Digital Commons Network^™

Sunstein's New Canons: Choosing The Fictions Of Statutory Interpretation Exchange, Eben Moglen, Richard J. Pierce Jr.

Faculty Scholarship

In Interpreting Statutes in the Regulatory State, Cass Sunstein grapples with two of the most difficult and important questions concerning governance of the modern administrative state. First, what institution should have the dominant role in interpreting ambiguous agency-administered statutes? And second, how should the institution perform that task? Sunstein rejects the Supreme Court's answer to the first question, characterizing its assignment of a dominant interpretive role to agencies in Chevron U.S.A., Inc. v Natural Resources Defense Council as "the fox guarding the hen house." Sunstein prefers to charge judges with the responsibility of resolving most interpretive disputes. In answer to …

Exchange On The Eleventh Amendment, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Doctors And Lawyers And Wolves, George J. Annas

Faculty Scholarship

Relations between lawyers and physicians, and therefore between law and medicine, are getting more and more destructive and counterproductive. It used to be a joke, but it's not funny anymore. We can't afford the continuing and escalating acrimony between our professions and it's time that we take constructive steps in the public interest to deal with it.

The Biotechnology Revolution And Its Regulatory Evolution, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Wanted: An Ethos Of Personal Responsibility—Why Codes Of Ethics And Schools Of Law Don't Make For Ethical Lawyers, Daniel S. Kleinberger

Faculty Scholarship

This article: (1) argues that neither codes of professional ethics nor traditional modes of law school teaching do much to produce ethical lawyers; (2) asserts that ethics codes and the presuppositions of the adversary system work to alienate lawyers from a sense of individual responsibility; (3) critiques the conceptual connection between the adversary system and codes of lawyer ethics; (4) critiques the conventional approach to teaching legal ethics in law schools; (5) invokes the approach to ethical analysis championed by the German sociologist and social theorist Max Weber; and (6) explains how that approach, coupled with traditional tools of legal …

Environmental Quality: Three Ways To Decide How Much To Spend, Marcia R. Gelpe

Faculty Scholarship

Federal and state laws limiting environmental emissions reflect three approaches to deciding how much money to spend on improving environmental quality. The balancing approach estimates the benefits of limiting emissions and the costs of meeting various limits, then sets limits at levels where benefits justify costs. The cost ignoring approach sets emissions limits at levels necessary to prevent environmental harm, without considering the costs of meeting those limits. Technology-based standards limit emissions to levels attainable using the best pollution control technology, as long as no significant environmental effects are known to occur at those levels. In this article, the author …

Faith (Healing), Hope And Charity At The Fda: The Politics Of Aids Drug Trials, George J. Annas

Faculty Scholarship

AIDS forces us to confront our mortality, the limits of modern medicine and the contours of our compassion. How we respond is a measure of our society and a reflection of our values and priorities. As a fundamentally death-denying society, our response has been hampered by denial and shaped by faith that a technological fix will make the AIDS epidemic go away. Technology is our new religion, our "modern" way to deal with death. As novelist Don DeLillo has one of his characters put it to another who is worried about death: you can deny it, you can put your …

The Popular Image Of The American Lawyer: Some Thoughts On Its Eighteenth And Nineteenth Century Intellectual Bases, James W. Gordon

Faculty Scholarship

This essay explores the ambiguous position lawyers occupy in the popular mind in America by identifying some of the ideas which contributed to the schizophrenic popular attitude toward the legal profession in the period between the American Revolution and the Civil War. Many of the stock anti-lawyer themes and many of the intellectual sources of the profession's strength are clearly visible by the end of this period. The Author explores this problem, first by relating it to recent scholarship in American history describing the struggle between republicanism and liberalism at the time of the Founding. The way the profession was …

Biomedical Research In The Sea, A Search For Drugs And Novel Compounds., John K. Reed, Shirley A. Pomponi

Faculty Scholarship

Biomedical research has discovered numerous pharmaceutical drugs and novel compounds produced by living organisms. Most of this research has focused on terrestrial sources but a potential reservoir of untapped drugs is being discovered in the oceans. Compounds produced from marine sponges, tunicates, bryozoans, soft corals and algae are being tested as potential agents against cancer, AIDS and other diseases. In this effort, the goal of the Division of Biomedical Marine Research (DBMR) at Harbor Branch Oceanographic Institution (HBOI) is to isolate and identify bioactive compounds from marine organisms. Since 1984 over 16,000 macroorganisms have been collected worldwide by HBOI personnel …

Exchange, Contract And Law In The Stone Age, Joseph Perillo

Faculty Scholarship

No abstract provided.

Major Operational Decisions And Free Collective Bargaining: Eliminating The Mandatory/Permissive Distinction, James R. Rasband

Faculty Scholarship

No abstract provided.

Privacy And The Regulation Of The New Reproductive Technologies: A Decision-Making Approach, Antoinette M. Sedillo Lopez

Faculty Scholarship

This article maps out the territory that must be explored in this very complex area and analyzes the implications of governmental regulation of the new reproductive technology. It suggests that the central issue for analysis is the extent to which authority to make decisions concerning reproductive potential should be allocated to individuals rather than to the government. The article describes approaches to allocating decision-making authority with respect to procreative issues. The first is a rights-based approach which emphasizes individual autonomy; this approach will not permit governmental regulation which interferes with personal autonomy in decision making, at least without good reason. …

The Meaning Of Morality, George P. Fletcher

Faculty Scholarship

Many lawyers, both inside and outside the law schools, suffer from insecurity about our discipline. Instead of thinking of ourselves as the curators of a grand tradition in Western thought, many of us think of the law as a collection of doctrinal formulas and rules imposed on us by legislatures and the highest courts. We are always looking elsewhere to find a source of wisdom that will give the law coherence and meaning. At various times in this century we have looked to sociology, anthropology, psychoanalysis and, of course, economics in an effort to ground our ideas in firmer soil. …

The Politics Of Transplantation Of Human Fetal Tissue, George J. Annas

Faculty Scholarship

Research involving human fetal tissue has been the subject of intense political debate in this country for almost two decades, and the use of fetal tissues in transplantation continues this controversy in another forum. Since Roe v. Wade ,1 the landmark decision on abortion by the U.S. Supreme Court in 1973, the federal government has focused public attention on fetal research by creating panels of experts. "3 This conclusion was accepted on a vote of 15 to 2, and included recommendations that the decision to abort be kept independent of the decision to retrieve and use fetal tissue, that recipients …

Why Clinical Trials Of Aids Vaccines Are Premature, Wendy K. Mariner

Faculty Scholarship

No abstract provided.

An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon

Faculty Scholarship

Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil.

"For the sake of the good we must submit to the evil; but the evil ought
not to last a day longer than is necessary for the purpose of securing the good."

A number of studies critical of intellectual property followed in our century. The most well known is probably the economically oriented 1970 study by Stephen Breyer …

Free Speech Justifications, Kent Greenawalt

Faculty Scholarship

This Article sets out what I believe are the relevant justifications for free speech, the term "free speech" being meant to cover both freedom of speech and freedom of the press. These are the justifications one might use to assess whether communications fall within a political or judicial principle of free speech and how great the protection of the communications that are covered should be. Such assessments are undertaken in a longer study that is mainly about the ways in which different uses of language affect the application of principles of freedom of speech to the criminalization of behavior. That …

Use Of Photogrammetric Techniques To Monitor Coral Reef Recovery Following A Major Ship Grounding., Dennis M. Hanisak, Stephen M. Blair, John K. Reed

Faculty Scholarship

Photogrammetric techniques were used in a detailed study of benthic coral reef communities following a major physical disturbance, the grounding of the freighter Wellwood on Molasses Reef, in Key Largo National Marine Sanctuary, Florida. The sessile reef communities of the Wellwood site and the adjacent unimpacted reef areas were studied with non-destructive samplings of permanently located quadrats to document the recruitment of organisms and reef recovery in the impacted area. The grounding site was rapidly colonized by an algal community that was soon dominated by a fine algal turf composed of filamentous red algae. Although algal diversity and total algal …

Harry Kalven, The Proust Of The First Amendment, Lee C. Bollinger

Faculty Scholarship

Reading A Worthy Tradition makes one nostalgic. For the generation of scholars who cut their first amendment teeth on Harry Kalven's articles, this book offers the experience of a recaptured past. The question is, however, does it offer anything more?

Corruption, Legal Education And Change In West Africa: A Broader View Of Human Rights, Suzanne B. Goldberg

Faculty Scholarship

"Will we ever move again?" I wondered as I sat with my knees jammed into my chin, sore from the long and bumpy ride on the wooden plank which lined the back of a "bush taxi" – the only public transport between villages in Northern Mali. The "taxi" was actually a rusty and roadworn pickup truck packed with more than two dozen men, women and children, more than I ever imagined could fit in the small, flat space between the cab and the tailgate. "Why are we stopping now?" I smiled at myself as I felt a sense of exasperation …

The Single European Act: A Constitution For The Community?, George A. Bermann

Faculty Scholarship

If proof were needed that the European Economic Community is still the product of a careful tempering of integrationist impulses with preoccupations of national sovereignty, the recently ratified Single European Act (Single Act or Act) amply supplies it. Although the Single Act represents the most comprehensive revision to date of the Treaty of Rome (EEC Treaty), which established the European Economic Community (European Community or Community), it also reflects the continuing vitality of the view that functional change within the Community takes priority in time over structural and institutional reform. Rather than place European integration on a new set of …

Copyright Protection Of Fictional Characters In Japan, Kenneth L. Port

Faculty Scholarship

There is a renewed interest in the United States in Japanese Copyright law. Specifically, new attention has been focused on the protection of computer software under the Japanese Copyright Act, but only a cursory attempt has been given in English language literature to the issue of whether fictional characters can be protected using copyright law in Japan independent of the original work. The objective of this Comment is to fill this void. First the Comment presents the fundamental concepts of American copyright law needed as background knowledge to understand the issue. The Comment then explores the existing satiation in Japan …

In Re "William Shakespeare": Reply Brief Of Appellee William Shakespeare (Or Shakspere) Of Stratford-Upon-Avon, James Boyle

Faculty Scholarship

No abstract provided.

The Search For An Author: Shakespeare And The Framers, James Boyle

Faculty Scholarship

No abstract provided.

Defending Battered Women's Self-Defense Claims, Kit Kinports

Faculty Scholarship

This Article contends that many battered women who kill their abusive spouses can legitimately raise the standard self-defense claim. No substantial extension of self-defense doctrine is required to justify the acquittal of battered women on self-defense grounds. Furthermore, no special "battered women defense" is necessary or even desirable in such cases.

Part I of this Article summarizes the results of psychological research studying abused women and battering relationships. It further explains the concept of the :battered woman syndrome" which describes the effects of sustained physical and psychological abuse by one's husband. Part II discusses the requirements of a successful self-defense …

Human Biology And Criminal Responsibility: Free Will Of Free Ride ?, Deborah W. Denno

Faculty Scholarship

This Comment presents three major arguments concerning biological deficiency defenses, using, respectively, a critique of biosocial science research, a statistical model of biological and sociological data, and an examination of theories and philosophies on causation and behavior. First, this Comment argues that there should be no defense to mitigate criminal responsibility except in the less that one percent of cases eligible for the insanity defense. Second, this Comment argues that social science research has not successfully demonstrated sufficiently strong links between biological factors and criminal behavior to warrant major consideration in determining criminal responsibility. Third, this Comment demonstrates that no …

Ethical Discretion In Lawyering, William H. Simon

Faculty Scholarship

In this Article, Professor Simon argues that conventional approaches to legal ethics are too categorical. Rather than operating within a system of formalized ethical rules, he argues, lawyers should exercise judgment and discretion in deciding what clients to represent and how to represent them. In exercising this discretion, lawyers should seek to "do justice." They should consider the merits of the client's claims and goals relative to those of opposing parties and other potential clients. They should also consider the substantive merits of the client's claims and the reliability of the standard legal procedures for resolving the problem at hand. …

Colors In Conflicts: Moral Rights And The Foreign Exploitation Of Colorized U.S. Motion Pictures, Jane C. Ginsburg

Faculty Scholarship

This article explores an international aspect of the current debate over colorized motion pictures. Under the present U.S. copyright law, most film directors and other creative contributors to an audiovisual work are unlikely to obtain injunctive relief from a U.S. court against the exhibition or dissemination of color-encoded versions of black and white originals. The difficulty is not simply that the U.S. copyright law does not recognize a specific moral right of integrity independent of economic rights. The director's poor domestic prospects are largely due to U.S. copyright law's work-made-for-hire doctrine. Most contributors to an audiovisual work are employees for …

The Case For Gay Rights, Matt Coles

Faculty Scholarship

No abstract provided.

The First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent A. Blasi

Faculty Scholarship

"[T]he working class and the employing class have nothing in common ....” So began the Preamble to the Constitution of the I.W.W., the Industrial Workers of the World. "Between these two classes a struggle must go on until the workers of the World organize as a class, take possession of the earth, and the machinery of production and abolish the wage system." Nicknamed the Wobblies, this group advocated a form of militant unionism built around the ideal of One Big Union embracing all industries. The I.W.W. enjoyed its strongest appeal among the miners, loggers, agricultural laborers, and construction workers of …