Digital Commons Network^™

Contracts – Only With Consent, Ronald J. Mann

Faculty Scholarship

My friend and former colleague Omri Ben-Shahar has established a reputation for providing nuanced and well-grounded applications of economic analysis to important problems of contract law. In recent years, he has undertaken the ambitious task of exploring a significant topic at the boundary of contract law: liability for problems that arise out of efforts to form a contract. The essay to which I reply, Contracts Without Consent: Exploring a New Basis for Contractual Liability, is his second work on that topic, following his 2001 article with Lucian Bebchuk entitled Precontractual Reliance. Collectively, these pieces provide a comprehensive analysis …

The Broadband Debate, A User's Guide, Tim Wu

Faculty Scholarship

Back in the 1990s, Internet communications policy was easier. It was easy to agree that the network's growth ought not be impended by excessive government regulation. It was easy to hope that the Internet would solve all of its own problems. Yet it turned out that the success of the network was hiding strong differences of opinion. Today, the euphoria is gone, and the divide in Internet communications policy has become clear and unmistakable. It most clearly a divide between two distinct groups: the self-proclaimed "Openists" and "Deregulationists."

This divide will do much to inform the reform of the Telecommunications …

Freeing The Mind: Free Software And The Death Of Proprietary Culture, Eben Moglen

Faculty Scholarship

The subject matter we are going to talk about is variously named and thewords have some resonances of importance. I am going to use the phrase "Free Software" to describe this material, and I am going to suggest to you that the choice of words is relevant. We are talking not merely about a form of production or a system of industrial relations, but also about the beginning of a social movement with specific political goals, which will characterize not only the production of software in the twenty-first century, but the production and distribution of culture generally.

My purpose this …

The Alien Tort Statute, Civil Society, And Corporate Responsibility, Sarah H. Cleveland

Faculty Scholarship

The topic of this panel is civil participation in the global trading system, with a particular focus on Doe v. Unocal Corp. and use of the Alien Tort Statute (ATS) to enforce fundamental human rights norms against multinational corporations. These comments will therefore attempt to locate Doe v. Unocal and other ATS litigation in the broader efforts of civil society to establish and maintain normative principles for corporate responsibility in the global trading regime. This comment first explains the role of ATS litigation in the broader civil society context and the contribution of ATS cases to the development and enforcement …

The Unfulfilled Promise Of Citizen Review, Debra A. Livingston

Faculty Scholarship

Once controversial, the idea that citizens should participate in the administrative review of complaints about police conduct is today widely accepted. Citizen review processes of one type or another can be found in about eighty percent of our largest cities. There are approximately 100 separate oversight agencies in this country and that number has been growing steadily for some time. Even as citizen review has become an accepted feature of the landscape in American policing, however, questions have been raised about just what citizen participation in complaint review is likely to achieve in terms of improving police and the relations …

Edith Wharton, Privacy, And Publicity, Jessica Bulman-Pozen

Faculty Scholarship

"It's the woman's soul, absolutely torn up by the roots-her whole self laid bare .... I don't mean to read another line; it's too much like listening at a keyhole." When Mrs. Touchett speaks these words in Edith Wharton's early novella, The Touchstone, we may wonder whether Wharton is mocking her own voyeuristic readership and grappling with her tenuous privacy as a professional female author. Despite her protestations, Mrs. Touchett has relished reading the letters of Mrs. Aubyn, a deceased novelist whose former lover, Stephen Glennard, has published her correspondence. It is precisely because these love letters (or "unloved letters" …

Sexual Tensions Of Post-Empire, Katherine M. Franke

Faculty Scholarship

In this essay Katherine Franke examines two contemporary cites in which state efforts to eradicate the traces of empire and to resurrect an authentic post-colonial nation have produced sexual subjects that serve as a kind of existential residue and reminder of a demonized colonial past and absence. Looking first at post-colonial Zimbabwe, Franke argues that President Mugabe's aggressively homophobic policies have played a key role in fortifying his leadership as authentically African and post-colonial.

Franke then turns to current efforts by the Mubarak government in Egypt to publically prosecute men for having sex with men. The Mubarak government has used …

Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The standard contract that governs friendly mergers contains a material adverse change clause (a "MAC") and a material adverse effect clause (a "MAE"); these clauses permit a buyer costlessly to cancel the deal if such a change or effect occurs. In recent years, the application of the traditional standard-like MAC and MAE term has been restricted by a detailed set of exceptions that curtails the buyer's ability to exit. The term today engenders substantial litigation and occupies center stage in the negotiation of merger agreements. This paper asks what functions the MAC and MAE term serve, what function the exceptions …

Copyright's Communications Policy, Tim Wu

Faculty Scholarship

There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms …

Choice As Regulatory Reform: The Case Of Japanese Corporate Governance, Ronald J. Gilson, Curtis J. Milhaupt

Faculty Scholarship

The fact of a small number of hostile takeover bids in Japan the recent past, together with technical amendments of the Civil Code that would allow a poison pill-like security, raises the question of how a poison pill would operate in Japan should it be widely deployed. This paper reviews the U.S. experience with the pill to the end of identifying what institutions operated to prevent the poison pill from fully enabling the target board to block a hostile takeover. It then considers whether similar ameliorating institutions are available in Japan, and concludes that with the exception of the court …

Gollum, Meet Smeagol: A Schizophrenic Rumination On Mediator Values Beyond Self Determination And Neutrality, James Coben

Faculty Scholarship

The author asserts that the exclusive reliance on the "Two Towers" of self-determination and neutrality as the foundation for mediation practice has inevitably left us with a process routinely characterized by mediator manipulation and deception. The "tricks" are tolerated by sophisticated repeat players, and absent transparency in practice, disturbingly not known to others. The evolution of mediation, from empowerment/community roots to corporate/court sustenance, is no surprise given the nation's journey through the Reagan revolution, the ideology of free markets, and the Supreme Court's unbridled support for freedom to contract in disputing. In short, mediation is at a crossroads needing to …

Testing Applicants With Disabilities, Gregory M. Duhl, Stuart Duhl

Faculty Scholarship

All jurisdictions provide reasonableaccommodations for applicants with disabilities who are otherwise qualified to sit for the bar examination. The provision of accommodations is primarily a result of the comprehensive federal law known as the Americans with Disabilities Act (“the ADA”), passed by Congress in 1990 to prohibit discrimination against persons with disabilities. The ADA protects both applicants with physical disabilities and those with mental disabilities, and accommodations include not only additional testing time, longer and more frequent breaks between testing sessions, and private testing rooms, but also other auxiliary aids and services designed to enable effective communication to and from …

The Legal Foundation–Defining The Legislative Format, William W. Huss, Sharon Press, J. Michael Mcwilliams

Faculty Scholarship

Current and pending mediation legislative programs in the United States, Canada, and other countries were examined by speakers and panelists who are living under these new systems or were authors of their design. Topics included court annexed programs, mandatory programs, voluntary programs, private institutional programs, the Uniform Mediation Act, state and federal initiatives, and the impact each has, or will have, on the mediation practice.

Bioethical Malpractice: Risk And Responsibility In Human Research, Barbara A. Noah

Faculty Scholarship

This Article provides an overview of Institutional Review Board (IRB) operations, reviews the sources of regulatory guidance, and examines the weaknesses of the existing system for the protection of human research subjects. It then discusses the scant case law relating to IRB negligence in the protection of human research subjects and explores some hypothetical circumstances under which it may be appropriate to hold a board accountable for injuries to clinical trial participants. Finally, this Article considers the potential consequences of expanded IRB liability, concluding that tort lawsometimes may serve an important function as a catalyst to regulatory reform when professional …

Politicizing The End Of Life: Lessons From The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The case of Theresa Marie Schiavo raises challenging legal and ethical issues, although the events of the case are not entirely novel. It is a well-settled principle under Florida law that individuals have a right to refuse life-sustaining medical treatment. After years of litigation, numerous courts have confirmed that removal of life support is legally appropriate under the facts of this case. Nevertheless, six days after Theresa's feeding tube was removed, the Florida legislature
opted to intervene in the final judicial decision by granting the Governor the authority to overrule the court's decision and to order the tube reinserted. These …

Social Justice In European Contract Law A Manifesto, Ugo Mattei

Faculty Scholarship

No abstract provided.

Access To Health Care In Texas: A Patient-Centered Perspective, Laura Hermer, William J. Winslade

Faculty Scholarship

Access to health coverage in Texas is, and continues to be, an urgent policy issue. This article provides an overview and evaluation of the primary state- or local-based and private financial means through which Texans gain access to health care, and offers suggestions to the Texas Legislature to help improve coverage access.

The Timing, Intensity, And Composition Of Interest Group Lobbying: An Analysis Of Structural Policy Windows In The States, John M. De Figueiredo

Faculty Scholarship

This is the first paper to statistically examine the timing of interest group lobbying. It introduces a theoretical framework based on recurring “structural policy windows” and argues that these types of windows should have a large effect on the intensity and timing of interest group activity. Using a new database of all lobbying expenditures in the U.S. states ranging up to 25 years, the paper shows interest group lobbying increases substantially during one of these structural windows in particular--the budgeting process. Spikes in lobbying during budgeting are driven primarily by business groups. Moreover, even groups relatively unaffected by budgets lobby …

Monopsony As An Agency And Regulatory Problem In Health Care, Peter J. Hammer, William M. Sage

Faculty Scholarship

The article is organized as follows. Part I returns to the source, explaining the controversy in Kartell, examining Breyer's opinion, and summarizing its impact on other courts. Part II looks at Kartell through the lens of classic monopsony theory involving suppliers, producers, and consumers, and focuses on the opinion's oversimplification of the relationship between health insurers and insured individuals. It further considers whether lower input prices result in lower consumer prices in the endproduct market, and, therefore, whether monopsony power can be welfare-enhancing. Part III evaluates Kartell's disregard of other important principal-agent problems in health care that arguably influence the …

Passports And Nationality In International Law, Adam I. Muchmore

Faculty Scholarship

Shifts in state control over territory can have substantial consequences for the nationality of individuals. This Article explores situations where an individual finds that the state which issued him a passport no longer recognizes his nationality. The law of binding state action, a set of broadly-accepted rules regulating state representations to other states, may provide more protection for passport-holders than the “soft” norms of human rights law.

Homesteading Rock: A Defense Of Free Access Under The General Mining Law Of 1872, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Faculty Scholarship

The Mining Law of 1872 is one of the most reviled federal land laws, regularly drawing attacks as anachronistic, corporate welfare, a relic of pioneer days, and a source of major environmental problems. Born out of the experience of the nineteenth century mineral rushes, the Mining Law allows individuals to privatize both the surface estate and the mineral rights to public land containing minerals (with some exceptions) without requiring a significant payment to the public treasury for the land This "giveaway" aspect of the law draws the loudest protests. The authors argue that it is inappropriate to measure the net …

Neighborhood, Crime, And Incarceration In New York City, Jeffery Fagan, Valerie West, Jan Holland

Faculty Scholarship

Several new studies suggest that social and spatial incarceration of young males has become part of the developmental ecology of adolescence in the nation's poorest neighborhoods. This concentration began in the 1970s, and has grown steadily through the last quarter century.The story of young men such as Cesar in Random Family illustrates the pervasive effects of both direct and vicarious prison experiences for young men and women in poor neighborhoods. Studies of street life such as Random Family, Code of the Streets, and American Project show how these experiences are now internalized in the social and psychological fabric of neighborhood …

Constitutional And Statutory Interpretation, Kent Greenawalt

Faculty Scholarship

This article discusses relatively established theories with respect to statutory and constitutional interpretation. Written constitutions and statutes provide authoritative directions for officials and citizens within liberal democracies. The article mentions that descriptive and normative theories connect with each other in critical respects. Statutory interpretation involves the construction and application of provisions adopted by legislatures. The theoretical questions about interpreting statutes and constitutions suggest more general questions about the meaning of human communications; and scholars of philosophy of language, linguistics, literary theory, and religious hermeneutics discuss analogous issues. This article discusses an important issue in statutory interpretation that is the nature …

Copyright And Free Expression: Analyzing The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

Faculty Scholarship

Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyse copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …

The (New?) Right Of Making Available To The Public, Jane C. Ginsburg

Faculty Scholarship

I am honoured to contribute to this Festschrift for Bill Cornish, the leading exponent of the English (even if many of them are in fact Anzacs) School of Copyright and Intellectual Property. In addition to greatly valuing his scholarship, I hold Bill in especial esteem for his unswerving sanity in ALAI meetings, and for the piano duets in which he occasionally indulges my spouse. The following essay is offered in the spirit of international inquisitiveness that has animated so many of my contacts with Bill.

Intellectual Property Rights In Plant Varieties: An Overview With Options For National Governments, Laurence R. Helfer

Faculty Scholarship

No abstract provided.

Uniform Real Property Electronic Recording Act (Last Revised Or Amended In 2005), Arthur Gaudio , Reporter

Faculty Scholarship

The status of electronic information technology has progressed rapidly in recent years. Innovations in software, hardware, communications technology and security protocols have made it technically feasible to create, sign and transmit real estate transactions electronically. However, approaching the end of the 20^th Century, various state and federal laws limited the enforceability of electronic documents. In response, the Uniform Electronic Transactions Act (UETA) was approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1999. As of October 1, 2004, UETA had been adopted in 46 states, the District of Columbia, and the U.S. Virgin Islands. The …

Learning Business Law By Doing It: Real Transactions In Law School Clinics, Eric J. Gouvin

Faculty Scholarship

This Article discusses the business clinic movement and how legal educators view them as being an excellent vehicle for inculcating the values and practices that business lawyers hold dear. Business clinics may help students better appreciate the challenges of business lawyering, which they sometimes misunderstand as merely a forms practice. The Author believes that by putting students in the middle of real transactions, they gain a deeper understanding of the subtleties of making a transaction come together.

Kierkegaard As An Enlightenment Thinker, Jeremy Bendik-Keymer

Faculty Scholarship

What if Kierkegaard were not a counter-Enlightenment thinker, but were a deeper enlightenment thinker? In this talk, I want to propose an interpretation of S.K.’s work under which he continues the Enlightenment, rather than discontinuing it. I will claim that Kierkegaard deepened and advanced one of the most central aspects of “enlightenment”, at least as Kant and the subsequent tradition has defined it. Kierkegaard was an enlightenment thinker (lower case “e”!), and therefore it is misleading to see him as opposed to the heart of the Enlightenment (upper case “e”).

The Law Professor As Legal Commentator, Amy Gajda

Faculty Scholarship

No abstract provided.