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Articles 1 - 30 of 33
Full-Text Articles in Law
Stein Center For Law And Ethics Amicus Brief In Michael Wayne Williams V. John B. Taylor, Lawrence Fox
Stein Center For Law And Ethics Amicus Brief In Michael Wayne Williams V. John B. Taylor, Lawrence Fox
Amicus Briefs
No abstract provided.
Stein Center For Law And Ethics Amicus Brief In Anthony Braden Bryan V. Michael Moore, Bruce Green
Stein Center For Law And Ethics Amicus Brief In Anthony Braden Bryan V. Michael Moore, Bruce Green
Amicus Briefs
No abstract provided.
Civil Society And Multiple Repositories Of Power Symposium On Legal And Constitutional Implications Of The Calls To Revive Civil Society: Ii. The Constitution Of Civil Society, Abner S. Greene
Faculty Scholarship
The primary goal of civil society revivalists is not the revival of civil society. It is the empowerment of otherwise alienated citizens. Reviving civil society is seen as the principal means to that end, but it is not the only means. To be sure, the revivalists focus their attention on participation in nongovernmental associations. But the ways of overcoming alienation are plural, and they include participation in government, participation in nongovernmental associations, and assertions of individual rights against various forms of collective will. In this brief essay, I first explain why only a pluralist understanding of human flourishing fits with …
Congressional Accountability And Denial: Speech Or Debate Clause And Conflict Of Interest Challenges To Unionization Of Congressional Employees , James J. Brudney
Congressional Accountability And Denial: Speech Or Debate Clause And Conflict Of Interest Challenges To Unionization Of Congressional Employees , James J. Brudney
Faculty Scholarship
In 1995, Congress passed the Congressional Accountability Act, which applied federal workplace and anti-discrimination laws to Congress. Under the terms of the Act, Congress can prevent legislative staff from unionizing if the presence of organized employees would raise constitutional problems or present a conflict of interest. In this Article, Professor Brudney argues that these constitutional conflicts and issues do not pose sufficient concern to outweigh the workplace rights of congressional staff. Rather, he maintains that Congress, should either fulfill its obligations under the Act and allow legislative staff to unionize, or else enact a statute and explain the need for …
When Is Property Intellectual: The Leveraging Problem Essays, Mark R. Patterson
When Is Property Intellectual: The Leveraging Problem Essays, Mark R. Patterson
Faculty Scholarship
Patents and copyrights protect inventions and expression; they do not protect products. This distinction, I argue in this essay, is a key to the antitrust problem of the "leveraging" of intellectual property. In a typical leveraging case, the manufacturer of a durable good, like a copier or computer, refuses to sell replacement parts for its equipment unless the purchaser also hires the manufacturer to service the equipment. Such a practice can be illegal under antitrust law, but when the leveraging products-in this example, replacement parts-are protected by patent or copyright, the manufacturer will often claim that the leveraging is a …
Constitutional Law-Bill Of Attainder-Fifth Circuit Holds That The Special Provisions Of The Telecommunications Act Of 1996 Are Not A Bill Of Attainder, Thomas H. Lee
Faculty Scholarship
No abstract provided.
Evolutionary Biology And Rape, Deborah W. Denno
Evolutionary Biology And Rape, Deborah W. Denno
Faculty Scholarship
This article queries whether an evolutionary analysis of rape may be more compelling in explaining a rape victim's fear than a defendant's sexual aggression. Such a victim-oriented approach could help legal decisionmakers assess the reasonableness of the victim's fear when determining whether sex was forced or threatened. These ideas are explored in the context of two well-known rape trials, State v. Rusk and State v. Smith. This article concludes that evolutionary biology can contribute to an understanding of rape. However, the supposed evolutionary underpinnings of male sexual aggression should not justify such behavior or render it acceptable as a criminal …
Disciplinary Restrictions On Multidisciplinary Practice: Their Derivation, Their Development, And Some Implications For The Core Values Debate The Future Of The Profession: A Symposium On Multidisciplinary Practice, Bruce A. Green
Faculty Scholarship
Many of the legal profession's disciplinary rules are of venerable lineage. For example, the provisions of contemporary disciplinary codes concerning conflicts of interest derive from the 1908 Canons of Professional Ethics (Canons), which, in turn, can be traced back to late nineteenth century state ethics codes, to mid-nineteenth-century lectures and writings, 3 and to earlier common-law agency principles. Although lawyers to- day disagree about what the precise contours of the conflict rules should be, these rules embody basic principles of loyalty, competence and confidentiality that are fundamental, traditional, and universally supported by lawyers. These are defining principles for the practice …
An Overview Of Commercial Salvage Principles In The Context Of Marine Archaeology, Joseph Sweeney
An Overview Of Commercial Salvage Principles In The Context Of Marine Archaeology, Joseph Sweeney
Faculty Scholarship
No abstract provided.
The Prism Of Cogsa, Joseph Sweeney
Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg
Restoring Americans' Privacy In Electronic Commerce Symposium - The Legal And Policy Framework For Global Electronic Commerce: A Progress Report, Joel R. Reidenberg
Faculty Scholarship
In the United States today, substance abusers have greater privacy than web users and privacy has become the critical issue for the development of electronic commerce. Yet, the U.S. government’s privacy policy relies on industry self-regulation rather than legal rights. This article argues that the theory of self-regulation has normative flaws and that public experience shows the failure of industry to implement fair information practices. Together the flawed theory and data scandals demonstrate the sophistry of U.S. policy. The article then examines the comprehensive legal rights approach to data protection that has been adopted by governments around the world, most …
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury
Faculty Scholarship
The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …
Disestablishing Local School Districts As A Remedy For Educational Inadequacy Note, Aaron J. Saiger
Disestablishing Local School Districts As A Remedy For Educational Inadequacy Note, Aaron J. Saiger
Faculty Scholarship
Most state constitutions recognize a right to education, but courts have been hard pressed to respond to violations of that right. Some state courts have imposed financial and substantive reforms, only to see their implementation miscarry as educational deficiencies stubbornly persist. Other state courts, fearing such outcomes, instead treat education claims as nonjusticiable political questions; in these states, public education is a right with no remedy. This Note argues that courts should instead base remedies on state statutes that permit states to disestablish-i.e., to withdraw authority from-deficient school districts. Disestablishment, like other structural remedies, is largely self-implementing and avoids judicial …
Cautionary Tale From The Multidisciplinary Practice Debate: How The Traditionalists Lost Professionalism, A The Phyllis W. Beck Chair In Law Symposium: New Roles, No Rules - Redefining Lawyers' Work - Redefining Lawyers' Work: Multidisciplinary Practice, Russell G. Pearce, Amelia J. Uelmen:
Cautionary Tale From The Multidisciplinary Practice Debate: How The Traditionalists Lost Professionalism, A The Phyllis W. Beck Chair In Law Symposium: New Roles, No Rules - Redefining Lawyers' Work - Redefining Lawyers' Work: Multidisciplinary Practice, Russell G. Pearce, Amelia J. Uelmen:
Faculty Scholarship
The author presents a fictional conversation among Lawrence J. Fox, other noted legal scholars, and himself concerning the ethics and changes in the legal profession.
Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins
Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins
Faculty Scholarship
The public/private distinction has been a target of thoroughgoing feminist critique for quite some time now. Indeed, attacking the public/private line has been one of the primary concerns (if not the primary concern) of feminist legal theorizing for over two decades. If Carole Pateman is correct, one would think that this particular problem might be assigned to the category of "finished business" by this time. In this Essay, I do argue that the critique is, in certain ways, finished business in that it is no longer particularly useful in its most common forms. More importantly, however, I suggest several ways …
Testing For Genetic Traits: The Need For A New Legal Doctrine Of Informed Consent , Elizabeth B. Cooper
Testing For Genetic Traits: The Need For A New Legal Doctrine Of Informed Consent , Elizabeth B. Cooper
Faculty Scholarship
Innovative medical technology has made it possible to test whether you are at increased risk for certain types of cancer. The mere processing of a vial of blood can reveal whether you have a genetic predisposition to develop breast, ovarian, or prostate cancer, or other life-threatening conditions. The Human Genome Project, an international endeavor seeking to map our genetic structures, has facilitated this increasing ability to test for genetic flaws. It is expected that as the human genetic map is filled in, and as flaws in our fundamental building blocks are identified, there will be a concomitant drive to test …
Law Day 2050: Post-Professinalism, Moral Leadership, And The Law-As-Business Paradigm Symposium, Russell G. Pearce
Law Day 2050: Post-Professinalism, Moral Leadership, And The Law-As-Business Paradigm Symposium, Russell G. Pearce
Faculty Scholarship
Inspired by Ted Schneyer's future history of professional discipline' and Bob Gordon's descrption of "the hazy aspirational world" of the "Law Day Sermon,' I offer a vision of the legal profession 'a next fifty years in the form of a Law Day speech from the year 2050. Looking back on developments in the first half of the twenty-first century, this piece explores the implications of the analysis proposed in my earlier article, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar. The speech presents a projection of the moral leadership the bar …
Discontinuous Tradition Of Sentencing Discretion: Koon's Failure To Recognize The Reshaping Of Judicial Discretion Under The Guidelines, The, Ian Weinstein
Faculty Scholarship
Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise …
Regulating The Market For Snitches , Ian Weinstein
Regulating The Market For Snitches , Ian Weinstein
Faculty Scholarship
These are boom times for the sellers and buyers of cooperation in the federal criminal justice system. While prosecutors have always welcomed the assistance of snitches, tougher federal sentencing laws have led to a significant increase in cooperation as more defendants try to provide "substantial assistance in the investigation or prosecution of another person," to have some chance of receiving a significant sentence reduction. In 1996 one of every five defendants sentenced in the federal courts won mitigation by providing substantial assistance. Many more defendants tried but failed to close the deal. The overheated cooperation market is creating serious problems …
Tribute To Justice Stewart G. Pollock, A A Tribute To Justice Stewart G. Pollock, Howard M. Erichson
Tribute To Justice Stewart G. Pollock, A A Tribute To Justice Stewart G. Pollock, Howard M. Erichson
Faculty Scholarship
Stewart Pollock knows how to make a play. On his favorite kind of court - the kind with a net in the middle - he can set up the winning volley with a perfectly placed approach shot. On the court on which he served for the past twenty years, the New Jersey Supreme Court, Justice Pollock proved himself an equally gifted playmaker, earning a reputation as one who could forge consensus through judicial craftsmanship and common sense. Appellate judging is a team sport, though one would hardly know it by looking at recent United States Supreme Court cases, with all …
The Uniqueness Of Federal Prosecutors, Fred C. Zacharias, Bruce A. Green
The Uniqueness Of Federal Prosecutors, Fred C. Zacharias, Bruce A. Green
Faculty Scholarship
No abstract provided.
Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin
Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin
Faculty Scholarship
On August 20, 1789, Massachusetts Federalist Fisher Ames rose to address the House of Representatives in one of his rare contributions to the debate on the Bill of Rights. 1 The day before, sitting as a Committee of the Whole, the House had concluded its brief discussion of the proposed religion amendment to the federal Constitution by agreeing to New Hampshire Representative Samuel Livermore's formula that "Congress shall make no laws touching religion, or infringing the rights of conscience." 2 Now, on the 20th, before the House could formally adopt Livermore's language, Representative Ames proposed a different wording. He moved …
History Right?: Historical Scholarship, Original Understanding And Treaties As 'Supreme Law Of The Land, Martin S. Flaherty
History Right?: Historical Scholarship, Original Understanding And Treaties As 'Supreme Law Of The Land, Martin S. Flaherty
Faculty Scholarship
No abstract provided.
Reflections On Monell’S Analysis Of The Legislative History Of §1983, Robert J. Kaczorowski
Reflections On Monell’S Analysis Of The Legislative History Of §1983, Robert J. Kaczorowski
Faculty Scholarship
No abstract provided.
Vagueness-Chicago's Anti-Gang Loitering Ordinance, Thomas H. Lee
Vagueness-Chicago's Anti-Gang Loitering Ordinance, Thomas H. Lee
Faculty Scholarship
No abstract provided.
Collision Law In The Next Millennium, Joseph Sweeney
Collision Law In The Next Millennium, Joseph Sweeney
Faculty Scholarship
No abstract provided.
Concern For Cause: A Comment On The Twerski-Sebok Plan For Administering Negligent Marketing Claims Against Gun Manufacturers, Benjamin C. Zipursky, John Goldberg
Concern For Cause: A Comment On The Twerski-Sebok Plan For Administering Negligent Marketing Claims Against Gun Manufacturers, Benjamin C. Zipursky, John Goldberg
Faculty Scholarship
No abstract provided.
Reflections On Monell’S Analysis Of The Legislative History Of §1983, Robert J. Kaczorowski
Reflections On Monell’S Analysis Of The Legislative History Of §1983, Robert J. Kaczorowski
Faculty Scholarship
No abstract provided.
Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg
Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg
Faculty Scholarship
While core principles for the fair treatment of personal information are common to democracies, privacy rights vary considerably across national borders. This article explores the divergences in approach and substance of data privacy between Europe and the United States. It argues that the specific privacy rules adopted in a country have a governance function. The article shows that national differences support two distinct political choices for the roles in democratic society assigned to the state, the market and the individual: either liberal, market-based governance or socially-protective, rights-based governance. These structural divergences make international cooperation imperative for effective data protection in …
When Bad Things Happen To Good Intentions: The Development And Demise Of A Task Force Examining The Drugs-Violence Interrelationship Symposium On Drug Crimes, Deborah W. Denno
When Bad Things Happen To Good Intentions: The Development And Demise Of A Task Force Examining The Drugs-Violence Interrelationship Symposium On Drug Crimes, Deborah W. Denno
Faculty Scholarship
Between 1994-1996, I was one of twenty-eight members of a Drugs-Violence Task Force, created to report to the United States Sentencing Commission specific findings, conclusions, and recommendations concerning the interrelationship (if any) between drugs and violence. Much of the controversy concerning how to approach the drugs-violence problem reflects two conflicting and long-held views of drugs and crime: the criminal justice view, which emphasizes detecting and punishing drug offenders, and the public health view, which advocates treating the drug addiction that leads some individuals to commit crime. Traditionally, the criminal justice view is associated with a “tough on crime” attitude that …