Law Commons^™

Re-Membering Law In The Internationalizing World, Vivian Grosswald Curran

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This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community's inability to process common law information through civil law cognitive grids. The article addresses both the capacity …

Solving The Digital Piracy Puzzle: Disaggregating Fair Use From The Dmca's Anti-Device Provisions, Jacqueline D. Lipton

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Copyright law has always involved balancing creative pursuits against innovations in copying, distribution and, more recently, encryption technologies. A significant problem for copyright law is that many such technologies can be utilized for both socially useful and socially harmful purposes. It is difficult to regulate such technologies in a way that prevents social harms while at the same time facilitating social benefits. The most recent example of this dynamic is evident in the 2005 United States Supreme Court decision in MGM v Grokster - dealing with digital file-sharing technologies. This article draws from the file sharing debate in considering another …

The Lugano Case In The European Court Of Justice: Evolving European Union Competence In Private International Law, Ronald A. Brand

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On October 19, 2004, the European Court of Justice held its first en banc hearing since the 2004 enlargement to twenty-five Member States. The case was Opinion 1/03, involving a request by the Council of the European Union on whether the Community has exclusive or shared competence to conclude the Lugano Convention. While the case on its face deals only with a single convention, it has far broader implications and is likely to influence the development of private international law and private law on a Community level for years to come. This brief article traces the origins of the issues …

Gideon In White/Gideon In Black: Race And Identity In Lawyering, Anthony V. Alfieri

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No abstract provided.

Punitive Damages Revisited: Taking The Rationale For Non-Recognition Of Foreign Judgments Too Far, Ronald A. Brand

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Punitive damages have been a controversial aspect of U.S. law; often criticized both at home and abroad. Neither U.S. law on punitive damages nor the foreign climate regarding their reception has remained static. This article notes the continuing legislative attack on punitive damages in the United States at both the state and federal level, and focuses on recent developments in case law and treaty negotiations concerning the reception of punitive damages abroad.

Federalism And The Allocation Of Sovereignty Beyond The State In The European Union, Ronald A. Brand

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Any discussion of federalism necessarily runs headlong into concepts of sovereignty, with both terms being subject to Tocqueville's statement that, in discussing federalism, "the human understanding more easily invents new things than new words." Thus, just as systems previously considered to have been "federal" at the dawn of the United States of America were something much different from what was developed for our nation at that time, so is the "federal" system of today's United States different from anything to which we make comparisons.

This article reviews a paper by Professor Peter Tettinger's, and extends his analysis. As Professor Tettinger …

The Role Of Foreign Languages In Educating Lawyers For Transnational Challenges, Vivian Grosswald Curran

Articles

In a world in which every other country seems intent on teaching English to their youth, and in which the United States educational system does not place a high priority on teaching foreign languages, the American law student, dean and professor may doubt if foreign language knowledge is anything more than marginally helpful to law graduates. Similarly, educators at the primary school level may not be likely to assess foreign language education as warranting a greater allocation of scarce public resources.

The usefulness of foreign languages to the United States lawyer gradually has been gaining increased recognition in the profession, …

European Union's New Role In International Private Litigation, Ronald A. Brand

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No abstract provided.

Rewriting Fair Use And The Future Of Copyright Reform, Michael J. Madison

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This Essay describes a social practices approach to the production of creative expression, as a construct to guide reform of copyright law. Specifically, it reimagines copyright's fair use doctrine by basing its statutory text explicitly on social practices. It argues that the social practices approach is consistent with the historical development of the fair use doctrine and with the policy goals of copyright law, and that the approach should be recognized in the text of the statute as well as in judicial applications of fair use.

Forces Shaping The Law Of Cohabitation Of Opposite Sex Couples, Margaret Mahoney

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Concerns about the institution of marriage have worked to slow the development of a legal status for unmarried, opposite sex couples in the United States. Many forces have shaped the development of law in this field. First, historically, in our Anglo-American tradition, non-marrital cohabitation was viewed as immoral and socially unacceptable. This viewpoint found expression, for example, in widely enacted state criminal cohabitation statutes.

The first Part of this Article focuses on the criminal regulation of unmarried cohabitation, highlighting its present day ramifications for unmarried couples. Notably, state lawmakers have repealed the criminal cohabitation statutes in all but a handful …

Emote Control: The Substitution Of Symbol For Substance In Foreign Policy And International Law, Jules Lobel, George Loewenstein

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Historical perspectives, as well as recent work in psychology, converge on the conclusion that human behavior is the product of two or more qualitatively different neural processes that operate according to different principles and often clash with one another. We describe a specific 'dual process' perspective that distinguishes between deliberative and emote control of behavior. We use this framework to shed light on a wide range of legal issues involving foreign policy, terrorism, and international law that are difficult to make sense of in terms of the traditional rational choice perspective. We argue that in these areas, the powerful influence …

Law As Design: Objects, Concepts, And Digital Things, Michael J. Madison

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This Article initiates an account of things in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of …

The Fourth Amendment And Terrorism, John Burkoff

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The important questions we need to ask and to answer B in the perilous times in which we live B is whether the Fourth Amendment applies in the same fashion not just to run of the mill criminals, but also to terrorists and suspected terrorists, individuals who are committing or who have committed B or who may be poised to commit B acts aimed at the destruction of extremely large numbers of people? Professor Burkoff argues that we can protect ourselves from cataclysmic threats of this sort and still maintain a fair and objective application of Fourth Amendment doctrine that …

Dimensions Of Equality In Regulating Assisted Reproductive Technologies, Mary Crossley

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Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that …

Discrimination Against The Unhealthy In Health Insurance, Mary Crossley

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As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short, …

Detroit Area Study On Financial Services: What? Why? How?, Michael S. Barr

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The following article is based on a talk give by Assistant Professor of Law Michael S. Barr to the University of Texas Law School-Harvard Law School Joint Conference on Commercial Law Realities in Austin, Texas, in April. Barr was selected by the University of Michigan’s Institute for Social Research, Survey Research Center to be the faculty investigator for the Detroit Area Study, which the University has conducted for more than 50 years. Barr is using the study to explore the financial services needs of low- and moderate-income households, building on his groundbreaking analysis in Banking the Poor. Barr raised a …

Credit Where It Counts: The Community Reinvestment Act And Its Critics, Michael S. Barr

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Despite the depth and breadth of U.S. credit markets, low- and moderate-income communities and minority borrowers have not historically enjoyed full access to credit. The Community Reinvestment Act (CRA) was enacted in 1977 to help overcome barriers to credit that these groups faced. Scholars have long leveled numerous critiques against CRA as unnecessary, ineffectual, costly, and lawless. Many have argued that CRA should be eliminated. By contrast, I contend that market failures and discrimination justify governmental intervention and that CRA is a reasonable policy response to these problems. Using recent empirical evidence, I demonstrate that over the last decade CRA …