Law Commons^™

Perceiving Imperceptible Harms (With Other Thoughts On Transitivity, Cumulative Effects, And Consequentialism), Donald H. Regan

Book Chapters

Many writers believe there can be cases which satisfy the following description: starting from an initial state of affairs, it is possible to make a series of changes, none of which alters the value of the state of affairs in any way, but such that the final state of affairs that results from the series of changes is worse than the initial state of affairs. I shall call the claim that there can be such cases the "ex nihilo" claim, since in a sense it asserts that the bad effects of the complete series of changes arise ex nihilo. Proponents …

Presidential Address: Contract Reading Revisited, Theodore J. St. Antoine

Book Chapters

A quarter century ago, in a presentation at the Academy’s annual meeting, I used the phrase “contract reader” to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body which has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: “What’s the big deal about contract reading, anyway? Isn’t it just the same as contract interpretation?” Or, more substantively scathing: “Do you really think, Ted, that all you have to do to interpret a labor agreement is to …

Concluding Thoughts: Bioethics In The Language Of The Law, Carl E. Schneider

Book Chapters

What happens when the language of the law becomes a vulgar tongue? What happens, more particularly, when parties to bioethical disputes are obliged to borrow in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings? How suited are the habits and tastes and thus the language of the judicial magistrate to the political, and more particularly, the bioethical, questions of our time? We must ask these questions because, as the incomparable Tocqueville foresaw, it has become American practice to resolve political—and moral—questions into judicial questions. We now reverently refer to the Supreme Court as the great …

Couples: Marriage, Civil Union, And Domestic Partnership, David L. Chambers

Book Chapters

In this country, during the last decades of the twentieth century, thousands of lesbians married other women and thousands of gay men married other men. Many of these couples recited traditional vows in churches and synagogues. Others have pledged to each other in their own backyards in words that they wrote themselves. But not one of these thousands of solemn occasions was recognized as creating a legally valid marriage. In the United States, each state has its own statute defining who can marry, and as far as the states were concerned, these couples were playing dress up. One state has …

Empty Moscow Stores: A Cautionary Tale For Property Innovators, Michael A. Heller

Book Chapters

Under socialism, governments stifled markets and often left store shelves bare. One promise of transition was that new entrepreneurs would acquire the stores, create businesses, and fill the shelves. 2 However, after several years of reform, storefronts often remained empty, while flimsy metal kiosks, stocked full of goods, mushroomed on Moscow streets (Rapaczynski 1996). Why did new merchants not come in from the cold? This chapter argues that even if the initial endowment of property rights were clearly defined, corruption held in check, and the rule of law respected (e.g., Gray, Hanson, and Heller 1992; Frydman and Rapaczynski 1994; Shleifer …

On The Meaning And Impact Of The Physician-Assisted Suicide Cases, Yale Kamisar

Book Chapters

I read every newspaper article I could find on the meaning and impact of the U.S. Supreme Court's June 1997 decisions in Washington v Glucksberg and Vacco v Quill. I came away with the impression that some proponents of physician-assisted suicide (PAS) were unable or unwilling publicly to recognize the magnitude of the setback they suffered when the Court handed down its rulings in the PAS cases.

Information, Decisions, And The Limits Of Informed Consent, Carl E. Scheider, Michael H. Farrell

Book Chapters

For many years, the heart's wish of bioethics has been to confide medical decisions to patients and not to doctors. The favoured key to doing so has been the doctrine of informed consent. The theory of and hopes for that doctrine are well captured in the influential case of Caterbury v. Spence: '[t]rue consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knoledgeably the options available and the risks attendant upon each'.

The Road To Glucksberg, Carl E. Scheider

Book Chapters

No abstract provided.

Making Biomedical Policy Through Constitutional Adjudication:The Example Of Physician-Assisted Suicide, Carl E. Scheider

Book Chapters

Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln's wish that the Constitution should "become the political religion of the nation" has been granted. "We now reverently …

Attempting To Ensure Fairness In The Glare Of The Media, Richard D. Friedman

Book Chapters

All legal systems worthy of credit have a commitment to achieving fairness between the parties to the litigation. In addition, common law legal systems have a longstanding commitment to openness in judicial proceedings. At the same time, and in part for the same reasons, they also have a longstanding commitment to freedom of expression. There is inevitably a tension among these three goals, because in cases of great public interest openness leads to publicity, and publicity may threaten or at least appear to threaten the fairness of a trial. In addition, sometimes publicity may create an intrusion on the lives …

Causation And Forseeability, Omri Ben-Shahar

Book Chapters

This chapter begins with a survey of the implicit role of causation in the writings of the early, pathbreaking economic analysts of tort law. It then clarifies the basic distinction between retrospective (ex post) causation and prospective (ex ante) causation, a distinction that forms the core of many subsequent economic discussions of causation. Next, the explicit role of causation doctrines in inducing optimal care and activity levels is examined under the strict liability and the negligence regimes. The analysis is then extended to cover several complications often plaguing the determination of causation: uncertainty over causation, joint actions among tortfeasors and …

The International Refugee Rights Regime, James C. Hathaway

Book Chapters

The origins of refugee rights are closely intertwined with the emergence of the general system of international human rights law. Like international human rights, the refugee rights regime is a product of the twentieth century. Its contemporary codification by the United Nations took place just after the adoption of the Universal Declaration of Human Rights, and was strongly influenced by the Declaration's nonnative structure. More fundamentally, however, the refugee rights regime draws heavily on the earlier precedents of the law of responsibility for injuries to aliens and international efforts to protect national minorities.

In this overview of the refugee rights …