Law Commons^™

Lost In Translation? Data Mining, National Security And The Adverse Inference Problem, Anita Ramasastry

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To the extent that we permit data mining programs to proceed, they must provide adequate due process and redress mechanisms that permit individuals to clear their names. A crucial criteria for such a mechanism is to allow access to information that was used to make adverse assessments so that errors may be corrected. While some information may have to be kept secret for national security purposes, a degree of transparency is needed when individuals are trying to protect their right to travel or access government services free from suspicion.

Part II of this essay briefly outlines the government's ability to …

A Comment On Nielsen's And Albiston's Sample Selection Methodology, And Implications For The 'Have-Nots', Laura Nyantung Beny

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Professors Nielsen and Albiston revisit the 1978 article, The Public Interest Law Industry, by Joel F. Handler, Betsy Ginsberg, and Arthur Snow, which presents an empirical study of the public interest law ("PIL") industry in the mid-1970s. At that time, there were only eighty-six PIL firms or public interest law organizations ("PILOs") in existence in the United States. Then, PILOs tended to be small, had relatively small operating budgets, received most of their funds from private sources, and tended to focus most of their effort in a single substantive area, among other characteristics noted by Professors Nielsen and Albiston. However, …

Improving Criminal Jury Decision Making After The Blakely Revolution, J. J. Prescott, Sonja B. Starr

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The shift in sentencing fact-finding responsibility triggered in many states by Blakely v. Washington may dramatically change the complexity and type of questions that juries will be required to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle this new responsibility effectively - and, if not, what can be done about it. Yet neither scholars addressing the impact of Blakely nor advocates of jury reform have seriously explored these questions. Nonetheless, a number of limitations on juror decision making seriously threaten the accuracy of verdicts in …

Symposium Reflections: A Rulemaking Perspective, Edward H. Cooper

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These reflections seek to situate this most excellent Symposium in the rulemaking process. All contributors are working with an eye to that process. Their goal is to achieve a better understanding of how offer-ofjudgment rules actually work in practice. The major focus is on Rule 68 of the Federal Rules of Civil Procedure as it has affected practice in actions brought under fee-shifting statutes, but Professor Yoon's article adds insights into state practice in the very different world of automobile accident claims. There is no reason to attempt to summarize or synthesize the papers or discussions that stand so well …

We Really (For The Most Part) Mean It!, Richard D. Friedman

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I closed my petition for certiorari in Hammon v. Indiana by declaring, “ ‘We really mean it!’ is the message that lower courts need to hear, and that decision of this case can send.” The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-ofcourt statement that is testimonial in nature may be admitted against an accused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left undetermined what the term “testimonial” meant. Many lower courts gave it a grudging …

The Economics Of Open Access Law Publishing, Jessica D. Litman

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The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a …

Perpetuating The Impermanence Of Foster Children: A Critical Analysis Of Efforts To Reform The Interstate Compact On The Placement Of Children, Vivek Sankaran

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The importance of expediting the placement of foster children into permanent homes has emerged as a dominant theme in child welfare policy. Identifying and finalizing legally secure placements provides children with psychological stability and a sense of belonging, and limits the likelihood of future disruptions of familial relationships. Upon a child's entry into foster care, child welfare agencies, under both federal and state laws, are compelled to develop a detailed plan to ensure a child's prompt placement into such a home. If a parent is unable to rectify the conditions causing the child's placement in foster care within a year, …

Addressing Putative Fathers In Child Protection Proceedings: Is 'John Doe' Still Alive?, Frank E. Vandervort, W. Lansat

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In practice, it seems, KH is not widely understood. Child protection petitions for temporary custody continue to name multiple men as the "father" of a child when there is a legal father. Some courts insist on terminating the parental rights of "John Doe" when no man has established paternity. After KH, are such actions necessary? Are they permissible?

Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai

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This Article discusses data sharing in California's stem cell initiative against the background of other data sharing efforts and in light of the competing interests that CIRM is directed to balance. We begin by considering how IP law affects data sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who should have access to the …

Law, Norms, And Legal Change: Global And Local In China And Japan, Nicholas C. Howson, Mark D. West

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The editors of the Michigan Journal of International Law have boldly brought together four articles and commentary that focus on different aspects of the same problem in China and Japan: the relationship between domestic legal change and foreign and/or "international" law and regulation, "soft" agreements, norms, or even cultural practices. The compilation is bold in part because scholarship on change in East Asian law and legal systems often suffers from one of two defects. First, it often focuses on purely domestic phenomena in only one system, ignoring the comparative connections. Second, scholars often attack the problem from an exclusively comparative …

Grados De Libertad: Democracia Y Antidemocracia En Cuby Y Luisiana, 1898-1900, Rebecca J. Scott

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This comparative study between the quest for political racial inclusivity in 1890s Louisiana and the fight against state-sanctioned racialized violence in Cuba in the early 1900s exposes similarities, tensions, and differences between the two systems. The article traces the evolving contests for citizenship and suffrage in each climate at the end of the 19th century and into the beginning of the twentieth, juxtaposing the expression of race, suffrage, and citizenship in the constitution and political climate of each locale. In 1898, the new Louisiana state constitution disenfranchised African-Americans, while in 1900 Cuba was positioning itself for a grant of universal …

Hipaa-Cracy, Carl E. Schneider

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The Department of Health and Human Services has recently been exercising its authority under the (wittily named) "administrative simplification" part of the Health Insurance Portability and Accountability Act to regulate the confidentiality of medical records. I love the goal; I loathe the means. The benefits are obscure; the costs are onerous. Putatively, the regulations protect my autonomy; practically, they ensnarl me in red tape and hijack my money for services I dislike. HIPAA (a misnomer-HIPAA is the statute, not the regulations) is too lengthy, labile, complex, confused, unfinished, and unclear to be summarized intelligibly or reliably. (Brevis esse laboro, …

The Riddle Of Hiram Revels, Richard A. Primus

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In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. …

Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine

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For the workers in the Rust Belt of the United States, concentrated in Southern New England, Western New York State, Pennsylvania, Ohio, Michigan, Indiana, and Illinois, it doesn't make much difference whether their jobs are outsourced or lost to North Carolina or Mexico or China. In any event the sources of income that have existed for generations are gone and the economic and psychic pains are much the same. Nonetheless, for purposes of national policy it plainly matters whether the work is moving to another part of the country or is leaving the United States entirely. I am going to …

A Tribute To Lewis H. Larue, James Boyd White

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Lash has been a good friend for many years, and it is a pleasure to have this opportunity to reflect about him. I well remember our first meeting, in the late 1970s. He had been to a meeting in Wisconsin-the first meeting of the Critical Legal Studies Conference, as I remember-and stopped to spend the night in Chicago on the way home. We had corresponded a couple of times, but never met, and what a pleasure it was to meet him: full of intelligence, openness, and laughter, with a moral center and a deep sense of human limitation. We talked …

Land Feuds And Their Solutions: Finding International Law Beyond The Tribunal Chamber, Steven R. Ratner

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The resolution of conflicting claims to land has long stood at the heart of the project of international law. Indeed, the encounter between the order envisaged by advocates of the law of nations and what Georges Scelle called the" obsession with territory" has been a defining struggle for our field, demonstrating to some its promise and to others its futility. Much, perhaps even most, legal scholarship on this subject over the last century has focused on adjudication by ad hoc tribunals or standing courts, in which jurists have derived and invoked hallowed principles that enabled them to draw lines-across mountains, …

The Supreme Constitutional Court Of Egypt On Islamic Law, Veiling And Civil Rights: An Annotated Translation Of Supreme Constitutional Court Of Egypt Case No. 8 Of Judicial Year 17, Clark B. Lombardi, Nathan J. Brown

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The jurisprudence of the Supreme Constitutional Court of Egypt is creative and influential in the Arab world. Among its opinions, Case No. 8 of Judicial Year 17, decided on May 18, 1996, is particularly interesting. In this opinion, the SCC argues that a regulation on face-veiling in public schools is consistent not only with Islamic law, but with the Egyptian Constitution's guarantees of freedom of religion and freedom of expression. Not only does it illustrate the SCC's approach to Islamic legal reasoning, but it gives insight into the Court's views with respect to civil and political rights. The case also …

Forces Driving And Shaping Legal Training Reform In Japan, Daniel H. Foote

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After canvassing the history of, and rationale for, legal training reform, the article examines the recommendations of the Justice System Reform Council. It then examines some of the forces that led to the reforms; some of those forces that helped shape the reforms; and the major aspects of the reforms themselves. The second half of the article undertakes an initial assessment of the first year of operation of the new system, focusing on the University of Tokyo, and based upon the author's first-hand experience.

Indian Water Rights And The Federal Trust Responsibility, Robert T. Anderson

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Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history …

Truth Or Consequences: Settling Water Disputes In The Face Of Uncertainty, Barbara Cosens

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No abstract provided.

2005 Indian Water Rights Settlement Conference Keynote Address, Barbara Cosens

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In September 2005, Native American Rights Fund and Western States Water Council brought the Indian Water Rights Settlement Conference to Moscow, Idaho. Native American Rights Fund is the oldest and largest nonprofit dedicated to asserting and defending Native American interests nationwide, and the Western States Water Council is composed of representatives appointed by the governors of eighteen western states, including Idaho. The conference brings together panel members representing tribal, state, federal agency, congressional, local, and environmental interests to discuss, argue, and at times resolve current issues facing the many efforts to settle Indian water rights in the western United States. …

The Quest For Tenure: Job Security And Academic Freedom, Mark Adams

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No abstract provided.

Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix

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The focus of this Article is the interrelated set of issues that have arisen, on one hand, from Internet transactions regarding the downloading of free or purchased software, as well as other Internet sales, and on the other hand, the distinctive transactional problems that modern business practices have created under the rubric of "shrink-wrap" or "terms in the box"—a late presentation of terms associated with the sale of computers or the licensing of software (with the terms included in the packaging, rather than presented to the user ahead of time)—but not necessarily confined to those transactions.

Such transactions raise novel …

Giving Intellectual Property, Xuan-Thao Nguyen, Jeffrey A. Maine

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The interdisciplinarity of intellectual property and taxation poses many challenges to the disparate existing norms in each respective field of law. This Article identifies and critiques the current tax regime governing the giving of intellectual property as a manifestation of the failure to understand the principles and policies underlying intellectual property and the firm. It proposes an economic, incentives-based system that would encourage firms to extricate part of their repository of residual rights by surrendering their monopolistic ownership of intellectual property for the benefit of charitable organizations and, in turn, the development and growth of society.

Two Distinct Roles/Bright Line Test, Donald N. Duquette

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It is a mistake to try to develop a single lawyer role for children in child welfare cases which tries to accommodate their developing capacities from infants to articulate teens. The older child needs a traditional attorney; the youngest child, incapable of directing counsel, needs a substitute to define and advocate for his or her best interests. We should adopt different standards for the different advocate roles. Trying to define a single lawyer role for children of all ages and all capacities is an impossible task. A better approach towards recognizing and accommodating the child's developing cognitive abilities and judgment …

Colorblind Must Not Mean Blind To The Realities Facing Black Children, Zanita E. Fenton

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No abstract provided.

The Territorial Temptation: A Siren Song At Sea, Bernard H. Oxman

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No abstract provided.

Scientific Secrecy And "Spin": The Sad, Sleazy Saga Of The Trials Of Remune, Susan Haack

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No abstract provided.

Fact-Finding As A Lawmaking Tool For Advancing Women's Human Rights, Tamar Ezer, Susan Deller Ross

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No abstract provided.

Supersize Pay, Incentive Compatibility, And The Volatile Shareholder Interest, William Wilson Bratton

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No abstract provided.