Can Our Culture Be Saved? The Future of Digital Archiving
By Diane Leenheer Zimmerman. Full text here. The enormous controversy generated by the Google Library project demonstrates three important points. First, the potential for digitization to protect works against loss or deterioration is tremendous. Second, digitization creates an opportunity to offer access to preserved works without regard to a user’s physical location—something that both promises…
Continue ReadingNote: Born (Not So) Free: Legal Limits on the Practice of Unassisted Childbirth or Freebirthing in the United States
By Anna Hickman. Full text here. Unassisted childbirth, also known as “freebirthing”—in which a woman intentionally gives birth without the aid of a physician or midwife—is gaining increased media attention in the United States and abroad. Proponents of the practice boast of its beauty, safety, and legality. Yet, the legal framework of unassisted childbirth is unclear.…
Continue ReadingNote: BONGHiTS4JESUS.COM? Scrutinizing Public School Authority over Student Cyberspeech Through the Lens of Personal Jurisdiction
By Kyle W. Brenton. Full text here. As more and more public school students express themselves via e-mail, instant messages, and online communities such as MySpace and Facebook, more and more school administrators reach beyond the schoolhouse gates to censor and punish that online expression. While First Amendment jurisprudence provides a framework for determining when a…
Continue ReadingNote: Blight and Its Discontents: Awarding Attorney's Fees to Property Owners in Redevelopment Actions
By Noreen E. Johnson. Full text here. The public response to the now notorious 2005 Supreme Court decision Kelo v. City of New London changed the landscape of redevelopment law in the United States. In Kelo, the Court held that eminent domain could be used to transfer property from one private party to another private party…
Continue ReadingThe Bill of Rights in the Early State Courts
By Jason Mazzone. Full text here. The Bill of Rights originated as a constraint only on the federal government. As every law student learns, therefore, in the 1833 case of Barron v. Baltimore, the Supreme Court dismissed a Fifth Amendment takings claim against a state. This Article shows, however, that early state courts regularly invoked and…
Continue ReadingBeyond Liability: Rewarding Effective Gatekeepers
By Lawrence A. Cunningham. Full text here. This Article adds to the emerging literature on rewards to promote effective capital market gatekeeping. Capital market gatekeeping theory traditionally relies heavily on threats of legal liability for failure to perform legally mandated functions (along with a presumed constraint imposed by reputation effects). The ineffectiveness of many gatekeepers in…
Continue ReadingBeyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life
By Richard L. Hasen. Full text here. With the recent personnel changes on the Supreme Court, the pendulum has swung sharply away from deference in campaign finance regulation toward perhaps the greatest period of deregulation since before Congress passed the important 1974 Amendments to the Federal Election Campaign Act. In the 2006 Randall v. Sorrell decision,…
Continue ReadingBeyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction Over Drug Crimes
By Eugene Kontorovich. Full text here. The United States routinely apprehends foreign drug traffickers in international waters. It prosecutes many of them under the Maritime Drug Law Enforcement Act, which allows for jurisdiction even over foreign-flagged vessels with no demonstrable intent of bringing their cargo to the United States. This assertion of universal jurisdiction—a doctrine generally…
Continue ReadingExchange: The Behavioral Economics of Consumer Contracts
By Oren Bar-Gill. Full text here. In the past decade, behavioral economics has established itself as a contender to the throne of neoclassical economics in the economic analysis of law. The pros and cons of behavioral as compared to neoclassical economics have been vigorously debated at the general, methodology level. But the success or failure of…
Continue ReadingAvalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media
By RonNell Andersen Jones. Full text here. For more than thirty years, proponents and opponents of a federal reporter’s shield law have debated the necessity of a privilege for members of the news media and have disagreed sharply about the frequency with which subpoenas are issued to the press. Most recently, in the wake of several…
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