Law Commons^™

Home Mortgage Lending: Past, Present, And Future, Joseph A. Smith Jr.

North Carolina Banking Institute

No abstract provided.

A Wal-Mart-Owned Ilc: Why Congress Should Give The Green Light, Charles Kabugo-Musoke

North Carolina Banking Institute

No abstract provided.

Editor's Note, Ann E. O'Connor

Federal Communications Law Journal

No abstract provided.

Wireless Efficiency Versus Net Neutrality, Charles L. Jackson

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

This Article first addresses congestion and congestion control in the Internet. It shows how congestion control has always depended upon altruistic behavior by end users. Equipment failures, malicious acts, or abandonment of altruistic behavior can lead to severe congestion within the Internet. Consumers benefit when network operators are able to control such congestion. One tool for controlling such congestion is giving higher priority to some applications, such as telephone calls, and …

Spectrum Miscreants, Vigilantes, And Kangaroo Courts: The Return Of The Wireless Wars, Christian Sandvig

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

It is axiomatic that government licensing is a foundational requirement for the use of the electromagnetic spectrum. Yet in some bands there is no licensing requirement, providing an empirical site that can be used to examine wireless coexistence without licenses. This Article draws on ethnographic work with wireless Internet Service Providers to report on the extralegal means that are used to share or allocate spectrum in these license exempt bands. Operators …

Resilience: Building Better Users And Fair Trade Practices In Information, Andrea M. Matwyshyn

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

In the discourse on communications and new media policy, the average consumer-the user-is frequently eliminated from the equation. This Article presents an argument rooted in developmental psychology theory regarding the ways that users interact with technology and the resulting implications for data privacy law. Arguing in favor of a user-centric construction of policy and law, the Author introduces the concept of resilience. The concept of resilience has long been discussed in …

The Internet Ecosystem: The Potential For Discrimination, Dick Grunwald

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

This Article explores how the emerging Internet architecture of "cloud computing," content distribution networks, private peering and data-center services can simultaneously foster a perception of "unfair" network access while at the same time enabling significant competition for services, content, and innovation. A key enabler of these changes is the emergence of technologies that lower the barrier for entry in developing and deploying new services. Another is the design of successful Internet …

Masthead Vol.63 No.2 (2011)

Federal Communications Law Journal

No abstract provided.

Television For All: Increasing Television Accessibility For The Visually Impaired Through The Fcc's Ability To Regulate Video Description Technology, Joshua S. Robare

Federal Communications Law Journal

Video descriptions allow people who have visual impairments to get the full benefits from television. Through voiceovers those who have problems seeing are told what is happening on screen allowing them to get the most out of viewing television. However, the Federal Communications Commission currently lacks the authority to require broadcasters to create video descriptions for their programs following the decision in Motion Picture Association of America, Inc. v. Federal Communications Commission. This situation contrasts with closed caption which allows viewers with hearing problems read the dialog being said on screen. The FCC retained the power to regulate closed captions …

Rough Consensus And Running Code: Integrating Engineering Principles Into Internet Policy Debates, Christopher S. Yoo

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

The End-To-End Argument And Application Design: The Role Of Trust, David D. Clark, Marjory S. Blumenthal

Federal Communications Law Journal

Symposium: Rough Consensus and Running Code: Integrating Engineering Principles into Internet Policy Debates, held at the University of Pennsylvania's Center for Technology Innovation and Competition on May 6-7, 2010.

Policy debates about the evolution of the Internet show varying degrees of understanding about the underlying technology. A fundamental principle of the design of the Internet, from the early 1980s, is the so-called "end-to-end argument" articulated in a seminal technical paper. Intended to provide guidance for what kind of capability is built into a network as opposed to the devices that use the network, the end-to-end argument has been invoked in …

From Climate Change And Hurricanes To Ecological Nuisances: Common Law Remedies For Public Law Failures? , Stephen M. Johnson

Georgia State University Law Review

Over the past few years, there has been a minor renaissance in the use of common law actions, especially public and private nuisance, to address environmental problems not being adequately addressed by public law, such as climate change and natural disasters like Hurricane Katrina. Ever since the explosion of public law in response to environmental problems in the 1970s, the common law has provided remedies for personal injury and property damage that are not available under public law, and avenues of relief for problems that were ignored by public law. The common law and public law should not, however, be …

Lochner, Lawrence, And Liberty, Joseph F. Morrissey

Georgia State University Law Review

Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.

Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.

This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. …

Judicial Sentencing Discretion Post-Booker: Are Judges Getting A Distorted View Through The Lens Of Social Networking Sites?, Christina R. Weatherford

Georgia State University Law Review

Jessica Binkerd, a graduate of the University of California, Santa Barbara, probably never imagined that pictures taken from her MySpace website would one day help send her to jail. Regrettably, that is exactly what happened. On August 6, 2006, Binkerd was driving her co-worker, twenty-five-year-old Alex Baer, home from a party when she swerved into oncoming traffic and collided with another car. Unfortunately, Baer did not survive the accident. Binkerd’s blood alcohol level was more than twice the legal limit. Binkerd was subsequently charged and convicted of vehicular manslaughter without gross negligence and driving under the influence of alcohol causing …

How To Claim A Gene: Application Of The Patent Disclosure Requirements To Genetic Sequences, Patrick Brian Giles

Georgia State University Law Review

Prior to 1980, the only source of insulin for diabetics was the pancreas of animals, such as cows or pigs. While supply was not a problem, this source did carry the risk of infection and allergic reaction. Other therapeutic proteins, such as growth hormone, were previously only available in minuscule amounts from the pituitary glands of human cadavers. However, by 1980 the emerging field of biotechnology provided methods for producing mass quantities of human proteins such as insulin and growth hormone using the science of genetic engineering. These laboratory methods generally involve inserting a gene that encodes the desired therapeutic …

Work Product Privilege: The Future Of Tax Accrual Work Paper Discovery In The Eleventh Circuit After Textron, Tracy Hamilton

Georgia State University Law Review

The struggle between the Internal Revenue Service (IRS) and business taxpayers regarding the discovery of tax accrual work papers is not a new battle. The IRS, seeking a road map of the corporation’s vulnerable tax positions, argues that tax accrual work papers are prepared for ordinary business purposes and are not subject to the protection of the work product privilege as established in Hickman v. Taylor and codified in Federal Rule of Civil Procedure 26(b)(3). Corporate taxpayers, desperate to keep the IRS from discovering work papers containing the probability of success analysis of vulnerable tax positions (not to mention potential …

Preliminary Materials, Georgia State University Law Review

Georgia State University Law Review

No abstract provided.

Deporting Families: Legal Matter Or Political Question?, Angela M. Banks

Georgia State University Law Review

Last year 245,424 noncitizens were removed from the United States, and courts played virtually no role in ensuring that these decisions did not violate individual substantive rights like freedom of speech, substantive due process, or retroactivity. Had these individuals been deported from a European country, domestic and regional courts would have reviewed the decisions to ensure compatibility with these types of rights. Numerous international law scholars and immigration scholars seek to minimize the gap between the legal processes offered in the United States and Europe for noncitizens challenging deportation orders. Many of these scholars contend that greater recognition of international …

Comparing Ceo Employment Contract Provisions: Differences Between Australia And The United States, Jennifer G. Hill, Ronald W. Masulis, Randall S. Thomas

Vanderbilt Law Review

This study compares CEO employment contracts across two common law countries: the United States and Australia. Although the regulatory regimes of these jurisdictions enjoy many comparable features, there are also some important institutional differences in terms of capital market, tax, and regulatory structures, which are discussed here. Debate has raged in the United States on the issue of whether executive compensation is efficient and determined at arm's length, or skewed by a power imbalance between managers and shareholders. A comparative analysis of the kind undertaken in our study provides an additional perspective on the optimal contracting and managerial power models …

Restraining Amazon.Com's Orwellian Potential: The Computer Fraud And Abuse Act As Consumer Rights Legislation, Alicia C. Sanders

Federal Communications Law Journal

In 2009, Amazon.com decided to correct a potential copyright violation by deleting e-books by George Orwell and Ayn Rand from the Kindles of users who had already purchased the offending texts. Two of those users, Justin Gawronski and Antoine Bruguier, claimed that Amazon.com had violated the Computer Fraud and Abuse Act (CFAA) by accessing their Kindles without authorization. The plaintiffs also relied on other causes of action, including breach of contract and trespass to chattels. Although the dispute quickly settled, the Gawronski lawsuit remains a useful case study that shows why the CFAA is a useful protection for consumers. Recently, …

Access To Media All A-Twitter: Revisiting Gertz And The Access To Media Test In The Age Of Social Networking, Ann E. O'Connor

Federal Communications Law Journal

Plaintiffs' access to media has long been a factor in defamation cases, enabling courts to determine whether that plaintiff is a public figure who must meet the actual malice standard, or whether that plaintiff is a private figure worthy of greater protection from defamation. This component of the public-private distinction can no longer be applied with clear precision, given the advent of social networking and today's world of widespread media access. In light of the massive changes that have taken place in the media world, the access to media test must be revisited and appropriately retailored to avoid an inappropriate …

Roberts' Rules: The Assertiveness Of Rules-Based Jurisprudence, Joseph Blocher

Tulsa Law Review

No abstract provided.

One Nation - Reexamining Tribal Sovereign Immunity In The Modern Era Of Self-Determination, Bryce P. Harp

Tulsa Law Review

No abstract provided.

The Myth Of “Conquered Provinces”: Probing The Extent Of The Vra’S Encroachment On State And Local Autonomy, Michael Halberstam

UC Law Journal

This Article advances the controversial thesis that the preclearance provision under section 5 of the Voting Rights Act (VRA) is not as intrusive as is generally assumed. It shows that the architecture of the preclearance regime is consistent with “new institutionalist” models of administration that favor devolution and learning through monitoring and disclosure. The Article thereby counters the unchallenged view— articulated in Supreme Court jurisprudence, the legislative record, and scholarship— that the U.S. Department of Justice’s authority to object to state and local election law changes under the preclearance regime has amounted to a heavy-handed intervention into state and local …

Note – Conscionable Judging: A Case Study Of California Courts’ Grapple With Challenges To Mandatory Arbitration Agreements, Paul Thomas

UC Law Journal

This Note addresses a study of California state court decisions concerning the invalidation of contracts on the ground that the contract is unconscionable. Cases in this area have proliferated rapidly as a consequence of the frequent and highly successful use of the unconscionability defense as a weapon to attack petitions to compel mandatory arbitration of disputes. A review of four years of unconscionability-related decisions in the California courts of appeal leads to certain conclusions, which generally support a hypothesis that while judges form definite personal opinions as to the legality of typical mandatory arbitration agreements, those opinions are only weakly …

Data Note: Examining Collaboration Between State Intellectual And Developmental Disabilities Agencies And State Vocational Rehabilitation Agencies, Kelly Haines, Heike Boeltzig, Jean E. Winsor

Data Note Series, Institute for Community Inclusion

Since Fiscal Year 1988, the Institute for Community Inclusion has administered the National Survey of State Intellectual and Developmental Disabilities Agencies' Day and Employment Services. The FY 2009 survey included a module to assess the ways in which state intellectual and developmental disabilities (IDD) agencies collaborate with their state vocational rehabilitation (VR) agencies to support integrated employment outcomes for adults with IDD. A total of 40 agencies responded to the module. Their responses provide a broader understanding of the relationship between the two types of state agencies, and the ways in which they work together to provide integrated employment services.

Waiver Of The Right To Remove In Forum Selection Clauses Subject To The Convention On The Recognition And Enforcement Of Foreign Arbitral Awards, William E. Marple, Andrew O. Wirmani

Mercer Law Review

Three federal appellate decisions have now addressed whether, in cases subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), parties may agree to waive their right to remove to federal court through forum selection clauses. In all three cases, each court held that to be enforceable the waiver must be expressed in "clear and unequivocal" terms or meet some other heightened standard of scrutiny. These court decisions present several significant points. First, the decisions of these courts to deviate from general principles of contract construction and analyze the waiver issue under …

Overcoming Under-Compensation And Under-Deterrence In Intentional Tort Cases: Are Statutory Multiple Damages The Best Remedy?, Stephen J. Shapiro

Mercer Law Review

There is a general agreement that the primary purpose of tort law is to compensate parties injured by the wrongful conduct of another. Typically, a prevailing plaintiff is awarded compensatory damages. The main purpose of tort law is to make the plaintiff whole, to the extent possible, in order to put the plaintiff in the same financial situation the plaintiff would have been in absent the defendant's actions. A prevailing plaintiff, however, will not normally be made whole by the award of a reasonable amount of compensatory damages. The primary reason for this insufficiency is that the plaintiff will have …

Health Care Reform, The Spending Clause, And Dole's Restrictions, David G. Oedel

Mercer Law Review

I am here to discuss a constitutional problem with the Health Care Reform Act" that so far has gotten little attention and that has not yet been discussed by our other panelists. The question is whether the federal government's expansion of Medicaid is a coercive exercise of federal power in violation of the Spending Clause of the United States Constitution." This is one of the two main arguments being pressed by the twenty states87 in the Florida litigation challenging the constitutionality of health care reform." It is an argument that I think you're likely to hear more of in the …

Turning Citizens Into Subjects: Why The Health Insurance Mandate Is Unconstitutional, Randy E. Barnett

Mercer Law Review

In 2010 something happened in this country that has never happened before: Congress required that every person enter into a contractual relationship with a private company. I realize that writers make lots of factual claims that readers are wise to be skeptical about. I can prove, however, that an economic mandate like this one is unprecedented. If this mandate had ever happened before, everyone reading this passage would know all the contracts the federal government requires them to make, upon pain of a penalty enforced by the Internal Revenue Service (IRS). No reader, however, can recite any such mandate and …