Digital Commons Network^™

“A Painful Process Of Waiting”: The New York, Washington, New Jersey, And Maryland Dissenting Justices Understand That “Same-Sex Marriage” Is Not What Same-Sex Couples Are Seeking, Barbara Cox

Faculty Scholarship

This essay focuses on the recent decisions by the highest courts of four states rejecting the claims of individuals in same-sex relationships that they must be permitted to marry the partner of their choice. In the cases of Hernandez v. Robles, Andersen v. King County, Lewis v. Harris, and Conaway v. Deane, a majority or plurality of each court determined that the bans preventing individuals in same-sex couples from marrying were constitutional. Understanding these cases is particularly important as additional state supreme courts address the cases of similar plaintiffs pending before them.

Places Of Refuge For Ships, John E. Noyes

Faculty Scholarship

This essay first provides an overview of Places of Refuge for Ships, a book that contains essential information and perspectives for lawyers and policy makers. Part III then briefly explores why the issue of places of refuge is daunting. The reasons for the complexity of this issue set the scene for Part IV, which proposes a process-oriented approach to assess and manage risks where vessels in distress seek access to places of refuge.

Competing Legal Cultures And Legal Reform: The Battle Of Chile, James Cooper

Faculty Scholarship

This Article explores the competition that exists between U.S. and German legal cultures and examines Chilean legal reform efforts since the late 1990s as a case study of this competition. A country's legal culture is comprised of the self-governing rules and operations of national and regional bar associations, the format of legal education, the structure of the legal and judicial profession, the role of the judiciary, jurisprudential style, and the reputation of the legal sector according to the general public. The influence of predominant legal cultures on developing nations has been explored in a number of contexts, while the importance …

California Climate Change And The Constitution, Christopher H. Schroeder, Neil S. Siegel, Erwin Chemerinsky, Brigham Daniels, Brettny Hardy, Tim Profeta

Faculty Scholarship

While the United States has of yet not passed meaningful legislation that addresses climate change, several U.S. states are taking steps to reduce the carbon footprints of their industries and citizens. As it has in the past, California is leading the way. But are its actions legal?

Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So

Faculty Scholarship

Recently, countries from China and Brazil to Malaysia and South Africa have passed laws promoting the patenting of publicly funded research, and a similar proposal is under legislative consideration in India. These initiatives are modeled in part on the United States Bayh-Dole Act of 1980. Bayh-Dole (BD) encouraged American universities to acquire patents on inventions resulting from government-funded research and to issue exclusive licenses to private firms, on the assumption that exclusive licensing creates incentives to commercialize these inventions. A broader hope of BD, and the initiatives emulating it, was that patenting and licensing of public sector research would spur …

Executive Preemption, Ernest A. Young

Faculty Scholarship

Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state …

Understanding The ‘Corporate’ In Corporate Social Responsibility, Barak D. Richman, Aaron K. Chatterji

Faculty Scholarship

No abstract provided.

Foreword: Making Sense Of Information For Environmental Protection, James Salzman, Douglas A. Kysar

Faculty Scholarship

Despite the ubiquity of information, no one has proposed calling the present era the Knowledge Age. Knowledge depends not only on access to reliable information, but also on sound judgment regarding which information to access and how to situate that information in relation to the values and purposes that comprise the individual's or the social group's larger projects. This is certainly the case for wise and effective environmental governance. A regulator needs accurate information to understand the nature of a problem and the consequences of potential responses. Likewise, the regulated community needs information to decide how best to comply with …

Proportionality In The Post-Hoc Analysis Of Pre-Litigation Preservation Decisions, Paul W. Grimm, Michael D. Berman, Conor R. Crowley, Leslie Wharton

Faculty Scholarship

No abstract provided.

State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller

Faculty Scholarship

This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …

Lessons From India In Organizational Innovation: A Tale Of Two Heart Hospitals, Barak D. Richman, Krishna Udayakumar, Will Mitchell, Kevin A. Schulman

Faculty Scholarship

Recent discussions in health reform circles have pinned great hopes on the prospect of innovation as the solution to the high-cost, inadequate-quality U.S. health system. But U.S. health care institutions--insurers, providers and specialists--have ceded leadership in innovation to Indian hospitals such as Care Hospital in Hyderabad and the Fortis Hospitals around New Delhi, which have U.S.-trained doctors and can perform open heart surgery for $6000 (compared to $100,000 in the United States). The Indian success is a window into America's stalemate with inflating costs and stagnant innovation.

The Alchemy Of Exile: Strengthening A Culture Of Human Rights In The Burundian Refugee Camps In Tanzania, Jennifer Moore

Faculty Scholarship

This Article suggests that our analysis of U.S. immigration policy should also be informed by a broader consideration of the experiences of immigrants and refugees in other parts of the world, including those who will never come to the United States. As we examine the moral, legal, and pragmatic imperatives behind the evolution of U.S. immigration policy, we should bear in mind the historical, political, economic, and cultural realities facing developing countries that host refugees from within their own regions. For some observers, such a global perspective might support calls for greater receptivity to immigrants in the United States. For …

Law, Environmental Dynamism, Reliability: The Rise And Fall Of Calfed, Dave Owen

Faculty Scholarship

No abstract provided.

Climate Change And Environmental Assessment Law, Dave Owen

Faculty Scholarship

No abstract provided.

Predicting Probability: Regulating The Future Of Preimplantation Genetic Screening, Jaime S. King

Faculty Scholarship

No abstract provided.

Discourse Of Disobedience: Law, Political Philosophy, And Trials Of Conscientious Objectors, Hadar Aviram

Faculty Scholarship

No abstract provided.

Rethinking Compensation For Mental Distress: A Critique Of The Restatement (Third) §§ 45-47, John L. Diamond

Faculty Scholarship

No abstract provided.

Anecdotal Forensics, Phrenology, And Other Abject Lessons From The History Of Science, David L. Faigman

Faculty Scholarship

No abstract provided.

Electroconvulsive Therapy Baby Boomers May Be In For The Shock Of Their Lives, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Nonmartial Cohabitation: Social Revolution And Legal Regulation, Marsha Garrison

Faculty Scholarship

No abstract provided.

Rabenmutter And The Glass Ceiling: An Analysis Of Role Conflict Experienced By Women Lawyers In Germany As Compared With Women Lawyers In The United States, Jacquelyn H. Slotkin

Faculty Scholarship

The purpose of this article is to analyze and compare women lawyers in Germany with women lawyers in the United States: their legal education, gender proportion in the legal profession, work opportunities, satisfaction with professional choices, and role conflicts. 22 Part I of this article will describe Germany's legal education and compare it with U.S. legal education. Part II will review the literature and issues relevant to German women lawyers as compared with U.S. women lawyers and will summarize and analyze how societal attitudes have affected women's choices in Germany and in the United States. Part III will compare demographic …

Social Reconstruction As A Local Process, Naomi Roht-Arriaza, Laura Arriaza

Faculty Scholarship

No abstract provided.

In Re Gault And The Promise Of Systemic Reform, Kate Kruse

Faculty Scholarship

The right to counsel for juveniles in delinquency cases that the Supreme Court declared in In re Gault can be seen as an effort at systemic reform - a purposeful alteration of the structure, procedure, or resources of a law-administering system that aims to better align the system's operation with the principles or ideals on which it is based. Although the Court articulated the benefits of counsel in terms of individual representation, juvenile defenders are increasingly called upon to expand their role to include broader forms of advocacy aimed at reforming juvenile justice system practice and procedure. The predominant stakeholder …

Roleplays As Rehearsals For “Doing The Right Thing”---Adding Practice In Professional Values To Moldovan And United States Legal Education, Ann Juergens

Faculty Scholarship

In a work world where injustice and corruption challenge lawyers daily, how might law schools better prepare students to become ethical leaders, or, at least, to practice ethically themselves? This article asserts that adding short interactive roleplays to large classes is one way for students to learn the skill and value of doing the right thing under difficult circumstances. The authors build on their experience teaching in Moldova, where they found students eager to engage in realistic roleplays, so eager that they transformed a lawyer-client interviewing exercise into an exploration of what to do when offered a bribe. If U.S. …

Involuntary Passive Euthanasia In U.S. Courts: Reassessing The Judicial Treatment Of Medical Futility Cases, Thaddeus Mason Pope

Faculty Scholarship

Over the past twenty-five years, a significant number of surrogate decision makers have demanded that a health care provider use medical technology to prolong a patient's life beyond the point thought medically appropriate. These surrogates want to continue life-sustaining medical treatment (LSMT) that providers want to stop. While most of these futility disputes are resolved informally inside the hospital, dozens have now been litigated in U.S. courts. Because the judicial treatment of these disputes casts a long, dark shadow on the informal resolution of all the others, it is important to ascertain exactly what guidance these court cases provide.

In …

The Post-Cuno Litigation Landscape, Morgan Holcomb, Nicholas Allen Smith

Faculty Scholarship

In 1996, Northeastern University School of Law Professor Peter Enrich wrote a groundbreaking article, in which he argued that certain state tax incentives are unconstitutional as violations of the Commerce Clause. This article begins by describing the constitutional landscape into which Enrich cast his argument, and them turns describe the litigation that Enrich’s article has generated, including the much-watched case, Cuno v. DaimlerChrysler Corp., which held the promise of resolving this dormant Commerce Clause question, only to wither away on the vine of standing. Following the discussion of Cuno, this article will turn to an exploration of the litigation that …

A Truly Good Work: Turning To Restorative Justice For Answers To The Welfare-To-Work Dilemma, Marie Failinger

Faculty Scholarship

U.S. welfare programs have traditionally come with strings attached: recipients must work for their benefits. I argue that there is a more practical and less morally repugnant way to marry work and welfare if proponents of work as well as their opponents would be willing to give up the unrealistic expectations they have placed on state-run public assistance programs, and define a clear and limited relationship between work and need for economically vulnerable people. Just as it has offered an alternative to both the pure retributivist and rehabilitation models in the area of criminal corrections, the principles and practices of …

Identifying And Keeping The Genie In The Bottle: The Practical And Legal Realities Of Trade Secrets In Bankruptcy Proceedings, Sharon Sandeen

Faculty Scholarship

Anyone who has been paid attention to developments in the world of business over the past quarter century can attest to the fact that intellectual property (IP) is a hot commodity. Indeed, in contrast to the companies that emerged out of the Industrial Revolution, the companies that have spawned as part of the so-called “Information Age” attribute much of their value and future prospects to intangible, rather than tangible, assets. Unfortunately, while bankruptcy courts have generally recognized the need to distinguish between tangible and intangible assets, particularly when determining whether a claim is secured or unsecured, they often fail to …

Insuring Corporate Crime, Miriam H. Baer

Faculty Scholarship

Corporate criminal liability has become an important and much-talked about topic. This Article argues that entity-based liability - particularly the manner in which it is currently applied by the federal government - creates social costs in excess of its benefits. To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation's employees would commit crimes, and then charge companies for insuring those risks. The insurance would cover the entity's civil penalties associated …

Asterisk Revisited: Debating A Right Of Reply On Search Results, Frank Pasquale

Faculty Scholarship

No abstract provided.