Digital Commons Network^™

The First Amendment's Original Sin, Lee C. Bollinger

Faculty Scholarship

Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …

Executive Power And The War On Terror, Norman C. Bay

Faculty Scholarship

Two important paradigm shifts have occurred in the war on terror. First, the United States has treated terrorism as a military issue, not a law enforcement problem. Second, the United States has centralized its intelligence apparatus under the direction of the newly-created Director of National Intelligence and lowered the wall that separated external security or foreign intelligence activity from internal security or domestic law enforcement. In tandem, these changes are of historic dimension. They also occur against a backdrop in modern times in which the executive branch has steadily accumulated power. In pursuit of the war on terror, we have …

Four Questions On Critical Race Praxis: Lessons From Two Young Lives In Indian Country, Christine Zuni Cruz

Faculty Scholarship

The Critical Race Lawyering Symposium in New York City brings me from Albuquerque, New Mexico. As I travel the day before the symposium, I reflect on the amount of time it will take. I leave Albuquerque at 8:23 a.m. and I am scheduled to arrive in New York City at 4:05 p.m., via Chicago. Given the two-hour time difference between the East Coast and the Rocky Mountain regions, I begin my day boarding the plane as the sun is rising in the morning sky and end it at my destination where the sun is setting. Even in this day and …

The Rise And Fall Of Law And Economics: An Essay For Judge Guido Calabresi, Ugo Mattei

Faculty Scholarship

No abstract provided.

P2p And The Future Of Private Copying, Peter K. Yu

Faculty Scholarship

Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate.

Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek …

The Trust And Distrust Of Intellectual Property Rights, Peter K. Yu

Faculty Scholarship

In the past, intellectual property issues were considered complex, obscure, and highly technical; they were only of interest and concern to intellectual property attorneys, legal scholars, technology developers, and rightsholders. Thanks to the Internet and new communications technologies, however, intellectual property has now begun to play a more significant role in society.

In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the conference affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address …

Public Medical Malpractice Insurance: An Analysis Of State-Operated Patient Compensation Funds, Frank A. Sloan, Carrie A. Mathews, Christopher J. Conover, William M. Sage

Faculty Scholarship

Compared to major tort and insurance reforms, PCFs have received virtually no attention by scholars. With an exception or two, they are not a major focus of public policy debate either. Because they are small organizations and there have been lengthy periods in which medical malpractice markets are quiescent, they have not attracted much scrutiny. Given a lack of quantitative evidence, our evaluation depended on qualitative evidence. Yet PCFs address the fundamental issues of medical malpractice that have led to reoccurring crises in the availability of medical malpractice insurance coverage and in its premiums for such coverage. As such, PCFs …

Private Dispute Resolution In The Card Context: Structure, Reputation, And Incentives, Andrew P. Morriss, Jason Korosec

Faculty Scholarship

Explosive growth in credit, debit, and other card payment systems in recent years has produced a parallel growth in private dispute resolution systems based on the web of contracts entered into by merchants, merchant acquirers, consumers, card issuers, card associations, and transaction processors. These contracts have produced legal systems based on contract and the enforcement of which rests primarily on reputational constraints. To cost-effectively resolve disputes, these private legal systems have evolved innovative procedures using resources at the lowest-possible level, including incentive-payments for producing information and rigid deadlines for parties' actions. This paper describes and analyzes these legal systems and …

The New Textualists' New Text, Lawrence Solan

Faculty Scholarship

No abstract provided.

Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Contractual Incompleteness: A Transactional Perspective, Avery W. Katz

Faculty Scholarship

Recent scholarship in the field of contract law has concentrated on contractual incompleteness-that is, on the fact that except in the simplest and most basic transactions, contracting parties do not work out all of the relevant details and contingencies of their relationship at the outset. The reasons for incomplete contracts are varied. Sometimes parties deliberately leave terms unresolved, trusting future negotiations or social norms to fill in any problems that emerge. Other times, they leave terms unresolved without realizing they have done so, in part because they devote limited attention or resources to their negotiations and in part because contracts …

Medical Error Disclosure, Mediation Skills, And Malpractice Litigation: A Demonstration Project In Pennsylvania, Carol B. Liebman, Chris Stern Hyman

Faculty Scholarship

In the past decade, the cost of medical malpractice insurance has skyrocketed in Pennsylvania. Physicians in high-risk specialties are reported to have moved out of the state, closed their practices, or retired, particularly in eastern Pennsylvania. Liability insurance companies have pulled out of the state. At the same time, serious medical errors continue to occur. Doctors and hospital officials, afraid of lawsuits and loss of insurance coverage, often stonewall patients and relatives, offering only barebones explanations of serious medical errors. Research shows this situation creates a vicious circle in which frustration, anger, and a search for information often motivate patients …

Causation By Presumption? Why The Supreme Court Should Reject Phantom Losses And Reverse Broudo, John C. Coffee Jr.

Faculty Scholarship

Over a quarter of a century ago, Judge Henry Friendly coined the term "fraud by hindsight" in upholding the dismissal of a proposed securities class action. As he explained, it was too simple to look backward with full knowledge of actual events and allege what should have been earlier disclosed by a public corporation in its Security and Exchange Commission (SEC) filings. Because hindsight has twenty/twenty vision, plaintiffs could not fairly "seize [] upon disclosures" in later reports, he ruled, to show what defendants should have disclosed earlier.

Today, a parallel concept – "causation by presumption" – is before the …

Holmes And The Marketplace Of Ideas, Vincent A. Blasi

Faculty Scholarship

At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on …

Disappearing Dilemmas: Judicial Construction Of Ethical Choice As Strategic Behavior In The Criminal Defense Context, Manuel Berrélez, Jamal Greene, Bryan Leach

Faculty Scholarship

Imagine the following scenario: A criminal defense attorney represents a man accused of kidnapping and murdering two children in a residential neighborhood. During the course of interviewing key witnesses, the defense attorney becomes convinced that her client was present at the scene of the murder. While her client denies having been present, his alibi changes entirely from one interview to the next. The two main witnesses that the client offers to Corroborate his most recent alibi recant, suggesting to the defense attorney that both they and the defendant were actually present at the scene of the crime. Third parties confirm …

Co-Teaching International Criminal Law: New Strategies To Meet The Challenges Of A New Course, Stacy Caplow, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

The Culture Of Health Care: How Professional And Organizational Cultures Impact Conflict Management, Debra Gerardi

Faculty Scholarship

No abstract provided.

The Modernization Of European Antitrust Enforcement: The Economics Of Regulatory Competition, Ben Depoorter, Francesco Parisi

Faculty Scholarship

No abstract provided.

Technocracy And Democracy: Conflicts Between Models And Participation In Environmental Law And Planning, Dave Owen, James D. Fine

Faculty Scholarship

No abstract provided.

Medical Malpractice Insurance And The Emperor's Clothes, William M. Sage

Faculty Scholarship

Tom Baker and Mark Geistfeld's contributions to this Symposium offer detailed and persuasive analyses of medical malpractice insurance. Their principal contribution to the malpractice reform debate, however, is simple: confirming that liability insurers should not be left to their own devices between malpractice crises or appeased during crisis periods. Instead, liability insurance must be consciously designed to help the health care system work toward its core goals of high quality, broad access, and affordable cost.

In 2000, the IOM issued a follow-up report to its earlier indictment of medical error, calling upon the health care system to become safe, effective, …

Revisiting Medical Error: Five Years After The Iom Report, Have Reporting Systems Made A Measurable Difference, Maxine M. Harrington

Faculty Scholarship

Although the goal of patient safety is a laudable one, it is questionable whether state and national policy can be made on so vague a concept as "medical error." There is neither an accurate baseline nor reliable current data that could be used to validate the effectiveness of reporting systems as tools for improving patient safety. This Article examines the difficulty in estimating the incidence of medical error, including the lack of uniform standards of measurement and the legal and cultural disincentives to accurate reporting of error. Part I provides a brief background of the IOM report and addresses the …

Hélène Cixous's The Perjured City: Nonprosecution Alternatives To Collective Violence, Susan Ayres

Faculty Scholarship

In instances of collective violence — apartheid in South Africa, mass killings in Rwanda, and other crimes against humanity such as slavery — what response provides justice? How can justice be achieved under such a system? Legal justice through prosecution would be unjust. This opens the possibility of nonprosecution alternatives involving forgiveness. Hélène Cixous’s play about forgiveness as an alternative to criminal prosecution, The Perjured City: Or, the Awakening of the Furies, was written in response to an actual case of failed justice in France, known as the Bad Blood Scandal. The play provides a model of forgiveness and a …

Protecting A Hidden Treasure: The U.N. International Law Commission And The International Law Of Transboundary Ground Water Resources, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Given the world's considerable reliance on this precious resource, it is reasonable to assume that international attention to, and especially legal consideration of, ground water would be substantial. Nothing is further from the truth. Despite the growing dependence, legal and regulatory attention to ground water resources have long been secondary to surface water, especially among legislatures and policymakers and above all in the international …

Signaling And Precedent In Federal District Court Opinions, Andrew P. Morriss, Michael Heise, Gregory C. Sisk

Faculty Scholarship

Standard economic analysis of judicial behavior, at least with respect to federal judges, has to some extent foundered on the apparent success of the Constitution's framers in designing an institution where almost the whole thrust of the rules governing compensation and other terms and conditions of judicial employment is to divorce judicial action from incentives. That is, the structure takes away the carrots and sticks and the different benefits and costs associated with different behaviors which inform human action in an economic model. Nonetheless, our earlier empirical work, as well as work by others, found significant associations between promotion potential …

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Faculty Scholarship

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

The Status Of Detainees From The Iraq And Afghanistan Conflicts, Srividhya Ragavan, Michael S. Mireles

Faculty Scholarship

The paper is premised on the idea that the future course of international law will be impacted by the United States' ability to adhere to international treaties to which it is a signatory. Hence, the current administration bears a responsibility to avoid unwisely stretching, distorting, or avoiding the principles of international law for short-term gain in a manner that jeopardizes long-term sustainable policy. The United States should be wary of creating a dangerous precedent - not only for the world, but for itself. If the United States shirks from or misinterprets international legal principles, it leaves the forum open for …

Tragedy & Remedy: Reparations For Disparities In Black Health, Kevin Outterson

Faculty Scholarship

The Tragedy of American health care is the stubborn persistence of disparities in Black health, one hundred and forty years after Emancipation, and more than four decades after the passage of Title VI. Formal legal equality has not translated into actual health equality. This Tragedy is deeper and older than mere legal forms; it has been supported by powerful social institutions, including some governments, charities, market participants, religions, ideologies, and cultures. Black health disparities interact with other vestiges of slavery such as disparities in wealth, education, employment and housing. They have permeated the American health experience. Efforts to eliminate Black …

"Oh Lord, Please Don't Let Me Be Misunderstood!": Rediscovering The Mathews V. Eldridge And Penn Central Frameworks, Gary S. Lawson, Katharine Ferguson, Guillermo A. Montero

Faculty Scholarship

Mathews v. Eldridge, which addresses the procedures that must be provided for deprivations of life, liberty, or property under the Due Process Clauses, and Penn Central Transportation Co. v. City of New York, which guides inquiry into when governmental regulations rise to the level of takings of property that require just compensation, are decisions with near-canonical status. Mathews and Penn Central have some noteworthy parallels. Each decision is widely regarded as prescribing a three-factor test for resolving questions that arise under its respective domain. Each decision is almost universally decried as unworkable, incomplete, subjective, and incapable of consistent application. And …

Attractive Complexity: Tax Deregulation, The Check-The-Box Election, And The Future Of Tax Simplification, Steven A. Dean

Faculty Scholarship

Political failure has long been the scapegoat for the increasing complexity of the income tax. Over the last few decades, confusion over the meaning of the term simplification appears to have become a second important obstacle to creating simpler tax laws. Because some tax complexity is attractive to taxpayers, relying on taxpayer preferences to identify complexity and to guide simplification efforts has produced reforms and proposals that promise simplification but instead deliver pro-taxpayer deregulation that may cause more of society's resources to be devoted to paying, minimizing and collecting taxes rather than less. The check-the-box election, which provided taxpayers with …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Faculty Scholarship

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the …