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2003

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Full-Text Articles in Law

Beware Of Lawyers Bearing Ggifts: A Critical Evaluation Of The Report Of Wg Ii To The European Convention On Incorporation Of The Eu Charter Of Fundamental Rights And Accession To The European Convention Of Human Rights., Stephen Carruthers Nov 2003

Beware Of Lawyers Bearing Ggifts: A Critical Evaluation Of The Report Of Wg Ii To The European Convention On Incorporation Of The Eu Charter Of Fundamental Rights And Accession To The European Convention Of Human Rights., Stephen Carruthers

Articles

This article undertakes a critical analysis of the fundamental rights provisions of the draft Treaty establishing a Constitution for Europe as presented to the President of the European Council in Rome on 18 July 2003, and in particular the Articles in Parts I and II of the draft Constitution incorporating proposals made in the final Report of Working Group II on “Incorporation of the Charter/Accession to the ECHR”.


Framework For Evaluation Of Tribal Water Settlements, Barbara Cosens Oct 2003

Framework For Evaluation Of Tribal Water Settlements, Barbara Cosens

Articles

No abstract provided.


Border Patrol, Carl E. Schneider Jul 2003

Border Patrol, Carl E. Schneider

Articles

Recently, the Supreme Court has encountered cases that concern perhaps our weightiest bioethical issue-how medical care is to be rationed. But this does not mean that the Court must therefore assess the justice of rationing, as many people incited by many journalists now fondly and firmly believe. In explaining why, we begin with a story about how Learned Hand remembered saying one day to Justice Holmes, "Well, sir, goodbye. Do justice!" Holmes turned quite sharply and said: "That is not my job. My job is to play the game according to the rules." If the Court doesn't do justice ...


Building A Home For The Laws Of The World: Part 1: Bates, Cook, And Coffey, Margaret A. Leary Jun 2003

Building A Home For The Laws Of The World: Part 1: Bates, Cook, And Coffey, Margaret A. Leary

Articles

The following feature is an edited version of "Building a Foreign Law Collection at the University of Michigan Law Library, 1910-1960."© Margaret A. Leary, 2002, which originally appeared at 94 Law Library Journal 395-425 (2002), and appears here with permission of the author. The first part of the article appears here; the conclusion will appear in the next issue of Law Quadrangle Notes.


Teaching Adr In The Workplace Once And Again: A Pedagogical History, Laura J. Cooper Jan 2003

Teaching Adr In The Workplace Once And Again: A Pedagogical History, Laura J. Cooper

Articles

During the summer there was a conference in Ann Arbor, sponsored by the Association of American Law Schools, to address whether law schools could better prepare students to represent the interests of employees and employ- ers. The conference planners took care to include as participants notjust law school teachers, but also practitioners who could more accurately describe the role of attorneys in representing worker and employer interests and how students could best be educated to serve those roles. Conference participants concluded that current law school courses were inappropriately focused on the adversarial role of lawyers in litigation. They decided that ...


Physician-Assisted Suicide And Federalism, Brian H. Bix Jan 2003

Physician-Assisted Suicide And Federalism, Brian H. Bix

Articles

The article considers the application of general theories of federalism (e.g., states as laboratories and competitive federalism) to the issue of physician-assisted suicide. The article also uses the analogies of same-sex marriage and medical marijuana to explore some of the moral and policy issues raised by this intersection of medical ethics and federalism.


Competence, Culpability, And Punishment: Implications Of Atkins For Executing And Sentencing Adolescents, Barry C. Feld Jan 2003

Competence, Culpability, And Punishment: Implications Of Atkins For Executing And Sentencing Adolescents, Barry C. Feld

Articles

The Supreme Court has explored the issues of culpability, proportionality, and deserved punishment most fully in the context of capital punishment. In death penalty decisions addressing developmental impairments and culpability, the Court has considered the cases of defendants with mental retardation and older adolescents, and has created an anomalous inconsistency by reaching opposite conclusions about the deserved punishment for each group of defendants. Recently, in Atkins v. Virginia, the Court relied on both empirical and normative justifications to categorically prohibit states from executing defendants with mental retardation. Atkins reasoned that mentally retarded offenders lacked the reasoning, judgment, and impulse control ...


Antitrust's Troubled Relations With Intellectual Property, Daniel J. Gifford Jan 2003

Antitrust's Troubled Relations With Intellectual Property, Daniel J. Gifford

Articles

Throughout most of the history of the antitrust laws, the relationship between antitrust laws and patent, copyright, and other intellectual property laws has been a subject of controversy. The courts have sometimes allowed intellectual property law to trump antitrust law, and at other times they have done the opposite. One would think that, given the over one-hundred-year period the Sherman Act has been on the books, the relationships between these two sets of laws would be settled by now. Yet, as recent litigation in the Federal, Ninth, and District of Columbia Circuits demonstrates, the antitrust/intellectual property interface remains as ...


A Review Of The Fifty-Fourth Session Of The Sub-Commission On The Promotion And Protection Of Human Rights, David Weissbrodt, Penny Parker, Laura Gerber, Muria Kruger, Joe W. (Chip) Pitts Iii Jan 2003

A Review Of The Fifty-Fourth Session Of The Sub-Commission On The Promotion And Protection Of Human Rights, David Weissbrodt, Penny Parker, Laura Gerber, Muria Kruger, Joe W. (Chip) Pitts Iii

Articles

No abstract provided.


Why (And How) Fairness Matters At The Ip/Antitrust Interface, Daniel A. Farber, Brett Mcdonnell Jan 2003

Why (And How) Fairness Matters At The Ip/Antitrust Interface, Daniel A. Farber, Brett Mcdonnell

Articles

This Article questions the widespread scholarly view that maximizing economic efficiency should be the sole goal of the intellectual property and antitrust laws. We propose that the law should also encourage a fair division of the economic surplus, at least by considering it as a tiebreaker when the dictates of economic efficiency are ambiguous or controversial. We begin by surveying some challenges that have been made to the theoretical underpinnings of exclusive reliance on economic efficiency, but go on to argue that, even on the terms of welfarism, some regard for distributive fairness is appropriate. First, since fairness is a ...


Ellman's "Why Making Family Law Is Hard": Additional Reflections, Robert Levy Jan 2003

Ellman's "Why Making Family Law Is Hard": Additional Reflections, Robert Levy

Articles

Not the least of the pleasures of membership in this distinguished group invited to praise Ira Ellman was the opportunity it gave me to renew old and dear friendships with Arizona State faculty members and their spouses, to come back to the scene of my "adjunct visitor" gig last year, to see once again an effective dean whom I greatly admire. More important, the occasion allows me to praise publicly a scholar whose creative thinking, academic writing, legislative drafting and public performances as Reporter for the American Law Institute's Principles of the Law of Family Dissolution I have long ...


What Were They Thinking? Fourth Amendment Unreasonableness In Atwater V. City Of Lago Vista, Richard Frase Jan 2003

What Were They Thinking? Fourth Amendment Unreasonableness In Atwater V. City Of Lago Vista, Richard Frase

Articles

In Atwater v. City of Lago Vista the Supreme Court upheld the arrest and jailing of a woman for a seat belt violation even though her offense was punishable only with a small fine, and there was no reason why the police officer could not have simply issued a citation. Atwater thus permits, and indeed encourages, unnecessary and disproportionate arrests (along with the various searches and other hardships which routinely accompany an arrest). The extremely broad arrest power recognized by the Court also creates a grave potential for abuse in light of the breadth of modern traffic laws (almost every ...


Revisiting The Black Hole Of Workplace Regulation: A Historical And Comparative Perspective Of Contingent Work, Stephen F. Befort Jan 2003

Revisiting The Black Hole Of Workplace Regulation: A Historical And Comparative Perspective Of Contingent Work, Stephen F. Befort

Articles

A dramatic shift in the nature of work relationships in the United States has occurred during the past two decades. Long-term employment constituted the predominant model of structuring work relationships well into the 1970s. Since then, American firms increasingly have resorted to a variety of non-traditional work arrangements. These new workers, frequently denominated the "contingent workforce," tend to have a weaker workplace affiliation and a lower expectation of long-term employment.'


Reasonable Accommodation And Reassignment Under The Americans With Disabilities Act: Answers, Questions, And Suggested Solutions After U.S. Airways, Inc. V. Barnett, Stephen F. Befort Jan 2003

Reasonable Accommodation And Reassignment Under The Americans With Disabilities Act: Answers, Questions, And Suggested Solutions After U.S. Airways, Inc. V. Barnett, Stephen F. Befort

Articles

The enactment of the Americans with Disabilities Act ("ADA") has triggered a series of explosions over the past decade. Although enacted with widespread support, the statute almost immediately spawned a deluge of litigation. This litigation explosion, coupled with the rather imprecise language of the statute, resulted in a startling diversity of judicial interpretation on a host of key ADA issues. These two phenomena, in turn, have led to a more recent explosion in ADA cases heard by the Supreme Court. In a brief span from 1998 to 2002, the Supreme Court issued no less than thirteen decisions interpreting the ADA ...


The Limitations Of Limited Liability: Lessons For Entrepreneurs (And Their Attorneys), John H. Matheson Jan 2003

The Limitations Of Limited Liability: Lessons For Entrepreneurs (And Their Attorneys), John H. Matheson

Articles

An entrepreneur does not start a new business expecting it to fail. Yet, according to various statistics, most independent start-up businesses fail within the first year, while as many as 90% are no longer in business after three years. This is why the issue of personal liability for the owners of the business is critical. Historically, the entrepreneur could protect personal assets by forming and operating the business as a corporation, recognized by state law as a legal entity separate from the owner of the business for purposes of imposing liability. Although operating a business as a corporation presumptively shields ...


The Economists' New Arguments, Brett Mcdonnell Jan 2003

The Economists' New Arguments, Brett Mcdonnell

Articles

Adam and Max, two law professors and longtime friends, have just run into each other at an Association of American Law Schools (AALS) meeting. Adam has long been a zealous partisan of the law and economics approach to legal analysis. Max, though he has some training in economics, is more skeptical about that approach. The two old friends have discussed various aspects of this subject over the years, and in this meeting they renew their discussion. The topic this time: Fairness Versus Welfare, 1 the new book (formerly a mammoth article in the Harvard Law Review) 2 by two leading ...


Human Rights Approach To Intellectual Property Protection: The Genesis And Application Of Sub-Commission Resolution 2000/7, David Weissbrodt, Kell Schoff Jan 2003

Human Rights Approach To Intellectual Property Protection: The Genesis And Application Of Sub-Commission Resolution 2000/7, David Weissbrodt, Kell Schoff

Articles

On August 17, 2000, the United Nations Sub-Commission on the Promotion and Protection of Human Rights (the Sub- Commission) adopted Resolution 2000/7, entitled Intellectual Property Rights and Human Rights .1 This resolution signified the Sub-Commission s belief that international intellectual property regimes were not adequately accounting for human rights norms.2 Resolution 2000/7 called on U.N. Member States, intergovernmental bodies, and various U.N. entities to reaffirm their commitments toward the achievement of international human rights norms, adopt a human rights approach to the development of international intellectual property regimes, and further study the interaction between intellectual ...


The Constitutional Tension Between Apprendi And Mckeiver: Sentence Enhancements Based On Delinquency Convictions And The Quality Of Justice In Juvenile Courts, Barry C. Feld Jan 2003

The Constitutional Tension Between Apprendi And Mckeiver: Sentence Enhancements Based On Delinquency Convictions And The Quality Of Justice In Juvenile Courts, Barry C. Feld

Articles

In Apprendi v. New Jersey, the Supreme Court ruled that any fact that increases the penalty for a crime “other than the fact of a prior conviction” must be submitted to a jury and proved beyond a reasonable doubt. Apprendi exempted the fact of a prior conviction from its holding because criminal defendants enjoyed a constitutional right to a jury trial at the time the state obtained that conviction which assured the accuracy and reliability of the prior record. By contrast, a plurality of the Supreme Court in McKeiver v. Pennsylvania denied juvenile delinquents a constitutional right to a jury ...


Norms On The Responsibilities Of Transnational Corporations And Other Business Enterprises With Regard To Human Rights, David Weissbrodt, Muria Kruger Jan 2003

Norms On The Responsibilities Of Transnational Corporations And Other Business Enterprises With Regard To Human Rights, David Weissbrodt, Muria Kruger

Articles

On August 13, 2003, the United Nations Sub-Commission on the Promotion and Protection of Human Rights approved the "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights" (Norms) 1 in its Resolution 2003/16. 2 The Norms represent a landmark step in holding businesses accountable for their human rights abuses and constitute a succinct, but comprehensive, restatement of the international legal principles applicable to businesses with regard to human rights, humanitarian law, international labor law, environmental law, consumer law, anticorruption law, and so forth.


State Interest And Marriage--The Theoretical Perspective, Brian H. Bix Jan 2003

State Interest And Marriage--The Theoretical Perspective, Brian H. Bix

Articles

By the conference description, we are to consider "the relationship of marriage and self-government." 2 It is hard to analyze the relationship of these two, because they are "moving targets." Everyone thinks they know what is meant by "marriage," but as the debate ensues about the extension (e.g., to same-sex couples) and modification (e.g., for covenant marriage rules) of marriage, and our social norms about the roles of parents (married or not) and spouses change, one might wonder how much is certain and agreed upon and how much is fluid and up for review and revision. 3


The Constitutional Underpinnings Of Homelessness, Ann Burkhart Jan 2003

The Constitutional Underpinnings Of Homelessness, Ann Burkhart

Articles

In Lindsey v. Normet, 1 the U.S. Supreme Court upheld a state wrongful detainer statute against tenants who withheld their rent after the Bureau of Buildings of Portland, Oregon declared their house to be uninhabitable. 2 In reaching its holding, the Court stated that it was "unable to perceive in [the Constitution] any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the terms of his lease without the payment of rent." 3 The Court did not address the separate ...


Judicial Supremacy And Its Discontents, Dale Carpenter Jan 2003

Judicial Supremacy And Its Discontents, Dale Carpenter

Articles

This is a remarkably quiet period in the public life of the Constitution. It is not a quiet time for constitutional law professors, of course, for whom there is always a crisis around the bend, a radical departure from fundamental values afoot, a usurpation of rights lurking. And there is certainly a lot of activity related to constitutional law, from the recent impeachment of President Clinton to judicial intervention in the election of 2000 to the creation of military tribunals to try suspected terrorists and enemy combatants. It is a quiet period, however, in the sense that there is remarkably ...


Getting Stuck Between Bottom And Top: State Competition For Corporate Charters In The Presence Of Network Effects, Brett Mcdonnell Jan 2003

Getting Stuck Between Bottom And Top: State Competition For Corporate Charters In The Presence Of Network Effects, Brett Mcdonnell

Articles

For decades, American legal scholars have debated over the implications of allowing corporations to choose in which state they will incorporate, irrespective of where they do business. Until recently the debate has centered almost exclusively on whether the managers who choose where to incorporate have incentive to choose a state whose laws favor managers to the disadvantage of shareholders (the "race to the bottom" thesis) or whether their incentives are to choose states whose laws treat shareholders properly (the "race to the top" thesis). Recently, some scholars have questioned whether the state charter competition process will necessarily lead to an ...


Race, Politics, And Juvenile Justice: The Warren Court And The Conservative "Backlash", Barry C. Feld Jan 2003

Race, Politics, And Juvenile Justice: The Warren Court And The Conservative "Backlash", Barry C. Feld

Articles

A century ago, the Progressive reformers who created the juvenile court embraced a particular ideological construction of childhood as one of innocence and vulnerability. They also adopted a scientific conception of social control - positive criminology - that attempted to identify the causes of criminality and purported to treat, rather than to punish, offenders. The juvenile court combined the new conception of childhood with the new strategies of positive criminology to create a judicial-welfare alternative to the adult criminal process for juveniles. The juvenile court affirmed the responsibility of families to raise their children while expanding the state's prerogative to act ...


Corporate Governance After Enron And Global Crossing: Comparative Lessons For Cross-National Improvement, 78 723 (2003), Edward S. Adams Jan 2003

Corporate Governance After Enron And Global Crossing: Comparative Lessons For Cross-National Improvement, 78 723 (2003), Edward S. Adams

Articles

This Article outlines and compares the corporate governance structures of the United States, Japan, Germany, and France. This outline and comparison is made with respect to past, present, and future characteristics and trends. As a cross-national study, it recognizes that the varying natures of differing legal, business, social, and cultural structures significantly affect the degree to which a country can implement changes to its corporate governance systems. This study includes the possibility that one country's corporate model might be inapplicable to another country. Some aspects of American capitalism, nevertheless, are slowly being adopted as improvements in Germany, France, and ...


The Antitrust/Intellectual Property Interface: An Emerging Solution To An Intractable Problem, Daniel J. Gifford Jan 2003

The Antitrust/Intellectual Property Interface: An Emerging Solution To An Intractable Problem, Daniel J. Gifford

Articles

The relationship of the antitrust laws to the patent, copyright and other intellectual property laws has perplexed antitrust scholars and practitioners since the beginning of the twentieth century. 1 The problems in reconciling the two legal areas arise from two, if related, sources. One problem lies in their purposes: the intellectual property laws are designed to create exclusive rights - exclusive rights that sometimes rise to the level of monopolies - in order to encourage innovation and creativity. The antitrust laws are designed to foster competition and to prevent the formation of monopolies. The other related problem is definitional; just how far ...


Filling In The Blank Spots On Powell's And Stegner's Maps: The Role Of Modern Indian Tribes In Western Watersheds, Charles Wilkinson Jan 2003

Filling In The Blank Spots On Powell's And Stegner's Maps: The Role Of Modern Indian Tribes In Western Watersheds, Charles Wilkinson

Articles

No abstract provided.


Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber Jan 2003

Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber

Articles

Criminal law scholarship is rife with analysis of the victims' rights movement. Many articles identify with the outrage of victims harmed by deviant criminal elements. Other scholarly pieces criticize the movement's denuding of defendants' constitutional trial rights. The point upon which proponents and opponents of the movement tend to agree, however, is that the victim should never be blamed for the crime. The helpless, harmed, innocent victim is someone with whom we can all identify and someone to whom we can all express sympathy. Victim blaming, by all accounts, is an act of legal heresy to feminists, victim advocates ...


Trust, Guilt, And Securities Regulation, Peter H. Huang Jan 2003

Trust, Guilt, And Securities Regulation, Peter H. Huang

Articles

This Article analyzes the importance of trust in securities investing and how guilt about breaching such trust has implications for securities regulation. Both U.S. federal securities laws and the regulations of the National Association of Securities Dealers impose high standards of professional conduct upon securities professionals. But exactly what are and should be the legal responsibilities of securities professionals remain the subject of much debate. In particular, courts disagree over when broker-dealers are fiduciaries of their clients. A legal consequence of a fiduciary relationship is a duty of fair dealing. This Article is the first to analyze the emotional ...


The Right To Receive Information, Susan Nevelow Mart Jan 2003

The Right To Receive Information, Susan Nevelow Mart

Articles

Ms. Mart examines the legal evolution of the right to receive information, particularly focusing on its application to libraries, beginning with the Supreme Court holding in Board of Education v. Pico, and followed by cases that have considered the meaning of Pico in a variety of library-related contexts.