Digital Commons Network^™

Common Law, Common Ground, And Jefferson's Principle, David A. Strauss

Articles

No abstract provided.

The Brave New World Of Arbitration, Diane P. Wood

Articles

No abstract provided.

Threatening An Irrational Breach Of Contract, Omri Ben-Shahar, Oren Bar-Gill

Articles

When circumstances surrounding the contract change, a party might consider breach a more attractive option than performance. Threatening breach, this party may induce the other party to modify the original agreement. The contract law doctrine of modification determines whether and when these modifications are enforceable. To promote social welfare as well as the interests of the threatened party, the law should enforce modifications if and only if the modification demand is backed by a credible threat to breach. This paper argues that credibility is not a function of pecuniary interests alone. A decision to breach can be motivated also by …

The 'Necessary' History Of Property And Liberty, Richard A. Epstein

Articles

No abstract provided.

Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner

Articles

No abstract provided.

The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard E. Harcourt

Articles

No abstract provided.

Canonical Remedies In Medieval Marriage Law: The Contributions Of Legal Practice Founding, Richard H. Helmholz

Articles

No abstract provided.

Natural Human Rights: The Perspective Of The Ius Commune, Richard H. Helmholz

Articles

No abstract provided.

Christopher St. German And The Law Of Custom, Richard H. Helmholz

Articles

No abstract provided.

Indefinitely Renewable Copyright, Richard A. Posner, William M. Landes

Articles

No abstract provided.

Developing A Taste For Not Being Discriminated Against (Reviewing Ian Ayres, Pervasive Prejudice? Unconventional Evidence Of Race And Gender Discrimination (2001) And Francisco Valdes, Jerome Mccristal Culp & Angela P. Harris, Crossroads, Directions, And, Mary Anne Case

Articles

No abstract provided.

The Spatially Averaged Electric Field In The Near Field And Far Field Of A Circular Aperture, Charles Daly, Todd Nuteson, Navalgund Rao

Articles

This paper presents a theoretical and numerical investigation of the spatially averaged electric field in the beam of a circular aperture. The investigation leads to closed-form analytical expressions, based on scalar diffraction theory, which describe the spatially averaged electric field in the Fresnel region of a circular aperture excited by a spatially uniform, harmonic plane wave. The expressions ultimately permit rapid, practical, and efficient prediction of certain routine electromagnetic measurements. Because the expressions are valid in the Fresnel region, they are also valid in the near field, the far field, and the Fraunhofer region of a circular aperture. In fact, …

Deafness And Chemical Dependency, Jeff Rubin

Articles

No abstract provided.

"An Outsider's View Of Modern Ireland: Michel Houellebecq's Atomised", Eamon Maher

Articles

No abstract provided.

Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule

Articles

No abstract provided.

Antitrust's Troubled Relations With Intellectual Property, Daniel J. Gifford

Articles

Throughout most of the history of the antitrust laws, the relationship between antitrust laws and patent, copyright, and other intellectual property laws has been a subject of controversy. The courts have sometimes allowed intellectual property law to trump antitrust law, and at other times they have done the opposite. One would think that, given the over one-hundred-year period the Sherman Act has been on the books, the relationships between these two sets of laws would be settled by now. Yet, as recent litigation in the Federal, Ninth, and District of Columbia Circuits demonstrates, the antitrust/intellectual property interface remains as troubled …

State Interest And Marriage--The Theoretical Perspective, Brian H. Bix

Articles

By the conference description, we are to consider "the relationship of marriage and self-government." 2 It is hard to analyze the relationship of these two, because they are "moving targets." Everyone thinks they know what is meant by "marriage," but as the debate ensues about the extension (e.g., to same-sex couples) and modification (e.g., for covenant marriage rules) of marriage, and our social norms about the roles of parents (married or not) and spouses change, one might wonder how much is certain and agreed upon and how much is fluid and up for review and revision. 3

Norms On The Responsibilities Of Transnational Corporations And Other Business Enterprises With Regard To Human Rights, David Weissbrodt, Muria Kruger

Articles

On August 13, 2003, the United Nations Sub-Commission on the Promotion and Protection of Human Rights approved the "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights" (Norms) 1 in its Resolution 2003/16. 2 The Norms represent a landmark step in holding businesses accountable for their human rights abuses and constitute a succinct, but comprehensive, restatement of the international legal principles applicable to businesses with regard to human rights, humanitarian law, international labor law, environmental law, consumer law, anticorruption law, and so forth.

The Constitutional Underpinnings Of Homelessness, Ann Burkhart

Articles

In Lindsey v. Normet, 1 the U.S. Supreme Court upheld a state wrongful detainer statute against tenants who withheld their rent after the Bureau of Buildings of Portland, Oregon declared their house to be uninhabitable. 2 In reaching its holding, the Court stated that it was "unable to perceive in [the Constitution] any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the terms of his lease without the payment of rent." 3 The Court did not address the separate issue …

Human Rights Approach To Intellectual Property Protection: The Genesis And Application Of Sub-Commission Resolution 2000/7, David Weissbrodt, Kell Schoff

Articles

On August 17, 2000, the United Nations Sub-Commission on the Promotion and Protection of Human Rights (the Sub- Commission) adopted Resolution 2000/7, entitled Intellectual Property Rights and Human Rights .1 This resolution signified the Sub-Commission s belief that international intellectual property regimes were not adequately accounting for human rights norms.2 Resolution 2000/7 called on U.N. Member States, intergovernmental bodies, and various U.N. entities to reaffirm their commitments toward the achievement of international human rights norms, adopt a human rights approach to the development of international intellectual property regimes, and further study the interaction between intellectual property protection and human rights.3

The Constitutional Tension Between Apprendi And Mckeiver: Sentence Enhancements Based On Delinquency Convictions And The Quality Of Justice In Juvenile Courts, Barry C. Feld

Articles

In Apprendi v. New Jersey, the Supreme Court ruled that any fact that increases the penalty for a crime “other than the fact of a prior conviction” must be submitted to a jury and proved beyond a reasonable doubt. Apprendi exempted the fact of a prior conviction from its holding because criminal defendants enjoyed a constitutional right to a jury trial at the time the state obtained that conviction which assured the accuracy and reliability of the prior record. By contrast, a plurality of the Supreme Court in McKeiver v. Pennsylvania denied juvenile delinquents a constitutional right to a jury …

Race, Politics, And Juvenile Justice: The Warren Court And The Conservative "Backlash", Barry C. Feld

Articles

A century ago, the Progressive reformers who created the juvenile court embraced a particular ideological construction of childhood as one of innocence and vulnerability. They also adopted a scientific conception of social control - positive criminology - that attempted to identify the causes of criminality and purported to treat, rather than to punish, offenders. The juvenile court combined the new conception of childhood with the new strategies of positive criminology to create a judicial-welfare alternative to the adult criminal process for juveniles. The juvenile court affirmed the responsibility of families to raise their children while expanding the state's prerogative to …

Chaos And Rules: Should Responses To Violent Crises Always Be Constitutional?, Oren Gross

Articles

Two broad categories of constitutional models have traditionally been invoked in the context of fashioning legal responses to emergencies. According to the Business as Usual model, ordinary legal rules continue to be strictly followed with no substantive change even in times of crisis. The law in times of war remains the same as in times of peace. Other models of emergency powers may be grouped together under the general category of models of accommodation, insofar as they attempt to accommodate, within the existing normative structure, security considerations and needs. Though the ordinary system is kept intact as much as possible, …

What Were They Thinking? Fourth Amendment Unreasonableness In Atwater V. City Of Lago Vista, Richard Frase

Articles

In Atwater v. City of Lago Vista the Supreme Court upheld the arrest and jailing of a woman for a seat belt violation even though her offense was punishable only with a small fine, and there was no reason why the police officer could not have simply issued a citation. Atwater thus permits, and indeed encourages, unnecessary and disproportionate arrests (along with the various searches and other hardships which routinely accompany an arrest). The extremely broad arrest power recognized by the Court also creates a grave potential for abuse in light of the breadth of modern traffic laws (almost every …

Se Battre Our Ses Droits Écritures, Litiges Et Discrimination Raciale En Louisiane (1888-1899), Rebecca J. Scott

Articles

Title in English: Fighting for public rights: writing, lawsuits and racial segregation in Louisiana (1888-1889).

This article explores the links between the fight against compulsory racial segregation and the day–to–day operation of the law in nineteenth century Louisiana. Using the figure of Louis A. Martinet, one of the organizers of the test case that yielded the U.S. Supreme Court decision Plessy v. Ferguson, the essay argues that Martinet’s role as notary reflects the central importance to the community of color of questions of public standing and written records. The article also identifies the concepts of "public rights" and "public liberties" …

The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier

Articles

For more than two centuries, the Rule against Perpetuities has served as the chief means of limiting a transferor's power to tie up property by way of successive contingent interests. But recently, at least seventeen jurisdictions in the United States have enacted statutes abolishing the Rule in the case of perpetual (or near-perpetual) trusts. The prime mover behind this important development has been the federal Generation-Skipping Transfer Tax. This Article traces the gradual decline of the common law Rule against Perpetuities, considers the dynamics behind the recent wave of state legislation, examines the problems that might result from the rise …

Minimizing The Jury Over-Valuation Concern (Visions Of Rationality In Evidence Law Symposium), Richard D. Friedman

Articles

A great deal of the rhetoric of evidence discourse concerns the supposed cognitive inadequacies of the jury. In various contexts we are told that although an item of evidence is probative, it must be excluded because the jury will give it too much weight. I believe this approach has played far too great a role in evidentiary law, and that it is an interesting project to see whether we can construct a satisfactory body of law without relying at all on the cognitive inadequacy argument. I think that, at least to a large extent, we can. In some settings, where …

On Researching Music In Everyday Life:Assessing The Musician As Producer Of Commercialised Music, Alan Bradshaw, Roger Sherlock, Pierre Mcdonagh

Articles

Adorno & Horkheimer (1998) argue that the Culture Industry generates cultural artefacts that fail to develop human consciousness and hence support the domination of the capitalist system. Steinert (2003) states that the pressures facing musicians to negotiate between the demands of the culture industry and the traditional role of the artist generates a fundamental contradiction within art which is symbolically enacted through artistic production. This study, which draws on on-going postgraduate research aims to develop a research framework that investigates how musicians negotiate this contradiction. The study considers if a more reflexive approach to art exists, typified by the Pop …

Class And Status In American Law: Race, Interest, And The Anti-Transformation Cases, Martha R. Mahoney

Articles

No abstract provided.

Why Theories Of Law Have Little Or Nothing To Do With Judicial Restraint, Philip E. Soper

Articles

The question I explore here, stated in its broadest form, is this: What is the connection between theory and practice between academic claims about how judges should decide cases and the actual behavior of judges as revealed in the opinions they write? More particularly, do theories about the nature of law have any implications for the question whether a judge should adopt an "activist" or a "restrained" approach to deciding cases? As you might infer from my title, I defend here what I call "the skeptical thesis" in answer to both the general and particular questions. Judges pay little or …