This Comment posits the argument that the federal common law of nuisance could be used to control agricultural nonpoint source water pollution that causes the environmental problem known as the Gulf of Mexico “Dead Zone.” The primary obstacle to such a suit is that the United States Supreme Court, in two cases dealing with interstate water pollution from point sources, has held that the Clean Water Act entirely displaced the need for the federal common law of nuisance to abate interstate water pollution. However, the United States Court of Appeals for the Second Circuit's recent decision in Connecticut v. American Electric Power Co., a case dealing with the use of the federal common law of nuisance to control greenhouse gas emissions that contribute to climate change, has arguably refined the standard for federal displacement, requiring that the statute “actually regulate” the nuisance at issue. While the Clean Water Act actually regulates point source pollution, it fails to actually regulate nonpoint source pollution, thus leaving open the possibility that Louisiana or affected citizens could bring a claim under the federal common law of nuisance against states and agricultural industries that do not control the nonpoint source pollution that causes the Dead Zone.
Foolish Revenge or Shrewd Regulation? Financial-Industry Tax Law Reforms Proposed in the Wake of the Financial Crisis
This Comment evaluates four recent proposals to reform tax laws affecting the financial industry. After introducing the proposals, the author provides a theoretical framework for evaluating them and then relies on this framework to explore the benefits and drawbacks of each. Ultimately, the author rejects two proposals that call for imposing financial-transactions taxes and argues that lawmakers should instead focus on plans to either (1) permit cost-of-equity tax deductions or (2) tax the debt held by major financial institutions.
The Qur'an and the Constitution
And this Qur'an is not such as could ever be devised by anyone save God; it is a confirmation of what was [revealed] before and an exposition of Divine Text— Therein is no doubt—from the Sustainer of the Worlds. Many have noted the sacredness surrounding the U.S. Constitution, and comparisons with the Bible are often made.
Why the Beginning Should Be the End: The Argument for Exempting Postcomplaint Materials from Rule 26(b)(5)(A)'s Privilege Log Requirement
There is a state of uncertainty that is threatening to undermine the two most significant evidentiary protections in American jurisprudence: the attorney-client privilege and the work product doctrine. The Federal Rules of Civil Procedure require parties to explicitly assert privilege claims, usually by providing information about the privileged materials in the form of a “privilege log.” The Rules do not say whether this requirement applies to materials created or obtained after the filing of the complaint. But that is exactly when the attorney-client privilege and work product doctrine are most likely to protect not only the materials themselves, but also the information about them that would normally be included in a privilege log. Despite that undeniable fact, the courts are bitterly divided on whether these “postcomplaint” materials should be exempt from the privilege log requirement. In this Article, I propose an amendment to the Federal Rules of Civil Procedure that would exempt postcomplaint materials from the privilege log requirement. The attorney-client privilege and work product doctrine are intended to encourage communication between clients and attorneys, and to provide attorneys with a zone of privacy to prepare efficiently for trial, respectively. These activities are the most critical after the litigation has begun. Absent an exemption, an adversary could effectively require a party to create an ongoing “log” of communications and materials prepared during the course of a pending litigation. Such a burdensome requirement would effectively “chill” the crucial preparation that these protections were developed to ensure, subverting two key pillars of the adversary system. My proposal would provide the badly needed certainty and predictability parties must have in an era where the potential universe of discoverable electronic materials has few other limits.
The French Revision of Prescription: A Model for Louisiana?
In 2008, the French Legislature took the necessary step and drastically reformed prescription. The general period is now shorter and unified (five years), there are new grounds for suspension (including codified contra non valentem), and a long-stop period is introduced. Louisiana has yet to make any substantial reform to prescription, and revision is long overdue. This Article will outline the faults in Louisiana and France's original prescriptive regimes and identify the main innovative trends in the French revision. It then will offer a critical appraisal of the French revision, endorse it as a basis for a Louisiana revision, and discuss how Louisiana jurisprudence is uniquely positioned to integrate the revision in French law. We offer the following as a true dialogue from both the French and Louisiana perspectives about the continuing influence of the French Civil Code in Louisiana,the nature of prescription and its placement in a civil code, and the unique opportunity for the Louisiana experience to influence the interpreta-tion of the French revision.
Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content
The Principles of the Law of Software Contracts, or the “Principles,” seek to “unify and clarify” the law of software transactions. The drafters, however, excluded “digital content” from the scope of their project. This Essay explains why the scope of the Principles should encompass digital content. The exclusion of digital content creates two different but related problems. The first problem is that it creates what I refer to as “classification confusion.” Given the complexity and speed of technological innovation, the task of distinguishing digital content from software may be difficult for courts. The second problem is that it fails to resolve the conundrum of how to balance the proprietary rights and interests of licensor-owners and the rights and interests of licensee-consumers. This conundrum in turn has created problems of contractual form and user assent that arose out of software transactions but which have much more troubling applications in other contexts. With (and sometimes, even without) a click of a mouse, one can relinquish intellectual property, privacy, and expression rights. This Essay proposes that the Principles should generally apply to digital content. The Principles are an impressive accomplishment and go a long way toward unifying and clarifying the law of software transactions. This Essay urges that they go even further.
The Principals of the Law of Software Contracts: At Odds with Copyright, Consumer, and European Law?
This Article will describe the drafting history of the Principles of the Law of Software Contracts, with particular attention to the extent of consumer and public interest group representation in the process. The drafting process, I will argue, did not take adequate stock of problems identified in the late 1990s with proposed Article 2B of the Uniform Commercial Code, and then the Uniform Computer Information Transactions Act. Persistent problems include provisions encouraging terms that violate public policy, that constitute copyright or patent misuse by attempting to prohibit fair use or withdraw material from the public domain, or that are not properly disclosed before the purchase. The difference between the present situation and the 1990s, however, is that European Union (EU) directives on the subject of consumer protection and electronic commerce are of much greater importance today, particularly given the explosion in e-commerce between the United States and Europe. This Article will analyze whether the Principles do enough to protect the interests of consumers and the public in four key areas: (1) consistency with U.S. federal and state statutory and common law, (2) clear and conspicuous disclosure of all relevant terms and conditions prior to the sale, (3) regulation and prevention of one-sided and unconscionable contract terms, and (4) consistency with EU and domestic European law. The Principles and the comments thereto appear to sanction conduct that is in tension with the federal Copyright and Patent Acts, the common law of several U.S. states, and the EU's directives on Unfair Terms in Consumer Contracts (1993) and Protection of Consumers in Respect of Distance Contracts (1997). The Principles seem to be an imperfect attempt to unify the law of software contracts, codify best practices, and develop the law in a desirable direction. Finally, the Article will discuss when it is appropriate to harmonize U.S. and EU law and public policy.
What's Software Got To Do with It? The ALI Principles of the Law of Software Contracts
In May 2009, the American Law Institute (ALI) approved its Principles of the Law of Software Contracts (Principles). The attempt to codify, or at least unify, the law of software contracts has a long and contentious history, the roots of which can be found in the attempt to add an Article 2B to the Uniform Commercial Code (UCC) in the mid-1990s. Article 2B became the Uniform Computer Information Transactions Act (UCITA) when the ALI withdrew from the project in 1999, and UCITA became the law in only two states, Virginia and Maryland. UCITA became a dirty word, with several states enacting “bomb shelter” provisions to ensure that UCITA would never enter those states by way of a choice of law clause. Although the Principles was conceived, in part, as a counterweight to UCITA, the latter was dead in the water by the time the Principles Project became active. Nevertheless, the Principles Project proceeded apace. This Article examines the results of that decision.
Principles of the Law of Software Contracts: Some Highlights
In this Essay, we discuss the nature of the Software Principles and describe some of what we believe are their highlights. By highlights, we mean not only Principles that we believe are helpful contributions to the goal of clarification and unification of software contract law, but also those that have already received some attention because of their controversial nature. Specifically, we first explain the focus of our project, which itself presents some challenging issues. We then discuss several of the specific Principles. We present the Principles' treatment of terms that may conflict with federal intellectual property law. We explain the Principles' approach to the thorny issue of what constitutes assent to electronic standard forms. We illustrate how the Principles have modified some of the UCC's warranty rules that, because of their fogginess, have created much litigation and controversy. Sticking with warranty issues, we discuss what is probably the most controversial Principle (at least among software vendors), namely, the nondisclaimable warranty of no material, hidden defects. Finally, we set forth the Principles' treatment of automated disablement of software's functionality.
Crucial and Routine Decisions: A New Explanation of Why Ideology Affects U.S. Supreme Court Decision Making the Way It Does
This Article is an attempt to show why the effect of ideological preferences in models of the Supreme Court's decisions works the way it does. First, I present an analysis of the expectations justices can form about the results of their decisions. Next, I suggest that for many kinds of cases the conditions for rational choice cannot be met consistently and that, as a consequence, justices use their policy preferences to reach decisions. I argue that the differential effect of attitudinal indicators in empirical studies turns on the type of decisions that are made in particular classes of Supreme Court cases. I then present an examination of Court decisions that supports this assertion. I conclude by discussing ramifications these ideas have for studies of Supreme Court decision making.