Law Commons^™

Copyright For A Social Species, Robert E. Suggs

Faculty Scholarship

Arguments about the proper scope of copyright protection focus on the economic consequences of varying degrees of protection. Most analysts view copyright as an economic phenomenon, and the size and health of our copyright industries measure the success of copyright policies. The constitutional text granting Congress the copyright power and the nature of special interest lobbying naturally create this economic focus; but this is a serious mistake. An exclusively economic focus makes no more sense than measuring the nutritional merits of our food supply from the size and profitability of the fast food industry.

The expressive culture that copyright protects …

Fraud Is Fun: Or How A Foreclosure Rescue Scam Changed My Life, Peter A. Holland

Faculty Scholarship

No abstract provided.

Book Review: The Iraq War And International Law, Maxwell O. Chibundu

Faculty Scholarship

A review of The Iraq War and International Law edited by Phil Shiner and Andrew Williams. Oxford, Hart Publishing, 2008.

The Google Book Search Settlement: Ends, Means, And The Future Of Books, James Grimmelmann

Faculty Scholarship

For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site--you couldn't read the books, but you could at least find out where the phrase you're looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

The settlement …

How To Fix The Google Book Search Settlement, James Grimmelmann

Faculty Scholarship

The proposed settlement in the Google Book Search case should be approved with strings attached. The project will be immensely good for society, and the proposed deal is a fair one for Google, for authors, and for publishers. The public interest demands, however, that the settlement be modified first. It creates two new entities—the Books Rights Registry Leviathan and the Google Book Search Behemoth—with dangerously concentrated power over the publishing industry. Left unchecked, they could trample on consumers in any number of ways. We the public have a right to demand that those entities be subject to healthy, pro-competitive oversight, …

An Introduction To Social Choice, Maxwell L. Stearns

Faculty Scholarship

Social choice studies the differing implications of the concept of rationality (or transitivity) for individuals versus groups under specified conditions and the significance of these differences in various institutional decision making contexts. This introductory chapter on social choice for the Elgar Handbook on Public Choice (Elgar Publishing Company, Dan Farber and Anne O’Connell, editors), introduces the basic framework of social choice, considers the implications of social choice for various legal and policy contexts, and provides a framework for evaluating a range of normative proposals grounded in social choice for reforming lawmaking institutions. After a brief introduction, part II introduces the …

Developing A New Model Of Support And Empowerment To Families In Need: Overcoming Historic And Ethical Barriers To Interdisciplinary Practice, Deborah J. Weimer

Faculty Scholarship

This article will briefly describe the history that has led to the present disconnect between social workers and lawyers, the ethical rules that have been perceived as a barrier to effective interdisciplinary practice, including rules about lawyer independence, defining who the client is and mandated reporting of child abuse and neglect. It identifies the importance of advance planning in structuring a truly interdisciplinary practice and anticipating and addressing ethical issues. And it describes the benefits to clients as well as social work and law students of engaging in interdisciplinary practice.

Pick Your Poison: Responses To The Marketing And Sale Of Flavored Tobacco Products, Kathleen Hoke Dachille

Faculty Scholarship

This law synopsis explores legal approaches for addressing the marketing and sale of flavored tobacco products to youth.

The Globalization Of Environmental Law, Robert V. Percival

Faculty Scholarship

Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public/and domestic/international distinctions. The result has been the emergence of a kind of “global environmental law”-law that is neither …

Marriage, Property And [In]Equality: Remedying Erisa's Disparate Impact On Spousal Wealth, Paula A. Monopoli

Faculty Scholarship

Congress is considering pension reform in the wake of the tremendous loss in market value of retirement plans during the current recession. This article suggests that this is a historic moment to remedy a previously unidentified, unintended but profound gender disparity embedded in the federal law governing retirement plans in this country. It explores the common perception that while contemporary law and policy aim to facilitate equality within marriage, including in the area of property ownership, embracing equitable distribution in reallocating property upon divorce, the Employment Retirement Income Security Act’s (ERISA) structuring of retirement asset accumulation runs counter to this …

International Law, Human Rights And The Transformative Occupation Of Iraq, Peter G. Danchin

Faculty Scholarship

This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the Iraqi occupation in light of two competing sensibilities in international legal argument. On one view, which I term “legal formalism”, the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations Charter which posits both the subject of international law and its liberty in formal terms …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Faculty Scholarship

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

Judging The Judges - Daytime Television's Integrated Reality Court Bench, Taunya Lovell Banks

Faculty Scholarship

Critics of reality daytime television court shows remain divided over whether the possible educational benefits of these shows outweigh their distorted images of judicial proceedings. .... few pay much attention to the shifting demographics of the reality court judges.... In 2008, women judges outnumber their male counterparts.... four judges are Latina/o and another four are black. Only Judy Sheindlin of Judge Judy, the best known and most popular reality court judge, and David Young of Judge David Young, an openly gay man, are white. There are no Asian American judges on reality court shows...., nevertheless, the judicial world of daytime …

Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee

Faculty Scholarship

Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party’s unilateral decision or both parties’ mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …

Making Decisions About Our Animals' Health Care: Does It Matter Whether We Are Owners Or Guardians?, Susan J. Hankin

Faculty Scholarship

A great deal of opposition has been mounted against legislation that changes the language describing the relationship between people and their animals from “owner” to “guardian.” One of the primary arguments focuses on the claim that pet “guardians” might be faced with more limited health care choices for their pets. Behind these arguments is the premise that no one should interfere with an owner’s authority to make decisions for her animal’s health care. However, state and local laws that change the designation from pet “owner” to “guardian” will not, as opponents have argued, affect in any way our ability to …

Students Schooling Students: Gaining Professional Benefits While Helping Urban High School Students Achieve Success, Susan P. Leviton, Justin A. Browne

Faculty Scholarship

This article looks at the educational plight of urban low income children and explores the opportunities for success that small urban high schools provide. It then distills commonalities among successful small schools to demonstrate three central points: 1) that small is essential but not sufficient; 2) that small schools offer an opportunity for urban school districts to help improve educational opportunities for disadvantaged students by providing a fertile environment where individualized instruction, more class time, better-trained teachers, and a curriculum that prepares students psychologically and emotionally, as well as intellectually can help them overcome the adverse effects of poverty; and …

Dr. King And The Battle For Hearts And Minds, Wendy B. Scott

Faculty Scholarship

In 1954, a unanimous Supreme Court held that laws requiring dual public school systems, separated solely on the basis of race, violated the rights afforded to African American children under the Fourteenth Amendment Equal Protection and Due Process clauses. Brown v. Board of Education marked the beginning of a judicial assault on what the Court in Loving v. Virginia called statutory schemes and state court decisions that served as “an endorsement of the doctrine of White Supremacy.” Both Chief Justice Earl Warren and Dr. King recognized that the practice of White Supremacy did more than keep people separated. In Brown, …

Putting Community Equity In Community Development: Resident Equity Participation In Urban Redevelopment, Barbara Bezdek

Faculty Scholarship

The special concern of this paper is to recalibrate the benefits and burdens of public-private partnerships as they remake inner city neighborhoods, by braking the rate at which urban land is being reclaimed from low-wealth residents by local government practices to disperse occupants, sweeping aside their tangible and intangible capital. Public oversight requirements have not kept pace with the dispossession, yet the costs that these development decisions impose on the social fabric of communities rend the shared networks necessary to residents’ abilities to meet basic social needs. This destruction of low-wealth communities is a form of equity-stripping, produced by local …

Indigenous Peoples And The Law - Ancient Customs: Modern Dilemmas, David S. Bogen

Faculty Scholarship

Indigenous people have a variety of complex relationships to law in nations such as Australia, Canada, New Zealand and the United States where non-indigenous people constitute the majority of the population. Customary law has been recognised in each of these nations as a source of domestic law, but this recognition has created various tensions. For instance, Native Title looks to customary law for its definition, but non-indigenous society demands that Native Title be managed by modern Indigenous institutions created under non-indigenous law. Issues of federalism and international law influence the interaction of Indigenous and non-indigenous law against a background of …

Outsider Citizens: Film Narratives About The Internment Of Japanese Americans, Taunya Lovell Banks

Faculty Scholarship

This article examines the conflicting film narratives about the internment from 1942 through 2007. It argues that while later film narratives, especially documentaries, counter early government film narratives justifying the internment, these counter-narratives have their own damaging hegemony. Whereas earlier commercial films tell the internment story through the eyes of sympathetic whites, using a conventional civil rights template … Japanese and other Asian American documentary filmmakers construct their Japanese characters as model minorities — hyper-citizens, super patriots. Further, the internment experience remains largely a male story. With the exception of Emiko Omori’s documentary film memoir, Rabbit in the Moon (2004), …

Rebuilding The Slaughter-House: The Cases' Support For Civil Rights, David S. Bogen

Faculty Scholarship

The Slaughter-House Cases have a bad reputation for good reason. Justice Miller’s narrow reading of the Privileges or Immunities Clause was used to prevent the federal government from adequately protecting African-Americans after the Civil War. Further, his opinion for the Court significantly delayed the application of the Bill of Rights to the states. But no one knows whether the world would be better with a different decision, because counter-factuals are never certain. The case did not involve either racial discrimination or incorporation, and total condemnation of the opinion for weakening civil rights misses its context and misreads its design. This …

Law's Expressive Value In Combating Cyber Gender Harassment, Danielle Keats Citron

Faculty Scholarship

The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women’s home addresses alongside suggestions that they should be sexually assaulted and technological attacks that shut down blogs and websites. It impedes women’s full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women’s experience, deeming it harmless teasing that women should expect, and tolerate, given the Internet’s Wild West norms …

Laboratories Of Destitution: Democratic Experimentalsim And The Failure Of Antipoverty Law, David A. Super

Faculty Scholarship

Democratic experimentalism, the procedural component of the “new governance” movement, has won widespread acceptance in calling for decentralization, deliberation, deregulation, and experimentation. Democratic experimentalists claim that this approach offers pragmatic solutions to social problems. Although the democratic experimentalist movement formally began only a decade ago, antipoverty law has reflected its major principles since the 1960s. This experiment has gone badly, weakening antipoverty programs. Key elements of this participatory approach to antipoverty law – decentralization, privatization, and the substitution of ad hoc problemsolving for individual rights – all contributed to the calamity that low-income people suffered during and after Hurricane Katrina. …

James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark A. Graber

Faculty Scholarship

James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …

Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber

Faculty Scholarship

Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that desperately needs repairs. “[R]elying on the present Constitution.” he writes, “is similar to driving a car with very bad brakes and slick tires.” Much commentary on Our Undemocratic Constitution implicitly challenges the automotive metaphor. The Constitution of the United States, supporters profess, is not really as bad as Levinson would have us believe. The following pages take a road less traveled. Ancient constitutional institutions in the United States are suffering from severe wear and tear. Nevertheless, decisions to drive a comparatively unsafe car are often …

Dispute Resolution And The Post-Divorce Family: Implications Of A Paradigm Shift, Jana B. Singer

Faculty Scholarship

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family disputes – particularly disputes involving children. This paradigm shift has replaced the law-oriented and judge-focused model of adjudication with a more collaborative, interdisciplinary and forward-looking family dispute resolution regime. It has also transformed the practice of family law and fundamentally altered the way in which disputing families interact with the legal system. This essay examines the elements of this paradigm shift in family dispute resolution and explores the opportunities and challenges it offers for families, children and the legal system.

For Both Love And Money: Viviana Zelizer's "The Purchase Of Intimacy", Martha M. Ertman

Faculty Scholarship

Viviana Zelizer’s recent book, The Purchase of Intimacy (2005) presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships--a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer’s critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships, then explains her more three-dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer’s approach to transfers of genetic material, and concluding …

Whose Public? Which Law? Mapping The Internal/External Distinction In International Law, Peter G. Danchin

Faculty Scholarship

This chapter challenges and problematizes the convergence thesis between sovereignty and human rights which is argued to rest on only a partial understanding of the liberal tradition in international law, a position commonly referred to as “liberal anti-pluralism.” While relying on a contingent and thus contestable conception of individual autonomy, liberal anti-pluralist accounts do not in fact seek to challenge the rationale for public law or public reason itself. To the contrary, such accounts advance a vision of “universal” or “global” social order governed by a “neutral” public law which limits the freedom of its subjects pursuant to the single …

Equality And Sorority During The Decade After Brown, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

The Universal Declaration And Developments In The Enforcement Of International Human Rights In Domestic Law, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.