Digital Commons Network^™

Upstream Patents = Downstream Bottlenecks, Rebecca S. Eisenberg, Michael A. Heller

Articles

Thirty years ago in Science, Garrett Hardin introduced the metaphor "tragedy of the commons" to help explain overpopulation, air pollution, and species extinction. People often overuse resources they own in common because they have no incentive to conserve. Today, Hardin's metaphor is central to debates in economics, law, and science and powerful justification for privatizing commons property. While the metaphor highlights the cost of overuse when governments allow too many people to use a scarce resource, it misses the possibility of underuse when governments give too many people rights to exclude others. Privatization can solve one tragedy, but cause another.

Lesbian Divorce: A Commentary On The Legal Issues, David L. Chambers

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Lesbian couples who break up will find themselves in an awkward position under the law for two separable but related reasons. The first is that, because they were unmarried, they are subjected by the law to much the same uneven and ambivalent treatment to which unmarried heterosexual couples are subjected. The second, of course, is that they are gay or lesbian and thus regarded with special disfavor even in some states that have become more tolerant of unmarried heterosexual relationships. As a law teacher who is gay and who writes about family law issues relating to gay men and lesbians, …

Dedication To Professor Ralph W. Johnson, David H. Getches

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This Indian law symposium issue of the Washington Law Review was inspired by the work of Professor Ralph W. Johnson, whose teaching and personal commitment to the field have motivated hundreds, if not thousands, of law students. The decision of the Editorial Board to dedicate the symposium to him might have been made by as many as thirty classes that have passed through the University of Washington School of Law. Those students have been introduced to and moved by Professor Johnson's elucidation of a field that is at once intellectually challenging and morally significant. Johnson's alumni have spread over the …

The Original Constitution And Its Decline: A Public Choice Perspective, John O. Mcginnis

Articles

Public choice offers an analysis of the Constitution that is broadly consonant with an important aspect of the Framers' own approach. The Framers' values were those largely of the Scottish enlightenment: they believed in progress of civilization-the accumulation of wealth and knowledge. In order to create a structure of society that would accomplish these ends, they relied on another Enlightenment axiom, namely that man is an object of natural science. By understanding the predictable manner in which individuals are likely to behave in given situations, the Framers could shape a constitution that would channel their behavior to meet their Enlightenment …

Testing Testing, Carl E. Schneider

Articles

Last year, Congress passed the Ryan White Care Act Amendments of 1996. The amendments authorize ten million dollars for each fiscal year from 1996 through 2000 for counseling pregnant women on HIV disease, for "outreach efforts to pregnant women at high risk of HN who are not currently receiving prenatal care," and for voluntary testing for pregnant women. The amendments compromise a central question: whether prenatal and neonatal AIDS testing should be compelled. The compromise is complex. The director of the Centers for Disease Control and Prevention is instructed to establish a system for states to use to discover and …

The Spontaneous Order Of War Powers, John O. Mcginnis

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After The Dna Wars: Skirmishing With Nrc Ii, Richard O. Lempert

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This article traces some of the controversies surrounding DNA evidence and argues that although many have been laid to rest by scientific developments confirmed in the National Research Council's second DNA report, there remain several problems which are likely to lead to continued questioning of standard ways prosecutors present DNA evidence. Although much about the report is to be commended, it falls short in several ways, the most important of which is in its support for presenting random match probabilities independent of plausible error rates. The article argues that although one can sympathize with the NRC committee's decision as an …

The Search For Authenticity In François Mauriac's ''Thérèse Desqueyroux'', Eamon Maher

Articles

Material reproduced by kind permission of The Month

Should There Be Homosexual Marriage? Is So, Who Should Decide? (Reviewing William N. Eskridge, Jr., The Case For Same-Sex Marriage: From Sexual Liberty To Civilized Commitment (1996)), Richard A. Posner

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Book Review (Reviewing William N. Eskridge, The Case For Same-Sex Marriage: From Sexual Liberty To Civilized Commitment (1996)), Richard A. Posner

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Real Estate 20:20, John Ratcliffe

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This paper seeks to establish a framework for studying real estate futures. In doing so, it explores the general climate of change within which property decisions will have to be made, and examines the specific real estate opportunities that might emerge as a result of that change. For the purpose of appraisal, the forces of change are grouped into six sectors - cultural, demographic, economic, environmental, governmental and technological. Property perspectives are then portrayed for each of these sectors, and some conclusions drawn regarding the likely directions of change in the fields of real estate investment, development and management. Above …

The Epistemology Of Admissibility: Why Even Good Philosophy Of Science Would Not Make For Good Philosophy Of Evidence, Brian Leiter

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Externalities Everywhere: Morals And The Police Power, Richard A. Epstein

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Employment Law: Courts And Contracts, Richard A. Epstein

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Foreword: Holmes, Richard A. Posner

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Comment: Accounting For Norms, Richard H. Mcadams

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Externalities Everywhere? Morals And The Police Power, Richard A. Epstein

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Simple Games In A Complex World: A Generative Approach To The Adoption Of Norms, Randal C. Picker

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Altruism, Status, And Trust In The Law Of Gifts And Gratuitous Promises, Eric A. Posner

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The Problematics Of Moral And Legal Theory, Richard A. Posner

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In these Holmes Lectures, delivered a century after the publication of Oliver Wendell Holmes's great essay The Path of the Law, Judge Posner argues for an essentially Holmesian conception of the proper relations among modern normative moral philosophy ("academic moralism"), morality, and law. Academic moralism, he argues, lacks either the intellectual cogency or the emotional power to change people's beliefs or behavior; the power to do so resides in "moral entrepreneurs," which academic moralists emphatically are not. Academic moralism's lack of cogency disqualifies it to guide judicial decisionmaking even - in fact, especially - in cases involving controversial moral issues, …

Rational Choice, Behavioral Economics, And The Law, Richard A. Posner

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Toward Respectful Representation: Some Thoughts On Selling Same-Sex Marriage, Marc A. Fajer

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Gender, Race, And Sentencing, Kathleen Daly, Michael Tonry

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The Bounds Of Professionalism: Challenging Our Students; Challenging Ourselves, Beverly Balos

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Professor Aiken, in her article Striving to Teach "Justice,Fairness, and Morality," recognizes the importance of integrating the "analysis of difference into traditional courses to ensure that students begin the life-long process of examining their exercise of privilege and develop an appreciation of the professional value of striving for justice, fair- ness, and morality."1 Her article sets out a pedagogical approach to legal education with the goal of constructing a learning experience that maximizes reflection and unmasks privilege. Aiken's article raises important issues for all of us concerned with legal education and the competent representation of clients.

The Human Constitution And Constitutive Law: A Prolegomenon, John O. Mcginnis

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Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

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My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law.]

Queer Margins, Queer Ethics: A Call To Account For Race And Ethnicity In The Law, Theory, And Politics Of "Sexual Orientation", Francisco Valdes

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Black And White (Book Review), Anthony V. Alfieri

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Latino And Latina Critical Theory: An Annotated Bibliography Symposium: Latcrit: Latina/Os And The Law: Policy, Politics &(And) Praxis, Jean Stefancic

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No abstract provided.

Protecting And Promoting Wildlife And Habitat On State And Private Land In Washington's Arid Interior, Gregory A. Hicks

Articles

The object of this paper is to describe efforts now under way in the interior uplands of Washington State's Columbia Plain to restore and protect upland wildlife habitat and wildlife species in a busy and intensively used agricultural and range landscape. It is a landscape of greatly diminished ecological integrity, dominated by private land holdings, and where the remaining public lands are recovering from earlier periods of farming or grazing or still dedicated to productive use under lease or permit. Recent ecosystem assessments make clear that there are few areas of the Columbia Plain's original grass and shrub land which …