Digital Commons Network^™

Clouds Of Mystery: Dispelling The Realist Rhetoric Of The Uniform Commercial Code, Franklin G. Snyder

Faculty Scholarship

Students in contracts and commercial law courses are routinely taught that Article 2 of the Uniform Commercial Code is a product of the Legal Realist movement-that it was designed by its principal draftsman, Karl Llewellyn, to more accurately reflect the needs and realities of modern business than the prior common law and statutes it displaced That story is important, because it is routinely retold as we explain to students the provisions in Article 2 that change the powers, rights, and responsibilities of contracting parties. Yet that story is a myth. There is relatively little "Realism'" in Article 2, whether we …

Shifting Paradigms Of Parochialism: Lessons For International Trade Law, Elizabeth Trujillo

Faculty Scholarship

Much of the study of international private law has focused on exploring differences in legal systems in light of domestic issues or harmonization. Much less emphasis has been on accepting these various parochial interests as part of a global legal structure. This preliminary study into what drives parochial attitudes can help international trade scholars observe the traditions engendering these differing parochial attitudes and their impact on trade. Through a pluralist lens and in borrowing from studies in the social sciences on parochialism, this paper attempts to bring to light a world of "hybrid legal spaces" that adds complexity to the …

Technology, Competition, And Values, Frank Pasquale

Faculty Scholarship

No abstract provided.

Attempt, Reckless Homicide, And The Design Of Criminal Law, Michael T. Cahill

Faculty Scholarship

No abstract provided.

There’S Just One Hitch, Will Smith: Examining Title Vii, Race, Casting, And Discrimination On The Fortieth Anniversary Of Loving V. Virginia, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I use Loving v. Virginia as a backdrop for exploring why our society allows, without legal challenge, customer preference or discrimination to unduly influence casting decisions for actors paired in romantic couples in movies and television. In so doing, I examine how existing anti-discrimination law in employment can and should be used to address these improper influences within the entertainment industry. In Part I of the Essay, I first survey the growing practice of casting intraminority couples casting in films and television and examine how such casting, despite its appeal on the surface, may work to …

Two Faces Of Progress: Fairness And Flexibility In Arbitral Procedure, William W. Park

Faculty Scholarship

Arranged in pairs, the biographies in Plutarch's Parallel Lives contrast great statesmen, orators and soldiers from the ancient Roman and Greek worlds.1 Cicero, the Roman orator, finds himself juxtaposed with his Greek counterpart, Demosthenes. The Roman general Caesar stands compared with the Hellenic military genius of Alexander. And so on.

A Search-Costs Theory Of Limiting Doctrines In Trademark Law, Stacey Dogan, Mark A. Lemley

Faculty Scholarship

Trademarks have value because they reduce consumer search costs and thus promote overall efficiency in the economy.

While the search costs theory provides a compelling argument for trademark rights, it also compels an equally important - but often overlooked - set of principles for defining and limiting those rights. Certainly, trademark laws can make it easier and cheaper for consumers to locate products with desired qualities, thus making markets more competitive. Yet if carried too far, trademark law can do the opposite: it can entrench market dominance by leading firms and make it harder for competitors to crack new markets. …

Property Rules, Liability Rules, And Immunity: An Application To Cyberspace, Keith N. Hylton

Faculty Scholarship

This Article sets out a theory of torts and cyberspace wrongs. My goal is to provide a sparse theoretical account of tort law and apply it to cyberspace torts, both negligent and intentional. I approach this goal by applying the framework of property rules and liability rules to cyberspace torts. That framework suggests that trespass doctrine is appropriate in instances of cyber invasions of private information resources, such as the breaking of codes to access private information on the web. However, trespass doctrine should play no role in cyber-invasions of public information resources, such as the sending of spam email. …

Before Competition: Origins Of The Internal Affairs Doctrine, Frederick Tung

Faculty Scholarship

To the modern corporate scholar and lawyer, the internal affairs doctrine seems in the natural order ofthings. Corporate law is state law. Each corporation is formed under the law of its chosen state ofincorporation. To ensure consistency and predictability, that law must govern the corporation's internalaffairs. Yet the origin of such a doctrine is puzzling. Respecting the firm's choice of corporate law, thedoctrine forces state legislatures into competition to attract incorporations. But how did legislatures come to concede their traditional territorial regulatory authority, and instead agree to compete? This Article solves this puzzle, offering the first account of the doctrine's …

After Atrocity Examples From Africa: The Right To Education And The Role Of Law In Restoration, Recovery, And Accountability, Erika George

Faculty Scholarship

This article begins to consider these important questions through a discussion of the multiple models used to address, and redress massive human rights violations in South Africa, Rwanda, and Sierra Leone. I argue that lawyers and policy makers working to advance the rule of law must consider the role of law in transitional societies not only as a means of ensuring that perpetrators of grave human rights abuses are held accountable, but also as a foundation for the future. I submit that for the rule of law to take root, the conditions of a society must be fertile; and respect …

“Respectful Consideration” After Sanchez-Llamas V. Oregon: Why The Supreme Court Owes More To The International Court Of Justice, Steven Arrigg Koh

Faculty Scholarship

This Note argues that the doctrine of “respectful consideration” has emerged as little more than a hollow acknowledgement of the ICJ before the Court engages in its own independent interpretation of the Vienna Convention. It further argues that, while the ICJ has no actual legal authority to interpret the Vienna Convention from the U.S. domestic perspective, the Supreme Court should nonetheless treat ICJ decisions with greater deference. Specifically, Justice Stephen Breyer’s test from his Sanchez-Llamas dissent accords the proper level of deference by permitting, in limited circumstances, the remedies of suppression of the evidence and exceptions to state procedural default …

Determining An Arbitrator's Jurisdiction: Timing And Finality In American Law, William W. Park

Faculty Scholarship

In arbitration law, few matters engender more stimulating debate than the interaction of arbitrators and judges with respect to jurisdictional determinations. When one side asserts that it never agreed to arbitrate, or contests the arbitrator’s substantive mission or procedural powers, someone must determine the existence, validity, and/or scope of the arbitration clause.

The Arab Charter On Human Rights 2004, Susan M. Akram

Faculty Scholarship

The Boston University International Law Journal is publishing, for the first time, an English version of the 2004 Arab Charter on Human Rights. A very brief review of how the 2004 Arab Charter came into being introduces this English translation. The drafting history of the Arab Charter on Human Rights begins in 1960. In that year, members of the Union of Arab Lawyers (the oldest NGO in the Arab world) requested the League of Arab States (created in 1945) during their meeting in Damascus to adopt an Arab Convention on Human Rights. Eight years later, participants in the first meeting …

Prologue To A Voluntarist War Convention, Robert D. Sloane

Faculty Scholarship

This Article attempts to identify and clarify what is genuinely new about the ¿new paradigm¿ of armed conflict after the attacks of September 11, 2001. Assuming that sound policy counsels treating certain aspects of the global struggle against modern transnational terrorist networks within the legal rubric of war, this Article stresses that the principal challenge such networks pose is that they require international humanitarian law, somewhat incongruously, to graft conventions - in both the formal and informal senses of that word - onto an unconventional form of organized violence. Furthermore, this process occurs in a context in which one diffuse …

Symposium: Current Issues In Community Economic Development: Foreword: Entrepreneurship, Race, And The Current Environment For Community Economic Development, Eric J. Gouvin

Faculty Scholarship

On March 30, 2007, the Western New England College School of Law and the School of Business jointly hosted the second annual academic conference on Current Issues in Community Economic Development, sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference promotes the two primary goals of the Law and Business Center: (1) to provide technical legal and business assistance to entrepreneurs and (2) to sponsor educational and outreach events focused on entrepreneurship and economic development. The Law and Business Center is a unique resource in Western Massachusetts. The combination of legal and business …

A Constitutional Conundrum Of Second Amendment Commas: A Short Epistolary Report, William W. Van Alstyne

Faculty Scholarship

Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Faculty Scholarship

At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by …

Developing Markets In Baby-Making: In The Matter Of Baby M, Carol Sanger

Faculty Scholarship

In this Essay, I want to explore the Baby M case from a different, less philosophical perspective. The question I pose is simply this: how did the Sterns and the Whiteheads find one another in the first place? After all, apart from their New Jersey location (and a shared fondness for Bruce Springsteen), the two couples had little in common. Mary Beth was a high school dropout; Betsy had a Ph.D. and M.D. from the University of Michigan. Rick was a Vietnam vet fighting an ongoing battle with unemployment and alcoholism; Bill led what close friends called "a quiet, industrious …

Statutory Interpretation As A Parasitic Endeavor, Stephen F. Ross

Faculty Scholarship

The principal theme of this essay is that statutory interpretation is a project that requires advocates and judges to utilize the insights of three discrete disciplines apart from law: communications and linguistics to understand the way that legislative drafters use words to communicate to others, either in text or in extratextual legislative material; political science to describe the way that legislators behave in enacting statutes; and political theory to provide a normative guide for courts interpreting statutes in a constitutional democracy.

Wireless Carterfone, Tim Wu

Faculty Scholarship

Over the next decade, regulators will spend increasing time on conflicts between the private interests of the wireless industry and the public’s interest in the best uses of its spectrum. This report examines the practices of the wireless industry with an eye toward understanding their influence on innovation and consumer welfare.

In many respects, the mobile wireless market is and remains a wonder. Thanks to both policy and technological innovations, devices that were science fiction 30 years ago are now widely available. Over the last decade, wireless mobile has been an “infant industry,” attempting to achieve economies of scale. That …

Conflict Resolution And Systemic Change, Howard Gadlin, Susan P. Sturm

Faculty Scholarship

Over the last fifty years, alternative dispute resolution (ADR) has become a fixture of the conflict resolution landscape. As its label suggests, ADR is generally viewed as an alternative to adjudication, developed in response to litigation's liabilities-its expense, delay, adversarialism, and limits as a tool for addressing complex problems. In contrast, ADR's value rests in its capacity to produce prompt, fair, and efficient resolutions that satisfy the disputants.

ADR proponents and critics alike presuppose that the benefits of ADR are achieved at inevitable costs. The assumption is that informal conflict resolution necessarily resolves disputes for the disputants and no one …

The Practice Of Value – Reply, Joseph Raz

Faculty Scholarship

The privilege of having three sets of extensive and hard-hitting comments on one's work is as welcome as it is rare, and especially so on this occasion as the lectures were, for me, but the first (well, not entirely first) stab at a subject I hope to explore at greater length. The reflections that follow will respond to some of the criticisms, but will not be a point by point reply. I will use the occasion to clarify some obscurities in the lectures, and to contrast my view with some of my critics' own positions. I will proceed thematically, starting …

The Argument From Justice, Or How Not To Reply To Legal Positivism, Joseph Raz

Faculty Scholarship

Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which 'has long since been obsolete in legal science and practice'. The quotation is from the German Federal Constitutional Court in 1968. The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart's The Concept of Law (1961) may suggest that he shares the court's view. The book itself may be evidence to the contrary. After all why flog a dead horse? Why write a book to refute a totally discredited …

Can There Be A Theory Of Law?, Joseph Raz

Faculty Scholarship

The paper deals with the possibility of a theory of the nature of law as such, a theory which will be necessarily true of all law. It explores the relations between explanations of concepts and of the things they are concepts of, the possibility that the law has essential properties, and the possibility that the law changes its nature over time, and that what is law at a given place and time depends on the culture and concepts of that place and time. It also considers the possibility of understanding the institutions, such as the law, of cultures whose concepts …

China's Network Justice, Benjamin L. Liebman, Tim Wu

Faculty Scholarship

China's Internet revolution has set off a furious debate in the West. Optimists from Thomas Friedman to Bill Clinton have predicted the crumbling of the Chinese Party-state ("Party-state"), while pessimists suggest even greater state control. But a far less discussed and researched subject is the effect of China's Internet revolution on its domestic institutions. This Article, the product of extensive interviews across China, asks a new and different question. What has China's Internet revolution meant for its legal system? What does cheaper, if not free, speech mean for Chinese judges?

The broader goal of this Article is to better understand …

Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a "preliminary agreement." A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty …

Consent In Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

This brief comparative analysis of the United States and English approaches to mediation consent raises policy questions about the merits of mandatory mediation. Is England on a better course by requiring consent at the front end of mediation? Will mediation be stronger in the long run when it has a consensual foundation? Arguably, the use of cost sanctions in England's mediation regime makes it close to a mandatory mediation system. For some litigants, participating in mediation will be potentially less costly than arguing that it was not unreasonable to refuse mediation. But despite the mandatory gloss, mediation is still a …

Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley

Faculty Scholarship

The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education. National legal traditions have responded differently to the implementation of mediation. Thus, lawyers must have an understanding of the differences and nuances in mediation law …

China's Future Lawyers: Some Differences In Education And Outlook, Malinda L. Seymore, Patricia Ross Mccubbin, Andrea Curcio, Llewellyn Joseph Gibbons

Faculty Scholarship

The number of Chinese lawyers and law schools is burgeoning as China's legal system undergoes significant substantive changes. Whether in business transactions or in legal disputes about products liability, intellectual property, or any number of other issues, U.S. lawyers in this era of globalization will begin to have more frequent interactions with their Chinese counterparts. Additionally, more and more U.S. law students and professors are involved in international exchanges with Chinese law schools. These growing opportunities for interaction among U.S.- and China-trained legal professionals bring with them unique challenges and opportunities because of cultural, political, and legal system differences.

The …

Latino Inter-Ethnic Employment Discrimination And The Diversity Defense, Tanya K. Hernandez

Faculty Scholarship

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary but also will become even more complex. Recent scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the context of individual racial and ethnic discrimination claims. What will antidiscrimination litigation look like when all the parties involved are non-White but nonetheless plaintiffs allege that a racial hierarchy exists …