Digital Commons Network^™

Moral Judgment Of Law Students Across Three Years: Influences Of Gender, Political Ideology And Interest In Altruistic Law Practice, Maury Landsman, Steven P. Mcneel

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Jokes and negative stereotypes about lawyers abound, suggesting low levels of honesty and morality. One commentator has suggested a reason for this: The joke rings true to a lot of people because of what many lawyers in this country - including many at the top of the profession - do for their clients: bend, distort, conceal, cover up, obfuscate, or misrepresent the facts, in ways that are simultaneously (1) regarded by ordinary people as just plain dishonest, and (2) defended by many lawyers and legal experts as embodying the finest traditions of the bar and of legal ethics in our …

The Wrong Way To Equality: Privileging Consent In The Trafficking Of Women For Sexual Exploitation, Beverly Balos

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Chamoli lived near the birthplace of the Buddha in Nepal. When she was 16, she met a young man and fell in love with him. He promised to marry her but insisted that she come away with him to India. So one day she ran away with the boyfriend and crossed the border to India on foot. From there she and her boyfriend took a train to the Indian city of Poona. Once they had reached Poona, Chamoli was taken to a house where there was an older Nepali lady and many young girls. The lady gave her boyfriend some …

Is Lawrence Libertarian?, Dale Carpenter

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Lawrence v. Texas 1 begins with "Liberty" and ends with "freedom." 2 For the first time in its history the Supreme Court invalidated a law criminalizing sexual conduct. Add to that sweeping statements in Lawrence celebrating individual "autonomy." 3 Consider too the Court's surprising revival of substantive due process, a doctrine entombed with musty traditions in liberty-denying decisions like Bowers v. Hardwick 4 and Washington v. Glucksberg. 5 What is more, Lawrence is not your father's substantive due process. The pre-Lawrence doctrine bifurcated the world into a large domain of almost unprotected "liberty interests" and a very small and increasingly …

International Human Rights Law Perspective On Grutter And Gratz, David Weissbrodt

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There is an international human rights law aspect to Grutter v. Bollinger 1 and Gratz v. Bollinger 2 that might be missed by many lawyers and scholars who rarely consider any legal domain beyond the limits of the U.S. Constitution. Indeed, Grutter and Gratz reflect a trend in Supreme Court opinions to use international human rights sources in interpreting the Constitution.

The Sub-Commission's Initiative On Human Rights And Intellectual Property, David Weissbrodt, Kell Schoff

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In 2000 the United Nations Sub-Commission on the Promotion and Protection of Human Rights adopted a resolution raising concerns about the consistency of international intellectual property protections and human rights norms. This article summarises human rights norms relevant to intellectual property and the pertinent aspects of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which overlap or potentially conflict. The article provides several examples of potential conflict and how they might be resolved. The article demonstrates that the Sub-Commission resolution helped to initiate a major international discussion and some action on the relationship between human rights and intellectual property.

Is Incest Next?, Brett Mcdonnell

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No abstract provided.

A New Voice For The Workplace: A Proposal For An American Works Councils Act, Stephen F. Befort

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Surveys show that American workers want more "voice" in the workplace. For the past century, unions have served as the principle voice mechanism for workers, but with the decline of unions, employee voice also has diminished. Section 8(a)(2) of the NLRA compounds this problem by prohibiting most employer-supported programs by which employees "deal with" employers concerning terms and conditions of employment. Both the East and the West offer possible alternative voice mechanisms. Over the past two decades, American employers increasingly have looked to the Japanese experience in adopting quality circles, work teams, and other employee involvement programs. But the growth …

Government Policy Towards Innovation In The United States, Canada, And The European Union As Manifested In Patent, Copyright, And Competition Laws, Daniel J. Gifford

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THE United States, Canada, the European Union, Japan and most industrialized nations have adopted patent, copyright and other intellectual property laws. A major or primary purpose of those laws is to foster innovation, including technological innovation. Industrial and technological innovation is generally perceived as a good because technological advances increase a society's productivity, 1 thus increasing its wealth and raising living standards. The major industrialized nations also possess competition laws, one of whose purposes is to preserve, foster and support competitive markets. These nations want to preserve competitive markets because competitive markets help to allocate available resources to their highest …

How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford

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This paper explores the workings of the patent system in the context of the generation of new pharmaceutical products. First it identifies the relevant characteristics of the patent system and its relation to the market. The paper concedes that, in general, the patent system is probably the best way of generating new technology, in substantial part because that system uses the market to provide both incentives and rewards. The paper also identifies downsides of this patent/market system: deadweight loss and the unresponsiveness of that patent/market system to the needs of the poor. The paper then explores the social costs and …

At The Cutting Edge Of Labor Law Preemption: A Critique Of Chamber Of Commerce V. Lockyer, Stephen F. Befort, Bryan N. Smith

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This article analyzes the contours of federal labor law preemption through the lens of the Ninth Circuit Court of Appeals recent decision in Chamber of Commerce v. Lockyer, 364 F.3d 1154 (9th Cir. 2004). This case involves a constitutional challenge brought by the U.S. Chamber of Commerce and several other organizations to California Assembly Bill 1889 (AB 1889), enacted by the California legislature effective in 2001. This statute prohibits certain public employers, state grant recipients, and state contractors from using state-provided funds or property to assist, promote, or deter union organizing efforts. The Ninth Circuit, in a decision issued in …

The Labor And Employment Law Decisions Of The Supreme Court's 2003-04 Term, Stephen F. Befort

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It is longstanding tradition for the Secretary of the ABA's Labor and Employment Law Section to prepare a summary of the labor and employment decisions issued during each Supreme Court term. This article summarizes seven labor and employment decisions issued by the Court during its 2003-04 term as well as two other decisions that, while not arising under a labor or employment statute, have potential implications for labor and employment law. The article also analyzes each of the decisions for their overall impact and significance within the field of labor and employment law. The article goes on to discuss how …

Spectres Of Law And Economics (Book Review), William H. Widen

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No abstract provided.

Terrorism, Security, And Environmental Protection, Stephen M. Johnson

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Part I of this Article examines the post-September 11 trend of reduced access to environmental, health, and safety information. Part II introduces the tools that governments might use to protect the environment while protecting homeland security, including planning and information disclosure, command and control measures, and pollution prevention measures. Part II also criticizes the reliance on command and control measures as the primary means of addressing the security issues created by businesses that engage in activities that could harm the environment, health, or safety. Part III explores the advantages of planning and information disclosure programs over command and control programs …

The Fair City Production Line: An Examination Of Soap Opera’S Potential Contribution To The Public Sphere, Edward Brennan

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Between December 2000 and February 2001 the Irish soap opera Fair City ran an unprecedented, risky and controversial abortion storyline. This came before a looming referendum on the legality of abortion. Here, Fair City was not just offering entertainment, but provoking debate and discussion on a divisive issue in Irish society. In this case, and many others, it appears that soap opera, by promoting such discussion, may contribute to the formation of public opinion in contemporary civil society. Heretofore, most academic studies have overlooked the possible consequences of soap opera for civil society, public opinion and the democratic process. This …

The Future Of Sustainable Development: A European Perspective, Ruth Kelly

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We are living in times of turbulence and complex changes without precedent in history. It is becoming increasingly evident that humans are an intrinsic component of nature in that their actions affect both the biotic and abiotic environments, and are in turn affected by everything that shapes those environments. In evolutionary terms, population growth, societal restructuring, exhaustion of natural resources and technological advancements have usually been so slow as to be indiscernible during an individual lifetime. However, in the past two centuries the global economy has shown exponential growth, transforming the character of the planet and especially of human life …

Seeking Truth For Power: Informational Strategy And Regulatory Policymaking, Cary Coglianese, Richard Zeckhauser, Edward A. Parson

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Information is the lifeblood of regulatory policy. The effective use of governmental power depends on information about conditions in the world, strategies for improving those conditions, and the consequences associated with deploying different strategies. Indeed, this need for information has led legislatures to create specialized committee structures, delegate policy authority to expert agencies, and develop administrative procedures that encourage analysis. Although legal scholars have extensively debated procedures and reforms designed to improve the analytic and scientific basis of regulatory policymaking, they have paid relatively little attention to how regulators gain the information they need for making and implementing regulatory policy. …

Benumbed, Carl E. Schneider

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I originally intended to write a column on tort liability and research ethics, and I still plan to do so. But this column is a cri de coeur as I finish another semester teaching law and bioethics. This year, I asked with growing frequency, urgency, and exasperation, "Must law's reverence for autonomy squeeze out the impulse to kindness? Where is the beneficence in bioethics?" These questions assail me every term. Why? Consider Steele v. Hamilton County Community Mental Health Board. Mr. Steele was involuntarily "hospitalized after his family reported that he was 'seeing things and trying to fight imaginary …

A Glimpse Behind And Beyond Grutter, Evan H. Caminker

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Many people have suggested that the recent battle over affirmative action was a defining moment for the contemporary relevance of Brown v. Board of Education and that it would determine the promise and potential for widespread societal integration. In my remarks, I want to comment upon a couple of comparisons and links between the Brown, Bakke, Grutter, and Gratz cases.

Gaming Delaware, William Wilson Bratton

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No abstract provided.

No Provincial Or Transient Notion: The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich

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The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

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Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects. Nonetheless, comprehensive coverage of infertility treatments under employer-sponsored plans - where, like Jane, most Americans get health insurance - appears to be the exception rather than the rule. Can Jane sue for disability discrimination, sex discrimination, or both? While the answer - "it depends" - should not be surprising to anyone who has survived even a semester of law …

Protecting The Citizen Whilst He Is Quiet: Suspicionless Searches, Special Needs And General Warrants, Scott E. Sundby

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No abstract provided.

Tribal Sovereignty Over Water Quality, Jessica Owley

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On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality, Lester Brickman

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Bankruptcy's Acephalous Moment: Postpetition Transfers Under The Bankruptcy Code, David G. Carlson

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No abstract provided.

Past And Present Proposed Amendments To The United States Constitution Regarding Marriage, Edward D. Stein

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Proposals to amend the Constitution to prohibit same-sex marriages were recently actively discussed in the U.S. Senate and are likely to receive attention in the House before the year's end. This article situates arguments for these proposals within the history of attempts to amend the Constitution related to marriage by providing the first detailed, synthetic analysis of such previously proposed amendments. This examination reveals 133 previously proposed amendments to the Constitution relating to marriage, consisting primarily of proposals to prohibit interracial marriage, proposals to prohibit polygamy, and proposals to empower Congress to make uniform laws concerning marriage and divorce. By …

Religious Institutions, The No-Harm Doctrine, And The Public Good, Marci A. Hamilton

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No abstract provided.

The Meaning Of Probability Judgments: An Essay On The Use And Misuse Of Behavioral Economics, Charles M. Yablon

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In this essay, Professor Yablon challenges the assumption that behavioral heuristics-such as the availability heuristic -constitute "biases" that necessarily lead to errors in probability judgments. He notes that there are many different concepts of probability and, in many contexts, no agreed-upon method for determining the correctness of inconsistent probability judgments. Yet many legal academics and policymakers ignore these complex aspects of probability theory, assuming that statistical or frequentist probabilities are always to be preferred over subjective judgments of probability.

Professor Yablon argues that choosing between frequentist and subjective approaches to probability judgments in policymaking can only be done with great …

New York Moveable Feast: Boundaries To Practice, Christopher Honeyman, Lela P. Love

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No abstract provided.

The Rehnquist Court And Administrative Law, Michael Herz

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No abstract provided.