Law Commons^™

Upstream Patents = Downstream Bottlenecks, Michael A. Heller, Rebecca S. Eisenberg

Law Quadrangle (formerly Law Quad Notes)

The following text is excerpted from "Can Patents Deter Innovation? The Anticommons in Biomedical Research" and is reprinted with permission from 280 Science 698-701 (May 1998). © 1998 American Association for the Advancement of Science.

Thirty years ago in Science, Garrett Hardin introduced the metaphor "tragedy of the commons" to help explain overpopulation, air pollution, and species extinction. People often overuse resources they own in common because they have no incentive to conserve. Today, Hardin's metaphor is central to debates in economics, law, and science and powerful justification for privatizing commons property. While the metaphor highlights the cost of overuse …

The Role Of Clinical Programs In Legal Education, Suellyn Scarnecchia

Articles

In clinic, students get a glance at the lawyer they will be someday. They gain confidence that, indeed, they will be a "good" lawyer. They understand the context in which their classroom learning will be applied. In short, they are able to integrate their law school experience.

What We Know, James Boyd White

Other Publications

The editors of Cardozo Studies in Law and Literature, and its contrib­utors too, deserve congratulations for its ten years of most successful life. & a small contribution to this moment of celebration I should like to suggest a particular line of thought about what the reading of literature helps us to see about law.

We Could Pass A Law...What Might Happen If Contingent Legal Fees Were Banned, Samuel R. Gross

Articles

This is an exercise in fantasy. My task is to imagine what would happen if we simply abolished the institution of the contingent fee by statute. I cannot justify that task on grounds of urgency. Contingent fees are not about to be abolished, and they probably.are not going to be seriously restricted. My hope is that the exercise will be amusing in itself, and that in the process we might learn something about contingent fees as we now use them.

The Gift Of Language, Joseph Vining

Articles

Style and substance cross-are genetically related as we now might want to say. Each draws on and is implied by the other. One point at which they cross is our sense of the nature of human language, what language is and can be, what it is not and can never be. The language of law is part of human language. Law is a distinctive form of thought, but it lives in human language. "Rule" might be thought synonymous with "law," but for all its talk of rules, the practice of law does not begin with a descriptive statement, or a …

Crafting An Advocate For A Child: In Support Of Legislation Redefining The Role Of The Guardian Ad Litem In Michigan Child Abuse And Neglect Cases, Albert E. Hartmann

University of Michigan Journal of Law Reform

Michigan's current statutory system leaves the role of the child's attorney unclear. In this Note, Hartmann advocates the adoption of a legislative proposal that will redefine the role of the child's attorney. The proposal specifies that the child's primary legal representative should be a guardian ad litem who will represent the best interests of the child. Hartmann begins by describing the current system and then analyzes how the proposal will modify the role of the child's attorney. Hartmann argues that the proposed changes would be highly beneficial and identifies specific points of improvement. Hartmann concludes by suggesting several reforms to …

Beyond "Sellouts" And "Race Cards": Black Attorneys And The Straitjacket Of Legal Practice, Margaret M. Russell

Michigan Law Review

For attorneys of color, the concept of "representing race" within the context of everyday legal practice is neither new nor voluntarily learned; at a basic level, it is what we do whenever we enter a courtroom or conference room in the predominantly white legal system of this country.

Straightjacketing Professionalism: A Comment On Russell, David B. Wilkins

Michigan Law Review

Professor Russell's essay sounds a much needed cautionary note about the public's characterization of Christopher Darden and Johnnie Cochran both during and after the spectacle of O.J. Simpson's criminal trial. Russell cogently argues that Darden and Cochran's choices, as well as those of other black lawyers confronting similar problems, must be evaluated against the backdrop of racism that devalues and constrains the lives of African Americans in general and African-American lawyers in particular. Black lawyers, Russell insists, not only face "glass ceilings" inhibiting their advancement, but must also live inside "glass bubble[s] ... that severely circumscribe[ ] the flexibility and …

Representing Race Outside Of Explicitly Racialized Contexts, Naomi R. Cahn

Michigan Law Review

Welfare "as we know it" ended in 1996, a victim of a conservatism that views welfare recipients as lazy and immoral. One aspect of welfare that is, however, unlikely to experience radical change is child support. More vigorous child support enforcement has become an increasingly important component of federal welfare reform bills over the past two decades because of the twin hopes of fiscal and parental responsibility: first, that child support will reimburse welfare costs, and second, that fathers will take more responsibility for their children. Child support programs within the welfare system perpetuate a negative perception of poor people. …

The Underrepresentation Of Minorities In The Legal Profession: A Critical Race Theorist's Perspective, Alex M. Johnson Jr.

Michigan Law Review

Over the last four years, I have taught a course in Critical Race Theory at the University of Virginia School of Law three times. Although each course is different, given the interplay between the teacher and the students and the integration of new developments into the course, there has been one constant subject that the students and I address: Of what import is the development of Critical Race Theory for the legal profession and larger society? Can Critical Race Theory have a positive or any effect for those outside legal academia? This article represents an attempt to explore that question …

Rodrigo's Thirteenth Chronicle: Legal Formalism And Law's Discontents, Richard Delgado

Michigan Law Review

Professor! You're back! Rodrigo leaped to his feet and shook my hand fervently. "I heard a rumor you might be coming. What good news! Sit down. Did the authorities give you any trouble?"

Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud

Law Quadrangle (formerly Law Quad Notes)

Few of the suits that are filed continue to trial, but some plaintiffs and defendants find their interests served best by going to trial.

This essay is adapted from "Don’t Try: Civil Jury Verdicts in a System Geared to Settlement," appearing in 44 UCLA Law Review 1 (1996). Publication is by permission. A complete, fully cited version is available from the editor of Law Quadrangle Notes.

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. …

Eye On The World, Jose E. Alvarez, Virginia A. Gordon

Law Quadrangle (formerly Law Quad Notes)

In a special section coinciding with the International Reunion of Law School graduates, Law School graduates who are deeply involved in the globalization of legal practice respond to the question, "If you could leap ahead 10 years, how do you think what you are doing now will change?" And in a thought-provoking prologue, Professor of Law Jose Alvarez and Assistant Dean for International Programs Virginia A. Gordan consider the historical - and historic - impact of Law School graduates from overseas on the legal profession.

A New Nuremberg?, Jose E. Alvarez

Law Quadrangle (formerly Law Quad Notes)

The following essay is based on presentations given recently at the University of Michigan, Harvard Law School and the Fletcher School of Law and Diplomacy. While most citations have been removed for publication here, the author gratefully acknowledges the work of Mark Osiel, whose article, "Ever Again: Legal Remembrance of Administrative Massacre," 144 University of Pennsylvania Law Review 463 (1995), inspired much of the analysis here

On May 25, 1993, acting under the same powers it had used to authorize the Gulf War, the United Nations Security Council established the first international war crimes tribunal since post World War II …

25 Divorce Attorneys And 40 Clients In Two Not So Big But Not So Small Cities In Massachusetts And California: An Appreciation, David L. Chambers

Reviews

Jane is meeting with her lawyer Peter. She has been complaining bitterly about a restraining order obtained ex parte by the lawyer for her husband Norb. The order bars her from entering the home that she still owns jointly with Norb and that Norb has continued to live in. She moved out voluntarily, as a gesture of good will, a short while before only to have her husband's lawyer run to court and secure the order she abhors. Readers first met Jane back in 1986 when Austin Sarat and William Felstiner published the first article growing out of their massive …

An Interdisciplinary Seminar In Child Abuse And Neglect With A Focus On Child Protection Practice, Suellyn Scarnecchia

Articles

Given the myriad of professionals involved in protecting children from abuse and neglect, legal practice in the field of child protection requires an understanding of the various disciplines these professionals represent. Professor Scarnecchia argues that such an understanding is necessary in order for the attorney to serve as a zealous advocate for her client. In hopes of creating this understanding in students at the University of Michigan, an interdisciplinary seminar in child abuse and neglect has been created. Professor Scarnecchia details the substantive content of the seminar, discussing specific issues that arise in protecting children. She explains that by using …

Does Time Make Ancient Good Uncouth?, John W. Reed

Other Publications

The somewhat arch title of my remarks, which I'll explain later, came to me at the end of December, when all forms of the media were filled with references to the fast approaching turn of the calendar when we shall greet a twenty-first century and a third millennium. Whether it comes in with the year 2000, as popularly believed, or, more properly, the year 2001, it will be a time for reflection, for taking stock of ourselves and our world. Predictably, we already are inundated with pronouncements from pundits and politicians, from scientists and seers, from philosophers and fools. I …

Moving Ground, Breaking Traditions: Tasha's Chronicle, Angela I. Onwuachi-Willig

Michigan Journal of Race and Law

This Note uses a fictional dialogue to analyze and engage issues concerning stereotypes, stigmas, and affirmative action. It also highlights the importance of role models for students of color and the disparate hiring practices of law firms and legal employers through the conversations and thoughts of its main character, Tasha Crenshaw.

Moral Discourse, Bioethics, And The Law, Carl E. Schneider

Articles

Dan Callahan follows a distinguished tradition when he uses the phrase "moral discourse" to describe the law's work. The frequency with which that image is deployed suggests its resonance and even rightness: When we think about the way society considers moral issues and develops moral positions, it can be useful to imagine the law as one of many social institutions that contribute to a social discussion. Nevertheless, this image is misleading. At least for our (graying and balding) genera- tions, the law is regarded as a worthy participant in American moral discourse preeminently because of its part in the civil …

Children Of A Lesser God: Gdr Lawyers In Post-Socialist Germany, Inga Markovits

Michigan Law Review

In this essay, I want to investigate German vetting policies by looking at one particular subgroup of examinees: GDR lawyers. In Germany, no other former socialist elite has been submitted to so thorough an ideological cleansing process as the legal profession. After reunification, all GDR judges and prosecutors hoping to remain in office had to undergo investigations that by March 1994 had left only 9.2% of their former numbers in permanent positions. Virtually all East German law professors were removed from their university posts. More than 5000 attorneys in Germany's eastern half are currently being examined for former contacts with …

Dream Makers: Black Judges On Justice, Julian Abele Cook Jr.

Michigan Law Review

A Review of Linn Washington, Black Judges on Justice

Representation Of Claimants At Unemployment Compensation Proceedings: Identifying Models And Proposed Solutions, Maurice Emsellem, Monica Halas

University of Michigan Journal of Law Reform

Emsellem and Halas posit that claimants need representation at unemployment compensation proceedings. Evaluating statistical and survey data, the authors find that representation significantly improves a claimant's chance of receiving unemployment compensation. Improved recovery rates, they argue, benefit not only claimants but also society. The authors analyze the factors inducing employer appeals of compensation awards. They also review the systemic issues that accompany the provision of representation to those unable to afford it or to those unfamiliar with the unemployment compensation process. Finally, the authors present models of expanding claimant representation.

Aba Accreditation Of Law Schools: An Antitrust Analysis, Andy Portinga

University of Michigan Journal of Law Reform

The accreditation activities of the American Bar Association are under attack. From within legal academia, professors and deans complain that the ABA accreditation process is overly formalistic and intrusive. In addition, the Massachusetts School of Law has sued the ABA, alleging that the ABA's accreditation standards violate the Sherman Act. From outside legal academia, the Department of Justice has investigated the ABA's accreditation activities and initiated an antitrust suit against the ABA. The Department of Justice and the ABA immediately settled this suit, and, as a result of this settlement, the ABA has agreed not to enforce certain standards and …

Women In The Courts: An Old Thorn In Men's Sides, Nikolaus Benke

Michigan Journal of Gender & Law

This article was inspired by the work of a series of state task forces on women in the courts. It examines the subject from a historical perspective, comparing ancient Rome, mainly during the period from the first century B.C. to the third A.D., with the United States, from its prerevolutionary beginnings to the present. The article's focus is gender bias against women acting in official court functions.

Meaning In The Life Of The Lawyer, James Boyd White

Articles

First let me say what a pleasure it is to be here on such an occasion. Dean Kronman is an old and valued friend, and I am very glad to be able to visit your school, of which I have heard many good things. In the remarks that follow I shall respond to Dean Kronman's eloquent and elegiac account of "civility" in our culture, and in the law, not so much by marking agreement or disagreement as by offering a few loosely connected reflections on the topics he raises.

Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold

Articles

In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less controllable litigation. …

The Rhythms Of Hope And Disappointment In The Language Of Judging (St. John's University School Of Law: Rededication Symposia), James Boyd White

Articles

I want to talk today about a certain aspect or dimension of the language of judging. From one point of view the quality I mean can be seen as a kind of idealism inherent in legal lan­guage; from another, as a kind of fundamental hypocrisy; from still another, as a simultaneously tragic and comic element in le­gal life.

Charles Evans Hughes As International Lawyer, Richard D. Friedman

Book Chapters

In 1884, Charles Evans Hughes qualified as a member of the New York bar at age 22. After seven years of practice in New York City, in precarious health, he took a respite and became a law professor at Cornell. Two years later, his health restored, he returned to his metropolitan practice. He remained there in relative obscurity until he was 43, in 1905, when he was appointed counsel to a legislative committee investigating local utilities. A far more renowned investigative assignment for the Armstrong Insurance Commission soon followed that catapulted Hughes to national fame. In 1906 he received, unsought, …

The Impact Of The Americans With Disabilities Act On State Bar Examiner's Inquiries Into The Psychological History Of Bar Applicants, Carol J. Banta

Michigan Law Review

This Note argues that the use of any questions based upon an applicant's psychological history in the state bar application process violates the Americans with Disabilities Act. Part I demonstrates that Title II of the ADA applies to state boards of bar examiners, and that the ADA definition of a person with a disability includes a person who has sought or received psychological counseling. Part II applies the ADA and accompanying regulations to the psychological history inquiries currently used by state bar examiners and argues that such inquiries violate the ADA because they inquire specifically about disabled status. Part III …

Denaturalizing The Lawyer-Statesman, Anthony V. Alfieri

Michigan Law Review

A Review of The Lost Lawyer: Failing Ideals of the Legal Profession by Anthony T. Kronman.