Digital Commons Network^™

The Gift Of Language, Joseph Vining

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Style and substance cross-are genetically related as we now might want to say. Each draws on and is implied by the other. One point at which they cross is our sense of the nature of human language, what language is and can be, what it is not and can never be. The language of law is part of human language. Law is a distinctive form of thought, but it lives in human language. "Rule" might be thought synonymous with "law," but for all its talk of rules, the practice of law does not begin with a descriptive statement, or a …

Thoughts From Across The Water On Hearsay And Confrontation, Richard D. Friedman

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This article draws on the history of the hearsay rule, and on recent decisions of the European Court of Human Rights, to argue that the right to confrontation should be recognised as a basic principle of the law of evidence, and that aspects of the Law Commission's proposals for reform of the hearsay rule, and of the Home Office's proposals for restrictions on the right of cross-examination, are therefore unsatisfactory.

Built On Lies: Preliminary Reflections On Evidence Law As An Autopoetic System, Richard O. Lempert

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This Symposium on Truth and Its Rivals seems most concerned with what one might think of as the "output" side of evidence law that is, whether the rules of evidence enhance the likelihood that trial verdicts will capture the true state of the matter giving rise to the litigation. From this perspective, the legitimate rivals to truth are values that may justify decisions that eclipse the truth. The most obvious examples are rules of privilege, which allow probative information to remain concealed even where it is essential to accurate fact finding.

Enlightenment, Donald J. Herzog

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It's a curious broadside, a work of austere graphics and polite prose far removed from the mischievous engravings and bawdy ballads usually appearing on such sheets. Drawn from an address that 345 printers had signed and 138 had presented to the queen, the original text was committed to parchment "and accompanied by a Copy surperbly printed on white Satin, edged with white Silk Fringe, backed with purple Satin, and mounted in an Ivory Roller with appropriate Devices." Even in the published version, the arch is full of intricately detailed work. The printers took pride in their craftmanship: "This Specimen of …

Freeing The Tortious Soul Of Express Warranty Law, James J. White

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I suspect that most American lawyers and law students regard express warranty as neither more nor less than a term in a contract, a term that is subject to conventional contract rules on formation, interpretation, and remedy. Assume, for example, that a buyer sends a purchase order to a seller and the purchase order specifies the delivery of 300 tons of "prime Thomas cold rolled steel." The acknowledgment also describes the goods to be sold as "prime Thomas cold rolled steel." Every American lawyer would agree that there is a contract to deliver such steel and furthermore would conclude that …

Make-Believe: The Rules Excluding Evidence Of Character And Liability Insurance (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law), Samuel R. Gross

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Article IV of the Federal Rules of Evidence includes several rules that prohibit the use of specified types of information as evidence of particular propositions. Subsequent remedial measures are inadmissible to prove negligence (but admissible to show ownership, control, et cetera),' settlement offers are inadmissible to prove liability (but admissible to show bias or prejudice, or for other purposes),2 and so forth. Any exclusion of relevant evidence involves some distortion of reality in the sense that the picture presented to the trier of fact includes less information than the available total. That will be true whether the evidence is kept …

Civil Rule 53: An Enabling Act Challenge (Federal Practice And Procedure Symposiusm Honoring Charles Alan Wright), Edward H. Cooper

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The Judicial Conference of the United States is charged by statute to "carry on a continuous study of the operation and effect of the general rules of practice and procedure," recommending desirable changes to the Supreme Court.' The Rules Enabling Act,2 which describes the Supreme Court's role, further provides that the Judicial Conference is to be assisted in this task by a "standing committee on rules of practice, procedure, and evidence" ;3 the standing committee in turn reviews "each recommendation of any other committees" appointed to advise it.4

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

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One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Truth And Its Rivals In The Law Of Hearsay And Confrontation (Symposium: Truth And Its Rivals: Evidence Reform And The Goals Of Evidence Law)." , Richard D. Friedman

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In this paper, I will look at the problem of hearsay and confrontation through the lens offered by this symposium's theme of "truth and its rivals." I will ask: To what extent does the law of hearsay and confrontation aspire to achieve the goal of truth in litigation? To what extent does it, or should it, seek to achieve other goals, or to satisfy other constraints on the litigation system? And, given the ends that it seeks to achieve, what should the shape of the law in this area be? My principal conclusions are as follows: In most settings, the …

Justice Rabinowitz And Personal Freedom: Evolving A Constitutional Framework, Jeff M. Feldman

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This Article honors the contributions former Chief Justice Jay Rabinowitz has made to Alaskan jurisprudence in the areas of individual privacy and freedom of expression. It begins by tracing the development of the Alaska Supreme Court’s protection of individual rights above and beyond that provided by the federal courts.The Article then provides a thorough analysis of two decisions authored by Justice Rabinowitz, Breese v. Smith and Ravin v. State, which have laid the foundation for heightened protection of privacy and freedom of expression rights in Alaska. Next, the Article discusses the influence and application of these two cases on …

An Economic Analysis Of Intellectual Property Rights: Justifications And Problems Of Exclusive Rights, Incentives To Generate Information, And The Alternative Of A Government Run Reward System, Steve Calandrillo

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This article examines and questions the traditional justifications for intellectual property (I.P.) rights in America (focusing on copyright and patent law), and explores incentives necessary to induce the creation of these works of information. I conclude that changes are needed to I.P. law in order to best foster society's dual goals of 1) promoting incentives to create I.P. works (such as currently patented drugs), while also 2) maximizing distribution of those products to all consumers who would stand to gain (and not merely those who can afford the monopoly price charged). Hence, I suggest the creation of a Government-Run Reward …

The License Is The Product: Comments On The Promise Of Article 2b For Software And Information Licensing, Robert W. Gomulkiewicz

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Article 2B promises to draw together contract principles for software and information licensing that, at present, are spread among various bodies of law.

This Article argues that Article 2B must affirm industry standard licensing practices in order to prove beneficial. For example, Article 2B's affirmation of industry standard mass market licensing is important for both publishers and end users. Article 2B must also provide the flexibility to accommodate new distribution and licensing models that will arise as electronic commerce matures. Any other approach would fundamentally disrupt the software and information industries.

Moreover, this Article urges the drafters of Article 2B …

Federalism In The Era Of International Standards: Federal And State Government Regulation Of Merchant Vessels In The United States (Part Ii), Craig H. Allen

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No abstract provided.

Couriers Without Luggage: Negotiable Instruments And Digital Signatures, Jane Kaufman Winn

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Prior to the very recent explosion of interest in the Internet, for decades electronic commerce had been conducted on a large scale over closed networks. Since the late 1960s, billions of dollars in funds transfers have been executed over networked computer systems such as the Federal Reserve Wire Network (Fedwire), Clearing House Interbank Payment System (CHIPS), and the automated clearing house system (ACH); billions of dollars of goods have been sold over electronic data interchange networks. These closed, proprietary networks were built during the era of mainframe computer systems and are now being challenged by open networks of distributed client-server …

Regulating The Use Of The Internet In Securities Markets, Jane Kaufman Winn

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As use of the Internet and other new technologies in securities continues to expand, the U.S. Securities and Exchange Commission and self-regulatory organizations (SROs) within the securities industry have continued their efforts to adapt their existing regulations to these developments. Although regulators in the United States have provided guidance to market participants on many issues, many other important questions under U.S. securities law remain unanswered.

Guidance regard to securities law in other jurisdictions is almost non-existent, though transnational organizations, such as the International Organization of Securities Commissions (IOSCO), are working to remedy this situation. I

n 1997 and 1998, the …

Open Systems, Free Markets, And Regulation Of Internet Commerce, Jane Kaufman Winn

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Can commercial transactions conducted over the Internet be regulated by existing commercial law doctrines? Many promoters of Internet commerce argue that business done over open computer networks such as the Internet will require a new regulatory framework In fact, many issues raised by Internet commerce have already been considered at length in the context of electronic commerce conducted over closed computer networks, such as those used in financial markets.

One of the most hotly debated issues regarding the regulation of Internet commerce is the question of what would be the online equivalent of a signature. Some have argued that, because …

Using Creativity To Fight A $60 Billion Consumer Problem—Counterfeit Goods, Xuan-Thao Nguyen, Maxim H. Waldbaum

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For centuries, consumers have been willing to pay exorbitant prices for unique or premiumquality goods. Throughout the evolution of the "designer label" market, counterfeiters have lurked in the shadows of the economic landscape. Thus, the problem of counterfeit goods represents nothing new in the global economy.

Transitive And Fully Transitive Groups, Steve Files, Brendan Goldsmith

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The notions of transitivity and full transitivity for abelian p-groups were introduced by Kaplansky in the 1950s. Important classes of transitive and fully transitive p-groups were discovered by Hill, among others. Since a 1976 paper by Corner, it has been known that the two properties are independent of one another. We examine how the formation of direct sums of p-groups affects transitivity and full transitivity. In so doing, we uncover a far-reaching class of p-groups for which transitivity and full transitivity are equivalent. This result sheds light on the relationship between the two properties for all p-groups.

A Corba-Base Integration Of Distributed Electronic Healthcare Records Using The Synapses Approach, Jane Grimson, William Grimson, Damon Berry, Gaye Stephens, Eoghan Felton, Dipak Kalra, Pieter Toussaint, Onno Weir

Articles

The ability to exchange in a meaningful, secure, and simple fashion relevant healthcare data about patients is seen as vital in the context of efficient and cost-effective shared or team-based care. The electronic healthcare record (EHCR) lies at the heart of this information exchange, and it follows that there is an urgent need to address the ability to share EHCR's or parts of records between carers and across distributed health information systems. This paper presents the Synapses approach to sharing based on a standardized shared record, the Federated Healthcare Record, which is implemented in an open and flexible manner using …

It's Not What You Make, It's The Way That You Say It: Reflections On The Design-Marketing Interface, Paul O'Sullivan

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Good design is a cornerstone of marketing. Design is an important variable in every aspect of marketing activities- products, processes, packaging and communications. Yet this topic attracts little attention in the marketing literature and there is, one suspects, very little cross-fertilisation between marketing and design disciplines. This paper puts design on the agenda for both marketing academics and practitioners as well as providing a review of what is embraced within the broad subject of design. Some observations on the history and role of design in an Irish context are offered also.

The Changing Nature Of Theory And Practice In Marketing: On The Value Of Synchrony, Aidan O'Driscoll, John Murray

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Any academic discipline with a closely associated area of professional endeavour is profoundly affected by the relationship between its theory and practice. Synchrony in theory and practice adds value to the management of enterprise and to the advance of the discipline. Mindful of this assertion, this article explores the changing nature of theory and practice in marketing. It examines current trends in marketing practice which are occurring as a result of change in markets, technology and organisations. It assesses the state of theory in six subfields of marketing. It also considers developments in closely related management disciplines as well as …

Rodrigo's Committee Assignment: A Skeptical Look At Judicial Independence Judicial Independence And Accountability Symposium, Richard Delgado

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No abstract provided.

Rodrigo's Roadmap: Is The Marketplace Theory For Eradicating Discrimination A Blind Alley, Richard Delgado

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No abstract provided.

Making Pets: Social Workers, Problem Groups, And The Role Of The Spca--Getting A Little More Precise About Racialized Narratives Commentary, Richard Delgado

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No abstract provided.

The Llc Versus Llp Conundrum: Advice For Business Contemplating The Choice, Fallany O. Stover, Susan Pace Hamill

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No abstract provided.

United States V. Adlman: Protection For Corporate Work Product?, Charles M. Yablon, Steven S. Sparling

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The Adlman case, decided by the U.S. Court of Appeals for the Second Circuit, significantly expanded the scope of the work product doctrine, particularly affecting corporate legal documents. The court adopted the "because of litigation" test, determining that documents created in anticipation of future litigation are protected, even if they serve dual purposes such as business strategy. This ruling has implications for how companies prepare for transactions and disputes, potentially shielding more strategic documents from discovery while maintaining exceptions for routine or regulatory documents.

The Chrysanthenum, The Sword, And The First Amendment: Disentangling Culture, Community, And Freedom Of Expression, Ronald J. Krotoszynski Jr.

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No abstract provided.

The Battle That Never Was: Congress, The White House, And Agency Litigation Authority, Neal Devins, Michael Herz

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No abstract provided.

The Constricted Meaning Of "Community" In Community Policing, Mary I. Coombs

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No abstract provided.

Establishing Deliberative Democracy: Moving From Misery To Poverty With Dignity, Irwin P. Stotzky

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No abstract provided.