Law Commons^™

Note On The Desert Theory Paper - 1986, Wendy J. Gordon

Scholarship Chronologically

The desert theory paper may be recast under the title: “The Misappropriation Explosion: Desert Theory in Intellectual Property Law” or “Desert Theory Misapplied.”

Letter To Bruce Ackerman, Wendy J. Gordon

Scholarship Chronologically

I shall be heading back to Rutgers for classes shortly, and I'm sending you a draft of the "Copyright and Copy-privilege" piece in the hope of receiving some additional comments before I enter into the final "polishing" stages later this month. As you know from my last note, the suggestions you made have proved extremely useful -- the title is the least of it. Among other things, your suggestions for reorganization led, indirectly, to a way of unifying the piece on copyright and contract with another piece I've been working on, regarding copyright and tort. I'm very pleased with the …

Made In The U.S.A.: Legal And Ethical Issues In Artificial Heart Experimentation, George J. Annas

Faculty Scholarship

The death of William Schroeder in Louisville, Kentucky, on August 6, 1986, brought to a close a remarkable chapter in public human experimentation. Artificial heart implants represent the most public experiments in the history of the world. The manner in which they are conducted is a matter of utmost public and professional concern, since it graphically portrays the seriousness with which we take our laws and ethical rules regarding the protection of the rights and welfare of human subjects. Unfortunately, the brief history of artificial heart implants is neither a happy nor a proud one. Begun with high hopes and …

Ethics Of Embryo Research: Not As Easy At It Sounds, George J. Annas

Faculty Scholarship

Mark Twain once said of Wagner's music, "It's not as bad as it sounds." Likewise, it may be said of Peter Singer and Helga Kuhse's stroll through the issues involving embryo research: "It's not as easy as it sounds."

Today it seems clear that Aldous Huxley's version of a Brave New World is much closer to the mark than George Orwell's 1984. We will not have to be dragged into a technologically dominated future by a totalitarian government; we will go willingly, cheering almost any change as "better" and accepting science as always "improving" on nature. This childlike faith …

Letter To Professor Bruce Ackerman, Wendy J. Gordon

Scholarship Chronologically

As I said in my last note, your suggestions for the "Copyright and Copy-privilege" paper have proven extremely valuable. (The title is the least of it.) The reorganization you suggested has allowed the paper to blossom, and I'm extremely pleased with the results.

Letter To Professor Eric Neisser, Wendy J. Gordon

Scholarship Chronologically

It was good talking to you. As you know, I gained a great deal from the initial conversations with you and Jon on the Daniels/Davidson issue, and I appreciate your willingness to provide more feedback.

Letter To Prof. John Hyman Re: Daniels/Davidson Article, Wendy J. Gordon

Scholarship Chronologically

It was good talking to you. As I said, I profited a great deal from our initial conversations on the Daniels/Davidson issue, and I appreciate your willingness to be provide more feedback.

Draft Of Justice Rehnquist's Commitment To The Court And Its Implications - 1986, Wendy J. Gordon

Scholarship Chronologically

This Article will analyze the course to which Rehnquist seems to have committed the court, and examine its implications. Rehnquist starts with a notion of deliberateness (a federal concept that he draws out of the notion of deprivation) On its face, this seems to call for a new federal common law of torts.

Draft Of The Constitutionalization Of Intentional Torts - 1986, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court has often faced the question of whether an individual who alleges that he has been injured by a state or local official or by a local governmental entity, can bring a constitutional tort action under section 1983 when state doctrines of sovereign or official immunity would make it impossible for the individual to prosecute an ordinary tort suit in the relevant state court. The Court has consistently held that when an official violates a substantive provision of the Constitution, only an immunity that is consistent with the purpose of section 1983 and the Consitution can be tolerated.

Draft Of The Intent In Private Tort Law - 1986, Wendy J. Gordon

Scholarship Chronologically

These points can be best understood by bifurcating "intent" into its two components: state of mind (advertence) and the object to which the defendant's state of mind is directed.

Draft Of The Incoherence Of Intentional Torts And Section 1983 - 1986, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court has often faced the question of whether a person who alleges that a state or local official has caused him injury, can bring a constitutional tort action under section 1983 when the state doctrine of sovereign or official immunity makes it impossible for the injured person to prosecute an ordinary tort suit in the relevant state court.

Note On Materials For Arfuller - 1986, Wendy J. Gordon

Scholarship Chronologically

1/18/86 draft of "Towards a Unified Theory"

Note On General Conclusion - 1986, Wendy J. Gordon

Scholarship Chronologically

The burden of the first part of this paper has been to suggest that tort law provides us no self-justifying notion of "wrongs" by which we can allocate rights and duties. The burden of the second part of this paper has been to suggest that contract law's notion of "consent" is similarly unable to provide justification for any particular system of rights. How would one go about constructing a theory by which to evaluate whether a given property system could be justified? A full answer to that question is surely outside the scope of this paper, but some basic points …

Note On Re Article On Definition Of Tort/Property - 1986, Wendy J. Gordon

Scholarship Chronologically

Some distinctions in the law are fairly clear. For example, we seem to think that bad actions deserve to be punished, actions which are not personally blameworthy should not be punished, and that injuries to innocent persons should be compensated. But there are many instances in which these two goals cannot be simultaneously served. There we partially separate them, placing each in its own primary area of law. For those instances in which a bad action occurs and no one is injured, the criminal law has a remedy (the law of attempts). For those instances in which an innocent party …

Lecture Material For Advanced Torts - 1986, Wendy J. Gordon

Scholarship Chronologically

This assumes. of course, the defendant wants a speedy trial and is not intentionally hindering the Government's attempt to provide one. That assumption may be open to question in this case. The majority points out that respondents' strategically timed demands (or a speedy trial run somewhat hollow in light of respondents; overall behavior during the litigation.

Access To Health Care And Equal Protection Of The Law: The Need For A New Heightened Scrutiny, Wendy K. Mariner

Faculty Scholarship

Proposals to reduce national expenditures for health care under Medicare and other programs raise questions about the limits on legislative power to distribute health care benefits. The constitutional guarantee of equal protection has been a weak source of protection for the sick, largely because they fail to qualify for special scrutiny under traditional equal protection analysis. Recent decisions of the United States Supreme Court suggest that the Justices seek a newer, more flexible approach to reviewing claims of unequal protection. This Article examines the application of the equal protection guarantee to health-related claims. It argues that traditional equal protection analysis …

Prospective Payment For Hospital Services: Social Responsibility And The Limits Of Legal Standards, Wendy K. Mariner

Faculty Scholarship

The author advances the argument that Diagnosis Related Groups (DRGs) should be recognized as a health care resource allocation technique. In addition, the author offers four societal goals as a gauge for measurement of DRG performance and reviews the incentives and disincentives connected with utilization of DRGs in health care allocation. Finally, the author examines the dichotomous attitudes toward health care distribution which are present in society today. The author's primary goal is to illustrate the potential inequities which could result from allowing DRGs to force allocation of health resources without any reference to social responsibility issues.

Conflicts-Of-Interest Disqualification In Medical Malpractice Litigation, George J. Annas

Faculty Scholarship

Less than two decades ago it was thought sufficient to say, "When a practitioner is in doubt on an ethical question, the best answer is usually No." A more recent commentator has suggested, however, that "[s]uch platitudes have become increasingly inadequate to guide the attorney facing conflicts of interests in the private practice of law." Because of the general vagueness of the American Bar Association's Model Code of Professional Responsibility, and of state codes based on it, courts have begun to fashion a vast "common law" of conflicts of interest A particularly controversial entry to this body of common law …

Crises? What Crisis?, Jack M. Beermann

Faculty Scholarship

Bureaucracy is a favorite target for criticism from the left and the right. Bureaucratization of an organization is claimed to cause excessive reliance upon rigid rules or the absence of rules altogether.' Few people want to be part of a large bureaucracy and fewer still want to depend on a bureaucracy for important benefits or policymaking. In recent years, the business of the federal judiciary has increased dramatically. Congress has attempted to meet the rising caseload by increasing the number of federal judges and assistants. As the federal court system becomes more and more like administrative bureaucracies, the question has …

Separation Of Political Powers: Boundaries Or Balance, Alan L. Feld

Faculty Scholarship

One of the most significant structural elements of the United States Constitution divides the political power of the government between two discrete political institutions, the Congress and the President, in order to prevent concentration of the full power of the national government in one place. This governmental structure has posed a continuing dilemma of how to allow for the shared decisionmaking necessary to effective government while maintaining the independence of each political branch. As the United States Congress reaches its two hundredth anniversary, questions concerning the relationship between Congress and the President, for a substantial time thought by legal scholars …

Symposium: The Internationalization Of The Securities Markets--Introduction, Tamar Frankel

Faculty Scholarship

This symposium on international trading in securities was the brain child of William Schwartz, Dean of the Boston University School of Law, and John J. Phelan, President of the New York Stock Exchange. The idea was implemented by Donald L. Calvin, Executive Vice President of the New York Stock Exchange, and myself, with the staff and students of Boston University School of Law. The event was held in New York City on October 18, 1985.

The symposium had three purposes: first, to present a picture of the current status of international trading in securities, which has been developing rapidly; second, …

Private Adjudicators And The Public Interest: The Expanding Scope Of International Arbitration, William W. Park

Faculty Scholarship

When Solomon arbitrated a child custody dispute, the baby almost perished.' Today's arbitrator probably could not propose such a drastic award. Yet courts may refuse to compel arbitration of some disputes for fear that societal interests may suffer a fate similar to that which would have befallen the baby under Solomon's initial judgment. The parties to the dispute are not free to compromise rights other than their own.

The Connection Between Law And Morality: Comments On Dworkin, David B. Lyons

Faculty Scholarship

Our discussions yesterday seemed haunted by a contrast--never quite formulated--between Natural Law and Legal Positivism. The standard interpretation turns on the idea of a "necessary connection" between law and morality. Positivism has often been understood to hold, and Natural Law to deny, that there can be unjust laws.

The Right Of Elderly Patients To Refuse Life-Sustaining Treatment, George J. Annas

Faculty Scholarship

Some legislation, such as law permitting living wills, has addressed the problem of decisions regarding life-sustaining treatment for the elderly. Most of the developing law on the subject is, however, being made by the courts, often in prospective decisions about treatment. These rulings have followed a variety of approaches to the ends of protecting incompetent patients and enforcing the right of the competent to make their own decisions.

American Income Tax Aspects Of Trans-Border Securities Investment, William W. Park

Faculty Scholarship

Encouraging investment of foreign capital in securities issued by American companies does not always marry well with preserving the integrity of the tax system. The interaction between the anonymity sought by some foreign investors and the disclosure required to enforce the law reminds one of the prophet Ezekiel's vision of a wheel within a wheel, and Shakespeare's Hamlet, which contains a play within a play. For today's topicwhich claims neither the elegance of Shakespeare's drama nor the obscure fascination of Ezekiel's vision--contains a problem within a problem.