Digital Commons Network^™

Created Facts And The Flawed Ontology Of Copyright Law, Justin Hughes

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It is black letter doctrine that facts are not copyrightable: facts are discovered, not created—so they will always lack the originality needed for copyright protection. As straightforward as this reasoning seems, it is fundamentally flawed. Using the “social facts” theory of philosopher John Searle, this Article explores a variety of “created facts” cases—designation systems, systematic evaluations, and privately written laws—in which original expression from private individuals is adopted by social convention and generates facts in our social reality. In the course of this discussion, the paper places facts in their historical and philosophical context, explores how courts conflate facts with …

Key Skills Framework: Enhancing Employability Within A Lifelong Learning Paradigm, Aidan Kenny, Ray English, Dave Kilmartin

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Employability has become an area of interest among the general public and policy makers alike, with an increasing number of reports in the general media regarding the need for workers in certain sectors to up-skill due to the possible threat of job ‘displacement’. In addition, there has been an increase in education and training policy documents emphasising that citizens should pursue Lifelong Learning /Life Wide Learning to address the increased job-related uncertainty attributed to the globalisation process and the concomitant competitive threats. Academics such as Barnett (2005) claim that we are living in an era of ‘super complexity' and rapid …

Using The Technology Of The Confessional As An Analytical Resource: Four Analytical Stances Towards Research Interviews In Discourse Analysis, Brendan O'Rourke, Martyn Pitt

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Among the various approaches that have developed from FOUCAULT's work is an Anglophone discourse analysis that has attempted to combine FOUCAULTian insights with the techniques of Conversation Analysis. An important current methodological issue in this discourse analytical approach is its theoretical preference for "naturally occurring" rather than research interview data. A FOUCAULTian perspective on the interview as a research instrument, questions the idea of "naturally-occurring discourse". The "technology of the confessional" operates, not only within research interviews, but permeates other interactions as well. Drawing on FOUCAULT does not dismiss the problems of the interview as research instrument rather it shows …

On Logic In The Law: Something, But Not All, Susan Haack

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In 1880, when Oliver Wendell Holmes (later to be a Justice of the U.S. Supreme Court) criticized the "logical theology" of law articulated by Christopher Columbus Langdell (the first Dean of Harvard Law School), neither Holmes nor Langdell was aware of the revolution in logic that had begun, the year before, with Frege's Begriffsschrift. But there is an important element of truth in Holmes's insistence that a legal system cannot be adequately understood as a system of "axioms and corollaries"; and this element of truth is not obviated by the more powerful logical techniques that are now available.

Judicial Deference And The Credibility Of Agency Commitments, Jonathan Masur

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No abstract provided.

The Anti-Formalist, David A. Strauss

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No abstract provided.

What Good Is The Social Model Of Disability?, Adam M. Samaha

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A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model's force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by …

Cost-Benefit Analysis Without Analyzing Costs Of Benefits: Reasonable Accommodation, Balancing, And Stigmatic Harms, Cass R. Sunstein

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Is an accommodation "reasonable" under the Americans with Disabilities Act if and only if the benefits are roughly proportional to the costs? How should benefits and costs be assessed? Should courts ask how much disabled employees are willing to pay to obtain the accommodation, or instead how much they would have to be paid to forego the accommodation? How should stigmatic or expressive harms be valued? This Essay, written for a celebration of the work of Judge Richard A. Posner, engages these questions in a discussion of an important opinion in which Judge Posner denied accommodations involving the lowering of …

A Century Of Juvenile Justice: A Work In Progress Or A Revolution That Failed?, Barry C. Feld

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A century ago, Progressive reformers adopted a more modem construction of childhood as a developmental period of innocence, dependence, and vulnerability. They embraced a more scientific understanding of social control - positive criminology - and tried to identify the causes of crime and to treat, rather than to punish, offenders. Reformers combined the new vision of childhood with new insights into criminality to create a judicial-welfare alternative to the adult criminal process. Jurisdiction over dependent as well as delinquent children reflected juvenile courts' broader role as a child-saving welfare agency and not simply a "junior" criminal court.'

The Need For A Speech Corpus, Dermot Campbell, Ciaran Mcdonnell, Marty Meinardi, Bunny Richardson

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This paper outlines the ongoing construction of a speech corpus for use by applied linguists and advanced EFL/ESL students. The first section establishes the need for improvements in the teaching of listening skills and pronunciation practice for EFL/ESL students. It argues for the need to use authentic native-to-native speech in the teaching/learning process so as to promote social inclusion and contextualises this within the literature, based mainly on the work of Swan, Brown and McCarthy. The second part addresses features of native speech flow which cause difficulties for EFL/ESL students (Brown, Cauldwell) and establishes the need for improvements in the …

The Transition From Preschool To School For Children In Ireland: Teachers Views, Mary O'Kane

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There is a wealth of international research on the transition from preschool to school from a range of perspectives. Following on from such research, the issue of transition is emerging as an important new construct in early childhood care and education (ECCE), with a transition-to-school framework replacing the construct of school readiness as a focus of research interest. There has been limited research into transition practices in Ireland and this study is the first comprehensive research looking at this area from an Irish perspective1. Phase I of this study involved conducting a questionnaire on the transition from preschool to formal …

Storytelling And Leadership In The Deaf Community, Luane Davis Haggerty

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JADARA, the official publication of ADARA. An organization for professionals networking for excellence in service delivery with individuals who are deaf or hard of hearing. This article addresses a gap in scholarship on leadership styles in the Deaf community. There is an invisible style of leadership differing from the mainstream culture that has not been previously addressed in the literature at any depth. This article was intended to begin a discussion addressing this gap. My analysis of literature in the leadership fields, Deaf Studies and Performance Studies indicates a unique style of leadership by Deaf people within a Deaf community …

Themes And Symbols In Asl Poetry: Resistance, Affirmation, And Liberation, Karen Christie, Dorothy Wilkins

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This paper analyzes themes and symbols in a number of works of poetry in American Sign Language. In particular, the expression of themes of resistance to oppressive elements of the dominant (hearing) culture and affirmation of the values of Deaf American culture will be identified and described in various poetic works. For analysis, definitions of resistance and affirmation are borrowed from Durr and Grcevic (1999) and Durr (1999/2000) who applied these concepts to the works of Deaf artists striving to represent the Deaf experience. Our analysis confirms that there exists a thriving tradition of ASL poetic works which can be …

The Erosion Of Individual Autonomy In Medical Decisionmaking: Of The Fda And Irbs, Richard A. Epstein

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No abstract provided.

Exclusionary Rule And Causation: Hudson V. Michigan And Its Ancestors, The, Albert W. Alschuler

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In Hudson v. Michigan, the Supreme Court held that evidence need not be excluded despite the fact that the police had violated the Fourth Amendment by failing to knock and announce their presence before conducting a search. The Court said that the constitutional violation was not a but-for cause of the seizure; the police would have obtained the evidence even if they had knocked. Hudson's analysis threatens to withdraw the exclusionary remedy whenever the police have conducted a search in an unconstitutional manner-most notably, when they have failed to obtain a warrant before searching. The Court's decision is likely to …

Baghdad, Tokyo, Kabul: Constitution Making In Occupied States, Tom Ginsburg, Zachary Elkins, James Melton

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No abstract provided.

Wealth Without Markets? (Reviewing Yochai Benkler, The Wealth Of Networks: How Social Production Transforms Markets And Freedom (2006)), Lior Strahilevitz

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No abstract provided.

Ensuring That Florida's Language Minorities Have Access To The Ballot, Jonel Newman

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No abstract provided.

Learning To Write In Code: The Value Of Using Legal Writing Exercises To Teach Tax Law, Scott A. Schumacher

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Traditionally, law school tax courses have been taught using a mix of problems, class discussion, the Socratic method, and one end-of-term exam. The goal of these courses is to introduce students to key concepts of tax law and to teach them the essential skill of reading and interpreting the Internal Revenue Code and Treasury Regulations. This traditional method of instruction is an efficient and cost-effective way of transmitting a great deal of complex information to a large number of students. It is also a good vehicle to teach the essential skill of reading and interpreting the Code. However, the time …

The International Protean Career: Four Women’S Narratives, Marian Crowley-Henry, David Weir

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In this paper, we share individual narratives outlining the experiences of four well-educated western women following a permanent international career in the South of France. By virtue of detailed interview transcripts and contextual information regarding the specificity of the location in question, a comprehensive picture of the experiences and choices of individual women in leadership business positions on an international level is painted. Our aim is not to generalise the findings to a wider population, but to gain an insight into the depth and complexity of career issues for women in general, and particularly for women working in a foreign …

The Irish Working Group On Information Literacy: A Cross-Sectoral Approach, Philip Russell, Terry O'Brien

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The Working Group on Information Literacy (WGIL) was established by the Library Association of Ireland (LAI) in January 2006 to recommend strategies for the development of information skills at both a theoretical and practical level in the Library and Information Services sector in Ireland.

From the outset, one of the key objectives established was that the work of the WGIL would be approached on a cross-sectoral basis.

Membership of the group comprises ten members from across the range of LIS (Library and Information Services) sectors in Ireland. These include academic, special, schools, public, health and university sectors, and also a …

Shared And Mutual Knowledge In Language Learning, Marty Meinardi

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This article discusses the matter of shared knowledge from the perspective of the different deictic centres of understanding. Difficulties, which may result from a possible lack of a shared knowledge between NSs and NNSs due to differences in language experiences and personal backgrounds, are identified.

Assessing The Writing Of International Learners: A Discussion In Two Voices, Sue Norton, Marty Meinardi

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No abstract provided.

Guantanamo Forever: United States Sovereignty And The Unending State Of Exception, Mary Anne Franks

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No abstract provided.

Parallel Courts In Post-Conflict Kosovo, Elena Baylis

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Even as American attention is focused on Iraq's struggle to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society - Kosovo - has begun negotiations to resolve the question of its political independence. Kosovo's efforts to establish multi-ethnic rule of law in the context of persistent ethnic divisions offer lessons in transitional justice and in managing legal pluralism for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim sole jurisdiction over the province. One system was established by the United Nations administration in Kosovo, while the other system is …

Subtly Sexist Language, Pat K. Chew, Lauren K. Kelley-Chew

Articles

Sometimes, sexist language is blatant and universally shunned. Other times, it is more subtle and even socially acceptable. For instance, as summarized in this article, substantial social science research has considered the use of male-gendered generics (the use of such words as he, man, chairman, or mankind to represent both women and men) rather than gender-neutral alternatives (such as she or he, human, chairperson, or humankind). This research concludes that male-gendered generics are exclusionary of women and tend to reinforce gender stereotypes. Yet, these words may not be recognized as discriminatory because their use is perceived as normative and therefore …

Race, Rights, And The Thirteenth Amendment: Defining The Badges And Incidents Of Slavery, William M. Carter Jr.

Articles

The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any lingering "badges and incidents of slavery." The Court, however, has failed to provide any guidance as to defining the badges and incidents of slavery when Congress has failed to identify a condition or form of discrimination as such. This has led the lower courts to conclude that the judiciary's role under the Thirteenth Amendment is limited to enforcing only the Amendment's prohibition of literal enslavement.

This article has two primary objectives. First, it offers an interpretive framework for defining …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

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In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

Selecting By Origin: Ethnic Migration In The Liberal State By Christian Joppke (Book Review), David Abraham

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No abstract provided.

Constitutional Patriotism, Citizenship And Belonging In America And Germany, David Abraham

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No abstract provided.