigned in American law. Parties could make agreements on a wide variety of subjects and choose the terms they wished. Courts would refrain from questioning the substance of bargains and would ensure only that parties had observed the proper formalities. In interpretation, objectivity was paramount. Courts would seek to ascertain, not what the parties had intended, but what a reasonable observer would understand the parties' words to mean. Contract law was a series of abstractions informed by individual autonomy and judicial deference.

This world, a classical paradise of doctrines with sharp corners, began to …

Osad Moralny A Teoria Prawa (Moral Judgment And Legal Theory), David B. Lyons

Faculty Scholarship

My theme is the role of moral judgment in legal theory. My thesis is that moral judgment provides an important constraint on various aspects of legal theory. I shall illustrate that thesis by discussing, first, the so-called "separation" of law and morals (Section I); secondly, legal interpretation (Section II); and thirdly, the "rule of law" ideal (Section III).

The Vindication Of Hate Violence Victims Via Criminal And Civil Adjudications, Brian Levin

Journal of Hate Studies

Attempts by victims of hate violence to vindicate their claims through civil courts have a long history in the United States that predates the Civil War. The most notorious Supreme Court decision in American history commenced auspiciously in a St. Louis, Missouri county circuit court in two racially based tort actions on April 6, 1846. Slaves Dred and Harriet Scott petitioned Judge John Crum for permission to sue their owner and for “reasonable liberty” to effectively pursue their case. In an action remarkable for its time, Judge Crum granted the motions and stipulated that neither slave be removed from the …