Law Commons^™

The Unjustified Subsidy: Sovereign Wealth Funds And The Foreign Sovereign Tax Exemption, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The taxation of Sovereign Wealth Funds in the United States is outmoded and due for reconsideration. Offering a tax exemption to the billion dollar investment funds owned by foreign governments is both unfair and ineffective. Founded in the principles of sovereign immunity, the foreign sovereign tax exemption, codified in I.R.C. § 892, fails to satisfy the Congressional goals that motivated its creation. This Article explains the current taxation of foreign sovereigns and, by extension, Sovereign Wealth Funds. It then illustrates that the current exemption is simultaneously too broad, providing a tax exemption for activities that are clearly nongovernmental activities, and …

Constitution Day 2012: The American Judiciary, Robert Berry

Librarian Publications

Robert Berry, research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the role of the American Judiciary in interpreting laws of the United States government. The essay was written for the occasion of Constitution Day 2012 at Sacred Heart University.

Federal Constitutions: The Keystone Of Nested Commons Governance, Blake Hudson

Journal Articles

The constitutional structure of a federal system of government can undermine effective natural capital management across scales, from local to global. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain types of natural capital appropriation — such as resources appropriated by private forest management or other land-use-related economic development activities — entrench a legally defensible natural capital commons in those jurisdictions. For example, the same constitution that may legally facilitate poor forest-management practices by private landowners in the southeastern United States may complicate international negotiations related to forest management and climate change. Both the local and international …

Localism And Involuntary Annexation: Reconsidering Approaches To New Regionalism, Christopher J. Tyson

Journal Articles

No abstract provided.

72 Years Later: Still Seeking Accountability For The Katyn Forest Massacre, Allan Gerson

Case Western Reserve Journal of International Law

No abstract provided.

Rating The Raters: Restoring Confidence And Accountability In Credit Rating Agencies, Ryan Voorhees

Case Western Reserve Journal of International Law

No abstract provided.

More Than Words: Rethinking The Role Of Modern Demonstrative Evidence, David S. Santee

Santa Clara Law Review

No abstract provided.

The Right Of Publicity In New York And California: A Critical Analysis, Paul Czarnota

Jeffrey S. Moorad Sports Law Journal (1994 - )

The article provides an analysis of the right of publicity under the state laws of New York and California as of September 2012, focusing on the application of the laws to celebrities and the illegal use of their identities in advertising and trade. The New York right to publicity tort laws reportedly protect a celebrity's name, portrait, and voice from unauthorized use by third parties. The New York case Roberson v. Rochester Folding Box Co. is also mentioned.

Don Fehr Trades His Ball For A Puck: Will He Continue To Score, Jordan I. Kobritz, Jeffrey F. Levine, Steven C. Palmer

Jeffrey S. Moorad Sports Law Journal (1994 - )

The article discusses former Major League Baseball Players' Association (MLBPA) Executive Director Donald Fehr and his decision to help the National Hockey League Players' Association (NHLPA) with the reforming of its constitution and its search for a director. The NHLPA's plan to use Fehr in its collective bargaining agreement (CBA) negotiations with the National Hockey League (NHL) in 2012 is also addressed.

Brady V. Nfl: How The Eighth Circuit Saved The 2011 Nfl Season By Supporting Negotiation, Not Litigation, Erick V. Passer

Jeffrey S. Moorad Sports Law Journal (1994 - )

The article discusses the United States District Court for the District of Minnesota case Brady v. National Football League (NFL) which deals with the NFL players' attempt to obtain a preliminary injunction to prevent the NFL from locking them out during the NFL's collective bargaining agreement (CBA) negotiations with the NFL Payers Association (NFLPA). The U.S. Sherman Anti-Trust Act is also addressed.

Driving Americans' Perception Of Recreation: Awaiting The Park Service's Long-Term Solution To Access In Yellowstone National Park, Thomas M. Duncan

Jeffrey S. Moorad Sports Law Journal (1994 - )

The article discusses recreation activities in the U.S. Park Service (USPS) system and the USPS' policies regarding snowmobile access in Yellowstone National Park as of September 2012. The author argues that the U.S. government, in its interpretation of the National Park Service Organic Act, is risking the loss of Yellowstone National Park's natural resources. The competing interests of recreational enthusiasts and preservationists are examined.

Stealing Home In Hollywood: Why The Takeover Of The Los Angeles Dodgers Illustrates The Unjust Nature Of Major League Baseball's Antitrust Exemption, John W. Polonis

Jeffrey S. Moorad Sports Law Journal (1994 - )

The article discusses Major League Baseball's (MLB) takeover of the Los Angeles Dodgers baseball team from owner Frank McCourt following his divorce from his wife Jamie, as well as MLB's alleged unjust antitrust exemption as of September 2012. The author argues that McCourt could have challenged the anti-competitive takeover practices of MLB and its commissioner Bud Selig since McCourt's attempt to broker a television deal with Fox Sports did not break any of MLB's rules.

Politicizing Crime And Punishment: Redefining "Justice" To Fight The "War On Prisoners", Craig Haney

West Virginia Law Review

No abstract provided.

Shareholder Litigation After The Meltdown, Daniel J. Morrissey

West Virginia Law Review

No abstract provided.

United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan

Articles

US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS …

An Analysis Of Regularizations Of Undocumented Residents In Spain And The Underground Economy: Insight For United States Policy Makers, Jon R. Davis

MPA/MPP/MPFM Capstone Projects

There were an estimated 11 million undocumented residents in the United States in 2010. The issue of undocumented migration and how it should be addressed is a contentious topic in the United States. However, the discussions about how to address illegal migration into the United States rarely include any comparisons to other measures that have been taken in other countries. There are many countries, such as Spain, that have large undocumented resident populations.

This analysis looks at policies that have been enacted in Spain since 1985 to enable undocumented residents to receive legal resident status, referred to as regularizations and …

Proportionality's Cultural Foundation, Jordan M. Singer

Santa Clara Law Review

No abstract provided.

Whistleblower Tug-Of-War: Corporate Attempts To Secure Internal Reporting Procedures In The Face Of External Monetary Incentives Provided By The Dodd-Frank Act, Shannon Kay Quigley

Santa Clara Law Review

No abstract provided.

The Great Recession, The Resulting Budget Shortfalls, The 2010 Elections And The Attack On Public Sector Collective Bargaining In The United States, Kenneth Glenn Dau-Schmidt, Winston Lin

Hofstra Labor & Employment Law Journal

American public sector unions and collective bargaining have been subjected to a vicious attack under the auspices of balancing government budgets, promoting "equity" between private and public employees and limiting the impact of "special interests" on government policy. The American and world financial crisis of 2007 resulted in the Great Recession of 2008 and substantial budget shortfalls for local and national governments world-wide. This financial crisis and the resulting disintegration of aggregate demand and employment are eerily similar to the financial crisis and collapse that led to the Great Depression of the 1930’s. However, unlike the calamity of the 1930’s, …

Bad Reputation?: The Potential Negative Impact Of Outsourcing On The Legal Profession, Jennifer Spellman, Jeannea Varrichio

Hofstra Labor & Employment Law Journal

No abstract provided.

The Rise Of Institutional Law Practice, Thomas D. Morgan

Hofstra Law Review

For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in which lawyers now practice makes the individualized model obsolete. The complexity of modern law narrows the breadth of any individual lawyer's practice and makes law firms and other practice organizations inevitable. Firms, in turn, must maintain both ethical compliance and a high level of service quality that is inconsistent with lawyers behaving idiosyncratically. The article explores these developments and suggests …

A Prescription For Excess: Using Prescriptive Comity To Limit The Extraterritorial Reach Of The Sherman Act, Stephen D. Piraino

Hofstra Law Review

No abstract provided.

Intervention Of Right In Judicial Proceedings To Review Informal Federal Rulemaking, Michael Ray Harris

Hofstra Law Review

The codification of the Federal Rules of Civil Procedure in 1938 (the “Federal Rules”) created not only a more transactional approach to litigation, but also the flexible party structure that was necessary for “public law litigation” to flourish. Indeed, many argue that intervention by non-parties in public law cases is essential to ensure that the court can hear from and protect the wide range of interests likely to be impacted by its decision. This Article seeks to make a case for limiting intervention as of right in a specific subset of public law proceedings –– those brought to review the …

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

Government Rx--Back To The Future In Science Funding? The Next Era In Drug Development, Michael J. Malinowski

Journal Articles

The roles of government, industry, and academia in science research have been recast repeatedly since the U.S. began infusing tremendous funding during WWII. Recently, the National Institutes of Health (NIH) proposed a billion-dollar center to intervene in commercial drug development with the objective of lifting it out of a frightening fifteen-year slump in productivity. This article questions the role of the U.S. government in pharmaceutical development after completion of a map of the human genome (the touchstone of the Human Genome Project, HGP), a research undertaking spearheaded by the U.S. Government that spanned more than a decade. Specifically, the article …

Adversarial No More: How Sua Sponte Assertion Of Affirmative Defenses To Habeas Wreaks Havoc On The Rules Of Civil Procedure, Katherine Macfarlane

Journal Articles

In every federal civil case, a defendant must raise its affirmative defenses in the pleading that responds to a plaintiff's complaint. According to Federal Rule of Civil Procedure 8(c), failure to properly plead, for example, a statute of limitations defense, waives the defense for good. Rule 8(c) does not exempt any category of affirmative defense, nor does it forgive unintentional omissions of certain defenses. It also does not prefer governmental defendants to others. Yet in habeas corpus cases, the most significant affirmative defenses to habeas petitions need not comply with Rule 8(c). Instead, federal courts may raise the affirmative defenses …

Drug Development--Stuck In A State Of Puberty?: Regulatory Reform Of Human Clinical Research To Raise Responsiveness To The Reality Of Human Variability, Michael J. Malinowski

Journal Articles

Scathing critiques of the Food and Drug Administration's (“FDA”) performance by the Government Accountability Office and Institutes of Medicine, a plummet in innovative new drug approvals in spite of significant annual investment increases in biopharmaceutical research and development (“R&D”), and market controversies such as the painkiller Vioxx and the diabetes drug Avandia (both associated with significantly escalated risks of heart attacks and strokes) have raised doubts about the sufficiency of FDA *364 regulation. This Article questions how prescription medicines reach the market and proposes law-policy reforms to enhance the FDA's science standard for human clinical trials and new drug approvals. …

Some Preliminary Thoughts On The Law Of Neighbors, Jim Smith

Scholarly Works

A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels. Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.

Owners of neighboring parcels …

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.

Direct And Indirect U.S. Government Debt, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.