Law Commons^™

Where Does Creativity Come From? And Other Stories Of Copyright, Michael J. Madison

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This Commentary on Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 Case W. Res. L. Rev. 673 (2003), observes that debates over a variety of copyright law issues can be - and in fact, often are - structured in narrative terms, rather than in terms of doctrine, policy, or empirical inquiry. I suggest a series of such narratives, each framed by a theme drawn from a feature film. The Commentary suggests that we should recognize more clearly the role of narrative in intellectual property discourse, and that intellectual property narratives should be examined critically.

Racism's Past And Law's Future, Vivian Grosswald Curran

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Legal scholars, lawmakers and, increasingly, the general public seem to place ever-increasing hope in the potential of law and legal theory, and of enforceable uniform international legal standards. Many appear to believe that identifying and enacting laws and a legal framework that correspond worldwide to human rights will solve the age-old problem of legalized barbarism. The historical propensity of courts, even in democratic states, to legitimate and enable racist policies provides compelling evidence that the current level of faith in law is misplaced.

This Article argues the limitations of law and legal theory, contesting the view that on their own …

Critical Praxis, Spirit Healing And Community Activism: Preserving A Subversive Dialogue On Reparations, Christian Sundquist

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African-American reparations have the potential to deconstruct racial privilege, promote racial reconciliation, and heal the psychic injuries of the African-American community. However, many models of reparations have given up on the promise of reparations in exchange for the slim possibility of short-term progress.

A subversive dialogue on African-American reparations, however, will inevitably critique equal opportunity, individualism, and white innocence and privilege. Embraced by the majority, and internalized by the African-American community, the principles of individualism, equal opportunity, and meritocracy reinforce white innocence and privilege to the extent that future, current and past inequality are cast as the natural and inevitable …

Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran

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The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the …

The Mote In Thy Brother’S Eye: A Review Of Human Rights As Politics And Idolatry, William M. Carter Jr.

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Michael Ignatieffs provocatively titled collection of essays, Human Rights As Politics and Idolatry [hereinafter Human Rights], is a careful examination of the theoretical underpinnings and contradictions in the area of human rights. At bottom, both of his primary essays, Human Rights As Politics and Human Rights As Idolatry, make a claim that is perhaps contrary to the instincts of human rights thinkers and activists: namely, that international human rights can best be philosophically justified and effectively applied to the extent that they strive for minimal ism. Human rights activists generally argue for the opposite conclusion: that international human rights be …

Competing Frameworks For Assessing Contemporary Holocaust-Era Claims, Vivian Grosswald Curran

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There are many angles from which to perceive the contemporary holocaust-era claims. In 1997, Time magazine quoted Elie Wiesel as saying that, [i]f all the money in all the Swiss banks were turned over, it would not bring back the life of one Jewish child. But the money is a symbol. It is part of the story. If you suppress any part of the story, it comes back later, with force and violence.

Wiesel touches on two perspectives: first, what has been described as litigating the holocaust, with all that that implies about the law's questionable capacity to adjudicate issues …

School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake

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This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

Designing Electronic Casebooks That Talk Back: The Cato Program, Kevin D. Ashley

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Electronic casebooks offer important benefits of flexibility in control of presentation, connectivity, and interactivity. These additional degrees of freedom, however, also threaten to overwhelm students. If casebook authors and instructors are to achieve their pedagogical goals, they will need new methods for guiding students. This paper presents three such methods developed in an intelligent tutoring environment for engaging students in legal role-playing, making abstract concepts explicit and manipulable, and supporting pedagogical dialogues. This environment is built around a program known as CATO, which employs artificial intelligence techniques to teach first-year law students how to make basic legal arguments with cases. …

The Disability Kaleidoscope, Mary Crossley

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The question of whom our society truly wants to protect from adverse discrimination based on bodily difference is ultimately a question for the body politic. The aim of this article, by contrast, is to use the analytical tools provided by scholars in the field of disability studies to scrutinize how lawmakers to date have understood the concept of impairment as one form of bodily difference. By viewing administrative and judicial treatments of impairment through a disability studies lens, I have sought to give the disability kaleidoscope a turn and thus to provide the reader with an altered view of impairment …

Sex As A Suspect Class: An Argument For Applying Strict Scrutiny To Gender Discrimination, Deborah Brake

Articles

In United States v. Commonwealth of Virginia' ("VMI"), the Supreme Court has a landmark opportunity to revisit the legal standard courts should use to review classifications which treat men and women differently. The VMI case involves an equal protection challenge to the state's exclusion of women from VMI and its establishment of an alternative, sex-stereotyped women's leadership program as a remedy to that exclusion. The United States, which brought the case against VMI, has asked the Supreme Court to rule that sex-based classifications, like classifications based on race, must be subjected to the highest level of constitutional scrutiny, or "strict …

Making Motions: The Embodiment Of Law In Gestures, Bernard J. Hibbitts

Articles

In contemporary America, the locus of legal meaning is habitually deemed to be the written word. This article pushes our conception of law’s “text” beyond its traditional inscripted bounds by focusing on physical gesture as a legal instrumentality. The few studies of legal gesture undertaken to date have explained its prominence in various legal systems and cultural environments, the significance of specific legal gestures in specific historic contexts, and the depiction of legal gestures in particular manuscripts or other specific physical settings, but no one has considered the general functions of legal gesture as a modality.

In an effort to …