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Articles 1 - 30 of 43
Full-Text Articles in Law
Moral Discourse, Bioethics, And The Law, Carl E. Schneider
Moral Discourse, Bioethics, And The Law, Carl E. Schneider
Articles
Dan Callahan follows a distinguished tradition when he uses the phrase "moral discourse" to describe the law's work. The frequency with which that image is deployed suggests its resonance and even rightness: When we think about the way society considers moral issues and develops moral positions, it can be useful to imagine the law as one of many social institutions that contribute to a social discussion. Nevertheless, this image is misleading. At least for our (graying and balding) genera- tions, the law is regarded as a worthy participant in American moral discourse preeminently because of its part in the civil …
Copyright Law And Electronic Access To Information, Jessica D. Litman
Copyright Law And Electronic Access To Information, Jessica D. Litman
Articles
At the same time as we have been discovering the Internet’s enormous potential to enhance access to information and revolutionize the ways libraries do business, the Internet’s high profile in popular media has made it the focus of a wide spectrum of fears about the future. This paper focuses on pending proposals to amend copyright law to enhance the control copyright owners wield over the appearance of their works on digital networks. These proposals would stifle libraries’ use of the Internet. Libraries and their supporters must participate in the copyright debate, and think creatively about new models for copyright. The …
Toward A Tax-Based Explanation Of The Liability Insurance Crisis, Kyle D. Logue
Toward A Tax-Based Explanation Of The Liability Insurance Crisis, Kyle D. Logue
Articles
The so-called liability insurance crisis of 1985 and 1986 transformed the way we think about tort law and about liability insurance markets. The crisis phenomena, which first appeared in late 1984 and lasted until mid-1986, consisted of enormous increases in liability insurance premiums and alarming reductions in the availability of certain types of liability coverage. In the two principal liability lines of insurance (Other Liability and Medical Malpractice), premiums increased by hundreds (in some cases thousands) of percentage points in a matter of months. At the same time, the availability of liability insurance contracted sharply. The liability policies that were …
Intellectual Property Issues In Genomics, Rebecca S. Eisenberg
Intellectual Property Issues In Genomics, Rebecca S. Eisenberg
Articles
Controversy over intellectual property rights in the results of large-scale cDNA sequencing raises intriguing questions about the roles of the public and private sectors in genomics research, and about who stands to benefit (and who stands to lose) from the private appropriation of genomic information. While the US Patent and Trademark Office has rejected patent applications on cDNA fragments of unknown function from the National Institutes of Health, private firms have pursued three distinct strategies for exploiting unpatented cDNA sequence information: exclusive licensing, non-exclusive licensing and dedication to the public domain.
Fundamental Justice And The Deflection Of Refugees From Canada, James C. Hathaway
Fundamental Justice And The Deflection Of Refugees From Canada, James C. Hathaway
Articles
Canada is preparing to implement a controversial provision of the Immigration Act that will deny asylum seekers the opportunity even to argue their need for protection from persecution. Under a policy labelled "deflection" by the authors, the claims of refugees who travel to Canada through countries deemed safe, likely the United States and eventually Europe, will be rejected without any hearing on the merits. Because deflection does not require substantive or procedural harmonization of refugee law among partner states, it will severely compromise the ability of genuine refugees to seek protection.
Judicial Selection In Michigan - Time For A Change?, John W. Reed
Judicial Selection In Michigan - Time For A Change?, John W. Reed
Articles
How are we to choose those who judge us? To whom do we entrust the responsibility of protecting our liberties and the power to determine our rights and liabilities? We look for men and women of integrity, diligence, legal ability, and judicial temperament, chosen by methods that balance judicial independence and public accountability.1
Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold
Why Hard Cases Make Good (Clinical) Law, Paul D. Reingold
Articles
In 1992, when the University of California's Hastings College of Law decided to offer a live-client clinic for the first time, its newly hired director had to make several decisions about what form the program should take.1 The first question for the director was whether the clinic should be a single-issue specialty clinic or a general clinic that would represent clients across several areas of the law. The second question, and the one that will be the focus of this essay, was whether the program should restrict its caseload to "easy" routine cases or also accept non-routine, less controllable litigation. …
Bouquets For Jerry Israel, Yale Kamisar
Bouquets For Jerry Israel, Yale Kamisar
Articles
As it turned out, of those asked to write a few words for an issue of the Michigan Law Review honoring Jerry Israel, I was the last to do so. And when I submitted my brief contribution to the Law Review I took the liberty of reading what the four others who paid tribute to Jerry had written. As a result, I feel like the fifth and last speaker at a banquet who listens to others say much of what he had planned to say.
Tax Transitions, Opportunistic Retroactivity, And The Benefits Of Government Precommitment, Kyle D. Logue
Tax Transitions, Opportunistic Retroactivity, And The Benefits Of Government Precommitment, Kyle D. Logue
Articles
What if the current federal income tax laws were repealed and replaced with a simple flat tax? What if the entire Internal Revenue Code (with its graduated rates and countless deductions, exclusions, and credits) were scuttled in favor of a broad-based consumption tax? Only a few years ago, such proposals would have seemed radical and extremely unlikely to be adopted. But times are changing. Calls for a drastic overhaul of the Internal Revenue Code have become commonplace, even at the highest levels in the tax-policy community. In addition, proposals that would replace the income tax with a flat-rate broad-based consumption …
Capture And Counteraction: Self- Help By Environmental Zealots (Allen Chair Symposium 1996: The Future Of Environmental And Land-Use Regulation), James E. Krier
Capture And Counteraction: Self- Help By Environmental Zealots (Allen Chair Symposium 1996: The Future Of Environmental And Land-Use Regulation), James E. Krier
Articles
Self-help is a largely neglected topic in American legal studies.1 With the exception of a survey by a group of law students published a dozen years ago,2 there appears to be little, if anything, in our legal literature that confronts the subject in a systematic way.3 This is so, at least, if one defines self-help as I do. To me, the term refers to any act of bypassing the formal legal system in order to get what one wants.
Rule 23: Challenges To The Rulemaking Process (Symposium: The Institute Of Judicial Administration Research Conference On Class Actions), Edward H. Cooper
Rule 23: Challenges To The Rulemaking Process (Symposium: The Institute Of Judicial Administration Research Conference On Class Actions), Edward H. Cooper
Articles
Three decades have elapsed since Rule 23 of the Federal Rules of Civil Procedure last underwent revision. Taking a cue from proposed amendments prepared by the Civil Rules Advisory Committee, Professor Cooper asks whether now is the appropriate time to revise Rule 23. In this Articl e he identifis three potential "big changes" to the Rule. subsantially curtailing class actions; accommodating the needs of mass-tort actions; and recognizing the class as an entity, distinct from Its representatives. After outlining and critiquing the Advisory Committee's draf4 Professor Cooper raises a host of questions about many aspects of Rule 23 and suggests …
Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg
Public Research And Private Development: Patents And Technology Transfer In Government-Sponsored Research, Rebecca S. Eisenberg
Articles
This article revisits the logical and empirical basis for current government patent policy in order to shed light on the competing interests at stake and to begin to assess how the system is operating in practice. Such an inquiry is justified in part by the significance of federally-sponsored research and development to the overall U.S. research effort. Although the share of national expenditures for research and development borne by the federal government has declined since 1980, federal funding in 1995 still accounted for approximately thirty-six percent of total national outlays for research and development' and nearly fifty-eight percent of outlays …
Meaning In The Life Of The Lawyer, James Boyd White
Meaning In The Life Of The Lawyer, James Boyd White
Articles
First let me say what a pleasure it is to be here on such an occasion. Dean Kronman is an old and valued friend, and I am very glad to be able to visit your school, of which I have heard many good things. In the remarks that follow I shall respond to Dean Kronman's eloquent and elegiac account of "civility" in our culture, and in the law, not so much by marking agreement or disagreement as by offering a few loosely connected reflections on the topics he raises.
Internationale Handelsgessellschaft Mbh V.Einfuhrund Vorratsstelle Für Getreide Und Futtermittel (Favorite Case Symposium), James E. Krier
Internationale Handelsgessellschaft Mbh V.Einfuhrund Vorratsstelle Für Getreide Und Futtermittel (Favorite Case Symposium), James E. Krier
Articles
The idea of a "favorite judicial opinion" had never occurred to me until the Texas Law Review planted it in my head; the Journal of the American Dental Association could as well have asked me to express some sentiments about my favorite toothache. I was at a loss to think of even a single candidate for what, until the event, I had apparently regarded as a nonexistent office. Why then did I decide to accept the Review's invitation? The answer is, in a word, curiosity: Never mind that the editors of a law review in Texas wanted to know what …
Virtual Taxation: Source-Based Taxation In The Age Of Derivatives, Reuven S. Avi-Yonah
Virtual Taxation: Source-Based Taxation In The Age Of Derivatives, Reuven S. Avi-Yonah
Articles
What are the implications of the explosive growth in the market for derivative financial instruments for international taxation? As Rosenbloom (1996) has pointed out, derivatives do not pose a particular international tax problem as long as one focuses on residence-based taxation. In that context, the issues raised by derivatives are the same as in a purely domestic context, which have been discussed extensively elsewhere (e.g., Warren, 1993). However, when the focus is on source-based taxation, and in particular source-based taxation of passive income (i.e., withholding taxes), the rise of derivatives has far-reaching implications. In 1994, then U.S. International Tax Counsel …
What If? The Legal Consequences Of Marriage And The Legal Needs Of Lesbian And Gay Male Couples, David L. Chambers
What If? The Legal Consequences Of Marriage And The Legal Needs Of Lesbian And Gay Male Couples, David L. Chambers
Articles
Laws that treat married persons in a different manner than they treat single persons permeate nearly every field of social regulation in this country - taxation, torts, evidence, social welfare, inheritance, adoption, and on and on. In this article I inquire into the patterns these laws form and the central benefits and obligations that marriage entails, a task few scholars have undertaken in recent years. I have done so because same-sex couples, a large group not previously eligible to marry under the laws of any American jurisdiction, may be on the brink of securing the opportunity to do so in …
The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross
The Risks Of Death: Why Erroneous Convictions Are Common In Capital Cases (Symposium: The New York Death Penalty In Context), Samuel R. Gross
Articles
As the Supreme Court has said, time and again, death is different: It is "different in kind from any other punishment imposed under our system of criminal justice;"1 it "differs more from life imprisonment than a 100-year sentence differs from one of only a year or two;"' 2 and so forth. Traditionally, this observation has justified special procedural protections for capital defendants. Justice Harlan put it nicely nearly forty years ago: "I do not concede that whatever process is 'due' an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital …
Reply To Daniel Polsby (Symposium: The New York Death Penalty In Context), Samuel R. Gross
Reply To Daniel Polsby (Symposium: The New York Death Penalty In Context), Samuel R. Gross
Articles
I'd like to offer a few words in response to Professor Polsby's articulate, forceful and amusing essay in favor of capital punishment.
Sanctuary, Redlight Districts, And Washington, D.C.: Some Observations On Neuman's Anomalous Zones (Symposium: Surveying Law And Borders), William I. Miller
Sanctuary, Redlight Districts, And Washington, D.C.: Some Observations On Neuman's Anomalous Zones (Symposium: Surveying Law And Borders), William I. Miller
Articles
The claim is often made that boundaries obviate disputes if they are clear. But boundaries are inseparable from disputes; they seem to invite them as much as obviate them. Note how natural the collocations "disputed boundary" and "boundary dispute" are. The conventional view that one hears a lot in law schools is that once a bright line is drawn then a boundary is "settled." But that supposes that a clear boundary need not be defended or continually justified or that internal changes in the entity it circumscribes and in some ways defines do not affect the integrity of the boundary. …
Excessive Criminal Justice Caseloads: Challenging The Conventional Wisdom, Jerold H. Israel
Excessive Criminal Justice Caseloads: Challenging The Conventional Wisdom, Jerold H. Israel
Articles
Since the mid-1960s, no element of the criminal justice environment has received more attention and been accorded greater importance, in both popular and professional commentary, than has the pressure of heavy caseloads. The lack of sufficient resources to deal with overbearing caseloads has been widely characterized as the most pervasive and most critical administrative challenge faced by police, prosecutors, public defenders, and courts.' National commissions have regularly complained that the criminal justice system is "overcrowded, overworked, [and] undermanned," and must be given "substantially more money" to cure those ills if it is ever to perform all of the tasks assigned …
The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner
The Uniform Probate Code Extends Antilapse-Type Protection To Poorly Drafted Trusts, Lawrence W. Waggoner
Articles
The Uniform Law Commission' promulgated a revised version of Article II of the Uniform Probate Code (UPC or Code) in 1990, and approved a set of technical amendments in 1993. As Director of Research and Chief Reporter for the Joint Editorial Board for the Uniform Probate Code (Board)2 and reporter for the UPC Article II drafting committee, I was privileged to serve as the principal drafter of these provisions. UPC Article II deals with the substantive rules governing donative transfers - intestacy; spouse's elective share; execution, revocation, and revival of wills; rules of construction for wills and other donative transfers; …
Rights Of Subrogation In Letters Of Credit Transactions, James J. White
Rights Of Subrogation In Letters Of Credit Transactions, James J. White
Articles
The past twenty years have seen more than a dozen cases, in which parties to letter of credit transactions have sought subrogation to the rights of the person they have paid or to the rights of the persons on behalf of whom, they have acted.' The most obvious case arises when the issuer of a standby letter of credit pays a beneficiary on a debt that is owed to the beneficiary by a bankrupt applicant. Having failed to take 'collateral from the applicant, the issuer seeks to be subrogated to the security interest of the beneficiary. Failing subrogation, the issuer …
On Becoming A Law Professor, Terrance Sandalow
On Becoming A Law Professor, Terrance Sandalow
Articles
Thirty-five years ago, when I first joined a law faculty, only one job description existed for law professors, that for the conventional classroom teacher. In the years since, the opportunities available to lawyers interested in teaching have become a bit more varied. In addition to conventional classroom teachers, a growing number of law teachers are employed by law schools to provide what I shall somewhat misleadingly call clinical instruction.1 Although these comments are addressed mainly to men and women interested in classroom teaching, a few lines about clinical teaching may be in order because the initial question for anyone considering …
Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud
Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud
Articles
If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …
The Cosmological Question: A Response To Milner S. Ball's 'All The Company Of Heaven', Joseph Vining
The Cosmological Question: A Response To Milner S. Ball's 'All The Company Of Heaven', Joseph Vining
Articles
We do not disagree, and I do not doubt, that legal processes are sources of injustice, violent oppression, crushing of the spirit, destruction of lives, actual death. I have only to look at The Trial1 again. Nor do we disagree that there are strings of words, statements, put out by officials, lawyers, and lawyer-academics, often called "rules," that cannot be taken into oneself and that by their very nature evoke manipulation in response, avoidance if they cannot be ignored. In their name violent imposition of pure will occurs all the time, and power is exercised by those who can secure …
Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining
Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining
Articles
The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.
The Reasons So Many People Support Physician-Assisted Suicide - And Why These Reasons Are Not Convincing, Yale Kamisar
The Reasons So Many People Support Physician-Assisted Suicide - And Why These Reasons Are Not Convincing, Yale Kamisar
Articles
It would be hard to deny that there is a great deal of support in this country-and ever-growing support-for legalizing physician-assisted suicide (PAS). Why is this so? I believe there are a considerable number of reasons. In this article, I shall discuss five common reasons and explain why I do not find any of them convincing.
Faculty Spotlight - Kyle D. Logue, Kyle D. Logue
Faculty Spotlight - Kyle D. Logue, Kyle D. Logue
Articles
Most of my teaching and research efforts are currently spent in two general fields of law - taxation and insurance. Which raises an interesting question: Why would a rational person decide to devote a good portion of his academic career to areas of law that many people - lawyers and nonlawyers alike - find painfully boring and unreasonably complicated? The ta and insurance lawyers in the audience, of course, already know the answer - that ta ation and insuran e are e ceptionally interesting topics and that, if one wants to understand how the real world works (in particular, the …
Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray
Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray
Articles
This is a paper given at the Asia-Pacific Lawyers Association meeting held in Bangkok in November 1995. The author describes the principles of international commercial contracts published in 1994 by the International Institute for the Unification of Private Law. Professor Gray sees a new era of harmonisation of contract law. An appendix gives an abstract of a contract law decision given by an Austrian Court in 1994.
The Structure Of International Taxation: A Proposal For Simplification, Reuven S. Avi-Yonah
The Structure Of International Taxation: A Proposal For Simplification, Reuven S. Avi-Yonah
Articles
The article explains the structure of the international tax regime and offers suggestions for improvement.