Digital Commons Network^™

The Jeffersonian Treaty Clause, Gary S. Lawson, Guy Seidman

Faculty Scholarship

The Treaty Clause of the federal Constitution declares that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. …

Indian As Race/Indian As Political Status: Implementation Of The Half-Blood Requirement Under The Indian Reorganization Act, 1934-1945, Paul Spruhan

Faculty Scholarship

This article discusses the implementation of the half-blood provision by the central office of the Bureau of Indian Affairs (BIA) under the administration of Commissioner of Indian Affairs John Collier. Through archival documents, the article reveals that the lawyers and administrators within the BIA were aware of the conceptual and practical problems of defining Indian status solely by blood quantum, and inconsistently applied social and cultural definitions alongside the biological one to implement the criterion. Therefore, despite the statute's clear biological definition, administrative application of the definition incorporated both biological and non-biological elements. Such incorporation complicates attempts to label the …

The Procedural Soft Law Of International Arbitration, William W. Park

Faculty Scholarship

The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural …

Consolidating Pharmaceutical Regulation Down Under: Policy Options And Practical Realities, Frances H. Miller

Faculty Scholarship

Pharmaceutical regulatory agencies struggle worldwide to maintain public trust these days. Drug safety issues proliferate,' the costs of lharmaceuticals take increasingly larger shares of most countries' health service spending, and conflicts of interest afflicting the drug approval and marketing processes capture more and more public attention. The Australian and New Zealand governments are keenly aware of these problems, and have been attempting to forge a regulatory alliance to combine their respective pharmaceutical regulatory agencies, Australia's Therapeutic Goods Administration (TGA) and New Zealand's Medicines and Medical Devices Safety Authority (Medsafe), into the pending Trans Tasman Therapeutic Products Authority (ANZTPA, or TPA). …

Genealogies Of Soft Law, Anna Di Robilant

Faculty Scholarship

The relatively recent blossoming of multiple soft law tools and the calls for a soft harmonization of European private law have invited reflection on the genealogy of soft law. Genealogical arguments have come to play a critical role in the heated European soft law v. hard law debate. While some find the ancestors of soft law in the medieval legal regime and particularly the lex mercatoria, others link soft law to a prolific strand of 19th and early 20th century theories of social law and legal pluralism. At times explicitly invoked, more often im plicitly alluded to, the neo-medieval genealogy …

Hunger Strikes At Guantanamo: Medical Ethics And Human Rights In A “Legal Black Hole”, George J. Annas

Faculty Scholarship

Being Human, a collection of readings assembled by President George W. Bush's Council on Bioethics, contains a powerful description of the force-feeding of Soviet political prisoner Vladimir Bukovsky, who was on a hunger strike to protest the refusal of prison authorities to provide a lawyer for a fellow inmate who was awaiting trial:

They started feeding me forcibly through the nostril. By a rather thick rubber tube with a metal end on it. . . . The procedure will be that four or five KGB guys will come to my cell, take me to a medical unit, put a straitjacket …

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The Patient's Right To Safety: Improving The Quality Of Care Through Litigation Against Hospitals, George J. Annas

Faculty Scholarship

It is the consensus of experts in the patient-safety field that little has changed to improve the safety of hospital care since the Institute of Medicine's 1999 report, To Err Is Human. The report noted that in order to be successful, “safety must be an explicit organizational goal that is demonstrated by clear organizational leadership. . . . This process begins when boards of directors demonstrate their commitment to this objective by regular, close oversight of the safety of the institutions they shepherd.” Leape and Berwick agree, noting that safety cannot become an institutional priority “without more sustained and …

Indecent Standards: The Case Of U.S. Versus Weldon Angelos, Eva Nilsen

Faculty Scholarship

In today's highly punitive culture, perhaps Weldon Angelos' fifty-five-year sentence does not seem unusual. He's a 25-year-old man who was convicted in December 2003 of selling marijuana, possessing firearms while drug dealing, and money laundering. ³ The facts proven at trial are that on three occasions in June and July, 2002, Angelos sold eight one-ounce bags of marijuana for $350 each to a government informant. ⁴ The purchaser testified that a firearm was visible during two of these drug sales.⁵ Police seized another gun from Angelos' home five months later pursuant to a warrant.⁶ At no time was …

Using A Literary Case Study To Teach Lawyering Skills: How We Used Damages By Barry Werth In The First-Year Legal Writing Curriculum, Jeanne M. Kaiser, Myra Orlen

Faculty Scholarship

First-year law students arrive for their first day of classes with varying perceptions about the practice of law and what it means to be a lawyer. Although some students have first-hand knowledge of the profession based on their work in a law office or from family members who are attorneys, many students base their entire conception of what it means to be a lawyer on images from popular media. The Authors discuss how they used a literary account to acquaint students with an authentic picture of litigation, while still teaching the rudiments of legal research and writing. The book used …

Moral Hazard And The Initial Public Offering, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Speech Discrimination, John Fee

Faculty Scholarship

No abstract provided.

Human-Centric International Law: A Model And A Search For Empirical Indicators, John King Gamble, Charlotte Ku, Chris Strayer

Faculty Scholarship

This Article is the result of the authors' application of an explicit model of the evolving international legal situation and an empirical test using multilateral treaties. The authors examine all the multilateral treaties signed over the last 350 years, about 6000 treaties, and discuss the "humanization" of international law.

Tempest In A Teapot Or Tidal Wave - Cybersquatting Rights And Remedies Run Amok, H. Brian Holland

Faculty Scholarship

The conflict at the heart of cybersquatting is in many ways conceptual. To most of its early inhabitants, the Internet embodied a separate and distinct environment --a territory unto itself. As such, it was thought the online world would stand separate from existing governmental power structures premised on the idea of territorial sovereignty. This separateness placed online actors theoretically beyond the authority of established legal systems, whose validity appeared limited by territorial boundaries and the sovereign-subject relationships occurring in the off-line world. Indeed, what many envisioned was an opportunity to create a self-regulating community existing within the "territory" of the …

A Formstone Of Our Federalism: The Erie/Hanna Doctrine & Casebook Law Reform, Robert J. Condlin

Faculty Scholarship

The one I feel sorry for is John Ely. More than thirty years ago, in his classic article The Irrepressible Myth of Erie, he explained painstakingly, if not clearly, how thinking of the Erie/Hanna doctrine as a constitutional cornerstone of our federalism was just a mistake. Such a view, he pointed out, makes a major mystery out of what are really three distinct and rather ordinary problems of statutory and constitutional interpretation. He described the analytical and practical costs of the mistake, showed how the analysis ought to go, explained why academics and judges had failed to get it …

Uncertainty And Informed Choice: Unmasking Daubert, Aaron D. Twerski, Margaret A. Berger

Faculty Scholarship

No abstract provided.

The Billable Hours Derby: Empirical Data On The Problems And Pressure Points, Susan Saab Fortney

Faculty Scholarship

This article considers the consequences of law firm use of the hourly billing method and the recent increase in billable hour requirements. Part I of this article describes the rationale and methodology of an empirical study conducted in 2005 that explored attorney work-life issues and employer efforts to assist attorneys in dealing with work-life conflicts. Part II summarizes select study findings related to billable hours requirements and pressure. Part III concludes by considering what forces and players will change the current course of conduct in which law firm leaders treat increases in billable hours expectations as a necessary evil.

Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram

Faculty Scholarship

As institutions of international justice proliferate, so do disputes about their legitimacy, and about what shape they ought to take. As truly international tools such as the International Criminal Court and the exercise of universal jurisdiction face political and practical challenges, some scholars and practitioners have advocated a distinct institutional solution: the hybrid court. These are courts that are neither purely national nor international, but rather that pursue accountability in the country where abuses and crimes occurred, but with both national and international staff, and utilizing a mixture of national and international law. Many have suggested that these tribunals represent …

Book Review: Transitional Justice Comes Of Age: Enduring Lessons And Challenges, Chandra Lekha Sriram

Faculty Scholarship

This review article considers recent developments in transitional justice through an examination of two recent works on transitional justice, one dealing with "reparative" justice and the other seeking to offer an historical perspective on transitional justice generally. Through a consideration of the virtues and vices of each volume, the article also discusses some lessons learned and continuing challenges from a field of study and practice that is, at about a quarter-century, relatively young but maturing.

The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger

Faculty Scholarship

In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention- sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress’ power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 …

Reform Of Public Company Disclosure In Europa, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Reform Of Public Company Disclosure In Europe, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Faculty Scholarship

Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in the country alone. Published as part of the U.S.-China Trade: Opportunities and Challenges Symposium, this Essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the Dispute Settlement Body of the World Trade Organization over inadequate enforcement of intellectual property rights.

The Essay begins by articulating four reasons why the administration should not do so. It then compares the approach recently proposed …

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …

The Art Of Indirection, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes — Evaluating Erisa At Age Thirty, Maria O'Brien

Faculty Scholarship

Book Review of The Employee Retirement Income Security Act of 1974: A Political History by James A. Wooten.

Goeres and the many other recent cases like it¹⁰ are remarkable after Mertens and Great West, both for the persistence of the ERISA plaintiff's bar in trying to find ways to obtain make-whole relief in egregious cases and for the continued refusal of Congress to amend ERISA to provide adequate make-whole remedies."¹¹ A patently unjust and inefficient legal regime continues to replicate itself again and again. Conduct that clearly constitutes breach of fiduciary duty, negligent plan administration or worse, …

Malpractice Reform As A Health Policy Problem, William M. Sage

Faculty Scholarship

Calling malpractice reform a "health policy problem" means that we should analyze it in terms of the quality of health care, access to health care, and the cost of health care-the basic health policy triad with which we all are familiar. We immediately recognize patient safety as a health policy problem because it is obviously about quality. We may believe there is so much slack in the health care system that we can make major improvements in patient safety without excessive cost. But ultimately, there are going to be cost-safety tradeoffs, which are also health policy concerns. We tend not …

Environmental Law In The Supreme Court: Highlights From The Blackmun Papers, Robert V. Percival

Faculty Scholarship

The papers of the late Justice Harry A. Blackmun provide a remarkably rich archive that documents how the Court, for nearly a quarter century, handled environmental cases during a period crucial to the development of environmental law. This Article reviews highlights of what the Blackmun papers reveal about the U.S. Supreme Court’s handling of environmental cases during Justice Blackmun’s service on the Court from 1970 to 1994. The Article first examines what new light the Blackmun papers shed on some of the principal findings of the author’s October 1993 article Environmental Law in the Supreme Court: Highlights from the Marshall …

Dspace, Institutional Repositories And The Open Access Movement: Why Should You Care?, Carol A. Parker

Faculty Scholarship

The amount of digital scholarly output grows daily, yet only a small fraction of legal scholarly communication is published in traditional venues such as law reviews and journals. Some of this digital scholarly communication makes it to the Web and becomes a resource often referred to as "gray literature," but this can be a haphazard process at best. The UNM School of Law Library employs DSpace, an open source digital institutional repository, to enable the Law faculty to collect, preserve, index, and distribute their digital work, as well as to provide a community for peer review of works in progress. …

Trademark Assignment With Goodwill: A Concept Whose Time Has Gone, Irene Calboli

Faculty Scholarship

Historically, starting from the premise that trademark protection is about consumer welfare, trademark law has required trademarks to be assigned with the goodwill of the business to which they refer, to deter assignees from changing the quality of the marked products. Yet, ever since its adoption, this rule has been hard to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legislative context: trademark goodwill. Additionally, regardless of this rule, trading in trademarks has been a recurrent practice in the business world, and trademark practices have traditionally provided instruments to assist this trade. …

Tackling Employment Discrimination With Adr: Does Mediation Offer A Shield For The Haves Or Real Opportunity For The Have-Nots, Michael Z. Green

Faculty Scholarship

This paper explores the benefits of using mediation in addressing employment discrimination disputes. It highlights the difficulties for those who expect too much out of mediation by expecting it to transform relations while exposing concerns with those who limit mediation's potential by supporting mythical notions about mediators being neutral. The paper suggests that employers develop comprehensive conflict resolution systems and include mediation as a process that is case-specific and focused on the needs of all parties and not the needs of the mediator.