Law Commons^™

Physician Assisted Suicide: The Last Bridge To Active Voluntary Euthanasia, Yale Kamisar

Book Chapters

SOME 30 YEARS AGO an eminent constitutional law scholar, Charles L. Black, Jr, spoke of 'toiling uphill against that heaviest of all argumental weights- the weight of a slogan.' I am reminded of that observation when I confront the slogan the 'right to die.' Few rallying cries or slogans are more appealing and seductive than the 'right to die.' But few are more fuzzy, more misleading, or more misunderstood.

Advising The Neocapitalists, James J. White

Articles

I write to reflect on what American lawyers can and will do for these emerging free market economies. I am more skeptical than most.

Raiders Of The Lost Scrolls: The Right Of Scholarly Access To The Content Of Historic Documents, Cindy Alberts Carson

Michigan Journal of International Law

In Section I of this article, I will describe the events that led to the current controversy. In Section II, I will discuss whether the content of historic documents can be classified as cultural property. In Section III, I will consider whether control of the content of these documents interferes with intellectual freedom. In Section IV, I will discuss the intellectual property arguments raised by owners and interpreters of the Scrolls. Finally, in Section V, I will propose standards for access to, and preservation of, historic documents.

The World Trade Organization: A New Legal Order For World Trade?, Thomas J. Dillon Jr.

Michigan Journal of International Law

This article will describe in some detail the most dramatic modifications within the framework of the multilateral trading system designed to support the projected trade expansion, namely, the new organizational structure under the WTO and the new dispute settlement procedures. The article will evaluate these changes against the backdrop of the Bretton Woods System as originally conceived and will highlight the debate surrounding whether the nature of the trade regulating body ought to be adjudicatory or negotiatory. Finally, the author offers conclusions, perspectives, and comments regarding the future development of the world trading system.

Warranties Against Infringement In The Sale Of Goods: A Comparison Of U.C.C. § 2-312(3) And Article 42 Of The U.N. Convention On Contracts For The International Sale Of Goods, Joseph J. Schwerha Iv

Michigan Journal of International Law

Gone are the days of simple sales contracts. Today's corporate lawyers must have not only a substantial understanding of basic commercial law, but also of the related intellectual property law. Because of the shrinking global economy, such knowledge must rise to an international level.

Caught Between Rocks And Hard Places: The Plight Of Reinsurance Intermediaries Under U.S. And English Law, Stephen W. Schwab, Peter G. Gallanis, David E. Mendelsohn, Bradley V. Ritter

Michigan Journal of International Law

Accordingly, Part I of this article provides a review of the role intermediaries have played in the recent spate of insurance company insolvencies and an overview of intermediary rights and duties. Part II then progresses to a discussion of English intermediary law, analyzing how the general English rules apply to intermediaries when a cedent or reinsurer becomes insolvent. Part III addresses the same issues under U.S. law, tracing the most recent statutory developments from their cause and considering their effect on reinsurance transactions. This article concludes with a discussion of how English and U.S. law interact in reinsurance transactions, pointing …

Authors' Moral Rights In Non-European Nations: International Agreements, Economics, Mannu Bhandari, And The Dead Sea Scrolls, Jeffrey M. Dine

Michigan Journal of International Law

This note undertakes to examine authors' moral rights in non-European countries. Section I will provide a brief comparative description of moral rights. Section II will discuss the treatment of moral rights in the Berne convention and the TRIPS agreement. Section III will then examine moral rights law in India and Israel, and two important cases from these nations, Mannu Bhandari v. Kala Vikas Pictures from India, and Qimron v. Shanks, from Israel. Mannu Bhandari deals with an author's moral right in the film adaptation of her work, Qimron with the moral rights of a scholar in the reconstruction of one …

International Investment And The Prudent Investor Rule: The Trustee's Duty To Consider International Investment Vehicles, Stephen M. Penner

Michigan Journal of International Law

Part I of this note will begin with a background of trust and trustees, focusing on the historical development of the trust and the present role of the trustee. Part II presents the Prudent Investor Rule. The problems in trust management which lead to the necessity of the Rule will be explored, as will the evolution of the Rule up to the recent adoption by the American Law Institute of the Third Restatement of Trusts, which is devoted solely to the Prudent Investor Rule. In Part III, the various investment opportunities available to the modern investor will be presented, first …

Grotius Nunc Pro Tunch, Alfred P. Rubin

Michigan Journal of International Law

Review of A Normative Approach to War: Peace, War and Justice in Hugo Grotius (Yasuaki Onuma ed.)

International Ethics For A New Era: The Problem Of The Kind World Policeman, Fernando R. Tesón

Michigan Journal of International Law

Review of American Hegemony: Political Morality in a One-Superpower World by Lea Brilmayer

Towards Democracy In A New South Africa, Adrien Katherine Wing

Michigan Journal of International Law

Review of Constitutional Options for a Democratic South Africa: A Comparative Perspective by Ziyad Motala

The Grave Breaches System And The Armed Conflict In The Former Yugoslavia, Oren Gross

Michigan Journal of International Law

The system of grave breaches, established in the Conventions, is the focal point of the enforcement mechanism of international humanitarian law in general and of the Conventions in particular. It is therefore surprising that very little has been written to date about this system. This article is intended to fill that gap by discussing the repression -the prohibition, prosecution, and adjudication - of grave breaches of the Conventions. The article's main purpose is to chart and map the basic contours of the terrain of an area which despite its vast significance has not been adequately and systematically explored. It is …

Books Received, Michigan Journal Of International Law

Michigan Journal of International Law

List of books received by the Journal.

Advancing The Law Of Weapons Control - Comparative Approaches To Strengthen Nuclear Non-Proliferation, David S. Gualtieri, Barry Kellman, Kenneth E. Apt, Edward A. Tanzman

Michigan Journal of International Law

This article analyzes in-depth the SAGSI recommendation that more effective safeguards draw upon "the elements (including the managed access provisions) contained in Part X of the Verification Annex to the Convention on the Prohibition of Chemical Weapons.” SAGSI found that the Chemical Weapons Convention (CWC) offers approaches for verification and investigation that may be adaptable to the NPT.

Why Redraw The Map Of Africa: A Moral And Legal Inquiry, Makau Wa Mutua

Michigan Journal of International Law

The author argues in this Article that the post-colonial state, the uncritical successor of the colonial state, is doomed because it lacks basic moral legitimacy. Its normative and territorial construction on the African colonial state, itself a legal and moral nullity, is the fundamental reason for its failure. The author argues that, at independence, the West decolonized the colonial state, not the African peoples subject to it. In other words, the right to self-determination was exercised not by the victims of colonization but their victimizers, the elites who control the international state system.

The Holding Of Free And Fair Elections In Cambodia: The Achievement Of The United Nations' Impossible Mission, Nhan T. Vu

Michigan Journal of International Law

Part II of this paper will chart the historical background of the process that led up to the cease-fire and elections agreement. Part III will study various international instruments which guarantee the right to free and fair elections in order to determine the contours of the right as it exists today. In Part IV, this paper will look at the existing academic literature to give a more complete understanding of the requirements for a free and fair election. Part V of the paper will apply these standards to the elections in Cambodia and conclude that they were, in fact, free …

The Emptiness Of The Concept Of Jus Cogens, As Illustrated By The War In Bosnia-Herzegovina, A. Mark Weisburd

Michigan Journal of International Law

The aim of this article is neither to condemn departures from jus cogens nor to engage in verbal gymnastics designed to obfuscate the fact that the international community is treating or will treat "peremptory norms" as moralisms irrelevant in practical terms. Rather, this article seeks to show that the problem lies in the concept of jus cogens itself. More specifically, the article intends to make the case that the concept is intellectually indefensible - at best useless and at worst harmful in the practical conduct of international relations.

Lip Service To The Laws Of War: Humanitarian Law And United Nations Armed Forces, Richard D. Glick

Michigan Journal of International Law

This article concludes that the United Nations is bound by the rules of customary international humanitarian law, and occupies a horizontal relationship with the other subjects of IHL that it engages in armed conflict. When U.N. armed forces engage in armed conflict, the Organization qualifies as a "party to armed conflict" within the meaning of IHL, and U.N. troops also fall within the IHL definition of "combatants," rendering the Organization subject to IHL obligations. Continuing U.N. arguments to the contrary either deprive IHL definitions of their determinacy or regress to a claim of undeserved special status for Charter norms and …

Custom, Power, And The Power Of Rules, Michael Byers

Michigan Journal of International Law

This article begins by explaining briefly the differing perspectives which these two general categories of scholars - those who study international law and those who study international relations - have of international society generally, and of law and power more specifically. This article exposes the fact that power is an important but largely unnoticed subject of much international legal discourse and also canvasses attempts by international relations scholars to incorporate law into their understandings of power.

Helping The Grim Reaper: Oregon's Measure 16 And Three Court Cases Put Assisted Suicide On A Fast Track To Supreme Court, Yale Kamisar, N. Schuyler, T. Balmer

Articles

Last November, Oregon's voters passed by initiative the first physician-assisted suicide law in the nation. Measure 16 authorizes physicians to prescribe lethal medicaiton for competent, terminally ill adults if they make three separate requests, wait 15 days to reconsider, and get a second medical opinion of their prognosis. The new law was challenged immediately on several legal grounds; plaintiffs have won a preliminary injunction, and arguments have been scheduled in cross motions for summary jugement. Lee v. Oregon (D Or. No. 94-6467-ITO).

The Oregon court's decision will mark the fourth time in the past year that the once-obscure issue of …

Confrontation And The Utility Of Rules, Richard D. Friedman, Ronald J. Allen, Alex Stein, Roger C. Park, Margaret A. Berger, Nancy J. King, John Jackson, Eleanor Swift, Craig R. Callen, Eileen A. Scallen

Articles

There is a good reason why evidence scholars continue to be fascinated and perplexed, and some courts continue at least to be perplexed, by the types of evidence that tend to be lumped together misleadingly under the headings nonassertive conduct or implied assertions. Evidence of this sort highlights a paradox of the prevailing law of hearsay. I believe that this paradox cannot be resolved without fundamentally transforming the structure of that law. Thus, while I agree - within the current framework - with many of the insights so ably stated in this Symposium, I think evidence scholars must devote their …

Imagining Children's Rights, Suellyn Scarnecchia

Articles

Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …

The Romance Of Revenge: An Alternative History Of Jeffrey Dahmer's Trial, Samuel R. Gross

Articles

On Feb. 17, 1992, Jeffrey Dahmer was sentenced to fifteen consecutive terms of life imprisonment for killing and dismembering fifteen young men and boys. Dahmer had been arrested six months earlier, on July 22, 1991. On Jan. 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on Jan. 30. The jury heard two weeks of horrifying testimony about murder, mutilation and necrophilia; they deliberated for five hours before finding that Dahmer was sane when he committed thos crimes. After …

Strong Criticism Of The American System Of Trial By Jury, Yale Kamisar

Articles

I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization.

The Honest Scientist's Guide To Dna Evidence, Richard O. Lempert

Book Chapters

Thank you for your invitation to participate in the DNA symposium. As you know DNA has never been a prime research focus of mine, and I have been so preoccupied with my own work on ITPT (intertemporal personal transportation) that I thought I must decline. Happily, however, the two projects came together, for I recently had an amazing breakthrough during which by coincidence I stumbled across a book entitled A Century of DNA Testing and holocopied (a fancy form of Xeroxing) the following few pages for you.

The Intersections Of Articles 2 And 9: Recommendations For Clarification And Revisions, Richard E. Speidel, James J. White

Other Publications

Both Article 2, Sales and Article 9, Secured Transactions are under revision. The process of coordination is underway, but there is still much work to do. The following materials identify the major issues at the intersections and some tentative solutions. All references are to the 1990 Official Text of the Uniform Commercial Code unless otherwise stated. When stated, references are to the October, 1995 Draft of Article 2 and the July, 1995 Draft of Article 9.

Warranties And Remedies On Breach: Proposed Revision Of Article 2 And Related Proposals Concerning Products Liability Law, Richard E. Speidel, James J. White

Other Publications

The following materials contain (1) the warranty provisions, §§2-313 through 2-318, from the October, 1995 Draft of Revised Article 2, Sales, with selected Reporter's Notes; (2) Discussion questions on warranties; and (3) A comparison of Revised Article 2 and the ALl's Products Liability Restatement (Tent. Draft #2, March 13, 1995), with discussion problems.

The Warren Court And Criminal Justice: A Quarter-Century Retrospective, Yale Kamisar

Articles

Many commentators have observed that when we speak of "the Warren Court," we mean the Warren Court that lasted from 1962 (when Arthur Goldberg replaced Felix Frankfurter) to 1969 (when Earl Warren retired). But when we speak of the Warren Court's "revolution" in American criminal procedure we mean the Warren Court that lasted from 1961 (when the landmark case of Mapp v. Ohio was decided) to 1966 or 1967. In its final years, the Warren Court was not the same Court that had handed down Mapp or Miranda v. Arizona.

Reply To Comments On The Patentability Of Certain Inventions Associated With The Identification Of Partial Cdna Sequences, Rebecca S. Eisenberg, Robert P. Merges

Articles

A brief reply is in order to clarify our position on the patenting of research tools. We stand by the statement that "there are reasons to be wary of patents on research tools," but that statement should not be understood as a broad condemnation of patents on research tools in all contexts. Indeed, immediately after the cited language our opinion letter acknowledges that withholding patent protection from research tools could undermine private incentives to develop research tools and to make them available to investigators or lead to greater reliance on trade secrecy. Unlike the government, which purports to pursue patent …

Art Of Judgement In Planned Parenthood V. Casey, James Boyd White

Articles

This article was excerpted and abridged with permission from a chapter in Professor White's recent book Acts of Hope: Creating Authority in Literature, Law, and Politics. In the book, he explores the nature of authority in various cultural contexts. Here he examines the Joint Opinion in Planned Parenthood v. Casey, which has been attacked both from the right, on the grounds that it tried to keep Roe v. Wade alive, and from the left, on the grounds that it significantly weakens the force of that case. Professor White, by contrast, admires it greatly, and in this chapter explains …