Digital Commons Network^™

Shedding Rights, Shredding Rights: A Critical Examination Of Students' Privacy Rights And The Special Needs Doctrine After Earls, Meg Penrose

Faculty Scholarship

On June 27, 2002, the United States Supreme Court held that all students participating in extracurricular activities in public schools may be subjected to random, suspicionless drug testing. The holding, in itself, is not terribly remarkable, as the decision in Board of Education of I.S.D. 92 of Pottawatomie County, Oklahoma v. Earls follows a developing pattern among public schools in this country. Further, the Earls case simply broadens the right of the state to randomly drug test students, without individualized suspicion, that this same court announced a mere seven years earlier in Vernonia v. Acton. What is remarkable about …

A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Saab Fortney

Faculty Scholarship

This article addresses the serious public health problem of substance abuse among pregnant women. Part I of this article introduces the national problem of prenatal drug abuse. Part II discuses the appropriateness of government intervention. The article explains the medical consequences of prenatal drug abuse, and then, describes the justification of government intervention. The article details both existing criminal law and new legislation regarding prenatal drug abuse. Part III addresses constitutional concerns and the conflict between a woman’s right on the one hand and the state interest and “fetal rights” on the other. Part IV considers the moral and legal …

Fair Use And Market Failure: Sony Revisited, Glynn S. Lunney Jr

Faculty Scholarship

With the development and dissemination of digital technology, the importance of private copying and its legal status, whether fair or unfair under copyright law, has only increased. Yet, despite its status as the Court's first and only pronouncement on the issue, Sony has played surprisingly little role in this ongoing debate. Even in cases bearing seemingly close similarity to the home-taping at issue in Sony itself, such as the private, home copying of musical works, courts have refused to follow Sony's fair use outcome. Having been narrowly construed as an exceptional instance of market failure, Sony seldom appears to …

The First International Competition For Online Dispute Resolution: Is This Big, Different And New?, Benjamin G. Davis, Franklin G. Snyder, Kay Elkins Elliott, Peter B. Manzo, Alan Gaitenby, David Allen Larson

Faculty Scholarship

In February of 2002, the International Competition for Online Dispute Resolution (ICODR) was held to address the issue of new uses of technology is dispute resolution. This article describes the competition with individual presentations from the perspectives of a problem drafter, a coach, a participant, the evaluators, and an organizer. In the conclusion, the author presents some observations on why this International Competition for Online Dispute Resolution is big, different, and new.

Searching For A Sense Of Control: The Challenge Presented By Community Conflicts Over Concentrated Animal Feeding Operations, Nancy A. Welsh, Barbara Gray

Faculty Scholarship

The growth in the number of concentrated animal feeding operations ("CAFOs"), particularly those involved in swine production, has brought with it increased community concern and outright conflict in many communities across the United States.' Most commentators have focused upon anticipated outcomes to explain the contentiousness of CAFO-related disputes.2 Meanwhile, even though the social dynamics that contribute to the development and escalation of conflicts over CAFOs parallel those exhibited in other kinds of community conflicts, little research has systematically examined the social dynamics associated with CAFO conflicts. One exception to this deficiency is recent work conducted by a team of researchers …

International Parallel Litigation - A Survey Of Current Conventions And Model Laws, James P. George

Faculty Scholarship

Parallel litigation is difficult to define and sometimes means what the speaker wants it to mean. It may be limited to identical lawsuits with exactly the same parties and the same claims. It may also mean any instance of two or more lawsuits that may result in claim preclusion for some or all of the parties. It includes concepts of reactive and repetitive litigation, related litigation, and derivative litigation. Whatever it is thought to encompass, it incurs criticism as being vexing and harassing, wasteful of the parties' and courts' resources, and inclined to produce inconsistent results and possibly inter-governmental discord. …

Perspectives Of A New Executive Director, William H. Henning

Faculty Scholarship

Article Extract:

It goes without saying that a national economy cannot function efficiently without a core set of commercial laws to provide a stable base. Can you imagine the added costs of doing business if common transactions were governed by truly idiosyncratic laws in the various states? We had just such a situation in secured-finance law before the widespread adoption of Article 9 of the Uniform Commercial Code. Creditors seeking to use personal property as security faced a bewildering array of devices-pledge, chattel mortgage, conditional sale, assignment of accounts receivable, trust receipt, equipment trust, factor's lien, etc. Some of the …

Beyond Observable Prejudice-Moving From Recognition Of Differences To Feasible Solutions: A Critique Of Ian Ayres' Pervasive Prejudice?, Mary Margaret Penrose

Faculty Scholarship

As a female professor working within the academic ranks of a law school, I did not have to read Ian Ayres' work, Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination, to know that the odds remain quite high that blacks and women will be subjected to greater instances of discrimination in the marketplace, in medical facilities, and in judicial proceedings than their white male counterparts. Although I would not suggest that such conclusion is axiomatic, it certainly is observable on an experiential level by those falling within the two categories (race and gender) discussed in Professor Ayres' book. …

The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, Cynthia Alkon

Faculty Scholarship

Communism ended in most parts of Eastern Europe and the former Soviet Union over ten years ago. However, the legal and judicial systems in many of these nations seemingly defy reform efforts. What I call in this article the "Cookie Cutter Syndrome" describes the standard approach Western nations developed to assist legal reform in the former Communist world.' Despite vastly different conditions in these countries, the model for judicial reform remains very similar, and is rooted in litigation and adversarial practices. The question of whether an adversarial-based approach is appropriate becomes even more acute as assistance efforts focus more on …

Recent Developments In The Law Of Comparative Advertising In Italy – Towards An Effective Enforcement Of The Principles Of Directive 97/55/Ec Under The New Regime?, Irene Calboli

Faculty Scholarship

On February 25, 2000, the Italian Government adopted Legislative Decree No. 67, which enacted Directive 97/55/EC amending Directive 84/450/EEC concerning misleading advertising, so as to include comparative advertising. Contrary to what one could have expected in a country that has traditionally banned comparison in advertisements, Italy was one of the first among the Member States to implement Directive 97/55/EC. In order to allow consistent enforcement practices, however, the adoption of the new law must be followed by a profound change in the ways Italian courts and legal operators have approaches this issue so far. This Article explores this issue and …

Antitrust, Health Care Quality, And The Courts, Peter J. Hammer, William M. Sage

Faculty Scholarship

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports the results of a comprehensive empirical review of judicial opinions in health care …

Fortifying A Law Firm's Ethical Infrastructure: Avoiding Legal Malpractice Claims Based On Conflicts Of Interest, Susan Saab Fortney, Jett Hanna

Faculty Scholarship

This article addresses the prevailing problem of malpractice claims based on conflicts of interest. Part I of this article introduces the topic by underscoring the seriousness of all conflicts of interest and recommending preventative action. Part II describes measures that law firms can take to detect and manage conflicts and analyzes the effect of the firm’s ability to avoid conflicts claims on a firm’s ethical infrastructure. Part III focuses on some of the most common conflicts situations that result in malpractice claims and sanctions. The discussion includes selected conflicts cases that illustrate problems and patterns. Part IV concludes by urging …

Community Conflicts Over Intensive Livestock Operations: How And Why Do Such Conflicts Escalate?, Charles W. Abdalla, John C. Becker, Ralph Hanke, Celia Cook-Huffman, Barbara Gray, Nancy A. Welsh

Faculty Scholarship

Why do community groups and individuals oppose establishment of intensive scale livestock operations in communities? Why have established forms of economic activity become the pariah of rural communities across the nation? In December 1997, the Pennsylvania Senate passed Resolution 91. This article addresses the results of a research project funded by the state Department of Agriculture in response to Senate Resolution 91, directing the Secretary of Agriculture to develop a model of community dispute resolution to address community conflicts involving intensive livestock operations ("ILOs"). Specifically this article addresses project findings detailing why conflicts over ILOs arise and how they escalate.

Toward A Nonzero-Sum Approach To Resolving Global Intellectual Property Disputes: What Can We Learn From Mediators, Business Strategists, And International Relations Theorists, Peter K. Yu

Faculty Scholarship

Countries differ in terms of their levels of wealth, economic structures, technological capabilities, political systems, and cultural tradition. No two countries have the same needs or goals. As a result, policymakers face different political pressures and make different value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. These uncoordinated judgments eventually result in a conflicting set of intellectual property laws around the world.

As countries become increasingly interdependent in this globalized economy, these conflicting laws create tension and sometimes result in disputes. To minimize differences and prevent conflicts, countries use …

Disputants' Decision Control In Court-Connected Mediation: A Hollow Promise Without Procedural Justice, Nancy A. Welsh

Faculty Scholarship

Professor Deborah Hensler suggests in the lead article of this Symposium issue that the courts' embrace of facilitative, interest-based mediation may have been ill-conceived. She argues that there is insufficient evidence to conclude that litigants are more satisfied with mediation than with adjudicative alternatives such as arbitration and trial. She also urges that there is sufficient evidence to show that litigants prefer processes that vest decision control in third parties. Both of these assertions are subject to challenge,' but this Comment will focus upon the significance of giving decision control to the disputants in consensual processes.

Using available research, this …

Ethics Counsel's Role In Combating The "Ostrich" Tendency, Susan Saab Fortney

Faculty Scholarship

This article focuses on ethics problems related to hourly billing by analyzing the results of a survey of 1000 randomly selected associates in Texas firms who (1) had been licensed for ten or fewer years as of June 1999, and (2) worked in private law firms with more than ten attorneys (the Associate Survey). This article addresses the need for firm managers to clarify how and what their attorneys should bill. The article reports the results from the Associate Survey relating to billing guidance and ethics systems. From the empirical data, the article identifies a need for supervising attorneys to …

World Trade, Intellectual Property, And The Global Elites: An Introduction, Peter K. Yu

Faculty Scholarship

Extract:

Traditionally, intellectual property lawmaking is a matter of domestic affairs. Without external interference, governments make value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. Combined together, these disparate judgments form an intellectual property system that is tailored to the country's level of wealth, economic structure, technological capability, political system, and cultural tradition.

To protect authors and inventors, governments sometimes need to make adjustments to their intellectual property systems in exchange for better protection abroad. In those scenarios, policymakers often evaluate the adjustments carefully to make sure that they correspond …

Property Rights, Pesticides, & (And) Public Health: Explaining The Paradox Of Modern Pesticide Policy, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

The lesson of DDT's rise and fall is that property rights play a critical role in checking public policy abuses. Respect for property rights requires public actors to obtain property owners' consent before they take actions (e.g. pesticide spraying) that affect the property owners. When property rights are respected, spillover impacts are minimized. Public policies imposed without consent, even if done with good intentions, may produce bad effects. Those effects may result in the policy being rightly abandoned, but may also spur other policies that produce more bad effects. Only by consistent respect for property rights, by both governments and …

Trademark Exhaustion In The European Union: Community-Wide Or International--The Saga Continues, Irene Calboli

Faculty Scholarship

This Article analyzes the principle of "trademark exhaustion" or "first-sale rule" in the European Union (EU), with particular attention to the language and different interpretations of Article 7(1) of the First Council Directive 89 104 EEC of December 21, 1988. Traditionally, most jurisdictions define the extent of trademark exhaustion as either "national" or "international" exhaustion, depending on whether the rights granted by a mark are considered exhausted only in the domestic territory or also in foreign jurisdictions. Because of its nature as a regional integration of sovereign countries, the EU has historically favored a compromising approach toward the issue, and …

Bridging The Digital Divide: Equality In The Information Age, Peter K. Yu

Faculty Scholarship

The digital revolution has transformed the lives of many, but also has left untouched the lives of many others. As a result, a large segment of the world population misses out on the tremendous political, social, economic, educational, and career opportunities created by the digital revolution. This gap between the information haves and have-nots is commonly referred to as the digital divide.

Although evidence suggested that the digital divide in the United States is closing, the same is not true for the less developed countries. In light of the alarming disparities between the information haves and have-nots, the Howard M. …

An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements - Part Two, Susan Saab Fortney

Faculty Scholarship

This article considers billing practices, the effects of hourly billing pressure, and firm culture as reflected in a survey of associates in Texas law firms. Part I of this article reports the empirical information from the survey. This information includes insight into the toll an increase in billable hour requirements has taken on legal practitioners and the consequent affect on the legal field. Part II discusses what the data means and how it might be used to improve the outlook for attracting and retaining good associates.

Notations For Subsequent Histories In Civil Cases, James Hambleton

Faculty Scholarship

Subsequent histories have been apart of Texas case citation since the turn of the century. For most of that time, the information for subsequent histories was gleaned from paper sources, including the Texas Subsequent History Tables and Texas Shepard's Citations. The subsequent history information available to practitioners from these sources was limited by the controlled set of notations used by legal publishers. With the advent of electronic sources, this set of notations has become inadequate. This article traces the history of civil case notations for subsequent history, explains why this system is no longer adequate, and proposes a revised system …

Principles For Water, Andrew P. Morriss, Bruce Yandle, Terry L. Anderson

Faculty Scholarship

Water issues are often contentious. How much water can one individual use? What must the water quality of water returned from use be? How much water must be allocated to uses such as maintaining sufficient instream flows for aquatic species? For the last century, the United States has largely such answered questions through command and control regulatory schemes rather than through markets and common law dispute resolution processes. The choice of regulation by institutions over other mechanisms has meant a reliance on centralized decisionmaking and a rejection of both the market's more decentralized institutions and the common law.

Recently, water …

Introduction: The Virtues And Vices Of Skeptical Environmentalism, Jonathan H. Adler, Andrew P. Morriss

Faculty Scholarship

Introduction Extract:

The Skeptical Environmentalist: Measuring the Real State of the World by Bjorn Lomborg' is the most talked about environmental book in recent memory. Lomborg's central thesis is relatively straightforward: "Our doomsday conceptions of the environment are not correct." To the contrary, in recent decades humanity's lot has "improved in terms of practically every measurable indicator." Lomborg is not the first author to make this argument,4 but his book is the first to spark such a maelstrom of public attention. Its publication ignited controversy and debate on both sides of the Atlantic. Lomborg himself, an associate professor of statistics …

Challenging A Tradition Of Exclusion: The History Of An Unheard Story At Harvard Law School, Luz E. Herrera

Faculty Scholarship

In a series of lectures at Harvard University, Professors Lani Guinier and Gerald Torres posited that people of color are the "miner's canary" in American society. Guinier and Torres argue that pursuing color blindness policies is dangerous because it ignores racial differences that affect every aspect of our society. According to Guinier and Torres, like the miner's canary that uses a call of distress to warn the miner of the hazardous atmosphere in the mine, the critiques people of color offer our institutions are warning signals to alert us to the presence of more systemic problems. Instead of relegating the …

The Second Coming Of Intellectual Property Rights In China, Peter K. Yu

Faculty Scholarship

This Article traces the development of intellectual property rights in China since the country’s reopening in the late 1970s. Part I provides a brief history of the Chinese intellectual property system and examines the various intellectual property disputes between China and the United States in the late 1980s and the early 1990s. This Part argues that the contemporary Chinese intellectual property system was not developed until intellectual property rights reemerged in China in the late 1970s. Part II discusses the causes of the piracy and counterfeiting problem in China. By focusing on the significant political, social, economic, cultural, and ideological …

The Lawyers' Role In Selecting The President: A Complete Legal History Of The 2000 Election, Lynne H. Rambo

Faculty Scholarship

This Article presents the factual and legal history of Bush v. Gore, in the detail that is warranted for a case of this magnitude and complexity. Part One sets forth the legal framework within which the case unfolded, acquainting the reader with the breadth of Florida and federal law that governed the controversy. Part Two reviews what happened--the factual and legal developments from the time Gore requested manual counts in four Florida counties through the Supreme Court's decision ending the statewide recount the Florida Supreme Court had ordered--and focuses on the attorneys' arguments at each stage. Part Three then …

Raising The Civilized Minimum Of Pain Amelioration For Prisoners To Avoid Cruel And Unusual Punishment, James Mcgrath

Faculty Scholarship

This Article addresses the problems with our nation's cultural and legal prohibitions against certain pain management treatments. The practice of pain management has not kept pace with the many medical advances that have made it possible for physicians to ameliorate most pain. The Author notes that some patients are denied access to certain forms of treatments due to the mistaken belief that addiction may ensue. Additionally, some individuals are under-treated for their pain to a greater degree than are others. This is especially the case for our nation's prisoners. The Author contends that prisoners are frequently denied effective pain amelioration. …