Digital Commons Network^™

Color/Identity/Justice: Chicano Trials (Book Review), Anthony V. Alfieri

Articles

No abstract provided.

Firm Growth As A Research Issue, Thomas Cooney, Pasi Malinen

Articles

A key issue of debate regarding small firms over the past two decades has focused on the ability of small firms to engender growth, particularly fast-growth firms. Many commentators believe that it is a minimal group of enterprises germinating rapidly that provide the real jobs and therefore, that it is these firms which policy makers should be converging upon. But how can small businesses be transformed into fast-growth firms? As Tuck and Hamilton (1993) noted, despite the magnitude of research on small firms, especially regarding growth, researchers are still uncertain why some firms grow and others do not when originating …

Free Speech And Valuable Speech: Silence, Dante, And The 'Marketplace Of Ideas', James Boyd White

Articles

This Essay is a slightly expanded version of the inaugural Mellinkoff Lecture in Law and Humanities, presented at the UCLA School of Law last April in honor of the memory of Professor David Mellinkoff, the distinguished author of ground-breaking work on the nature of legal language. It addresses four related questions. What is the nature of the kind of speech and expression that realizes most completely the human capacity for finding and expressing meaning? How does our own world of public speech measure up to that standard? How, indeed, does our own talk in the law measure up, especially our …

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

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 …

Shedding A Tear, William I. Miller

Articles

The tale that follows is also one of great gender anxiety, and it is true.

'Agreeing To Disagree': Filling Gaps In Deliberately Incomplete Contracts, Omri Ben-Shahar

Articles

Incomplete contracts have always been viewed as raising the following challenge for contract law: does the incompleteness-or, "indefiniteness," as it is usually called-rise to such a level that renders the agreement legally unenforceable? When the indefiniteness concerns important terms, it is presumed that the parties have not reached an agreement to which they intend to be bound. This "fundamental policy" is the upshot of the view that "contracts should be made by the parties, not by the courts."' When, in contrast, the indefiniteness concerns less important terms, courts supplement the agreement with gap fillers and enforce the supplemented contract.

Labor And Employment Law In Two Transitional Decades, Theodore J. St. Antoine

Articles

Labor law became labor and employment law during the past several decades. The connotation of "labor law" is the regulation of union-management relations and that was the focus from the 1930s through the 1950s. In turn, voluntary collective bargaining was supposed to be the method best suited for setting the terms and conditions of employment for the nation's work force. Since the 1960s, however, the trend has been toward more governmental intervention to ensure nondiscrimination, safety and health, pensions and other fringe benefits, and so on. "Employment law" is now the term for the direct federal or state regulation of …

Why I Write (And Why I Think Law Professors Generally Should Write), Yale Kamisar

Articles

As my colleague James Boyd White has observed, It may look as though we are all doing the same thing, as we huddle over our typewriters or computers, producing work called articles or books, but we are in fact often doing very different things, and I think it is important to recognize and value these differences, in ourselves and in others. There are not only differences in what we write but in whom it is that we write for. Unlike Professor White,2 I usually write as professional to professional. Again, unlike Professor White,3 I am fairly comfortable with "the voice …

Obvious To Whom? Evaluating Inventions From The Perspective Of Phosita, Rebecca S. Eisenberg

Articles

In this Article, I consider the possibility of giving the USPTO input from currently active technological practitioners in evaluating the obviousness of claimed inventions. Such input could potentially serve three useful functions. First, it could improve the accuracy of USPTO decisionmaking by providing access to the perspective of actual practitioners as to the obviousness of inventions from the perspective of the hypothetical PHOSITA. Second, it could help the USPTO document the evidentiary basis for rejections that rest in part upon tacit knowledge within technological communities. Third, it could provide a quality control mechanism that would improve the credibility of USPTO …

Delivery Of Legal Services To Children In The Boston Area, Tamar Ezer

Articles

No abstract provided.

The Generalized Interpersonal Theory Of Personality And Psychopathology, G. Scott Acton

Articles

No abstract provided.

Where Is The "There" In Health Law? Can It Become A Coherent Field?, Mark A. Hall, Carl E. Schneider

Articles

Gerturde Stein complained of Oakland, "There is no there there." Churchill complained of his pudding that "it has no theme." And everybody complains of health law that it lacks an organizing principle. Health law scholars bemoan the "pathologies" of health law and its contradictory and competing "paradigms'. which form a "chaotic, dysfunctional patchwork." But it should not surprise us that any field which grows by accretion lacks a unifying idea or animating concern. And health law certainly grew by accretion. It began in the 1960s, when the Law-Medicine Center was established, concerned with medical proof in litigation, physicians' malpractice, and …

The Process For Becoming A Law School Professor In The United States, Daniel H. Foote

Articles

As the process of legal education reform in Japan, centered on the establishment of a new tier of professional graduate schools in law, moves forward, one issue that has arisen is how law professors will be trained in coming years. In that connection, I am frequently asked what the typical route is for training law school professors in the US. Based in part on an examination of the backgrounds prior to entering law teaching for over 500 law professors at eight US law schools and on personal experiences (including serving for three years on the appointments committee at the University …

Capitalism And Freedom -- For Whom? Feminist Legal Theory And Progressive Corporate Law,, Kellye Y. Testy

Articles

Beginning at least in the 1980s, the version of corporate law and governance prevailing in the U.S. (as well as widely exported to other nations) was a radically privatized one, treating the corporation as a contractual arrangement for maximizing shortterm share price in a laissez faire global marketplace. Though many robust and varied social movements, many of which were bolstered by the 1999 WTO protests in Seattle, have been and are engaged in challenging this hegemony from many angles, few have found their way into corporate law reform. That is not to say, however, that there are no progressive legal …

Consent Engendered: A Feminist Critique Of Consensual Fourth Amendment Searches, Dana Raigrodski

Articles

As I will argue, the Court's consent-to-search cases are driven by this patriarchal ideology to maintain social structures of power disparities and to perpetuate the subordination of women, minorities, and other disempowered members of society.

We need to acknowledge the power and submission paradigm that underlies police-citizen encounters and to scrutinize the entire notion of consent. In order to confront both power and consent, I will turn to feminist critique of consent, particularly in the area of rape, and to feminist writings about choice and agency. Based on these writings I will argue that by distinguishing coerced consent to a …

Cash For Kidneys? Utilizing Incentives To End America's Organ Shortage, Steve P. Calandrillo

Articles

This article addresses the growing organ shortage in America, analyzes current donation and procurement law, and explores both monetary and nonmonetary incentives aimed at eliminating the worsening crisis.

Part I details the law governing human organ donation. Under both the Uniform Anatomical Gift Act (“UAGA”) and the National Organ Transplant Act (“NOTA”), no donor of a human organ may receive “valuable consideration” for providing it. Congress’ intention was simply that the organ recipient be given the “gift” of life—not one which she had to purchase on the market. In reality, the consequences of the Act bear little resemblance to its …

Flawed Justice: Limitation Of Parental Remedies For The Loss Of Consortium Of Adult Children, William S. Bailey

Articles

This article presents the inherent contradiction between a parent-child relationship that has steadily evolved from the early 20th Century to the present and the multitude of court decisions on damages that remain studiously ignorant of this shift.

Part I of the article will set forth the common law origins of restrictions on recovery for wrongful death within the context of a shifting view of children from economic units to objects of adoration. Part II will examine the devastating impact that the loss of an adult child has on parents both from their perspectives and from now existing research.

In the …

Assessment Of Obesity And Fear Of Fatness Among Inner-City Dublin Schoolchildren In A One-Year-Follow-Up Study, Anne Griffin, Katherine Younger, Mary Flynn

Articles

Background: Positive secular trends in adolescent obesity and an increased prevalence of fear of fatness, particularly among girls, have been documented world-wide. There is a lack of consensus about assessment criteria for childhood obesity and no standard exists for assessing Irish children. In 1990, the Irish National Nutrition Survey used body mass index (BMI) $26 kgm22 to describe the prevalence of overweight among Irish adolescents.

Objectives: (1) To examine the range in classification of Dublin schoolchildren as overweight according to four standard assessment methods; (2) to assess changes in weight status, prevalence of fear of fatness and accompanying slimming practices …

Soap Opera, Com Mercialisation An D The Proletarian Isation Of Cultural Production, Edward Brennan

Articles

Abstract This article is based in a broader study of the production of Fair City, Ireland’s most popular television soap opera. The study argues that such shows are potentially important in civil society. They can promote discussion and debate on hidden or taboo social issues. They may thus inform public opinion. Until recently the potential role of soap opera in civil society has largely been overlooked. The research examined the social issues that Fair City could introduce to public discussion by examining its production process. It found the main limits on what the show could and could not say to …

Child Sexual Abuse In Sub-Saharan Africa: A Literature Review, Kevin Lalor

Articles

Objective. This article reviews the English-language literature on child sexual abuse in sub-Saharan Africa (SSA). The focus is on the sexual abuse of children in the home/community, as opposed to the commercial sexual exploitation of children. Method. English language, peer-reviewed papers cited in the Social Sciences Citation Index (SSCI) are examined. Reports from international and local NGOs and UN agencies are also examined. Results. Few published studies on the sexual abuse of children have been conducted in the region, with the exception of South Africa. Samples are predominantly clinical or University based. A number of studies report that approximately five …

Truth And Illusion, Suzanne Last Stone

Articles

No abstract provided.

Copyright And Information Theory: Toward An Alternative Model Of Authorship, Alan L. Durham

Articles

Both literary scholars and students of copyright law have challenged the romantic model of authorship a model emphasizing individual genius and creation ex nihilo Authorship they argue is actually a collaborative effort Authors assemble their works from the fragments of their cultural environment transforming as much as creating Copyright law however still champions the rights of authors and it requires a coherent theory of what authorship is An alternative to the romantic model of authorship can be found in information theory a branch of mathematics dealing at a very fundamental level with all forms of communication Authorship could be defined …

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

Articles

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 …

Hindsight, Regret, And Safe Harbors In Rule 11 Litigation, Charles Yablon

Articles

The 1993 amendments to Rule 11 of the Federal Rules of Civil Procedure successfully reduced both the number of sanctions motions and the chilling effect on meritorious claims, contrary to initial concerns that weaker sanctions would increase frivolous filings. By introducing a safe harbor provision and altering the timing of Rule 11 motions, the amendments mitigated hindsight bias and encouraged the withdrawal of non-meritorious claims without penalty. Empirical evidence, including judicial surveys and a decline in sanctions motions, confirms the amendments' effectiveness in balancing deterrence of frivolous litigation with protection of legitimate claims.

Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams

Articles

At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for …

Good Guys And Bad Guys: Punishing Character, Equality And The Irrelevance Of Moral Character To Criminal Punishment, Ekow Yankah

Articles

No abstract provided.

A Law And Social Work Clinical Program For The Elderly And Disabled: Past And Future Challenges, Toby Golick, Janet Lessem

Articles

This Article tells the story of our effort to establish an interdisciplinary law and social work program at Cardozo Bet Tzedek Legal Services (“CBT”), a law clinic at Benjamin N. Cardozo School of Law. The program is predicated on the belief that law and social work collaboration will benefit clients as well as students. The Article is primarily descriptive—telling what we did, why we did it, why we were disappointed with it, and how we changed the program. The Article also attempts to continue a constructive critique, on the assumption that even if something is not broken, it can be …

The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward D. Stein

Articles

Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.

Information Literacy Programmes And Course Curricula: The Case For Integration, Anne Ambrose, Brian Gillespie

Articles

The advent of the Internet and the profusion, complexity and haphazard nature of the information available through electronic and digital resources has highlighted the issue of information literacy in third level institutions worldwide. How do we deal with the information explosion to which we are subjected on a daily basis? In particular how do our students learn to exploit the range of resources available to advance their studies and research? Can these students become fully independent learners as proposed by the new teaching and learning methodologies without the necessary foundation skills? The authors argue, based on international standards and benchmarking …

War And The Death Of Innocence, Eamon Maher

Articles

Material reproduced by kind permission of Doctrine and Life