Digital Commons Network^™

Role Of Personal Values In Professional Decisionmaking, The , Bruce A. Green

Faculty Scholarship

The 1908 Canons of Professional Ethics directed a lawyer to "obey his own conscience."' Lawyers receive similar advice today. Writings on legal practice encourage lawyers to make professional decisions based on their moral values and religious beliefs, as expressed in the familiar injunction: to be charted by one's own "moral compass." Underlying this advice is an assumption about the professional norms - namely, that they accommodate, if not contemplate, lawyers' reliance on personal values. This assumption finds some support in the contemporary codes of lawyer conduct, which acknowledge a role for the lawyer's "conscience" or "moral judgment." Yet, it is …

Of Labor Law And Dissonance Colloquy, James J. Brudney

Faculty Scholarship

What accounts for the dissonance between the meaning of our national labor law, as decreed primarily by federal judges, and the social and economic realities of workplace relationships addressed by that law? In his darkly eloquent commentary, Professor Getman acknowledges that such dissonance is not unique to the law governing labor-management relations. Yet the courts' often mistrustful approach toward employee rights under the National Labor Relations Act ( NLRA" or "Act") has had a special impact. The NLRA emerged at a time of social turbulence, and was based on a recognized need to redress the fundamental inequality of bargaining power …

Lex Informatica: The Formulation Of Information Policy Rules Through Technology , Joel R. Reidenberg

Faculty Scholarship

Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information. This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rule-making. Technological capabilities and system design choices impose rules on participants. The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations. Even user preferences and technical choices create overarching, local default rules. This Article argues, in essence, that the set of …

Interjurisdictional Preclusion, Howard M. Erichson

Faculty Scholarship

Res judicata is hard enough already. Consider it at the interjurisdictional level, and we are asking for headaches. But consider it at that level we must, because litigation trends make interjurisdictional preclusion1 more important than ever. Lawyers, judges, litigants, and other litigation participants increasingly must contemplate the possibility that a lawsuit will have claim-preclusive or issue-preclusive effect in a subsequent suit in another jurisdiction. This article examines the problem of interjurisdictional preclusion, and, in particular, the problem of choice of preclusion law. Choice of-preclusion law cannot be appreciated in the abstract, but rather must be considered in light of litigation …

The Invisible Barbecue, Eben Moglen

Faculty Scholarship

Past legislation subsidizing the development of infrastructural technology has borne the mark of political corruption. The subject matter of the Telecommunications Act of 1996 falls within the same category of legislation that has fallen prey to this process in the past. In an effort to discern whether such forces are at work today, Professor Moglen undertakes a critical examination of the metaphors that pervade the current scholarly discourse on the subject of telecommunications law. Terms such as "Superhighway," "Broadcasting," and "Market for Eyeballs" reveal a great deal about the implicit assumptions at work behind the current scholarship and legislation, and …

Employees, Pensions, And The New Economic Order, Jeffrey N. Gordon

Faculty Scholarship

The "New Economic Order" in the United States is a regime of trade liberalization, a robust market in corporate control, and labor market flexibility. Among the consequences over the 1980-1995 period is a divergence between the growth rate of corporate profits and stocks prices, which have increased by approximately 250% in real terms, and wages, which have barely increased at all, except for the top quintile. Contrary to popular belief employees have not significantly participated through their pension funds in this stock market appreciation. In the historically dominant defined benefit pension plan, the sponsoringfirm, not the employee, is the residual …

Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick Mark Gedicks

Faculty Scholarship

Despite their considerable ideological differences, "conservative originalists" such as Robert Bork and "progressive originalists" such as Michael Perry both divide the process of understanding into cognitive (or "objective") and normative (or "subjective") aspects. The determination of the original meaning of the Constitution is methodologically separated from the question how this predetermined meaning should be applied in a particular case. This places both conservative and progressive originalists squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a "science of interpretation" which purported to be as epistemologically reliable as the methods …

Copyright, Common Law, And Sui Generis Protection Of Databases In The United States And Abroad, Jane C. Ginsburg

Faculty Scholarship

What protection remains for compilations of information, particularly digital databases, since the United States Supreme Court swept away "sweat copyright" in its 1991 Feist decision? "Thin" copyright protection is still available, but it covers only the original contributions (if any) that the compiler brings to the public domain information. Moreover, Feist makes clear that padding the compilation with original added value will not flesh out the skeletal figure beneath: the information, stripped of selection, arrangement, or other copyrightable frills, remains free for the taking.

If copyright is unavailing, contract is appearing more promising, as mass-market, "shrinkwrap" and "click-on" licenses gain …

Copyright Without Borders? Choice Of Forum And Choice Of Law For Copyright Infringement In Cyberspace, Jane C. Ginsburg

Faculty Scholarship

The disjunction between territorial treatment of copyright claims and the ubiquity of cyberspace has led some commentators to urge abandonment of landlocked notions of judicial and legislative competence. Since digital communications resist grounding in particular fora, or governance by individual national laws, these writers contend it would be best to devise a cyberian legal system that would supply cyber-specific substantive copyright law, and/ or virtual dispute settlers whose competence – and whose determinations – would transcend national borders.

My analysis will be more earthbound. This is not to belittle the important ongoing efforts to achieve international harmony of substantive copyright …

Reading Holmes Through The Lens Of Schauer: The Abrams Dissent, Vincent A. Blasi

Faculty Scholarship

Even the best scholars rarely persuade. Mostly, they illuminate. They make us more discerning readers and interlocutors.

Here I want to illustrate how Frederick Schauer's work on the law of free speech can help us to read what may be the single most influential judicial opinion ever written on that subject, Justice Holmes's famous dissent in Abrams v. United States. So far as I am aware, Schauer has not produced anything like a line-by-line parsing of the Holmes opinion. I claim nevertheless that a reader familiar with Schauer's ideas is far better prepared on that account to understand what Holmes …

Sexuality, Rape, And Mental Retardation, Deborah W. Denno

Faculty Scholarship

In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mental retardation. It next demonstrates how old stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. As a result, courts are hurting the very people they are supposed to protect …

The Bylaw Battlefield: Can Institutions Change The Outcome Of Corporate Control Contests?, John C. Coffee Jr.

Faculty Scholarship

What, if anything, can institutional investors do to influence the course and outcome of corporate control contests? The traditional answer was relatively little. To be sure, institutions could tender their shares in a tender offer or vote in a proxy contest to oust the incumbent board, but such a role was essentially reactive and contingent. It required that an offer actually be made before institutions could respond on an after-the-fact basis. Similarly, institutions have occasionally conducted precatory proxy campaigns calling upon the board to redeem its poison pill, but management was free to ignore these requests (and has done so).

Less Is More: Teaching Legal Ethics In Context Symposium: 1997 W. M. Mikeck Foundation Forum On The Teaching Of Legal Ethics, Bruce A. Green

Faculty Scholarship

We who teach legal ethics employ many of the teacher's arts to win our students' appreciation for the course. We do not always succeed. As Deborah Rhode has observed, "[t]here are inherent problems and infinite ways to fail in teaching this subject." Yet, we continue to seek a method for teaching the course effectively. If nothing else, our efforts have led to the development of a substantial body of literature on teaching legal ethics to which this Article will contribute. Its focus is on what, rather than how, to teach. This Article asks: What should be the content of the …

What Law Is Like, George P. Fletcher

Faculty Scholarship

It is not easy to do philosophy in the tradition of Wittgenstein and Malcolm. The human mind gravitates toward authority – the Bible, great teachers, poets, gurus, even judges. Lawyers, in particular, are captives of authoritive constitutions, statutes, cases, and ruling doctrines. We cannot make a move without citing a source as a backup.

Perhaps this is the way it should be, for as lawyers or legal theorists, we speak in a particular legal culture and tradition. We cultivate that tradition, even as we dissent and subject it to criticism. The tradition is defined by the authorities that have shaped …

From The Bottom Up, Kent Greenawalt

Faculty Scholarship

This Article is about carrying out informal instructions given by people in authority. Although many scholars have written about how legal interpretation resembles interpretation in fields such as literature and religion, few have compared informal instructions and legal rules. My most basic assumption in this Article is that focus on informal situations can illumine the standards people use in performing instructions and the kinds of meaning they attribute to instructions. As my title implies, if we reflect on what amounts to faithful or desirable performance of informal directives and the more conceptual question of what these prescriptive standards "mean," we …

Ending The Irs As We Know It: Thoughts From Outside The Beltway, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Are Law Firm Partners Islands Unto Themselves? An Empirical Study Of Law Firm Peer Review And Culture, Susan Saab Fortney

Faculty Scholarship

This article examines how attitude and law firm culture affect peer review and principal accountability by using empirical data obtained from a survey of Texas law firms. Part I briefly describes the research design and the general profiles of respondents of the survey. Part II discusses the peer review measures used by the firms surveyed for this article. Part III analyzes attitudes about peer review. Part IV focuses on the obstacles to peer review. Part V considers the connection between firm culture and the implementation of peer review measures. Finally, the conclusion explains how firm managers can reshape attitudes to …

Property Law: 1996 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohma

Faculty Scholarship

No abstract provided.

A Year In Practice: The Journal Of A Reflective Clinician, Stacy Caplow

Faculty Scholarship

No abstract provided.

The War On Drugs: Evening The Odds Through Use Of The Airport Drug Courier Profile, Brian A. Wilson

Faculty Scholarship

The scourge of illegal drug abuse plagues the United States despite increased efforts by various law enforcement agencies to eradicate the narcotics trade. "The toll [drug abuse inflicts] on our society in lives made wretched, in costs to citizens, and in profits of gross size funneled to the most odious criminals, is staggering." Drugs lead the abuser fortunate enough to evade his demise to physical, financial and moral devastation, although their pernicious effects are not confined to the individual who uses them. The enormous profits generated by the drug trade invite corruption of unscrupulous law enforcement officials through lucrative bribes. …

Risky Business, Michael S. Baram

Faculty Scholarship

In prior studies by high-level commissions, emphasis was given to improving the scientific basis and institutional procedures for risk assessment and risk regulation within existing statutory frameworks. Recommendations have led to slow but steady progress. This study is considerably different. It emphasizes a public health approach for efficient use of resources in a new flexible framework for risk management, reductionist approaches to risk assessment and characterization, increased public involvement, and various methods for managing such public involvement. It provides a mix of aspirations and concepts, procedures, and "shop floor rules" for putting the new system of risk management into practice. …

Comments Worth Making: Supervising Scholarly Writing In Law School, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

An Enlightened Addition To The Original Meaning: Voltaire And The Eighth Amendment’S Prohibition Against Cruel And Unusual Punishment, Joshua E. Kastenberg

Faculty Scholarship

This article centers on the influences of the Enlightenment through Voltaire on both the framers of American law and on the Eighth Amendment's prohibition against cruel and unusual punishment. Before discussing the weight of Voltaire's influence on the law makers in the early republic, it is first important to envision a general picture of both Enlightenment philosophy and the experiences of Voltaire in Eighteenth Century France. Therefore, in Part I, this paper examines Seventeenth and Eighteenth Century Enlightenment philosophy on criminal punishment, as well as the philosophy of Voltaire. Part II addresses a similar exploration of the impact of this …

The Times They Are A Changin' - Or Are They? An Update On Rule 114, Barbara Mcadoo, Nancy A. Welsh

Faculty Scholarship

When Rule 114 of the General Rules of Civil Practice arrived on the Minnesota legal scene in July 1994, it took many attorneys by complete surprise. Even in Hennepin County, which has had a nonbinding arbitration program since 1984, some attorneys asked, "ADR? Is that short for Another Darn Requirement'?" Nearly two years later, now that most attorneys know that ADR is the acronym for "Alternative Dispute Resolution," it is time to take stock of Rule 114, to evaluate its influence on the practice of law and its impact on the courts.

This review is timely for another, very important …

Consensus, Dissensus And Contractual Obligation Through The Prism Of Uniform International Sales Law, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Brief Of Intervenor, Women’S Legal Education And Action Fund (Leaf), Goertz V. Gordon, Laura Spitz

Faculty Scholarship

Historically, women have been almost exclusively responsible for the unpaid labour of child care with the assumption of primary child care responsibilities after separation. The courts must analyze each situation to determine whether a joint custody arrangement, in law, is in fact true equal parenting, in roles and responsibilities, or one more akin to sole custody when considering relocation restrictions.

Lotus V. Borland: Copyright And Computer Programs, Glynn S. Lunney Jr

Faculty Scholarship

Since Congress's express acknowledgment of copyright protection for computer programs in 1980, courts have faced the sometimes difficult task of deciding whether the admitted copying of some element from a copyright program constitutes infringement. In Lotus v. Borland, for example, the question was whether the admitted copying by Borland of the Lotus 1-2-3 menu structure constituted infringement. The district court held that it did; the First Circuit held that it did not; and the Supreme Court was unable to decide. This Essay suggests that the First Circuit's resolution is the correct one, but that the reasons the First Circuit …

Gender Matters: Implications For Clinical Research And Women's Health Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Corporate Governance And Managerial Incompetence: Lessons From Kmart, D. Gordon Smith

Faculty Scholarship

Modern corporate governance scholars often extol an activist role by institutional investors in directing corporate activity. Widely viewed as a solution to the collective action problems that inhibit such activism by individual investors, institutional investors are praised for adding value to corporations through their participation in the decision making process. The ouster of Joseph Antonini as Chief Executive Officer of Kmart Corporation in 1995 might be taken as a vindication of this view, because substantial evidence indicates that institutional investors played a crucial role in influencing Kmart's board of directors to remove him. In this Article, Professor Smith challenges this …

Whatever Happened To The Uniform Land Transactions Act?, Ronald B. Brown

Faculty Scholarship

No abstract provided.