Digital Commons Network^™

The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz

Articles

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

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In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …

Can Islamizing A Legal System Ever Help Promote Liberal Democracy: A View From Pakistan, Clark B. Lombardi

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Over the past twenty-five years, academics in Europe and the United States have written a great deal about the relationship between Islam and democracy, and between Islam and human rights. This scholarship often fails to acknowledge or take into account similar debates that occurred earlier during a period of decolonization. This article discusses the work of a Christian judge who served on the Supreme Court of Pakistan. This judge, A.R. Cornelius, was a famous Cambridge-educated legal liberal who courageously tried in the 1950s and 60s to protect human rights as Pakistan came under martial rule. Cornelius came to argue shockingly …

What Scribner Wrought: How The Invention Of Modern Dialysis Shaped Health Law And Policy, Sallie Thieme Sanford [email protected]

Articles

In March 1960, Clyde Shields, a machinist dying from incurable kidney disease, was connected to an "artificial kidney" by means of a U-shaped Teflon tube that came to be known as the Scribner shunt. By facilitating long-term dialysis, Dr. Belding Scriber’s invention changed chronic kidney failure from a fatal illness to a treatable condition. This medical advance has, in turn, had a profound impact on key areas of health law and policy. This paper focuses on the historical roots and current context of three interrelated areas: ethical allocation of scarce medical resources; public financing of expensive health care; and decisions …

But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas

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In Part I of this Article, I will illustrate the hidden declarant issue through a series of hypotheticals that highlight both the hearsay and Confrontation Clause problems associated with proving former testimony. Next, in Part II, I will demonstrate that treating the hidden declarant's statements as testimonial, and thus subject to exclusion on Confrontation Clause grounds, is consistent with Crawford and its progeny.

I will then demonstrate, in Part III, that historically, in both England and the United States, the accused had the right to confront hidden declarants, and that the historical exception for former testimony does not extinguish the …

The Prosecutorial Ethic: With Great Power Comes Great Responsibility, Maureen Howard

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Although the American trial system has been likened to an arena in which mental combatants fight “to the death ” (the verdict ), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different from that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.

Baseball's Moral Hazard: Law, Economics, And The Designated Hitter Rule, Dustin E. Buehler, Steve P. Calandrillo

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No subject prompts greater disagreement among baseball fans than the designated hitter rule, which allows teams to designate a player to hit for the pitcher. The rule increases the number of hit batsmen, and some have suggested this effect is a result of "moral hazard," which recognizes that persons insured against risk are more likely to engage in dangerous behavior. Because American League pitchers do not bat, they allegedly are not deterred by the full cost of making risky, inside pitches—namely, retribution during their next at bat.

Using a law-and-economics approach, this Article concludes that the designated hitter rule creates …

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law And Economics, Steve P. Calandrillo

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The recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution's Due Process Clause presumptively …

Embedded Advertising And The Venture Consumer, Zahr Said

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Embedded advertising—marketing that promotes brands from within entertainment content—is a thriving, rapidly changing practice. Analysts estimate that embedded advertising expenditures will exceed $10 billion in 2010. The market continues to grow even as traditional advertising revenues contract. The relatively few legal scholars who have studied embedded advertising believe that it is under-regulated. Ineffective regulation, they claim, is deeply troubling because corporations may, with legal impunity, deceptively pitch products to trusting viewers. Critics charge that embedded advertising creates "hyper-commercialism," distorts consumers' tastes, taints the artistic process, and erodes faith in public discourse.

This Article argues that the critics are wrong. Sponsorship …

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

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This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

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When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …

Taking The High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, Maureen A. Howard

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In this Article, I review the efficacy of peremptory challenges and conclude that both empirical and anecdotal evidence confirm such challenges are of little utility. I contend that the marginal benefit of peremptory challenges to a criminal prosecutor is outweighed by the damage done to both the actual and perceived fairness of the system, and that imbalance should persuade prosecutors to consider a wholesale voluntary waiver of peremptory challenges.

"I'M Dying To Tell You What Happened": The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Articles

This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."

This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and …

Shared Understanding Or Consensus-Masked Disagreement? The Anti-Torture Framework In The Convention On The Rights Of Persons With Disabilities, Janet E. Lord

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No abstract provided.

Studies Of Chemical Fixation Effects In Human Cell Lines Using Raman Microspectroscopy, Aidan Meade, Colin Clarke, Florence Draux, Ganesh Sockalingum, Michel Manfait, Fiona Lyng, Hugh Byrne

Articles

The in vitro study of cellular species using Raman spectroscopy has proven a powerful non-invasive modality for the analysis of cell constituents and processes. This work uses micro-Raman spectroscopy to study the chemical fixation mechanism in three human cell lines (normal skin, normal bronchial epithelium, and lung adenocarcinoma) employing fixatives that preferentially preserve proteins (formalin), and nucleic acids (Carnoy’s fixative and methanol–acetic acid). Spectral differences between the mean live cell spectra and fixed cell spectra together with principal components analysis (PCA), and clustering techniques were used to analyse and interpret the spectral changes. The results indicate that fixation in formalin …

Space, Time And The Constitution Of Subjectivity: Comparing Elias And Foucault, Paddy Dolan

Articles

The work of Foucault and Elias has been compared before in the social sciences and humanities, but here I argue that the main distinction between their approaches to the construction of subjectivity is the relative importance of space and time in their accounts. This is not just a matter of the “history of ideas,” as providing for the temporal dimension more fully in theories of subjectivity and the habitus allows for a greater understanding of how ways of being, acting and feeling in different spaces are related but largely unintended. Here I argue that discursive practices, governmental operations and technologies …

Of Discipline And Civilization: A Roundtable Discussion On The Legacies Of Norbert Elias And Michel Foucault, Sam Binkley, Paddy Dolan, Stefanie Ernst, Cas Wouters

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When one considers the proximity of their concerns, it is perhaps surprising that the works of Norbert Elias and Michel Foucault have not been more systematically compared and discussed. However, the differentiation of disciplinary knowledge (particularly the boundary that separates philosophy from social theory), com-pounded by parochialisms fostered by the cult of the intellectual, have delayed this process far past its due. This conversation, which began in 2008 at a conference on the works of Elias and Foucault at the University of Hamburg, is, in this regard, an effort to make up for lost time. Fashioned from hours of discussion …

The Planned And The Unplanned: A Roundtable Discussion On The Legacies Of Michel Foucault And Norbert Elias, Sam Binkley, Paddy Dolan, Stefanie Ernst, Cas Wouters

Articles

When one considers the proximity of their concerns, it is perhaps surprising that the works of Norbert Elias and Michel Foucault have not been more systematically compared and discussed. However, the differentiation of disciplinary knowledge (particularly the boundary that separates philosophy from social theory), com-pounded by parochialisms fostered by the cult of the intellectual, have delayed this process far past its due. This conversation, which began in 2008 at a conference on the works of Elias and Foucault at the University of Hamburg, is, in this regard, an effort to make up for lost time. Fashioned from hours of discussion …

An Evaluation Of A Community Dietetics Intervention On The Management Of Malnutrition For Healthcare Professionals, Sharon Kennelly, N. P. Kennedy, G. Flanaghan-Rughoobur, C. Glennon-Slattery, Sheila Sugrue

Articles

Background: Healthcare professionals working in the community setting have limited knowledge of the evidence-based management of malnutrition. The present study aimed to evaluate a community dietetics intervention, which included an education programme for healthcare professionals in conjunction with the introduction of a community dietetics service for patients ‘at risk’ of malnutrition. Changes in nutritional knowledge and the reported management of malnourished patients were investigated and the acceptability of the intervention was explored. Methods: An education programme, incorporating ‘Malnutrition Universal Screening Tool (MUST)’ training, was implemented in eight of 10 eligible primary care practices (14 general practitioners and nine practice nurses …

Media Literacy And Communication Rights: Ethical Individualism In The New Media Environment, Brian O'Neill

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The dominant discourse of media literacy policy espouses an ethical individualism within the digital media environment in which the source of moral values and principles, and the basis of ethical evaluation, is the individual. In this perspective, even vulnerable citizens such as children and young people, who tend to be in the vanguard of new media adoption, are required to negotiate the risks and opportunities of the online world with diminishing degrees of institutional support from trusted information sources. Noticeably absent from this discourse is any consideration of the notion of communication rights. Examining an alternative conceptualization of media literacy …

Living Separate And Apart: Solving The Problem Of Putative Community Property In Louisiana, Casey E. Faucon

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No abstract provided.

Talk The Talk, But Walk The Walk: A Comment On Joan Williams's Reshaping The Work-Family Debate Crowdsourcing The Work-Family Debate: A Colloquy, Jean Stefancic

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No abstract provided.

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …

Forty Years Of Movie Hacking: Considering The Potential Implications Of The Popular Media Representation Of Computer Hackers From 1968 To 2008, Damian Gordon

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Increasingly movies are being produced which feature plots that incorporate elements of computer security and hacking, and cumulatively these movies are creating a public perception as to the nature of computer security. This research examines movies that feature hackers (and hacking) to identify if any common themes emerge from these movies in their representation of these issues. To achieve this, first a corpus of hacking movies is created, and then using a qualitative data analysis technique, guidelines are developed which distinguish those movies that actually have the potential to create a perception with the general public. The resultant dataset is …

Speech Intelligibility From Image Processing, Andrew Hines, Naomi Harte

Articles

Hearing loss research has traditionally been based on perceptual criteria, speech intelligibility and threshold levels. The development of computational models of the auditory-periphery has allowed experimentation via simulation to provide quantitative, repeatable results at a more granular level than would be practical with clinical research on human subjects.

The Bible As A Law Book - Thomas Aquinas On The Juridical Uses Of Scripture, William S. Brewbaker Iii

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No abstract provided.

Discovering Identity In Civil Procedure (Book Review), Anthony V. Alfieri

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No abstract provided.

Taking Initiatives: Reconciling Race, Religion, Media And Democracy In The Quest For Marriage Equality, Anthony E. Varona

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No abstract provided.

Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policy Making Of The New American Regime, Anthony E. Varona

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No abstract provided.

War And Peace In The Jury Room: How Capital Juries Reach Unanimity, Scott E. Sundby

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No abstract provided.