Law Commons^™

Creative Commons As Conversational Copyright, Michael W. Carroll

Michael W. Carroll

Copyright law's default settings inhibit sharing and adaptation of creative works even though new digital technologies greatly enhance individuals' capacity to engage in creative conversation. Creative Commons licenses enable a form of conversational copyright through which creators share their works, primarily over the Internet, while asserting some limitation on user's right with respect to works in the licensed commons. More specifically, this chapter explains the problems in copyright law to which Creative Commons licenses respond, the methods chosen, and why the machine-readable and public aspects of the licenses are specific examples of a more general phenomenon in digital copyright law …

Can't Touch This! Private Property, Takings, And The Merit Goods Argument, Goutam U. Jois

Goutam U Jois

Over the past several decades, economic theory has gained increasing influence in legal thinking, political theory, and public policy. This article argues that the popular characterization of economics as “value-neutral” obscures the fact that there are fundamental value judgments in any framework influenced by economics. Acknowledging this fact will shift the terms of the debate: instead of a “neutral” policy and one that “imposes values,” we see that both policies in fact entail value imposition to some extent. The public discourse is thus rendered more intellectually honest. The article progresses in three parts. First, I describe the concept of “merit …

Judicial Selection, Appointments Gridlock, And The Nuclear Option, David S. Law, Lawrence B. Solum

David S. Law

In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status …

Open Access In A Closed Universe: Lexis, Westlaw, Law Schools And The Legal Information Market, Olufunmilayo Arewa

Olufunmilayo B. Arewa

This Article considers issues of open access from the context of the broader legal information industry as a whole. The structure and contours of the legal information industry have shaped the availability of legal scholarship and other legal information. The competitive duopoly of Lexis and Westlaw is a particularly important factor in considerations of open access. Also significant is the relationship between Lexis and Westlaw and law schools, which form an important market segment for both Lexis and Westlaw. This Article begins by considering the important role information plays in the law. It then notes the increasing industry concentration that …

Note: Johnson V. California: A Grayer Shade Of Brown, Brandon N. Robinson

Brandon N. Robinson

For decades, the famous school desegregation case of Brown v. Board of Education and its progeny have supported the notion that a State may not constitutionally require [racial] segregation of public facilities. Indeed, with regard to state-mandated racial segregation, the doctrine of separate but equal has long been considered dead and buried. In February 2005, however, the Supreme Court of the United States in Johnson v. California curiously reopened the segregation question by replacing the post-Brown ban on racial segregation with the strict scrutiny standard of review afforded to all other racial classifications, thereby muddying the once clear doctrinal waters. …

Ideological Flip-Flop: American Liberals Are Now The Primary Supporters Of Tort Law, Stephen D. Sugarman

Stephen D Sugarman

Flattening The World Of Legal Services? The Ethical And Liability Minefields Of Offshoring Legal And Law-Related Services, Carole Silver, Mary Daly

Carole Silver

This article examines offshore outsourcing of legal and law-related services as the newest twist in the international market for legal services. We consider the impact of offshore outsourcing on the profession generally and analyze the ethical issues raised by offshore outsourcing, both as it exists today and as the practice may develop in the future. The article begins by situating offshore outsourcing in the framework of relationships created in the context of delivery of legal services. This framework is used, in turn, to construct a structure of analysis for the ethical implications of offshore outsourcing. Lawyers who outsource to offshore …

Between Charity, Welfare, And Warfare: A Disability Legal Studies Analysis Of Privilege And Neglect In Israeli Disability Policy, Sagit Mor

Sagit Mor

This article introduces a critical perspective, which I term Disability Legal Studies, a field of critical legal theory that employs disability critique, as developed by Disability Studies. I argue that contemporary writing on disability and the law tends to utilize disability critique in a mere instrumental fashion, mainly to support doctrinal analysis or reform proposals. What is needed, I suggest, is substantial research regarding the constitutive role of law in the production of disability. The article investigates the construction of disability in the field of social welfare, claiming that although welfare has indeed provided some relief to people with disabilities, …

The Challenges Of Wto Law: Strategies For Developing Country Adaptation, Gregory C. Shaffer

Gregory C Shaffer

No abstract provided.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael Mann

Michael D. Mann

This Comment explores how television shows such as CSI and Law & Order have created heightened juror expectations in courtrooms across America. Surprise acquitals often have prosectors scratching their heads as jurors hold them to this new "Hollywood" standard. The Comment also analyzes the CSI phenomena by reflecting on past legal television shows that have influenced the public's perception of the legal profession and how the "CSI effect" has placed an even greater burden on parties to proffer some kind of forensic evidence at trial.

The Comment was published in volume 24 of the Buffalo Public Interest Law Journal (2006).

The Power Of Bureaucracy In The Response To Blakely And Booker, Ronald F. Wright

Ronald F. Wright

How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences? The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy. Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible. The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing …

Marital Status As Property: Toward A New Jurisprudence For Gay Rights, Goutam U. Jois

Goutam U Jois

The issue of same-sex marriage has received much attention over the past few years, with significant focus on the role of the judiciary. For example, the first legal gay marriages in the country took place after a court decision in Massachusetts, and no state has sanctioned same-sex marriage through the legislative process. Proponents of same-sex marriages generally justify their creation on civil rights grounds, relying in particular on equal protection and due process arguments. However, the preservation of same-sex marriage can be defended on other grounds as well. I examine one such alternative theory, that of property rights. In this …

An Essay On Strategies For Facilitating Learning, David Barnhizer

David Barnhizer

There is a convenient assumption among many American law teachers that the existing model of the American law school works effectively. This includes the belief that the dominant methods and goals are not only appropriate and comprehensive but are being achieved. The reality is quite different. Law teachers tend to be amateurs from the perspective of the quality of our teaching. We are largely unaware of the most effective ways to structure a curriculum, integrate course offerings and design and execute individual courses. This essay focuses on goals, strategies and techniques for the facilitation of student learning. It reflects a …

Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who, for a number of reasons, was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings, and then restrict future borrowings and reinterpretations of his works. The operation and the uses of copyright in the specific instance of George Gershwin’s musical practice reflect actual uses of copyright in the musical arena and demonstrates some ways in which current copyright frameworks may not adequately contemplate actual practices of music …

"One Person, One Vote, And The Constitutionality Of The Winner-Take-All Allocation Of Electoral Votes", David A. Schultz

David A Schultz

The winner-take-all method of allocating electoral votes in presidential races is the norm among states, yet nowhere in the Constitution is this practice mandated. This article contends that the winner-take-all allocation of electors unconstitutionally magnifies the battleground states' influence on the final Electoral College tally and that these inequities cannot be reconciled with the principle of one-person, one-vote that the US Supreme Court articulated in the landmark Reynolds v. Sims. In 1966 the Supreme Court declined to hear a case contesting the constitutionality of the winner-take-all system based on the one person, one vote, principle. It is time for the …

Identity And Market For Loyalties Theories: The Case For Free Information Flow In Insurgent Iraq, Paul D. Callister

Paul D. Callister

When monopoly control over the flow of information is lost, the unavoidable consequence is destabilization. Information flow through a society can be understood as a market - not a market exchanging cash for goods, but loyalty for identity. Hence the market is called the Market for Loyalties - so labeled by an economics of information theory first developed by Prof. Monroe Price, of Cardozo Law School, and Director of the Howard M. Squadron Program in Law, Media and Society, to explain government regulation of radio, TV, cable and satellite broadcasting.

In post-invasion Iraq, Saddam Hussein lost or monopoly control over …

Trips And Traditional Knowledge: Local Communities, Local Knowledge, And Global Intellectual Property Frameworks (Trips Symposium), Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Intellectual property treatment of traditional or local knowledge is a major issue of contention today, particularly since the implementation of the TRIPs Agreement, which establishes minimum levels of intellectual property protection for members of the World Trade Organization. Discourse surrounding local knowledge is highly charged with accusations of "piracy" from Western countries countered with allegations of "biopiracy" from Third World countries. Flowing beneath the surface of this dialogue are multiple levels of historical experience. Intellectual property frameworks were formed in the nineteenth century during a period when evolutionary views of the development of human societies were paramount. Local knowledge was …

The Political Economy Of Up-Front Fees For Indigent Criminal Defense, Ronald F. Wright, Wayne A. Logan

Ronald F. Wright

In this article, we trace the origin and spread of state laws designed to make indigent criminal defendants pay, up-front, a portion of the costs of their state-appointed counsel. These co-pays, which can range from $10 to over $200, are part of the increasingly popular pay-as-you-go movement, requiring criminal defendants to defray the system costs of their prosecution and punishment.

On their face, such laws would appear to be a natural target of vigorous resistance by the defense bar. This turns out to be only half true, however, for it is often the leaders of public defense organizations, faced with …

Beyond Romer And Lawrence: The Right To Privacy Comes Out Of The Closet, Nancy C. Marcus

Nancy C Marcus

This article examines significant developments in the Supreme Court's privacy rights jurisprudence through the Rehnquist era with a look ahead toward the future of privacy and liberty protections under a new Court. The article explores several problems faced by privacy rights proponents, ranging from opposition to unenumerated constitutional rights generally to more recent tradition-based challenges to privacy protections. Tracing the historic roots of privacy rights, the article reveals the original intent of the Constitution's drafters to establish an evolving constitution with inalienable unenumerated individual rights, including a right to privacy which encompasses an affirmative liberty interest in autonomy. The article …

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

Nancy J. Knauer

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Protecting The Public Trust And Human Rights In The Great Lakes, Melissa K. Scanlan

Melissa K. Scanlan

No abstract provided.

Realizing The Promise Of The Great Lakes Compact: A Policy Analysis For State Implementation, Melissa K. Scanlan, Jodi H. Sinykin, James Krohelski

Melissa K. Scanlan

No abstract provided.

Public Law As A Whole And Normative Duality: Reclaiming Administrative Insights In Enforcement Review, Michal Tamir

michal tamir

No abstract provided.

Obscene Contracts*: The Doctrine Of Unconscionability And Hospital Billing Of The Uninsured, George A. Nation Iii

George A Nation III

No abstract provided.

What's New In Eu Trade Dispute Settlement? Judicialisation, Public-Private Networks And The Wto Legal Order, Gregory C. Shaffer

Gregory C Shaffer

No abstract provided.

The Gold Standard Of Gun Control - Book Review Of Joyce Malcolm, Guns And Violence: The English Experience, David B. Kopel, Joanne D. Eisen, Paul Gallant

David B Kopel

Guns and Violence tells a remarkable story of a society's self-destruction, of how a government in a few decades managed to reverse six hundred years of social progress in violence reduction. The book is also a testament to the amazing self-confidence of British governments; Labour and Conservative alike have proceeded with an extreme anti-self-defense agenda, although the agenda has never had much supporting evidence beyond the government's own platitudes.

Free Advertising: The Case For Public Relations As Commercial Speech, Tamara R. Piety

Tamara R. Piety

The commercial speech doctrine has suffered from definitional ambiguity. Some commentators have argued that the doctrine's application should be limited to speech that is clearly advertising and should not be extended to cover speech by a corporation on matters of public concern. This is of particular concern with respect to public relations communications about labor or environmental practices (to name just two examples) which industry advocates argue should be treated like fully protected speech. In this article I argue that because all for-profit corporate speech is in furtherance of its commercial purpose, public relations speech should be presumptively covered by …

Act Up/Anita Bryant/Drugs, Religion, And Law/Lambda Legal Defense And Education Fund/Right To Reply And Right Of The Press/Sincerity Of Religious Belief, James M. Donovan

James M. Donovan

Six entries in the Encyclopedia of American Civil Liberties (Paul Finkelman, ed.).

The Role Of Statutes, Regulations And Professional Standards In Emergency Responses, Denis Binder

Denis Binder

No abstract provided.

From J.C. Bach To Hip Hop: Musical Borrowing, Copyright And Cultural Context, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Musical borrowing is a pervasive aspect of musical creation in all genres and all periods. Copyright doctrine does not adequately reflect the reality of such borrowing. Instead, copyright doctrine incorporates notions of Romantic authorship that assume independent and autonomous authorship and even genius in the creation of original musical works. This individualistic and autonomous vision of musical authorship, which is central to copyright law, has deemphasized the importance and continuity of musical borrowing practices generally. The tension between conceptions of musical production and actual music practice is particularly highlighted in the case of hip hop music, which is now the …