Digital Commons Network^™

Brian D. Ruppert, Jewel In The Ashes: Buddha Relics And Power In Early Medieval Japan, William E. Deal

Faculty Scholarship

Review of Jewel in the Ashes: Buddha Relics and Power in Early Medieval Japan by Brian D. Ruppert

The Place Of Marriage In Democracy's Formative Project, Linda C. Mcclain

Faculty Scholarship

Shoring up the institution of marriage is a theme in the "mar riage movement" and in recent legislative debates over welfare reform and family policy. One common premise is that strength ening marriage and renewing a "marriage culture" is vital to national health and that the best way for government, at all lev els, to strengthen and support families and to foster the well being of children is to promote and support marriage (Marriage Movement; Bush, 2002) Calls to renew civil society identify marital, two-parent families as foremost among the seedbeds of civic virtue upon which our Nation depends for …

Foreword: Phase Ii Of The Genetics Revolution: Sophisticated Issues For Home And Abroad, Frances H. Miller

Faculty Scholarship

The distinguished health law and policy scholars we invite to contribute to the American Journal of Law & Medicine's annual symposium issue are given carte blanche to write about any aspect of the designated topic that appeals to them. The authors in this year's genetics symposium, The Genetic Revolution: Conflicts, Challenges and Conundra, are already well known for their work in the field-in fact three of them have just co-authored the only casebook specifically dedicated to the law, policy and ethics of geneticsl-and we deliberately asked them for relatively short pieces on the theory that taken together their articles would …

Patent Settlement Agreements: Preliminary Views, Joseph F. Brodley, Maureen A. O'Rourke

Faculty Scholarship

Settlements between S competitors in patent cases raise important and sensitive antitrust issues. Patent settlement agreements may create or maintain a monopoly in technology or innovation markets and may also effectuate a monopoly or cartel in related goods markets. Indeed, absent the patent rights, certain terms of patent settlement agreements may be per se antitrust violations. Further, anticompetitive patent settlements-unlike most antitrust conspiracies-are enforceable in court, providing the parties with an effective means of preventing the cheating that is the bane of cartels. Thus, the antitrust risk that a settlement agreement may operate as a disguised cartel has long been …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Faculty Scholarship

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Bioterrorism, Public Health, And Civil Liberties, George J. Annas

Faculty Scholarship

The prospect of having to deal with a bioterrorist attack, especially one involving smallpox, has local, state, and federal officials rightly concerned. Before September 11, most procedures for dealing with a bioterrorist attack against the United States were based on fiction. Former President Bill Clinton became engaged in the bioterrorism issue in 1997, after reading Richard Preston's novel The Cobra Event. In Tom Clancy's 1996 Executive Orders, the United States is attacked by terrorists using a strain of Ebola virus that is transmissible through the air. To contain the epidemic, the President declares a state of emergency, orders that …

Cloning And The U.S. Congress, George J. Annas

Faculty Scholarship

In the immediate aftermath of the birth of Dolly the sheep, the national debate over the banning of human cloning focused almost exclusively on the issue of safety. President Bill Clinton's National Bioethics Advisory Commission, for example, recommended in 1997 that Congress impose a five-year moratorium on attempts to clone a human because of the likely physical harm to the cloned infant. Congress did not act on this suggestion, but even if it had, that moratorium would already be almost over. Cloning is now back on the congressional agenda, with a new focal point: the creation of cloned embryos for …

How To Construct An Underclass, Or How The War On Drugs Became A War On Education, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The war on drugs has spawned a second front-a war on education. The casualties of this war are all poor or lower-income people who cannot afford to buy a private education. This article details the consequences of this other war, and explores some legislative and litigation strategies for reclaiming educational opportunity for all Americans. First, however, we must set out in more detail the laws and policies that now deploy educational privation as punishment in public schools, colleges, and prisons.

Lawyers And The Practice Of Workplace Equity, Susan Sturm

Faculty Scholarship

Lawyers involved in the pursuit of workplace equity are difficult to pigeon-hole. Of course, the practice of many employment lawyers conforms to conventional understandings of lawyers' roles. These lawyers litigate cases on behalf of management or employees, advise clients about their legal rights and obligations, and define their mission as avoiding liability or winning battles in court.But innovators have crafted interesting and dynamic roles that transcend the traditional paradigm. These innovators connect law, as it is traditionally understood, to the resolution of the underlying problems that create and maintain workplace inequity. Civil rights lawyers working in both public and private …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

Illegalized Sexual Dissent: Sexualities And Nationalisms, Katherine M. Franke

Faculty Scholarship

In this essay, Katherine Franke explores how dissent becomes a different, and in some ways more interesting, phenomenon when the dissenter emerges not from outside the political horizon drawn by the state, but rather from within it, and as an integral part of the state's project of governance. In these cases, the state calls up a set of subjects who are in some fundamental sense positioned to gain state, if not public, disfavor. These subjects are then isolated, excised or otherwise managed in ways that further state interests. Three cases are discussed in which the production of sexual outlaws proves …

100 Million Unnecessary Returns: A Fresh Start For The U.S. Tax System, Michael J. Graetz

Faculty Scholarship

We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments were concerned principally with positioning Democratic and Republican candidates for the 2002 congressional election, not tax policy.

But the coming decade, with its paint-by-numbers phase-ins and phaseouts of 2001 Act tax changes, the tax cuts waiting to spring into effect, and the sunset of the entire …

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

The Rise And Fall Of Article 2, Robert E. Scott

Faculty Scholarship

In August 13,2001 the National Conference of Commissioners on Uniform State Laws voted eighty-nine to fifty-three to reject the Amendments to Article 2 of the Uniform Commercial Code that had just been approved in May by the American Law Institute. The vote followed a last minute effort by the Article 2 drafting committee to amend the scope provisions of Article 2 in response to continuing criticism from representatives of the software and information industries. Several months later, at the request of the NCCUSL leadership, amended Article 2 with its revised scope provision was withdrawn from the agenda of the ALI …

The Community Economic Development Movement, William H. Simon

Faculty Scholarship

Within a five-minute walk of the Stony Brook subway stop in the Jamaica Plain section of Boston, you can encounter the following:

• A renovated industrial site of about five acres and sixteen buildings that serves as a business incubator for small firms that receive technical assistance from the Jamaica Plain Neighborhood Development Corporation (JPNDC), a nonprofit community development corporation, which is also housed there. Known as the Brewery after its former proprietor, a beer-maker, the complex is owned by a nonprofit subsidiary of JPNDC.
• A 44,000-foot "Stop & Shop" supermarket. The market opened in 1991 after years in which the …

Vangrack's Explanations: Treating The Truth As A Mere Matter Of "Form", Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

We welcome criticism by responsible scholars and readers, and the chance to address it in journals that enforce appropriate standards of accuracy and integrity. We have done just that in exchanges in Judicature and the Indiana Law Journal.

But the inaccuracies in Adam VanGrack's Note, and new problems with his present explanation, lead us to conclude that it is not useful to exchange views with him in the Washington University Law Quarterly. Beyond all is Mr. VanGrack's dismissal of matters serious enough to trigger an extraordinary instruction to explain himself in print, and to prompt him to rescind …

Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt

Faculty Scholarship

The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg

Faculty Scholarship

The proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters is currently drafted to cover most fields of private litigation, including intellectual property. However, as those following the Hague process are aware, the Convention has run into considerable difficulties. There is currently reason to be concerned that it may not be promulgated at all, or that if it is promulgated, that it will be reduced in scope and cover only select areas of litigation, likely not to include intellectual property. This proposal is meant to spur the intellectual property bar to consider whether it would be …

The Preventive Effects Of Arrest On Intimate Partner Violence: Research, Policy And Theory, Christopher D. Maxwell, Joel H. Garner, Jeffrey A. Fagan

Faculty Scholarship

This research addresses the limitations of prior analyses and reviews of five experiments testing for the specific deterrent effect of arrest on intimate partner violence by applying to individual level data consistent eligibility criteria, common independent and outcome measures, and appropriate statistical tests. Based on 4,032 cases involving adult males who assaulted their female intimate partners, multivariate regression analyses show consistent but modest reductions in subsequent offenses targeting the original victim that is attributable to arresting the suspect. Although the reductions attributable to arrest are similar across all five studies, other factors, such as the suspect's prior arrest record, are …

Policing Guns And Youth Violence, Jeffrey A. Fagan

Faculty Scholarship

To combat the epidemic of youth gun violence in the 1980s and 1990s, law enforcement agencies across the United States adopted a variety of innovative strategies. This article presents case studies of eight cities' efforts to police gun crime. Some cities emphasized police-citizen partnerships to address youth violence, whereas others focused on aggressive enforcement against youth suspected of even minor criminal activity. Still others attempted to change youth behavior through "soft" strategies built on alternatives to arrest. Finally, some cities used a combination of approaches. Key findings discussed in this article include:

• Law enforcement agencies that emphasized police-citizen cooperation benefited …

Teaching About Religion In Public Schools, Kent Greenawalt

Faculty Scholarship

Two of the twentieth century's most controversial Supreme Court decisions held that public schools could not sponsor devotional prayer and Bible reading as part of their educational program. Yet, whether to begin school with a few minutes of devotional practice matters far less than what schools teach about religion, one of the most nettlesome issues of church-state relations in a liberal democracy. This question has received comparatively little attention from constitutional lawyers, because the Supreme Court has declared that teaching about religion is acceptable and has not addressed challenges to programs educators have labeled in this way. Many citizens, of …

Separability And Competence-Competence In International Arbitration: Ex Nihilo Nihil Fit? Can Something Indeed Come From Nothing?, Robert H. Smit

Faculty Scholarship

The doctrine of separability provides that an arbitration clause is “separable” from the contract containing it and thus may survive a successful challenge to the validity of the contract. The doctrine of competence-competence provides that arbitrators have jurisdiction to decide challenges to the arbitration agreements upon which their own jurisdiction is based. These two doctrines have appropriately been called the conceptual cornerstones of international arbitration as an autonomous and effective form of international dispute resolution. The doctrines, taken together, ensure that the parties’ intent to arbitrate any disputes that arise out of their international contractual relationship is effectuated without undue …

Erwin Griswold's Tax Law – And Ours, Michael J. Graetz

Faculty Scholarship

It is a pleasure for me to be here today to deliver the Erwin N. Griswold Lecture. And it is an honor to follow those who have graced this lectern before me. They include important mentors to me. Several are close friends. Today, we are in a quiet interlude awaiting the next serious political debate about restructuring the nation's tax system. No fundamental tax policy concerns are at stake in the current disputes over economic stimulus or in the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments are concerned …

New Death Penalty Debate: What's Dna Got To Do With It, James S. Liebman

Faculty Scholarship

The nation is engaged in the most intensive discussion of the death penalty in decades. Temporary moratoria on executions are effectively in place in Illinois and Maryland, and during the winter 2001 legislative cycle legislation to adopt those pauses elsewhere cleared committees or one or more houses of the legislature, not only in Connecticut (passed the Senate Judiciary Committee) and Maryland (where it passed the entire House, and the Senate Judiciary Committee) but in Nevada (passed the Senate) and Texas (passed committees in both Houses). In the last year, abolition bills have passed or come within a few votes of …

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Faculty Scholarship

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules …

"When Smoke Gets In Your Eyes": Myth And Reality About The Synthesis Of Private Counsel And Public Client, John C. Coffee Jr.

Faculty Scholarship

A recurring fallacy in any debate over legal ethics or public policy is to assume that the particular problem under examination is unique and unprecedented. Expand one's field of vision, and precedents and analogs quickly turn up. This rule applies with special force to the debate over retention by state attorneys general of private counsel to represent them on a contingent fee basis in the recent litigation against the tobacco industry. Because this litigation produced a highly successful outcome, while most private litigation against the tobacco industry has not, some are led to the conclusion that this combination of private …

Illiberal Liberalism: Liberal Theology, Anti-Catholicism, & Church Property, Philip A. Hamburger

Faculty Scholarship

Liberalism has long been depicted as neutral and tolerant. Already in the eighteenth-century, when Englishmen and Americans began to develop modem conceptions of what they called "liberality," they characterized it as elevated above narrow interest and prejudice. Of course, liberality or what now is called "liberalism" can be difficult to define with precision, and there have been divergent, evolving versions of it. Nonetheless, liberalism has consistently been understood to transcend narrow self-interest or bigotry. Accordingly, many Americans have confidently believed in it as a neutral, tolerant, and even universalistic means of claiming freedom from the constraints of traditional and parochial …

Business Method Patents And Patent Floods, Michael J. Meurer

Faculty Scholarship

Technological breakthroughs occasionally set off floods of inventions and associated patents. The decline of the business method exception to patentability is likely to increase the frequency of patent floods. Future technological breakthroughs might now cause two different patent floods: a flood of patents covering the relevant technology, and a flood of patents covering business methods in the new market opened by the breakthrough. Furthermore, a technological breakthrough is no longer a precondition for a patent flood. Any factor that opens a new market might cause a future flood of business method patents.

A flood of related patents in a new …

An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements - Part One, Susan Saab Fortney

Faculty Scholarship

This article considers billing practices, the effects of hourly billing pressure, and firm culture as reflected in a survey of associates in Texas law firms. Part I of this article reports the empirical information from the survey. This information includes insight into the toll an increase in billable hour requirements has taken on legal practitioners and the consequent affect on the legal field. Part II discusses what the data means and how it might be used to improve the outlook for attracting and retaining good associates.