Law Commons^™

Targeted Reform Of Commercialized Intercollegiate Athletics, Matt Mitten, Jim Musselman, Bruce Burton

Matt Mitten

This article observes that American society’s passion for intercollegiate sports competition is an extremely powerful, naturally evolved cultural force. The marketplace responds to cultural forces, and the commercialization of college sports directly reflects the marketplace realities of our society. For example, colleges and universities rationally utilize their intercollegiate athletic programs, particularly NCAA Division 1 FBS football and basketball, as a means to achieve a wide range of legitimate objectives of higher education. Thus, the authors advocate that university athletic department revenues should continue to be exempt from federal taxation, specifically the unrelated business income tax (UBIT), despite the increasingly commercialized …

Account Me In: Agencies In Quest Of Accountability, Dorit R. Reiss

Dorit R. Reiss

This articles adds to the literature about accountability by examining the little-studied phenomenon of agencies making efforts—sometimes substantial efforts - to be accountable. It briefly describes how three agencies—the EPA, the FDA and especially the IRS—worked to increase their accountability. It demonstrates that agencies are often not the enemy in the “accountability game”. In today’s world agencies, contrary to the stereotype, often buy into the language and practice of accountability. It addresses three arguments for this behavior: a rational choice argument based on comparison of the costs of non-accountability with the benefits of accountability; a power of ideas argument showing …

Stopping For Death: Re-Framing Our Perspective On The End Of Life, Ruth C. Stern, J. Herbie Difonzo

J. Herbie DiFonzo

How we die is increasingly becoming a matter of law and public policy. We grapple with issues of patient autonomy, the proper parameters of doctor-patient discussions on the end of life, the right to hasten death, and the right to control our own medical treatment. But it is physicians and patients, not judges and legislators, who are the principal actors in events at the end of life. Palliative medicine is just beginning to probe the multi-dimensional totality of suffering in dying and seriously ill patients. What we learn will influence our options at the end of life and tell us …

How The Courts, Along With Public Dissatisfaction With The Status Quo, Ironically Aided In The Creation Of New Hollywood, Which Promoted Films Of Lawlessness, Disorder And Instability, Sam A. Blaustein

Sam A Blaustein

The period known as New Hollywood in American film was brought about by several seminal American legal decisions coupled with a growing dissatisfaction with the status quo. A series of First Amendment cases, along with the 1948 Paramount decision, forced Hollywood to produce graphic and existential films that showcased in unprecedented style the issues faced by the emerging disaffected youth generation.

Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate

Robert A Pate

On May 19th, 2009, a panel of distinguished legal professionals assembled in Washington, D.C. at a conference, entitled Libel Lawfare: Silencing Criticism of Radical Islam, to discuss radical Islam’s exploitation of Western libel laws to silence authors and journalists who seek to expose terror-financing networks and criticize radical Islam. The debate also embodied a cresting wave of public concern about the surprising ways Western laws enable this assault.This paper seeks to call attention to two critical mistakes, which were perpetuated by panelists at the conference and which are consistently present in current libel lawfare scholarship. Foremost, no one has yet …

Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian H. Mcdonald

Adrian H. McDonald

This working paper is a "sequel" to my first law review article on runaway productions called "Through the Looking Glass": Runaway Productions and "Hollywood Economics," published in The University of Pennsylvania Journal of Labor and Employment Law in August 2007.

Since 2007, there has been a race to the bottom as virtually every state has enacted significant, if not detrimentally generous, tax incentives to lure film and television production. The efficacy of these incentives is evaluated at length, with particular attention paid to the origin and implementation of tax incentives in California, Massachusetts and Louisiana - states with colorful backgrounds …

Brave New World: The Use And Potential Misuse Of Dna Technology In Immigration Law, Janice D. Villiers

Janice D. Villiers

Deoxyribononucleic acid (“DNA”) technology revolutionized criminal law, family law and trust and estates practice. It is now revolutionizing immigration law. Currently DNA tests are not required, but may be recommended by the Department of Homeland Security when primary documentation such as marriage licenses, birth certificates and adoption papers are not available to prove the relationship between the U.S. citizen petitioner and the beneficiary who is seeking permanent resident status in the United States. DNA tests are attractive to the government as a means of countering fraud and because of administrative convenience, but adoption of a wholesale policy of DNA testing …

Turning Back The Clock: Reexamining Powel V. Chaminade And The "Capable Of Ascertainment" Standard In Priest Sexual Abuse Litigation, Lauren A. Standlee

Lauren A Standlee

Missouri courts, like most others around the nation, continue to confront the dilemma of how to administer justice when faced with statute of limitations, on one hand, and a victim of childhood sexual abuse by a clergy member, on the other. The Missouri Supreme Court decided Powel v. Chaminade in 2006 and discussed how to apply the statute of limitations, governed in Missouri by the "capable of ascertainment" test, to cases of repressed memory. The article argues that post-Powel Missouri plaintiffs and their attorneys have erroneously viewed Powel’s holding as an invitation to file non-meritorious lawsuits; suits that remain barred …

No Harm, No Foul? A Critique Of The Current Legal Framework Dealing With Impermissible Closing Appeals To Racial Bias, Paul Christopher Estaris Torio

Paul Christopher Estaris Torio

No Harm, No Foul? examines the friction that exists between the core legal principles of zealous advocacy and equality in one particular but prominent context: racial appeals in closing arguments. Specifically, the article evaluates the harmless error principle, which underpins the current framework for either upholding or overturning a lower court’s decision on the grounds of improper race-based summations, and its role in exacerbating this friction.

The author argues that because the overall structure of the harmless error test gives attorneys the incentive to use racial appeals in closing argument, perhaps the most influential stage of a trial, the entire …

Protect The Children: Challenges That Result In, And Consequences Resulting From, Inconsistent Prosecution Of Child Pornography Cases In A Technological World, Francis S. Monterosso

Francis S Monterosso

This Note untangles courts’ problems with the prosecution of child pornography defendants and aims to redirect attention to the social impact associated with these crimes. First, Part I provides an introduction to the Note and discusses the background of the Child Pornography Prevention Act. Secondly, Part II sets forth the evolution of the CPPA and its goals and shortcomings. Next, Part III further explains the development of child pornography prosecutions in the United States through two cases that illustrate the government’s desire to prosecute child pornography defendants.

Moreover, Part IV explains the difficulties courts have encountered in the prosecution of …

Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman

David Schneiderman

International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved – in terms of both policy room and monetary implications – tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, although …

Turn The Chapter Or Change The Book: Taking Critical Race Theory Forward, Trevor Tan

Trevor Tan

Differentiations between groups are now conceived along cultural lines instead of morphological or geographical lines. This is substantively reflected in academia, law and practical experience. Adoption of an alter-cultural solution will sweep aside arbitrary limits based on an old idea of race, replacing them with porous and readily traversed boarders. It will place autonomy and self-agency firmly at the core of human ambition and achievement. I illustrate this by applying an altercultural lens to a persistent area of Critical Race debate – racial underrepresentation in the legal profession.

Critical Race literature should begin to adopt culture as its root concept, …

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights, Allison M. Dussias

Allison M Dussias

Abstract: SPIRIT FOOD AND SOVEREIGNTY: PATHWAYS FOR PROTECTING INDIGENOUS PEOPLES’ SUBSISTENCE RIGHTS

By Professor Allison M. Dussias

This article examines three pathways recently followed by Native American tribes and other Native communities in seeking protection of their rights to culturally valuable and legally protected subsistence resources – wild, renewable resources on which Native peoples have traditionally relied to sustain themselves. They have pursued their claims not only through litigation in U.S. courts, but also through claims to international bodies and through the regulatory process. The sources of law and rights on which they have relied as they followed these different …

Responsibility Sharing And The Rights Of Refugees: The Case Of Israel, Tally Kritzman-Amir

Tally Kritzman-Amir

This paper aims at examining the Israeli refugee law and practice through the lens of responsibility sharing. We will offer a critical analysis of the implementation of the Israeli asylum regime, showing the impact this regime has on responsibility sharing. We will also analyze the discourse on the issue of responsibility sharing, however limited in scope it is. This discussion emerges from an awareness of the fact that Israel is in a unique geopolitical situation, due to its proximity to Africa and being the only economically-stable democracy in the region. Israel is also embroiled in an ongoing conflict with its …

Listening To Indigenous Voices: What The Un Declaration On The Rights Of Indigenous Peoples Means For U.S. Tribes, Aliza G. Organick

Aliza G. Organick

When the UN Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly in September, 2009, it was heralded as a major victory for all of the world’s Indigenous Peoples, as well as international human rights. This remarkable effort took over two decades to come to fruition and recognizes that Indigenous Peoples worldwide continue to suffer from the dispossession of their lands and resources and that existing human rights documents did not do enough to protect those rights. The Declaration not only reaffirms the basic human rights recognized in the Universal Declaration on Human Rights, …

The Case Of Binyam Mohamed: National Security Or National Embarrassment?, Diane Webber

Diane Webber

This paper reviews the case of Binyam Mohamed, a British resident and former Guantanamo detainee. Mohamed’s case generated litigation in four different places: 1) proceedings in the military commissions court in Guantanamo Bay to try him under terrorist charges; 2) federal proceedings under an application for habeas corpus in the US District Court in Washington D.C.; 3) an application in the High Court in London where Mohamed’s lawyers sought disclosure of exculpatory material that the US had refused to provide to his US attorneys; and 4) a civilian litigation action under the Alien Tort Statute action in California in which …

A Defense Of Stem Cell Research, Gregory Dolin

Gregory Dolin

Isolation of human embryonic stem cells in 1998 simultaneously caused great excitement and concern in the scientific community and the population at large. The great promises that the discovery held were viewed with suspicion by many, because the isolation of these stem cells involved destruction of an embryo, and thus, according to some, destruction of innocent human life. Full ten years later, the debate still rages. The present Article proposes a solution to this debate.The solution concedes that the embryo is a human being entitled to full moral protection. Having made that concession, however, the Article proceeds to argue that …

Things Fall Apart: The Illegitimacy Of Property Rights In The Context Of Past Theft, Bernadette Atuahene

All Faculty Scholarship

In many states, past property theft is a volatile political issue that threatens to destabilize nascent democracies. How does a state avoid instability when past property theft causes a significant number of people to believe that the property distribution is illegitimate? To explore this question, I first define legitimacy relying on an empirical understanding of the concept. Second, I establish the relationship between inequality, illegitimate property distribution, and instability. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people’s beliefs about the …

How Do Local-Level Legal Institutions Promote Development?, Varun Gauri

Varun Gauri

This paper develops a framework and some hypotheses regarding the impact of local-level, informal legal institutions on three economic outcomes: aggregate growth, inequality, and human capabilities. It presents a set of stylized differences between formal and informal legal justice systems, identifies the pathways through which formal systems promote economic outcomes, reflects on what the stylized differences mean for the potential impact of informal legal institutions on economic outcomes, and looks at extant case studies to examine the plausibility of the arguments presented. The paper concludes that local-level, informal legal institutions can support social substitutes for the enforcement of contracts, though …

No Reparations Without Taxation, Carlton Waterhouse, Andre Smith

Carlton Waterhouse

ABSTRACT In the article, Professors Andre Smith and Carlton Waterhouse explore the interesting and rich relationship between reparations and the tax law scholarship. Employing a rich dialogical style, the authors move fluidly between the theoretical and practical aspects of both reparations and tax law in a way that brings both areas of research together. Beyond the slavery reparations tax scams of the earlier part of the decade, the authors reveal an intriguing and important relationship between reparations and the United States tax code previously unexplored. The authors accomplish this in two distinct ways. They begin with an examination of reparations …

Commerical Logic And The Doha Round: Will Pope's Encyclical Letter Impact Global Trade And Development Planning, Karen A. O'Rourke

Karen A. O'Rourke

Abstract: Relying on the Church’s principles of social doctrine , the Encyclical Letter released June29,2009, underscore the needed policy focus to create new forms of engagement both at the level of international “private” economics and at the level of private -public partnerships that support international commerce and development. Emphasis is placed on the broad concepts of authentic human development within a new context of a fully humane global economy where forms of future commercial enterprise can be based on reciprocity and where commercial logic and the current notions of economic utility are not opposed to new forms of economic democracy. …

Rules And Tools Of Nonprofit Lobbying, Sharon Wilson

Sharon Wilson

Abstract: This article focuses primarily on the federal tax law restrictions on lobbying and political campaign activities of 501( c)(3) organizations. A brief history of the restrictions on lobbying is followed by an instructional guide for nonprofit organizations and attorneys seeking to advise nonprofits about permissible conduct in this arena. Opportunities for greater political involvement through use of sec 501(h), sec 501©(4) and other strategies that have been deemed permissible by the Internal Revenue Service are explored. An examination of the IRS’s questionable annual examination process for nonprofits is explored.

Mandatory Minimum Sentences, Joseph W. Sora

Joseph W. Sora

No abstract provided.

The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook

Deborah L Cook

This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …

Refashioning Legal Pedagogy After The Carnegie Report: Something Borrowed, Something New, Debra M. Schneider

Debra M Schneider

The Carnegie Foundation published in 2007 its ground-breaking book titled Educating Lawyers: Preparation for the Profession of Law, in which it pointed out significant pedagogical imbalance in legal education. In particular, the Carnegie report said that law schools should infuse their curricula with more practical and ethical training. How a law school ought to accomplish the Carnegie aim is another challenge, one that this paper squarely addresses.

Traditional legal education is sorely imbalanced. A law student receives rigorous training in legal doctrine and analytical skills—he learns to “think like a lawyer”—but is left with little training in practical skills or …

Betraying Truth: The Abuse Of Journalistic Ethics In Middle East Reporting, Kenneth Lasson

Kenneth Lasson

BETRAYING TRUTH: THE ABUSE OF JOURNALISTIC ETHICS IN MIDDLE EAST REPORTING By Kenneth Lasson Abstract In a world at once increasingly chaotic and historically interconnected, the news media have come to play unprecedented roles both in the virtually instantaneous recording of fast-moving events and in influencing the occurrence and evolution of those events themselves. The media, of course, are not beyond reproach. Freedom of the press does not mean immunity from criticism. Reputable journalists abide by standards which, though largely self-imposed, are presumed to be honestly applied. When these principles are abrogated, violators should be taken to task. Nowhere has …

From The Mouths Of Babes: Protecting Child Authors From Themselves, Julie Cromer Young

Julie Cromer Young

This article explores the explosion of copyright protection now granted to authors under the age of eighteen, the age of majority in most states. Historically, contracting parties have been able to use the doctrine of infancy to disaffirm contracts they made when they were not yet of legal age. The Internet is changing this. As with most Internet sites, sites targeted at minors require young authors to accept terms of use in order to publish and distribute works online. Those terms and conditions often compromise the copyrights of the child authors, preventing them from reclaiming the licenses once the authors …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

The Incentives Matrix: The Comparative Effectiveness Of Rewards, Liabilities, Duties And Protections For Reporting Illegality, Yuval Feldman

Yuval Feldman

Social enforcement is becoming a key feature of regulatory policy. Increasingly, statutes rely on individuals to report misconduct, yet the incentives they provide to encourage such enforcement vary significantly. Despite the clear policy benefits that flow from understanding the factors that facilitates social enforcement, i.e., the act of individual reporting of illegal behavior, the field remains largely understudied. Using a series of experimental surveys of a representative panel of over 2000 employees, this article compares the effect of different regulatory mechanisms - monetary rewards, protective rights, positive obligations, and liabilities - on individual motivation and behavior. By exploring the interplay …