Digital Commons Network^™

The Supreme Court's Labor And Employment Decisions: 2002-2003 Term, Maria O'Brien

Faculty Scholarship

This article summarizes U.S. Supreme Court cases from the October 2002 term that related directly or indirectly to labor or employment law or have implications for labor and employment practitioners. Of particular interest are the University of Michigan affirmative action cases' and the Texas criminal sodomy case. ² Although not nominally "labor and employment" cases, these cases will profoundly affect labor and employment issues. Lawrence v. Texas has already altered the lenses through which society views homosexuality and altered public discourse related to homosexuality and same-sex relationships. ³ The reasoning of the Court shows how far issues of sexuality have …

Law And The Future Of Organized Labor In America, Keith N. Hylton

Faculty Scholarship

This paper, prepared for "The Future of Organized Labor in America" symposium at Wayne State University Law School, examines two questions: 1) what are the implications of the decline of unions for the future of labor law, and 2) what are the implications of labor law for the decline of unions? After documenting the recent trends (decline in the private sector coupled with slight growth in the public sector), I argue that the change in the public-versus-private composition will lead unions to pursue legislative strategies that will further reduce the share of the private sector workforce in unions. A law …

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Faculty Scholarship

If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'

Unfortunately, these different varieties of arbitration …

Interpretative Equality As A Structural Imperative (Or 'Pucker Up And Settle This!'), Gary S. Lawson

Faculty Scholarship

To serious students of the Constitution, Chief Justice Marshall's discussion of judicial review in Marbury v. Madisont was about judicial equality-the power of the courts, co-equal to the similar powers of the legislative and executive departments, to construe and apply the Constitution in the course of their duties. To less serious students of the Constitution, Marbury was about judicial supremacy-the supposedly paramount power of courts to interpret and apply the Constitution in a fashion that binds other legal actors, including the legislative and executive departments and state officials.

Archetypal Trials And The Management Of Dissent: Some Insights From Marketing Theory, Pnina Lahav

Faculty Scholarship

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent …

The Economics Of Litigation And Arbitration: An Application To Franchise Contracts, Keith N. Hylton, Christopher R. Drahozal

Faculty Scholarship

If we define the deterrence benefits from contract enforcement as avoided harms net of avoidance costs, we should expect contracting parties to choose the dispute resolution forum that provides the greatest difference between deterrence benefits and dispute resolution costs for every type of dispute. We apply this general framework to franchise contracts and conduct an empirical analysis of the determinants of arbitration agreements among franchising parties. Although it is obvious that contracting parties have an incentive to choose arbitration in order to reduce dispute-resolution costs, there have been no studies of the importance of deterrence concerns. We examine the deterrence …

When The Hurlyburly's Done: The Bar's Struggle With The Sec, Susan P. Koniak

Faculty Scholarship

Enron went bust. Global Crossing went bust. WorldCom went bust. And underneath all their apparent gold we found, not mere mistakes, but rot and more rot and more rot still. And the rot had to be named, and it was: accounting scandal. The name stuck, and names matter. Arthur Andersen knows.

One Strike And You're Out? Constitutional Constraints On Zero Tolerance In Public Education, Eric D. Blumenson, Eva S. Nilsen

Faculty Scholarship

Various studies reported that juvenile crimes of violence fell in the 1990s by as much as 30%. ¹⁰ In high schools specifically, the incidence of threatening behavior in 1996 changed little from two decades earlier, ¹¹ with the chances of being killed in school far less than being struck by lighting. ¹² The "juvenile crime bomb" proved illusory (as Delulio himself eventually acknowledged ¹³), but the severe measures designed to deal with it remain entrenched. Zero tolerance has taken on a life of its own, partly because public misperception remains high, ¹⁴ and partly because in our hardheaded times …

The Missing Selves In Constitutional Self-Government, James E. Fleming

Faculty Scholarship

Both Christopher Eisgruber and Jed Rubenfeld have written important books developing sophisticated theories of constitutional self-government. Eisgruber's Constitutional Self-Government' and Rubenfeld's Freedom and Time: A Theory of Constitutional SelfGovernment2 join issue in significant ways, and therefore a dialogue concerning them should prove illuminating. Rubenfeld says his book and Eisgruber's book are somewhat similar, but very different.' Eisgruber says his book and Rubenfeld's book are fairly similar, yet also somewhat different-and where they differ, they sometimes complement one another, or perhaps supply the deficiencies in the other.4 I say the books are very similar-more similar than either recognizes or concedes-and that …

Bodily Integrity And Informed Choice In Times Of War And Terror, George J. Annas

Faculty Scholarship

Law is the dominant force behind American medical ethics, and has been for at least the past half-century. That ' lawyers and judges, rather than physicians, have set the agenda for medical ethics in the United States is a bit surprising to many in the field of medical ethics, but it should not be. Medicine has historically been based on paternalism. The Hippocratic physician was obligated to act in the best interests of the patient-as the physician judged those interests-and to "do no harm." American law, on the other hand, is based on liberty and justice, principles that, among other …

A Six-Three Rule: Reviving Consensus And Deference On The Supreme Court, Jed Handelsman Shugerman

Faculty Scholarship

Over the past three decades, the Supreme Court has struck down federal statutes by a bare majority with unprecedented frequency. This Article shows that five-four decisions regularly overturning acts of Congress are a relatively recent phenomenon, whereas earlier Courts generally exercised judicial review by supermajority voting.

One option is to establish the following rule: The Supreme Court may not declare an act of Congress unconstitutional without a two-thirds majority. The Supreme Court itself could establish this rule internally, just as it has created its nonmajority rules for granting certiorari and holds, or one Justice who would otherwise be the fifth …

Technology And Learning By Factory Workers: The Stretch-Out At Lowell, 1842, James Bessen

Faculty Scholarship

In 1842 Lowell textile firms increased weaving productivity by assigning three looms per worker instead of two. This marked a turning point. Before, weavers at Lowell were temporary and mostly literate Yankee farm girls; afterwards, firms increasingly hired local residents, including illiterate and Irish workers. An important factor was on-the-job learning. Literate workers learned new technology faster, but local workers stayed longer. These changes were unprofitable before 1842, and the advantages of literacy declined over time. Firm policy and social institutions slowly changed to permit deeper human-capital investment and more productive implementation of technology

Advisory Fees: Evolving Theories, Tamar Frankel

Faculty Scholarship

The theories on which mutual fund advisers' fiduciary and advisory fees are based have evolved over time. They were changed to justify different public policy approaches and reflect different perceptions of the relationships between advisers and investors. Three theories have developed on the subject and yet another is percolating currently. The familiar context in which these theories arose is revisited to clarify their development.

Draft Of Rendering Copyright Into Caesar - 2003, Wendy J. Gordon

Scholarship Chronologically

This article makes a simple suggestion. Copyright rules by money, so let it rule the money-bound. Let a different set of rules evolve for more complex uses, particularly when the users have a personal relationship with the utilized text. Copyright. When new artists make transformative use of existing works in settings not characterized by pre-use commercial negotiations, copyright should avoid imposing a distorting burden.

Patent Thickets: Strategic Patenting Of Complex Technologies, James Bessen

Faculty Scholarship

Patent race models assume that an innovator wins the only patent covering a product. But when technologies are complex, this property right is defective: ownership of a product's technology is shared, not exclusive. In that case I show that if patent standards are low, firms build "thickets" of patents, especially incumbent firms in mature industries. When they assert these patents, innovators are forced to share rents under cross-licenses, making R&D incentives sub-optimal. On the other hand, when lead time advantages are significant and patent standards are high, firms pursue strategies of "mutual non-aggression." Then R&D incentives are stronger, even optimal.

Secret Settlements And Practice Restrictions Aid Lawyer Cartels And Cause Other Harms, Susan P. Koniak, David Dana

Faculty Scholarship

In this article, the authors argue that the use of secrecy agreements and practice restrictions in settlement contracts should be prohibited not only by the ethics rules, but also by criminal and civil law. The authors begin by discrediting four arguments that are traditionally employed to support the use of secrecy agreements and practice restrictions. They then argue that the use of secrecy agreements and practice restrictions generate substantial costs, but do not secure any legitimate benefits that could not be attained by other, less costly means. The authors also explain how the problems caused by secrecy agreements and practice …

Hipaa Regulations: A New Era Of Medical-Record Privacy?, George J. Annas

Faculty Scholarship

The new privacy regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) become effective April 14, 2003. This article outlines the implications of the new policy for practicing physicians. The regulations will affect virtually every physician, because they apply to any health care provider who conducts any business electronically, including billing. The regulations require health care providers to provide patients with a privacy notice that informs them who will have access to their records without their explicit consent and about patients' rights to inspect and amend their own records.

The Right To Health And The Nevirapine Case In South Africa, George J. Annas

Faculty Scholarship

Thanks to activists in South Africa, the right to health as a human right has returned to the international stage, just as it was being displaced by economists who see health through the prism of a globalized economy and by politicians who see it as an issue of national security or charity. The current post-apartheid debate in South Africa is not about race but about health, and in this context, the court victory by AIDS activists in the nevirapine case has been termed not only, as stated in one British newspaper, “the greatest defeat for [President Thabo] Mbeki's government” but …

Arbitrage, Bioethics, And Cloning: The Abcs Ofgestating A United National Cloning Convention, George J. Annas

Faculty Scholarship

America's inability to craft a regulatory ethics of abortion has led to a
wild west of unregulated research with human embryos and pregnant
women by our private infertility industry. Because of an "all or nothing"
research mentality, it is becoming increasingly impossible to suggest
outlandish and reckless reproductive research possibilities without seeing
them actually pursued. And if even the wild west seems a bit inhospitable
to particular research goals, such as cloning to produce the genetic duplicate
of an existing person, media darlings like Severino Antinori and Zavos
Panos, and even members of the Raelian cult, clone press conferences
(since …

International Commercial Dispute Resolution, William W. Park, Andrea K. Bjorklund, Jack J. Coe

Faculty Scholarship

A recent Court of Appeals decision has made it more difficult for judges in the United States to second-guess arbitrators in international cases. To understand the significance of the recent decision, one must remember that the Federal Arbitration Act (FAA) has been interpreted to permit vacatur of awards in an international arbitration on the same grounds available in domestic cases. Thus, a litigant who is unhappy with an arbitrator's decision gets a chance to re-argue the case by alleging "manifest disregard of the law," a ground for judicial review created fifty years ago by Supreme Court dictum.

Intellectual Property Law, Wendy J. Gordon

Faculty Scholarship

This chapter for the OXFORD HANDBOOK ON LEGAL STUDIES provides an overview of the theoretical literature in Intellectual Property, and suggests directions for further study. The emphasis is on economic analysis, but effort is made to embrace other perspectives as well.

Excuse And Justification In The Law Of Fair Use: Transaction Costs Have Always Been Only Part Of The Story, Wendy J. Gordon

Faculty Scholarship

In American copyright law, the doctrine of "fair use" has long been problematic. Every plausible litmus test that might simplify the "fair use" inquiry has proven inadequate, and copyright commentators have long sought an algorithm or heuristic to lend predictability and conceptual coherence to the doctrine. Twenty years ago, I published in this Journal an article entitled Fair Use as Market Failure, which suggested that the key to understanding the protean terms of "fair use" could best be found in the notion of market failure. That 1982 article has been often misapplied, by both courts and commentators. I am …

Copyright As Tort Law's Mirror Image: 'Harms', 'Benefits', And The Uses And Limits Of Analogy, Wendy J. Gordon

Faculty Scholarship

This pair of papers involves a reprinting of "Of Harms and Benefits: Torts, Restitution, and Intellectual Property," 21 J. LEGAL STUDIES 449 (1992), along with an introduction to that article for students, entitled "Copyright as Tort's Mirror Image". Both involve comparisons between statutory intellectual property law and common law doctrines.

"Copyright as Tort's Mirror" uses personal injury law to introduce students to copyright, making a link between the doctrines through the notion of "externalities". Just as tort law discourages wastefully harmful behavior by making perpetrators bear some of the costs inflicted, copyright law encourages beneficial behavior by enabling authors to …

Unpatriotic Acts: An Introduction, Sadiq Reza

Faculty Scholarship

John Walker Lindh. Zacarias Moussaoui. Jose Padilla. Richard Reid. Who reading these lines does not instantly recognize the names of these men? Or at least their assigned noms de guerre: American Taliban, 20th hijacker, dirty bomber, shoe bomber. For two and a half years these names and others have flitted through our daily copies of The New York Times like shadow characters in a play, along with black-and-white photographs underneath which black-and-white text tells us of their alleged (and sometimes proven) wrongdoing and the latest developments in their tribulations (and sometimes trials) with our government. But the men themselves are …

Bargaining In The Shadow Of Copyright Law After Tasini, Maureen A. O'Rourke

Faculty Scholarship

Copyright law often provides the background rules against which bargaining over rights in works of information takes place. By granting creators of works of authorship certain exclusive rights and providing protection against infringement of those rights, copyright law effectively gives authors bargaining chips to use in negotiations with those who would exploit their works in some way. Generally, however, copyright law does not explicitly address imbalances in bargaining power that affect the division of the surplus between the parties to a copyright license. When the would-be exploiter of the copyrighted work wields some degree of market power or brings significant …

Does Punishment For 'Culpable Indifference' Simply Punish For 'Bad Character'? Examining The Requisite Connection Between Mens Rea And Actus Reus, Kenneth Simons

Faculty Scholarship

The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of "culpable indifference"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a …

Should The Model Penal Code's Mens Rea Provisions Be Amended?, Kenneth Simons

Faculty Scholarship

The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea.

However, a revised Code could improve the drafting of the mens rea provisions in a number of respects:

* Clarify how to distinguish result, circumstance, and result elements

* Simplify the definitions of knowledge and purpose

* Perhaps eliminate the category of mens rea as to conduct

* Clarify the …

Race, Civil Rights, And Immigration Law After September 11, 2001, Susan M. Akram

Faculty Scholarship

This article is part of a symposium on "Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy." Although only time will tell, September 11, 2001 promises to be a watershed in thehistory of the United States. Not long after the tragedy, supporters and critics alike saw the federal government as "pushing the envelope" in restricting civil liberties in the name of national security. This article analyzes the nation's response to the horrific loss of life of September 11 and shows how the centralization ofimmigration power in the hands of the federal government, may exacerbate the civil rights …

Towards A Legal History Of American Criminal Theory: Culture And Doctrine From Blackstone To The Model Penal Code, Gerald F. Leonard

Faculty Scholarship

Many writers in recent decades have objected to the utilitarian aspects of substantive criminal law that cannot be squared with modern, retributivist versions of criminal justice. One particular target of the retributivists has been the use of strict liability, especially as it is applied in statutory rape cases. This article is an effort, not to take sides between utilitarians and retributivists, but to historicize the ideas and assumptions on all sides of the debates in criminal law, including the debate about strict liability in statutory rape.

Discovering very little historical work on the subject, I offer the first general intellectual …