Digital Commons Network^™

The Dayton Peace Agreement: Constitutionalism And Ethnicity, Ronald Slye

Faculty Articles

It has been almost five years since the violent dissolution of Yugoslavia. An estimated 200,000 civilians have been killed, over two million people have been displaced from their homes, tens of thousands have been tortured and raped, and Europe has hosted yet another of the world's genocides. While the recently concluded Dayton Peace Agreement has resulted in a temporary cessation of the armed conflict, serious concerns have been raised regarding efforts to rebuild and repair the institutions of civil society. Little attention has been paid, however, to the constitutional structure of the newly created state of Bosnia and Herzegovina. While …

Afterword: New "Truths" And The Old First Amendment, David Skover, Ronald Collins

Faculty Articles

Written as an afterword to a Symposium on The Death of Discourse, this piece replies to commentaries on the relationship between "Noble Lies" and the First Amendment authored by Professors Shadia Drury (political science), Robert Hariman (rhetoric & communication studies), David Nyberg (philosophy), Loyal Rue (religion & philosophy), and Richard Stivers (sociology).

Autonomy And Death, Annette E. Clark

Faculty Articles

In this article, Professor Clark explores the contours of the current debate over physician-assisted death. She begins by focusing on the legal issues raised by statutory attempts to either legalize or criminalize physician-assisted death, with particular emphasis on the constitutional questions that are currently before the United States Supreme Court. She then examines physician-assisted death from both medical and societal perspectives. Professor Clark uses a thought experiment in which assisted death is facilitated by persons other than physicians, and in doing so, questions whether physicians are the proper persons in whom to wrest power over assisted death. She points out …

Categories And Culture: On The 'Rectification Of Names' In Comparative Law, Janet Ainsworth

Faculty Articles

This article proposes a thorough ‘rectification of names’ take place in comparative legal studies, with a specific focus on Chinese law. Pioneering Chinese comparative law scholars focused on describing the Chinese legal system using Western legal terminology. The job of the second-generation of legal scholars, however, is to interpret both the primary source material and prior interpretations. There are many pitfalls entailed with studying non-Western law, foremost is the danger of one’s conceptual paradigms influencing an interpretation. Any culture’s legal order is uniquely tuned to a cultural context, and Chinese culture represents a social order with sufficient coherence for scholars …

Solidarity And Suffering: Toward A Politics Of Relationality, By Douglas Sturm (Book Review), Emily A. Hartigan

Faculty Articles

In his latest book, Douglas Sturm reveals himself as almost predictable. In Solidarity and Suffering: Toward a Politics of Relationality, here he is again in the guise of the knowledgeable scholar forever moving to include more: more spirit, more people, more difference, more tension, more justice. His movement of inclusion draws the reader always outside the framework of the conventions of discourse he last inhabited. Yet something about that movement itself has an integral, almost definable theme, a theme of relation and connection permeating the incisive distinctions his fine mind navigates for the reader.

Once again, in Solidarity and Suffering, …

A Pragmatic Approach To Decision Making In The Next Era Of Oil And Gas Jurisprudence, Laura H. Burney

Faculty Articles

A pragmatic approach to oil and gas law is the most effective way for the judiciary to address arising issues in that area of law. As in the Great Era of the Oil and Gas Industry, new and recurring questions will continue to confront courts in this next era of oil and gas jurisprudence. Because policies have shifted and technology has evolved, it is imperative to reassess the approaches used by courts in answering these questions. In order to respond effectively to questions posed by shifting policies and new technologies in the next era of oil and gas jurisprudence, courts …

Race, Gender, “Redlining,” And The Discriminatory Access To Loans, Credit, And Insurance: An Historical And Empirical Analysis Of Consumers Who Sued Lenders And Insurers In Federal And State Courts, 1950-1995, Willy E. Rice

Faculty Articles

Courts have failed to consistently remedy insurers’ and lenders’ discrimination against low-income individuals, women, and minorities. State and federal courts have tried to resolve disputes involving redlining, unequal access to capital, and insurance discrimination. Because of courts’ failures, Congress passed the Equal Credit Opportunity Act of 1974 (“ECOA”) and the Community Reinvestment Act of 1977 (“CRA”) to protect minorities and low income individuals. But the ECOA and CRA have not achieved their stated goals of eradicating either insurance or mortgage redlining.

In most states, the responsibility of enforcing federal fair-lending laws and eradicating all sorts of financial redlining is given …

Into The Thicket: Pursuing Moral And Political Visions In Labor Law, John W. Teeter Jr

Faculty Articles

Teachers should attempt to illuminate the moral and political implications of life as a labor lawyer and encourage students to reflect critically on what they think is ethical and why. Regardless of whether they represent management or unions, labor lawyers inevitably confront serious ethical issues. Teachers cannot—nor should they—resolve these issues for their students; they must follow the pull of their own moral and political beliefs. But teachers should at least assure that their students consider the ethical implications of life as a labor lawyer. This enriches the students’ thinking by placing them in real-world predicaments and enabling them to …

New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, And Entrepreneurship, Margaret Chon

Faculty Articles

Some intellectual property colleagues recently urged Professor Chon to post this article on SSRN. She wrote it circa mid-90’s when information still wanted to be free and the predominant technology was still file transfer protocol. It seems this piece has stood the test of time because it was one of the first legal academic pieces to address the copyright implications of Internet works. Today in 2010, we are still grappling with the collaborative, dynamic and entrepreneurial characteristics of digital networked content. However, now it is created and distributed through different intermediaries such as Facebook, Twitter, YouTube, etc.

The Nativist's Dream Of Return, Robert S. Chang

Faculty Articles

In this address, Professor Robert Chang discusses how the current racial paradigm has become naturalized so that race in America is generally understood to mean black and white. It is this notion of race that limits people understanding and willingness to engage with the history and current state of Asian Americans and Latinos in the United States. Instead of being interested participants, they are seen as interlopers. Yet this status as interloper is precisely why Asian Americans and Latinos are important in discussions of race-our existence disrupts the comfortable binary of the black/white racial paradigm in which the black racial …

Chon On Chen On Chang, Margaret Chon

Faculty Articles

This essay attempts to highlight and explore Bob Chang's implicit disclaimers for an Asian American legal scholarship situated within post-structuralism: that it is contingent, ironic, and yearns for a chimerical solidarity, these qualities should not lead to the conclusion that his claims lack positive vision, the narrative space that Chang advocates allows for creative articulations of Asian presence in America, in both theoretical and practical realms. Thus, after considering the nature of the misunderstanding between Chang and Chen, the author will turn briefly to one example of positive articulation-the diaspora perspective-and read it into Jim Chen's text.

Critiquing Law Students’ Writing: What The Students Say Is Effective, Anne Enquist

Faculty Articles

It seemed worthwhile to study the comments legal writing instructors put on students' papers and ask the readers of those comments - the students themselves - which comments were the most useful. This article describes such a study that was conducted by the author using students and faculty at the University of Puget Sound School of Law. The results should be useful to new legal writing faculty who are striving to learn how to critique their students' writing effectively, as well as to experienced legal writing faculty who are interested in whether the conventional wisdom about critiquing is borne out …

Consumer Protection For Latinos: Overcoming Language Fraud And English Only In The Marketplace, Steven W. Bender

Faculty Articles

Non-English-speaking consumers deserve the same protection as other consumers, and thus, this article advocates guarantees for their ability to strike informed bargains. To safeguard consumers most vulnerable to unfair and deceptive trade practices, this article contemplates a comprehensive strategy of reform that involves the legislatures, administrative agencies, and courts, as well as nonprofit organizations that advocate for language minorities and merchants themselves. Part I examines the growth in numbers of monolingual Latino/a consumers and documents their experience in the American marketplace. Part I also explores the shortcomings of existing remedies under the common law and consumer protection regulation when applied …

Reverse Racism!: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

Faculty Articles

In this essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

On Seeing Chinese Law From A Chinese Point Of View: An Appreciative Look At The Scholarly Career Of Professor William Jones, Janet Ainsworth

Faculty Articles

In this appreciative review, Professor William Jones's work is used to demonstrate that sensitivity to issues of methodology are indispensable for comparative law scholars. Professor Jones's work is valuable because (1) it is marked both by an awareness of the methodological difficulties faced by the comparativist and a confidence that it is nonetheless possible to transcend these difficulties and (2) it makes a meaningful contribution to the development of an understanding of a foreign legal order. The article concludes by stating that Professor Jones's work will influence future generations of scholars trying to answer the why, what, and how of …

Assessing The Tax Administration Law Of The People's Republic Of China, Kara Phillips, Amy Sommers

Faculty Articles

This article discusses the effort of the People's Republic of China (PRC or China) to obtain revenue through taxes rather than through receipt of profits from state enterprises. In order to strengthen the tax system, in 1992 the Standing Committee of the National People's Congress enacted the Law of the People's Republic of China to Administer the Levying and Collection of Taxes (Tax Administration Law). The authors evaluate the PRC’s Tax administration Law, and discuss the factors that influenced the enactment of the Tax Administration Law and the Implementing Regulations. The authors also examine the Tax Administration Law’s general principles, …

Torture By Means Of Rape, Evelyn Aswad

Faculty Articles

No abstract provided.

Partial Membership: Aliens And The Constitutional Community, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Speaking The Language Of Exclusion: How Equal Protection And Fundamental Rights Analyses Permit Language Discrimination (Comment), Donna F. Coltharp

Faculty Articles

No abstract provided.

The Analysis Of Genetically And Physiologically Complex Traits Using Ceratopteris: A Case Study Of Nacl-Tolerant Mutants, Thomas R. Warne, Dale L. Vogelien, Leslie G. Hickok

Faculty Articles

Genetic and physiological complexities associated with salt tolerance in plants have limited progress in the analysis of specific factors responsible for the salt-tolerant phenotype. We have used the homosporous fern Ceratopteris richardii as a model plant to investigate the physiological basis of salinity tolerance by selecting single gene mutants that confer tolerance in the gametophyte generation. The unique genetic system of homosporous ferns permits the generation of mutants in a genetic background nearly isogenic to the wildtype, such that comparative studies with the wildtype can identify specific physiological responses associated with salt tolerance. One of these mutations, stl2, confers …

Failed Enterprise: The Supreme Court's Habeas Reform, Barry Friedman

Faculty Articles

Nearly two decades ago, the Supreme Court began an effort to reform habeas corpus. Despite academic criticism, congressional displeasure, and internal disagreement, the Court's effort to limit the availability of habeas relief is still ongoing. Much has been written about whether the Court is pursuing the correct goals in its reform effort. This Article accepts the Court's own goals-fairness, finality, federalism, and judicial economyas a given. Rather than evaluating the Supreme Court's habeas reform by an independent normative standard, Professor Friedman examines whether the reform effort advances the very goals it is designed to further. The author suggests that habeas …

A Political Theory Of Corporate Taxation, Jennifer H. Arlen, Deborah M. Weiss

Faculty Articles

This paper examines why the United States persists in taxing corporate income twice -- once at the corporate level and again at the shareholder level. The continued imposition of double taxation is puzzling: the double tax is widely recognized as being but unfair and inefficient, and it places a substantial burden on a powerful interest group, publicly-held corporations. Nevertheless, proposals to eliminate the double tax by integrating the corporate and individual tax invariably die a quiet death. We argue that the resilience of the corporate tax is a manifestation of the most enduring source of problems in corporate law, the …

An Antitrust Remedy For International Price Predation: Lessons From Zenith V. Matsushita, Harry First

Faculty Articles

The purpose of this article is to articulate a set of rules for an antitrust cause of action against international predatory pricing. The article develops these rules in the context of the antitrust and trade litigation brought in the United States and Japan against the Japanese televisions manufacturers between 1956 and 1986. The thesis of this article is that the litigation illustrates that antitrust enforcement should concentrate on exclusion from the home market rather than on low prices in the target market. The article also argues that antitrust should encompass a concern with the strategic use of market power to …

Reinventing The Regulatory State, Richard H. Pildes, Cass R. Sunstein

Faculty Articles

This Article has emphasized three principal points. The first involves regulatory institutions. The second involves regulatory ends. The third involves regulatory means. We have suggested that an institution in OMB to oversee and coordinate regulatory policy is, at least potentially, highly salutary. Staffed by appropriate employees, such an entity could help coordinate solutions to similar problems that arise across different agencies. Moreover, by introducing a more comprehensive perspective on risk regulation, such a body could encourage sensible priority setting. Executive Order 12866 takes coordination a step further than the Reagan-Bush approaches. It does so, most importantly, by attempting to promote …

The Harms And Benefits Of Nollan And Dolan, Richard A. Epstein

Faculty Articles

We've heard today that land use planning has grown substantially since its relatively modest inceptions just after the turn of the century. The subject has gotten more complicated as the requirements have become more complicated. Where is it going to end? Well, we don't know where it will end but we know this: the Supreme Court visits the takings issue every year or two or three. It writes some learned opinion and then lets state and lower federal courts fill in the gaps. Sometimes these courts do not go along. The Supreme Court cannot lead by pulling everybody along. It's …

Uniform Application And Interest Rates Under The 1980 Vienna Sales Convention, Franco Ferrari

Faculty Articles

From what has been discussed thus far, one conclusion can be drawn: the formula to calculate the interest rate is determined by the law of the country of the seller, at least where the rules of private international law of the forum are based upon the criteria comparable to those set forth by the 1980 EEC Convention on the Law Applicable to Contractual Obligations. Absent a choice of law, the Rome Convention makes applicable the law with which the contract has the closest connection: this is presumed to be the law where the party who is to effect the "characteristic …

The Feminist Challenge In Criminal Law, Stephen J. Schulhofer

Faculty Articles

Feminist criticism of criminal law and criminal justice administration has proliferated over the past decade and now touches scores of doctrinal, practical, and theoretical issues. These critiques and the associated proposals for reform are usually acknowledged to be controversial (and even "radical") by proponents and opponents alike. Yet, across a wide range of issues, the feminist position has its basis in a simple fact that cannot be considered debatable: criminal law is, from top to bottom, preoccupied with male concerns and male perspectives. In this Article, I explain why this seemingly tendentious claim is not only accurate but uncontroversial. I …

The Dignity Of Legislation, Jeremy Waldron

Faculty Articles

The argument that I have developed also indicates the possibility of closer ties between jurisprudence and democratic theory than have existed hitherto. Too often, analytical jurisprudence in the common law tradition, with its emphasis on courts and its depiction of the legislature as a disreputable, embarrassing and inconvenient sideshow, contrives to present the political provenance of our laws as a matter unworthy of philosophical notice. The impression we are given is that the question of provenance goes to the political credentials of the legislator, which may in turn determine the substantive content of legislation; but provenance appears largely irrelevant to …

Placing A Price On Pain And Suffering: A Method For Helping Juries Determine Tort Damages For Nonmonetary Injuries, Mark A. Geistfeld

Faculty Articles

At present, no well-defined legal standards exist for assessing tort damages for nonmonetary injuries such as pain and suffering. As a result, jury awards for pain and suffering vary widely for similar injuries. In response, many states have enacted legislative reforms that limit pain-and-suffering awards. Meanwhile, many tort-reform advocates call for eliminating pain-and-suffering damages altogether. This Article argues that pain-and-suffering awards are desirable and proposes a method for calculating nonmonetary injuries that could be implemented without resort to radical reform measures. After a thorough survey of the approaches used to compute pain-and-suffering damages and current reform proposals, the author demonstrates …

The Incorporation Of International Human Rights Standards Into Sexual Orientation Asylum Claims: Cases Of Involuntary "Medical" Intervention, Ryan Goodman

Faculty Articles

This Note takes the position that the incorporation of international human rights standards into asylum claims gives needed shape to this currently amorphous standard by focusing on one of the greatest threats facing lesbian and gay refugees: involuntary "medical" intervention. Although current asylum law accepts the use of international human rights instruments in establishing persecution, practitioners rarely invoke them in proceedings. Drawing on the example of involuntary "medical" treatment, I hope to demonstrate how international human rights standards can be employed effectively, and thus to encourage their expanded use in this part of the adjudicatory process. Part I of this …