Digital Commons Network^™

Commentary On Economic And Ethical Reasons For Protecting Data, Wendy J. Gordon

Faculty Scholarship

Like Jane Ginsburg, I would like to drop back a bit, to talk about more general principles. Essentially, both of our primary speakers focused on a distinction between property and non-property modes of protecting data. I would like to highlight the economic and ethical reasons for maintaining that distinction.

Everything I Need To Know About Presidents I Learned From Dr. Seuss, Gary S. Lawson

Faculty Scholarship

Oaths are out of fashion these days. This is an era in which it is widely considered unreasonable to expect the President of the United States to obey basic principles of law and justice, much less to honor something as abstract as an oath. Perjury the violation of a legally binding oath-is publicly defended as proof of the offender's humanity rather than his criminality. And one should not even mention in polite company something as gauche as honoring an oath of marriage. Those pesky vows of marital fidelity were, after all, just words.

The Limits Of Law At The Limits Of Life: Lessons From Cannibalism, Euthanasia, Abortion, And The Court-Ordered Killing Of One Conjoined Twin To Save The Other, George J. Annas

Faculty Scholarship

The subject is law at the beginning and end of life. Most of my work is in the area of general health law: law and medicine, public health law, and health and human rights. But this is my favorite subject area, and I expect you to ask me the hardest questions you can. I am not saying I can answer them, but if I cannot that is my fault, not yours. I am going to make a pretty broad argument today about law and medicine; specifically about how new medical technology and medical practice standards have eclipsed religion (and sometimes …

A Framework For The Rejuvenation Of The American Labor Movement, Michael C. Harper

Faculty Scholarship

No abstract provided.

Gender And Nonfinancial Matters In The Ali Principles Of The Law Of Family Dissolution, Katharine B. Silbaugh

Faculty Scholarship

The question for this issue is gender issues in the American Law Institute’s Principles of the Law of Family Dissolution. Overall, the Principles are an impressive effort to create clarity and coherence, given the disorganized and evolving state of family law. This commentary raises a few questions about the Principles’ treatment of nonfinancial issues, and suggests that this treatment should raise concerns about women’s interests upon divorce. First, I will briefly review the ALI’s position on nonfinancial matters. Second, I will discuss why the limitation to financial losses should matter to women; that is, I will investigate the costs of …

Making Clinical Trials Safer For Human Subjects, Michael S. Baram

Faculty Scholarship

Clinical trials, in which new biotech and other medical products are tested on human subjects, provide much of the data used by the FDA to determine whether the products are suitable for routine use in health care. Thus, the trials are of obvious importance to medical progress and improvement of public health, and to those who have career and financial interests at stake. But clinical trials are also important to the human subjects involved because the products being tested on them may remedy their illnesses, but may also pose risks since the products have usually not been previously tested on …

Of Theory And Practice, Tamar Frankel

Faculty Scholarship

Much has been written about theory and practice in the law, and the tension between practitioners and theorists. Judges do not cite theoretical articles often; they rarely "apply" theories to particular cases. These arguments are not revisited. Instead the Essay explores the working and interaction of theory and practice, practitioners and theorists.

The Essay starts with a story about solving a legal issue using our intellectual tools - theory, practice, and their progenies: experience and "gut." Next the Essay elaborates on the nature of theory, practice, experience and "gut." The third part of the Essay discusses theories that are helpful …

Rape, Murder, And Formalism: What Happens If We Define Mistake Of Law?, Gerald F. Leonard

Faculty Scholarship

The criminal law maxim "ignorance of the law is no excuse" represents a broad doctrine of strict liability in an area of law that usually insists on a culpable state of mind as a prerequisite for liability. For that reason, many scholars have attacked the harsh mistake-of-law rules as incompatible with basic principles of culpability. Other scholars have come to the defense of the maxim, and courts have adhered to it quite strongly even as the list of exceptions to the maxim has slowly grown. Oddly enough, however, this debate has proceeded without a definition of mistake of law. Distinguishing …

When Did The Constitution Become Law?, Gary S. Lawson, Guy Seidman

Faculty Scholarship

Conventional wisdom and Supreme Court doctrine hold that the federal Constitution became legally effective on March 4, 1789, when the first session of Congress began. This conclusion is wrong, or at least seriously incomplete. Evidence from the Constitution, its adoption, and contemporaneous understandings reflected in treaties, statutes, and state constitutions demonstrates that the Constitution did not have a single effective date. Instead, different parts of the Constitution took effect in stages, beginning on June 21, 1788, when New Hampshire became the ninth state to ratify the document, and continuing at least until April 30, 1789, when President Washington was sworn …

Why Courts Review Arbitral Awards, William W. Park

Faculty Scholarship

Judicial review of arbitral awards constitutes a form of risk management. In most countries courts may vacate decisions of perverse arbitrators who have ignored basic procedural fairness, as well as those of alleged arbitrators who have attempted to resolve matters never properly submitted to their jurisdiction. In some countries judges may also correct legal error or monitor an award's consistency with public policy.

Public scrutiny of arbitration is inevitable at the time of award recognition. Judges can hardly ignore the basic fairness of an arbitral proceeding when asked to give an award res judicata effect by seizing assets or staying …

The Hobbesian Constitution: Governing Without Authority, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

One case in American legal history, perhaps more than any other, starkly presents in a single package many of the most fundamental issues of American structural constitutionalism: the principle of enumerated powers, the concept of limited government, and the place of the United States in a world of sovereign nations. It raises foundational questions about the powers of all major institutions of the national government and serves as an ideal acid test for differing conceptions of the Constitution-and indeed of the American nation-state. In terms of its theoretical scope and consequences, it is one of the most important cases ever …

Congressional Power To Require Dna Testing, Larry Yackle

Faculty Scholarship

Many states fail to conduct, or even to permit, DNA testing of biological materials in circumstances in which the results might exonerate convicts under sentence of death. Senator Patrick Leahy thinks that Congress should enact a statute requiring states to provide for testing when it promises to reveal the truth. Leahy's idea is sensible as a matter of policy. I mean in this Article to argue that it is also constitutionally feasible.

Testing Poor Pregnant Women For Cocaine: Physicians As Police Investigators, George J. Annas

Faculty Scholarship

In 1989, Supreme Court Justice Thurgood Marshall surmised that “declaring a war on illegal drugs is good public policy . . . [but] the first, and worst, casualty of war will be the precious liberties of our citizens.” The same year, in the midst of President George Bush's “war on drugs,” the Medical University of South Carolina initiated a program to screen selected pregnant patients for cocaine and to provide positive test results to the police. At a time of high public concern about “cocaine babies,” this program seemed reasonable to the university and local public officials. Drug-screening programs in …

Conjoined Twins: The Limits Of Law At The Limits Of Life, George J. Annas

Faculty Scholarship

Conjoined twins have been the subject of scientific exhibits, medical study, human curiosity, and even entertainment, but until the year 2000, conjoined twins had never been the subject of a courtroom battle. A unique case that was the subject of two British court decisions deserves study.1 The case illustrates the difficulty of applying legal principles to unprecedented life-and-death decisions involving proposed medical interventions for children — particularly when parents and physicians disagree about what should be done.

“Partial-Birth Abortion” And The Supreme Court, George J. Annas

Faculty Scholarship

Aortion has long been, and remains, the most politicized medical procedure in the United States. It has been the subject of more state and federal legislation than all other medical procedures combined. The U.S. Supreme Court, which almost never hears cases about medical procedures, has regularly heard cases over the past 25 years concerning the constitutionality of various state laws designed to limit abortion. Thus, it was only a matter of time before the Court would hear a case on the constitutionality of laws restricting so-called partial-birth abortion. When the Court heard a challenge to Nebraska's law, statutes relating to …

The Girl Who Cried Pain: A Bias Against Women In The Treatment Of Pain, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

In general, women report more severe levels of pain, more frequent incidences of pain, and pain of longer duration than men, but are nonetheless treated for pain less aggressively. The authors investigate this paradox from two perspectives: Do men and women in fact experience pain differently - whether biologically, cognitively, and/or emotionally? And regardless of the answer, what accounts for the differences in the pain treatment they receive, and what can we do to correct this situation?

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Faculty Scholarship

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …

On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero

Faculty Scholarship

The poignant story of a little boy fished out of the sea after losing his mother to the elements captured the country's imagination and ignited a political firestorm. The Elián González saga drew conflicting opinions from nearly every branch of American local, state, and federal governments.

This article takes no specific position on Elián's situation. Rather, this artivle values the González story for putting a human face on often faceless legal issues. More specifically, Elián's saga raises the following important question: When should the right of the human being to be treated as an individual trump the right of government …

Two Fallacies About Dna Data Banks For Law Enforcement, David H. Kaye

Faculty Scholarship

This commentary on the article Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Data Banks, 67 Brook. L. Rev. 127 (2001), by Mark Rothstein and Sandra Carnahan, argues that the case for confining law enforcement DNA databases to noncoding loci and to samples from individuals convicted of violent crimes is quite weak.

It describes alternative approaches, including the possibility of a population-wide database; the privacy implications of the loci now used in forensic identification; the law governing DNA dragnets; and the limits on DNA databases imposed by recent cases on searches and seizures. It notes the …

The Constitutionality Of Dna Sampling On Arrest, David H. Kaye

Faculty Scholarship

Every state now collects DNA from people convicted of certain offenses. Law enforcement authorities promote offender DNA databanking on the theory that it will identify offenders who commit additional crimes while or probation or parole, or after they have finished serving their sentences. Even relatively small databases have yielded such dividends. As these database searches uncover the perpetrators of rapes, murders, and other offenses, the pressure builds to expand the coverage of the databases.

Recent proposals call for extending not merely the scope of crimes for which DNA databanking would be used, but also the point at which the samples …

Litigation Governance: A Gentle Critique Of The Third Circuit Task Force Report, John C. Coffee Jr.

Faculty Scholarship

The Third Circuit Task Force on the Selection of Class Counsel (the "Task Force") has worked hard, considered everything, and exhaustively summarized the problems associated with class counsel auctions. Its views will undoubtedly resonate with most of the Bench and the vast majority of the Bar-neither of whom were enthusiastic about the prospect of auctions in the first place. Personally, I agree with the Task Force that auctions are not the most promising reform and that they may exacerbate, rather than correct, existing problems. Still, what is missing from the Task Force Report is the candid recognition that the agency …

Company Registration And The Private Placement Exemption, Merritt B. Fox

Faculty Scholarship

Over the last twenty years, there has been a steady shift in securities disclosure regulation away from its traditional transactional basis toward a system of company registration. Under the transaction based approach, each new public offering of a security has to be registered under the Securities Act of 1933 (the "1933 Act"), a requirement that reflects the SEC's traditional concern that the most important time to have high-quality disclosure is at the moment of a securities offering. Under the company registration approach, an established, publicly traded issuer would register just once, provide information thereafter on a periodic basis, and then …

Challenges To Fragile Democracies In The Americas: Legitimacy And Accountability, Martin Böhmer, A.R. Brewer-Carías, Helen Beatriz Mack Chang, Sarah H. Cleveland, Francisco Cox, Lourdes Flores Nano, H.W. Perry Jr., Steven Ratner, Carlos Rosenkrantz, Roberto Saba, Dean Michael Sharlot, Nicolas Shumway, Gerald Torres

Faculty Scholarship

February 25, 2000, the University of Texas School of Law hosted an extraordinary gathering to discuss the fragility of democracies in Latin America and the dangers that they face. The event was sponsored by several institutions at the University of Texas: the School of Law, the Institute of Latin American Studies, the Office of the Provost, the College of Liberal Arts Democracy in the Third Millennium Program, and the International Law Society at the School of Law.

The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin

Faculty Scholarship

No abstract provided.

William Wirt & The Invention Of The Public Lawyer, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Redistricting In North Carolina—A Personal Perspective, Robinson O. Everett

Faculty Scholarship

In 1992, when I filed a lawsuit attacking North Carolina's recently enacted congressional redistricting plan, my premise was that drawing a plan for a racially-defined purpose violates equal protection and for this reason and others is unconstitutional. Having now argued four appeals before the Supreme Court concerning North Carolina's redistricting, I still believe in the correctness of my original premise; but, in addition, I am concerned that districts drawn with a predominantly racial purpose tend to polarize our society, discourage the formation of multiracial coalitions, and, in the long run, to harm even those they are intended to protect. I …

Injury Without Harm: Texas V. Lesage And The Strange World Of Article Iii Injuries, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

Private Choices And Public Law Richard A. Posner's Contributions To Family Law And Policy, Ben Depoorter, Francesco Parisi

Faculty Scholarship

No abstract provided.

Fundamental Principles Of Transnational Civil Procedure, Geoffrey C. Hazard, Michele Taruffo, Rolf Sturner, Antonio Gidi

Faculty Scholarship

No abstract provided.