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Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler Jan 2003

Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler

Faculty Scholarship

The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …

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Bargaining In The Shadow Of Copyright Law After Tasini, Maureen A. O'Rourke Jan 2003

Bargaining In The Shadow Of Copyright Law After Tasini, Maureen A. O'Rourke

Faculty Scholarship

Copyright law often provides the background rules against which bargaining over rights in works of information takes place. By granting creators of works of authorship certain exclusive rights and providing protection against infringement of those rights, copyright law effectively gives authors bargaining chips to use in negotiations with those who would exploit their works in some way. Generally, however, copyright law does not explicitly address imbalances in bargaining power that affect the division of the surplus between the parties to a copyright license. When the would-be exploiter of the copyrighted work wields some degree of market power or brings significant …

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Corporate Fraud: See, Lawyers, Susan P. Koniak Jan 2003

Corporate Fraud: See, Lawyers, Susan P. Koniak

Faculty Scholarship

The accounting profession must bear a good deal of responsibility for the current wave of corporate scandals, as must those CEOs whose watchword was greed, lackadaisical directors, projections-for-hire investment analysts, banks selling methods designed to deceive, and institutional investors asleep at the switch. One set of villains, however, have managed thus far to float beneath the radar screen and thus escape the lion-sized portion of blame that should rightly be laid at their door: lawyers.

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Blinded By Bioterrorism: Public Health And Liberty In The 21st Century, George J. Annas Jan 2003

Blinded By Bioterrorism: Public Health And Liberty In The 21st Century, George J. Annas

Faculty Scholarship

In Blindness, Nobel Prize laureate Jos6 Saramago chronicles the quarantining of the first victims of a plague of blindness.1 We meet many people who become blind in Saramago's novel, including an opthamologist, a one-eyed man with an eye patch, and a man born blind. Saramago reminds us that we are all blind in one way or another, and that there are many things about ourselves and our society that we can't or won't see. The quarantine itself turns out to be isolating, inhumane, and degrading; the interred blind being portrayed by themselves and others as pigs, dogs, and "lame crabs." …

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The Right To Health And The Nevirapine Case In South Africa, George J. Annas Jan 2003

The Right To Health And The Nevirapine Case In South Africa, George J. Annas

Faculty Scholarship

Thanks to activists in South Africa, the right to health as a human right has returned to the international stage, just as it was being displaced by economists who see health through the prism of a globalized economy and by politicians who see it as an issue of national security or charity. The current post-apartheid debate in South Africa is not about race but about health, and in this context, the court victory by AIDS activists in the nevirapine case has been termed not only, as stated in one British newspaper, “the greatest defeat for [President Thabo] Mbeki's government” but …

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Hipaa Regulations: A New Era Of Medical-Record Privacy?, George J. Annas Jan 2003

Hipaa Regulations: A New Era Of Medical-Record Privacy?, George J. Annas

Faculty Scholarship

The new privacy regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) become effective April 14, 2003. This article outlines the implications of the new policy for practicing physicians. The regulations will affect virtually every physician, because they apply to any health care provider who conducts any business electronically, including billing. The regulations require health care providers to provide patients with a privacy notice that informs them who will have access to their records without their explicit consent and about patients' rights to inspect and amend their own records.

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Introduction Welcome And Opening Remarks: Panel One: Introduction, Tanya K. Hernandez Jan 2003

Introduction Welcome And Opening Remarks: Panel One: Introduction, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

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The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit Jan 2003

The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit

Faculty Scholarship

The Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002 has great potential for expediting The Station fire cases. The object of the Act is to place all of the cases from a mass disaster before a single judge, who can supervise discovery, then try the issue of liability, and either try or remand the issue of damages. How this new procedural tool will function is uncertain. The Act consolidates the power in one court to either urge the parties to accept a global settlement, or send the unresolved cases to trial. There are many unanswered questions. It is up to judges …

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The Jurisprudence Of The Military Industrial Complex, Laura Spitz, Ann Scales Jan 2003

The Jurisprudence Of The Military Industrial Complex, Laura Spitz, Ann Scales

Faculty Scholarship

What is the jurisprudence of the military-industrial complex? The military-industrial complex has arrived at a comfy situation where it is either exempt from the rule of law, or else gets to make every decision that informs what the rule of law would require in a given situation. Professor Sptiz talks about the connections among business interests and military interests, focusing on the business or industrial aspects of the military-industrial complex.

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A Prescription For Gender: How Medical Professionals Can Help Secure Equality For Transgender People, Jennifer L. Levi Jan 2003

A Prescription For Gender: How Medical Professionals Can Help Secure Equality For Transgender People, Jennifer L. Levi

Faculty Scholarship

Transgender people have made tremendous legal gains in the last several years. We live in a period of rapid social change, hopefully approaching a time when transgender individuals and our families enjoy the same legal rights and privileges afforded to other members of society. However, we are not there yet. This essay discusses the role medical professionals must play if transgender people are to achieve full humanity in light of legal developments in the areas of employment and family law. Medical professionals are at the heart of directing and implementing policies that have an enormous effect on the lives of …

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Transgender Jurisprudence: Dysphoric Bodies Of Law, Jennifer L. Levi Jan 2003

Transgender Jurisprudence: Dysphoric Bodies Of Law, Jennifer L. Levi

Faculty Scholarship

This is a book review of Andrew Sharpe's "Transgender Jurisprudence: Dysphoric Bodies of Law." The Author discusses the contribution Sharpe makes to the transgender rights movement as invaluable for two reasons. First, it provides the first in-depth and full-length comprehensive treatment of the topic of transgender jurisprudence, and emerges as the foundational work by which others will be measured. Second, it exposes the homophobia underlying many of the key decisions, particularly in the area of marriage and family law, and provides an important link between the lesbian, gay, bisexual, and transgender movements which should not be ignored by activists from …

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Puppy Love: Bioterrorism, Civil Rights, And Public Health, George J. Annas Jan 2003

Puppy Love: Bioterrorism, Civil Rights, And Public Health, George J. Annas

Faculty Scholarship

Florida has been the state humorists most like to make fun of since the 2000 presidential election, especially when it comes to politics. And humorists are almost the only commentators who can be counted on to tell us the truth about the state of American politics today. When Californians decided to recall their Governor, for example, Conan O'Brien observed: "Yesterday Arnold Schwarzenegger announced he would run for governor of California. The announcement was good news for Florida residents, who now live in the second-flakiest state in the country."' And when more than 200 people filed to run for Governor, Jay …

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Arbitrage, Bioethics, And Cloning: The Abcs Ofgestating A United National Cloning Convention, Rosario M. Isasi, George J. Annas Jan 2003

Arbitrage, Bioethics, And Cloning: The Abcs Ofgestating A United National Cloning Convention, Rosario M. Isasi, George J. Annas

Faculty Scholarship

America's inability to craft a regulatory ethics of abortion has led to a
/="/">wild west of unregulated research with human embryos and pregnant
/="/">women by our private infertility industry. Because of an "all or nothing"
/="/">research mentality, it is becoming increasingly impossible to suggest
/="/">outlandish and reckless reproductive research possibilities without seeing
/="/">them actually pursued. And if even the wild west seems a bit inhospitable
/="/">to particular research goals, such as cloning to produce the genetic duplicate
/="/">of an existing person, media darlings like Severino Antinori and Zavos
/="/">Panos, and even members …

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International Commercial Dispute Resolution, William W. Park, Andrea K. Bjorklund, Jack J. Coe Jan 2003

International Commercial Dispute Resolution, William W. Park, Andrea K. Bjorklund, Jack J. Coe

Faculty Scholarship

A recent Court of Appeals decision has made it more difficult for judges in the United States to second-guess arbitrators in international cases. To understand the significance of the recent decision, one must remember that the Federal Arbitration Act (FAA) has been interpreted to permit vacatur of awards in an international arbitration on the same grounds available in domestic cases. Thus, a litigant who is unhappy with an arbitrator's decision gets a chance to re-argue the case by alleging "manifest disregard of the law," a ground for judicial review created fifty years ago by Supreme Court dictum.

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Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain Jan 2003

Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain

Faculty Scholarship

This article takes up the question: Should family law and policy move beyond marriage? It assesses a spectrum of answers to that question. Rejecting proposals, on the one hand, to shore up traditional marriage, and, on the other, to abolish marriage, it argues that family law and policy should not move wholly beyond marriage, but should support marriage in a way that better fosters greater equality within and among families. The article is part of a symposium on "Marriage, Families, and Democracy," published in 32 Hofstra Law Review 23-421 (2003).

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Limits Of The Classic Method: Positive Action In The European Union After The New Equality Directives, Daniela Caruso Jan 2003

Limits Of The Classic Method: Positive Action In The European Union After The New Equality Directives, Daniela Caruso

Faculty Scholarship

The European Union's member states are currently implementing two new directives, prohibiting discrimination on such grounds as race, ethnicity and religion. Both directives allow for positive action - a European version of affirmative action confined to "soft," non-quota measures arguably reconcilable with the canon of individual equality. Based on time-honored EC provisions on gender discrimination, the European Court of Justice has already scrutinized, and occasionally prohibited as in breach of EC individual rights, states' positive action in favor of women. The Court is now likely to extend the same mode of scrutiny to the forms of discrimination contemplated by the …

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Facing Tyranny With Justice: Alternatives To War In The Confrontation With Iraq, George Bisharat Jan 2003

Facing Tyranny With Justice: Alternatives To War In The Confrontation With Iraq, George Bisharat

Faculty Scholarship

No abstract provided.

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Seeking Justice, Preserving Liberty, Geoffrey C. Hazard Jr. Jan 2003

Seeking Justice, Preserving Liberty, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

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What If I Want My Kids To Watch Pornography? Protecting Children From ''Indecent'' Speech, Ashutosh Bhagwat Jan 2003

What If I Want My Kids To Watch Pornography? Protecting Children From ''Indecent'' Speech, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

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California's Supreme Court And Constitution The Early Years, Joseph R. Grodin Jan 2003

California's Supreme Court And Constitution The Early Years, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

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Prescriptive Laws, Uncertain Science, And Political Stories: Forest Planning In The Sierra Nevada, Dave Owen Jan 2003

Prescriptive Laws, Uncertain Science, And Political Stories: Forest Planning In The Sierra Nevada, Dave Owen

Faculty Scholarship

No abstract provided.

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The Disappointing History Of The National Marine Sanctuaries Act, Dave Owen Jan 2003

The Disappointing History Of The National Marine Sanctuaries Act, Dave Owen

Faculty Scholarship

No abstract provided.

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Cosmetic Compliance And The Failure Of Negotiated Governance, Kimberly D. Krawiec Jan 2003

Cosmetic Compliance And The Failure Of Negotiated Governance, Kimberly D. Krawiec

Faculty Scholarship

Across a range of legal regimes - including environmental, tort, employment discrimination, corporate, securities, and health care law - United States law reduces or eliminates enterprise liability for those organizations that can demonstrate the existence of "effective" internal compliance structures. Presumably, this legal standard rests on an assumption that internal compliance structures reduce the incidence of prohibited conduct within organizations. This Article demonstrates, however, that little evidence exists to support that assumption. In fact, a growing body of evidence indicates that internal compliance structures do not deter prohibited conduct within firms and may largely serve a window-dressing function that provides …

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Reining In The American Litigator: The New Role Of American Judges, Richard L. Marcus Jan 2003

Reining In The American Litigator: The New Role Of American Judges, Richard L. Marcus

Faculty Scholarship

No abstract provided.

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Privatization As Delegation, Gillian E. Metzger Jan 2003

Privatization As Delegation, Gillian E. Metzger

Faculty Scholarship

Recent expansions in privatization of government programs mean that the constitutional paradigm of a sharp separation between public and private is increasingly at odds with the blurred public-private character of modern governance. While substantial scholarship exists addressing the administrative and policy impact of expanded privatization, heretofore little effort has been made to address this disconnect between constitutional law and new administrative reality. This Article seeks to remedy that deficiency. It argues that current state action doctrine is fundamentally inadequate to address the constitutional challenge presented by privatization. Current doctrine is insufficiently keyed to the ways that privatization involves delegation of …

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Who Is Andrea Yates? A Short Story About Insanity, Deborah W. Denno Jan 2003

Who Is Andrea Yates? A Short Story About Insanity, Deborah W. Denno

Faculty Scholarship

On June 20, 2001, Andrea Yates drowned her four children in a bathtub. At Andrea’s trial, in Harris County, Texas, the prosecution’s star expert, Patrick Dietz, appeared particularly adept at persuading the jury to accept the prosecution’s assertion that Andrea was sane and acting intentionally when she killed her children. This Article analyzes the problematic aspects of Dietz's testimony in an effort to contribute some balance to the Andrea Yates story. Despite the long history of expert witnesses in criminal trials, the justice system should question the fairness and efficacy of such an unregulated storytelling process. Part I of this …

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Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson Jan 2003

Emotional Harm In Housing Discrimination Cases: A New Look At A Lingering Problem, Victor M. Goode, Conrad Johnson

Faculty Scholarship

With the United States Supreme Court's condemnation of legal segregation in Brown v. Board of Education in 1954, and a vigorous civil rights movement that led to the passage of the 1964 Civil Rights Act, the nation entered the beginning of a new era in race relations. This, and future civil rights legislation, would be characterized by the development of a national agenda for ending discrimination and promoting equality. One area that was not included in this initial congressional effort, but later found its way into the legislative agenda, was the subject of housing discrimination. Despite the relatively few debates …

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Private Information, Self-Serving Biases, And Optimal Settlement Mechanisms: Theory And Evidence, Seth A. Seabury, Eric L. Talley Jan 2003

Private Information, Self-Serving Biases, And Optimal Settlement Mechanisms: Theory And Evidence, Seth A. Seabury, Eric L. Talley

Faculty Scholarship

The law and economics literature on suit and settlement has tended to focus on two alternative conceptual models. On the one hand, the "optimism" model of pre-trial negotiation attempts to explain settlement failure as an artifact of unfounded optimism by one or both parties. The idea that bargaining agents can adopt such non-rational biases receives support from experimental evidence. On the other hand, the "private information" model of pre-trial bargaining portrays settlement failures as an artifact of strategic information rent extraction. It finds support in some experimental evidence as well. This paper presents (for the first time) a mechanism-design approach …

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Managing A Correctional Marketplace: Prison Privatization In The United States And The United Kingdom, David Pozen Jan 2003

Managing A Correctional Marketplace: Prison Privatization In The United States And The United Kingdom, David Pozen

Faculty Scholarship

This article traces the recent history and development of privately operated prisons in the United States and the United Kingdom, and it compares their current role in the countries' correctional systems. The privatization movements of the U.S. and the U.K. were driven by similar factors, but the relative weight of these factors varied between the two. In the U.S., legal pressures to alleviate prison overcrowding and fiscal incentives to contract out prison construction were stronger, while in the U.K. the ideological and political aims of the governing party exerted more influence in stimulating privatization. America's experience with private prisons in …

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Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan Jan 2003

Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan

Faculty Scholarship

The phenomenal growth of drug courts and other forms of "problem-solving" courts has followed a pattern that is characteristic of many successful innovations: An individual or small group has or stumbles upon a new idea; the idea is put into practice and appears to work; a small number of other actors adopt the innovation and have similar experiences; if there is great demand for the innovation – for example, because it responds to a widely-perceived crisis or satisfies an institutional need and resolves tensions within organizations that adopt it – the innovation rapidly diffuses through the networks in which the …

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