Digital Commons Network^™

Counselor, Gatekeeper, Shareholder, Thief: Why Attorneys Who Invest In Their Clients In A Post-Enron World Are "Selling Out," Not "Buying In,", A. Christine Hurt

Faculty Scholarship

No abstract provided.

American Offshore Business Tax Planning: Can Australian Lawyers Get A Piece Of The Action?, J Clifton Fleming, Jr.

Faculty Scholarship

No abstract provided.

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen L. Norton

Faculty Scholarship

Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics.

This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their …

The Rebirth Of Bioethics: Extending The Original Formulations Of Van Rensselaer Potter, Peter J. Whitehouse

Faculty Scholarship

Van Rensselaer Potter's original concept of bioethics as a global integration of biology and values was designed to guide human survival. His attention to the creation of human knowledge and the incorporation of ecological concepts and values into medicine and health remain important, yet largely neglected, contributions deserving of further elaboration. Bioethicists should heed his warning about unsustainable progress, particularly in health care systems, and work toward changing their behaviors. Incorporating life-affirming spiritual values and extending Potter's global bioethics to a deeper bioethics seem essential.

Enforcing Internationally Recognized Human Rights Violations Under The Alien Tort Claims Act: An Analysis Of The Ninth Circuit’S Decision In Doe V. Unocal, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes Doe II under a multi-tiered rubric. The first tier involves analyzing whether the Ninth Circuit was correct in its jurisdictional interpretation. The second tier studies the extent to which the Ninth Circuit's use of international law expanded previously accepted usage by United States courts. For example, after reading Doe II, a question arises as to whether the Ninth Circuit created a "complete" universal jurisdiction for torts under the ATCA. The final tier, involves analyzing foreseen legal consequences. That is, does Doe II expand causes of action for foreign human rights violations because the decision reduces possible defenses …

Understanding Conflict In A Postmodern World, Scott H. Hughes

Faculty Scholarship

This article looks at new theories about the nature and dynamics of human systems in conflict.

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.

The Copyright Divide, Peter K. Yu

Faculty Scholarship

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to …

Managed Care’S Crimea: Medical Necessity, Therapeutic Benefit, And The Goals Of Administrative Process In Health Insurance, William M. Sage

Faculty Scholarship

This Essay explores the concept of medical necessity as it has evolved in the judicial and administrative oversight of managed care. The goals of the Essay are to illustrate the range of plausible rationales for establishing administrative procedures to govern medical necessity disputes, and to demonstrate the difficulty of incorporating into those procedures the most important professional and social responsibilities of managed care in today’s health care system. Part I of the Essay explains the ideological and practical significance of medical necessity as managed care has evolved. Part II examines medical necessity as a legal problem, and questions whether current …

Brief For American Association On Mental Retardation, The Arc, The Judge David L. Bazelon Center For Mental Health Law, American Academy Of Psychiatry And The Law, And Tash, Tennard V. Dretke, James W. Ellis, Norman C. Bay, Michael Browde, Christian G. Fritz, April Land, Robert Schwartz

Faculty Scholarship

The obstacles placed by the Fifth Circuit in the path of jurors' fair consideration of a defendant's condition are inconsistent with this Court's teachings about the fundamental importance of the jury's role in determining the appropriate penalty in capital cases.

Secrets And Spies: Extraterritorial Application Of The Economic Espionage Act And The Trips Agreement, Robin Effron

Faculty Scholarship

No abstract provided.

Secrets And Spies: Extraterritorial Application Of The Economic Espionage Act And The Trips Agreement, Robin J. Effron

Faculty Scholarship

No abstract provided.

Law And The Future Of Organized Labor In America, Keith N. Hylton

Faculty Scholarship

This paper, prepared for "The Future of Organized Labor in America" symposium at Wayne State University Law School, examines two questions: 1) what are the implications of the decline of unions for the future of labor law, and 2) what are the implications of labor law for the decline of unions? After documenting the recent trends (decline in the private sector coupled with slight growth in the public sector), I argue that the change in the public-versus-private composition will lead unions to pursue legislative strategies that will further reduce the share of the private sector workforce in unions. A law …

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Faculty Scholarship

If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'

Unfortunately, these different varieties of arbitration …

China And The Wto: Progress, Perils, And Prospects, Peter K. Yu, Gordon G. Chang, Jerome A. Cohen, Elizabeth C. Economy, Sharon K. Hom, Adam Qi Li

Faculty Scholarship

In November 2001, member states of the World Trade Organization (WTO) approved the proposal to admit China to the international trading body. After fifteen years of exhaustive negotiations, China finally became the 143rd member of the WTO on December 11, 2001. To reflect on this event, this panel brings together six China experts to explore the ramifications of China's accession to the WTO. Among the issues addressed are whether China is making progress in its compliance with the WTO requirements, whether China is suffering setbacks in the socio-economic arena, whether there are any prospects for democratic reforms and stronger human …

Four Common Misconceptions About Copyright Piracy, Peter K. Yu

Faculty Scholarship

Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem-political, social, economic, cultural, and historical.

This nuanced discussion, however, is missing in the current public debate. To capture the readers' emotion and to generate support for proposed legislative and executive actions, the debate often oversimplifies the complicated picture by overexagerrating a particular aspect of the piracy problem or by offering an abbreviated, easy-to-understand, …

Ethical Perspectives On New Ethical Dilemmas For Biotechnology, Robert A. Bohrer

Faculty Scholarship

No abstract provided.

Improving New Mexico's Water Management, Denise D. Fort, Tom Mcguckin

Faculty Scholarship

This paper reviews several measures that New Mexico should pursue to improve its management of water. The crisis in New Mexico’s water affects all of the citizens of the state, but hasty responses may promise more than they can deliver. In this paper we present several measures that will allow better use of the resources that the state has, and rectify imbalances in how water has been managed in the state.

Attorney-Client Sex: A Feminist Critique Of The Absence Of Regulation, Malinda L. Seymore

Faculty Scholarship

Doctors can't do it. Psychotherapists can't do it. Ministers can't do it. Chiropractors and social workers can't do it. But lawyers can. Lawyers, in most jurisdictions, can have sex with their clients without violating a standard of professional responsibility.

Sex between lawyers and clients occurs far more frequently than many believe. In a 1993 nationwide survey of attorneys, 18.9% of the respondents had sex with a client or knew of at least one other attorney who had. Despite this figure, there are only a handful of cases where attorneys have been disciplined for having sex with their clients. The reported …

Archetypal Trials And The Management Of Dissent: Some Insights From Marketing Theory, Pnina Lahav

Faculty Scholarship

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent …

The Right To Assistance Of Counsel In Military And War Crimes Tribunals: An International And Domestic Law Analysis, Joshua E. Kastenberg

Faculty Scholarship

This article serves two purposes. The first is to explore, and if possible, determine, what "international standards" exist regarding minimum levels of defense representation in international and war crimes tribunals. Military commissions are included in this latter category. The second purpose is to determine whether, in the current United States military commission scheme, defense counsel are expected to provide "adequate representation" within the requirements of both domestic and international law. Part I of this article explores the evolution of legal rights accorded to enemy combatants under both treaty and customary international law. Part II of this article addresses the meaning …

Conflict Of Laws (2003), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2001, through November 1, 2002. The article excludes cases involving federal-state conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state.

State and federal cases …

Prevention Perspectives On "Different" Kinds Of Discrimination: From Attacking Different "Isms" To Promoting Acceptance In Critical Race Theory, Law And Economics, And Empirical Research, Clark Freshman

Faculty Scholarship

No abstract provided.

No Badges, No Bars: A Conspicuous Oversight In The Development Of An International Criminal Court, Mary Margaret Penrose

Faculty Scholarship

If the ICC is truly to become a world criminal court, then this body should begin to clothe itself with all the traditional components of a criminal justice system. A successful international criminal court cannot be dependent on the political will of so-called cooperating states. Crimes that fall within the jurisdiction of the ICC should be subject to prosecution by the court, which requires that there exist some body or agency capable of enforcing indictments and arresting suspected individuals. A court is but one piece of a greater body of criminal justice. In addition to the need for contemporaneous and …

Bodily Integrity And Informed Choice In Times Of War And Terror, George J. Annas

Faculty Scholarship

Law is the dominant force behind American medical ethics, and has been for at least the past half-century. That ' lawyers and judges, rather than physicians, have set the agenda for medical ethics in the United States is a bit surprising to many in the field of medical ethics, but it should not be. Medicine has historically been based on paternalism. The Hippocratic physician was obligated to act in the best interests of the patient-as the physician judged those interests-and to "do no harm." American law, on the other hand, is based on liberty and justice, principles that, among other …

One Strike And You're Out? Constitutional Constraints On Zero Tolerance In Public Education, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

Various studies reported that juvenile crimes of violence fell in the 1990s by as much as 30%. ¹⁰ In high schools specifically, the incidence of threatening behavior in 1996 changed little from two decades earlier, ¹¹ with the chances of being killed in school far less than being struck by lighting. ¹² The "juvenile crime bomb" proved illusory (as Delulio himself eventually acknowledged ¹³), but the severe measures designed to deal with it remain entrenched. Zero tolerance has taken on a life of its own, partly because public misperception remains high, ¹⁴ and partly because in our hardheaded times …

Achieving The Right Balance In Oversight Of Physician Opioid Prescribing For Pain: The Role Of State Medical Boards, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

No abstract provided.

Can't We All Get Along? The Case For A Workable Patent Model, Srividhya Ragavan

Faculty Scholarship

The global move towards a trade regime has been impeded by challenges of poverty and health crisis for the developing nations. Until now, the developed nations have touted the establishment of a trade regime as envisaged under TRIPS as the solution for the national challenges. This paper examines the effectiveness of TRIPS as a mechanism to move towards a trade regime. It argues that the patent policy in TRIPS cannot gear the world towards patent harmonization but can potentially adversely impact the developed nations and the post-world war trade structure. The impediments affecting the effectiveness of TRIPS as a harmonizing …

A Limit On The Cosmological Mass Density And Power Spectrum From The Rotation Curves Of Low Surface Brightness Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

The concentrations of the cuspy dark matter halos predicted by simulations of cold dark matter are related to the cosmology in which the halos form. Observational constraints on halo concentration therefore map into constraints on cosmological parameters. In order to explain the observed concentrations of dark matter-dominated low surface brightness galaxies, we require a cosmology with rather little power on galaxy scales. Formally, we require σ 8Γ0.6 < 0.23, where Γ0.6 is a modified shape parameter appropriate to this problem. Practically, this means that either Ωm < 0.2 or σ8 < 0.8. These limits apply as long as we insist that the cuspy halos found in simulations must describe the halos of low surface brightness galaxies. A low-density cosmology helps with the low observed concentrations, but it offers no explanation of the many cases where the shape of the density profile deviates from the predicted cuspy form. These cases must have suffered very extensive mass redistribution if the current halo formation picture is not to fail outright. It is far from clear whether any of the mass redistribution mechanisms that have been suggested (e.g., feedback) are viable.