Law Commons^™

Uses And Abuses Of Cyberspace, Andrew D. Murray

Professor Andrew D Murray

No abstract provided.

A New Look At Duty In Tort Law: Rehabilitating Foreseeability, And Related Themes, Alani Golanski

Alani Golanski

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist's Crystal Ball, Donald Stone

Donald H. Stone

This article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting and the 2011 shooting of Congresswoman Giffords have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This article will explore the misconception about the role medication and inpatient civil commitments should play in prevention of dangerousness and undermine the belief …

Emerging Economies After The Global Financial Crisis: The Case Of Brazil, Enrique Carrasco, Sean Williams

Enrique R Carrasco

Abstract Emerging economies have rebounded relatively quickly from the 2008 global financial crisis and, despite various challenges they face resulting from the European sovereign debt crisis, they face bright economic futures. While many observers have focused on China and India, Brazil is an emerging economy that has enjoyed increasing visibility. This article examines Brazil’s evolution into an emerging economy, or, given the market-based nature of the term, an emerging market economy (EME). After outlining the broadly accepted definition of an EME, we examine Brazil’s path towards becoming an EME, from the “pre-emergent” Brazil to its current status as an EME. …

Details: Specific Facts And The First Amendment, Ashutosh A. Bhagwat

Ashutosh Bhagwat

First Amendment theory and judicial decisions have traditionally focused their analysis primarily on the regulation and suppression of ideas, opinions, and advocacy. The great free speech disputes of the Twentieth Century have produced a robust body of law which, at least in the political sphere, gives very strong protection to such speech. But ideas and opinions are not the only sorts of information conveyed by speech. What about facts, and in particular, what about specific facts, what I call details? Cases such as New York Times v. Sullivan and its progeny discuss the proper treatment of false facts, but what …

Public Boarding Schools: Extending Educational Opportunity To Disadvantaged Children, Bret Asbury

Bret Asbury

It is beyond question that American public education is in crisis, and nowhere is the inadequacy of our current system more striking than in high-poverty, urban schools populated by disadvantaged minority students. Despite decades of legal, policy, and scholarly efforts aimed at addressing the challenges facing these schools, the academic prospects of poor students are currently as grim as they have been in recent memory. Reformers seeking to address this problem have largely focused on either reducing discrepancies in public school funding or altering public education from within by improving and modernizing classroom conditions. Almost all of these efforts have …

Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen

Don Stemen

In the American criminal justice system, prosecuting attorneys arguably enjoy broader discretion than any other system actor. Research, however, is beginning to show that prosecutorial discretion is not nearly as unconstrained as initially thought. Relying on in-depth interviews and surveys of prosecutors in two large urban/suburban county prosecutors’ offices, this article examines prosecutors’ decision making processes, exploring internal and external, formal and informal mechanisms that regulate prosecutors’ decision making. We find that prosecutorial discretion is constrained by several factors. Internal rules or policies within the prosecutor’s office often determine whether a case is accepted or rejected for prosecution, what the …

Mitigating The Effects Of An Economic Downturn On Charitable Contributions: Facing The Problem And Contemplating Solutions, Grace S. Lee

Grace S Lee

Charitable giving has been a foundation of American society almost since the nation began, but the issue of how such giving should be treated for tax purposes has been the subject of frequent debate. Scholars have proposed various theories explaining why the positive effects of this deduction on both donors and donees outweigh the negative impact on government coffers of this tax expenditure, although many still criticize certain features of the deduction in its current form. However, one area of this research that has been neglected is how the charitable sector is affected by changes to the economy at large. …

Expanding The Federal Common Law?: From Nomos & Physis And Beyond, Sam Kalen

Sam Kalen Mr.

The Supreme Court’s recent decision in AEP v. Connecticut, as well as a prominent Seventh Circuit case last year, reflect an emerging effort to test the federal judiciary’s willingness to expand the federal common law to include claims for interstate pollution. There is an assumption, including by the Supreme Court, that a federal common law for public nuisance exists, and that the pressing question is whether to expand that common law. Building on existing scholarship and a more thorough review of the cases than has occurred in the past, this article attempts to prompt a searching dialogue about the jurisprudential …

Embryo Disposition Agreements: The Effect Of Personal Autonomy, Constitutional Rights, And Public Policy On Enforceability, Damages, And Remedies, Nicholas Seger

Nicholas D. Seger

No abstract provided.

You Are Living In A Gold Rush, Richard Delgado

Richard Delgado

This article argues that our times, characterized as they are by dreams of vast wealth, environmental destruction, and growing social inequality, resemble nothing so much as earlier get-rich-quick periods like the Gilded Age and the California gold rush. I put forward a number of parallels between those earlier periods and now and suggest that the current fever is likely to end soon. This will come as a relief to those of you who, like me, deplore the regressive social policies, bellicose foreign relations, and coarsening of public taste that we have been living through—even if some of our more libertarian …

Outing-- And Ousting-- The "Hidden" Hyde: Toward Repeal And Replacement Of The Hyde Amendment, Rebecca Stewart

Rebecca K Stewart

Poorly crafted statutes have always created interpretive quandaries for judges and litigants, and these problems naturally tend to be exacerbated when substantive legislation is passed as a result of less than substantive legislative processes, such as through limitations riders to appropriations bills. However, these issues become vastly more troublesome when Congress intentionally subverts measures intended to restrain such processes. This Article examines the passage of one such rider, commonly known as the Hyde Amendment, exploring its origins and curious subtextual codification, and analyzing its life in the federal courts over more than a dozen years.

The Article argues that early …

Children, Chimps, And Rights Arguments From "Marginal" Cases, Richard Cupp

Richard L. Cupp Jr.

Are animals the new children regarding legal personhood and rights? Animal law is likely the fastest-growing course offering in United States law schools over the past decade. The core question in this subject is how close law should come to treating animals like humans, with the penultimate issue being whether animals should be granted legal personhood status and some legal rights. Most writers addressing this issue, including prominent scholars such as Cass Sunstein, Lawrence Tribe, Martha Nussbaum and Alan Dershowitz, have supported extending a legal rights paradigm to at least some animals. A thesis that is often called the “argument …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

Mark D. Rosen

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Reconciling Liberty And Equality In The Debate Over Preimplantation Genetic Diagnosis, Jessica Knouse

Jessica A. Knouse

This article draws on postmodern theory to develop a framework for analyzing situations in which liberty and equality appear to conflict. It uses the debate over non-therapeutic preimplantation genetic diagnosis (PGD) as an example. While PGD is, at present, almost entirely unregulated within the United States, there seems to be relative consensus that “therapeutic” or “medical” trait selection – e.g., selection against certain genetic and chromosomal disorders – should per permitted. There is, however, substantial disagreement as to whether “non-therapeutic” trait selection – e.g., selection based on parental preference for a particular sex, disability, eye color, hair color, or skin …

The Failure And Promise Of Equity In Domestic Abuse Cases, Jeffrey Baker

Jeffrey R Baker

In a generation, American law has experienced dramatic reforms in response to domestic abuse, including innovative criminal law enforcement schemes, liberalized divorce standards and civil protection orders. Feminist activism prompted and drove these reforms and related cultural understanding of domestic abuse, and they have yielded more effective legal options for victims of domestic violence. Virtually all of these reforms built upon existing structures to afford specific process and remedies to victims of domestic abuse, but why were innovations necessary if existing legal structures could have intervened on their own extant authority? Customary, common law equity might have intervened effectively to …

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

Sungjoon Cho

This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

Marching Across The Putative Black/White Race Line: A Convergence Of Narrology, History And Theory, Carol Zeiner

Carol Zeiner

When a woman in the South, whether African American or white, made the decision to become active in the U.S. Civil Rights Movement, she did so in the face of reprisals that ranged from loss of friends and alienation of relatives, to outright social ostracism, loss of employment for family members, physical harm and even violent death. Her choice exposed not only herself, but also members of her family, to those risks. She had to deal with the fear of not knowing which of those reprisals would come her way and, if she had children or were married, which of …

Writing Rights: Copyright’S Visual Bias And African American Music, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Copyright was first applied to words and was initially visual in orientation. Since the earliest copyright laws, copyright subject matter has progressively expanded from granting rights to protect written expression to other artistic arenas. Copyright law has, however, consistently undervalued the art of performance while favoring the written expression of music, which has had a profound impact on African American based musical forms, now a dominant basis for popular music. This paper examines the privilege of sight in copyright and the numerous ways in which copyright law systematically disfavors performance and suggests two possible explanations. First, copyright law seems to …

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

Down-Sizing The Little Guy Myth In Legal Definitions, Mirit Eyal-Cohen

Mirit Eyal-Cohen

What is “small” in the eyes of the law? In fact, there is not one standard definition. Current lax legal definitions of firm’s size are inconsistent and overinclusive. They result in data distortion that reinforces favoritism toward small entities as studies on the contribution of small business to the economy are greatly dependent on those studies’ delineation of the term “small.” Therefore, I argue that the current focus on size in legal definitions is a waste of time and money. In this time of huge deficits and rise in economic inequality, a lot of money is being spent based on …

Penny Wise But Pound Foolish In The Heartland: A Case Study Of Decriminalizing Domestic Violence In Topeka, Kansas, Shelley Santry

Shelley M. Santry

The Law And Economics Of Peripheral Labor: A Poultry Industry Case Study, Charlotte S. Alexander

Charlotte S. Alexander

Drawing on data and anecdotal accounts from a wide variety of sources, this Article investigates the law and economics of peripheral labor, so called because low wage, low skill workers on the periphery are excluded from the promotion ladders, job security, and steadily increasing pay available to supervisory and managerial workers in the core. Using the U.S. poultry industry as a case study, this Article describes the terms and conditions of peripheral poultry work: de-skilled jobs, low wages, lack of job security, and negligible prospects for promotion. Worker bargaining power is also highly constrained, as workers have little ability to …

The Benefits Of Capture, Dorit R. Reiss

Dorit R. Reiss

Observers of the administrative state warn against “capture” of administrative agencies and lament its disastrous effects. This article suggests that the term “capture”, applied to a close relationship between industry and regulator, is not useful—by stigmatizing that relationship, judging it as problematic from the start, it hides its potential benefits. The literature on “capture” highlights its negative results—lax enforcement of regulation; weak regulations; illicit benefits going to industry. This picture, however, is incomplete and in substantial tension with another current strand of literature which encourages collaboration between industry and regulator. The collaboration literature draws on the fact that industry input …

Transcending The Tacit Dimension: Patents, Relationships, And The Industrial Organization Of Technology Transfer, Peter Lee

Peter Lee

As a key driver of innovation and economic growth, university-industry technology transfer has attracted significant attention. Formal technology transfer, which encompasses patenting and licensing university inventions, is often characterized as proceeding according to market principles. According to this dominant conception, patents help commodify academic inventions, which universities then advertise and transfer to private firms in licensing markets.

This Article challenges and refines this market-oriented view of technology transfer. Drawing from empirical studies, it shows that effective technology transfer often involves long-term personal relationships rather than discrete market exchanges. In particular, it explores the significant role of tacit, uncodified knowledge in …

Brass Rings And Red-Headed Stepchildren: Protecting Active Criminal Informants, Michael L. Rich

Michael L Rich

Informants are valued law enforcement tools, and active criminal informants – criminals who maintain their illicit connections and feed evidence to the police in exchange for leniency – are the most prized of all. Yet society does little to protect active criminal informants from the substantial risks inherent in their recruitment and cooperation. As I have explored elsewhere, society’s apathy toward these informants is a result of distaste with their disloyalty and a concern that protecting them will undermine law enforcement effectiveness. This Article takes a different tack, however, building on existing scholarship on vulnerability and paternalism to argue that …

Promoting Social Change In Asia And The Pacific: The Need For A Disability Rights Tribunal To Give Life To The Un Convention On The Rights Of Persons With Disabilities, Michael L. Perlin

Michael L Perlin

ABSTRACT

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.

In Asia and the Pacific region, however, there is no such body. Although …

Literary Property And Copyright, Alina Ng

Alina Ng

Even when the first subject matter of copyright control was literary works, the specific rights of authors who produce these works had never been clearly articulated. Copyright laws have protected a statutory right to distribute the work to the public that may be broadly owned by both author and publisher while the common-law right of property over the work, which would have protected an author’s creative interest in the work, have been dismissed by the courts as a legitimate source of law. This paper examines literary property as a form of authorial rights, which authors may potentially have over works …

Reframing Roe: Property Over Privacy, Rebecca Rausch

Rebecca L. Rausch

Roe v. Wade has received much criticism from both sides of the political spectrum. Though the perspectives of the two camps differ significantly, players from each share at least one common critique of the landmark decision. Specifically, both sides are skeptical about the lack of an express Constitutional right to privacy, on which the Supreme Court in Roe based its decision to find a “fundamental” right to abortion. This lack of Constitutional context and legal history renders Roe vulnerable. In addition, pro-choice advocates find fault with the privacy basis because it yields no positive rights to funding or access support …

Moral Turpitude, Julia Simon-Kerr

Julia Simon-Kerr

This Article gives the first account of the moral turpitude standard, tracing its history from the early American law of defamation to evidence law, where it has been used for witness impeachment, and then to legal areas as diverse as voting rights, juror disqualification, professional licensing, and immigration law, where it is used as a collateral sanctioning mechanism. "Moral turpitude" was formalized as a legal standard by common law courts seeking a manageable test for slander per se. As the standard spread and was appropriated for use in other fields, it functioned as a standard that purported to judge character …