Digital Commons Network^™

From Difference To Dominance To Domesticity: Care As Work, Gender As Tradition, Joan C. Williams

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.

The Backlash Against Managed Health Care: Hard Politics Make Bad Policy, Clark C. Havighurst

Faculty Scholarship

McDonald-Merrill-Ketcham Lecture

Policy Design For International Greenhouse Gas Control, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

Rural Low-Income Housing And Massachusetts Chapter 40b: A Perspective From The Zoning Board Of Appeals, Eric J. Gouvin

Faculty Scholarship

The Massachusetts Low and Moderate Income Housing Act ("Act") was enacted in 1969 to promote the construction of lowincome housing in restrictively zoned Massachusetts communities. It seeks to achieve its goal by providing a builder's remedy which, in effect, overrides local zoning ordinances. The local Zoning Board of Appeals ("ZBA"), in deciding whether to issue a Comprehensive Permit under the Act, must evaluate the local and regional need for low-to moderate-income housing and weigh that need against local concerns over health, safety, design, and open space conservation. This Article examines the difficulty of applying the Act in rural towns. First, …

Grand Perspectives On Evidence Law, Roger C. Park

Faculty Scholarship

No abstract provided.

Stanford Nurses' Strike: A Case Study Of Negotiation, Mediation, And Conciliation In A Health Care Labor Dispute, Debra Gerardi

Faculty Scholarship

No abstract provided.

International Decisions: Metalclad Corp. V. Mexico And Mexico V. Metalclad Corp., William S. Dodge

Faculty Scholarship

No abstract provided.

Care As A Public Value: Linking Responsibility, Resources, And Republicanism, Linda C. Mcclain

Faculty Scholarship

I begin this Article with the preceding two statements concerning care for children because they focus on the relationship between resources and responsibility and capture two conflicting approaches to that relationship. The first statement resists a definition of "responsibility" that leaves out the work of social reproduction, that is, of caring for children and preparing them to take their place as responsible, self-governing members of society. Highlighting the lack of resources that poor parents face when tackling the work of social reproduction, the statement also suggests common ground among parents across class lines as to the importance of caring for …

Slouching Toward Managed Care Liability: Reflections On Doctrinal Boundaries, Paradigm Shifts, And Incremental Reform, Wendy K. Mariner

Faculty Scholarship

Following the seemingly endless debate over managed care liability, I cannot suppress thoughts of Yeats’s poem, “The Second Coming.” It is not the wellknown phrase, “Things fall apart; the centre cannot hold,” that comes to mind; although that could describe the feeling of a health-care system unraveling. The poem’s depiction of lost innocence — “The best lack all conviction, while the worst/Are full of passionate intensity” — does not allude to the legislature, the industry, the public, or the medical or legal profession. What resonates is the poem’s evocation of humanity’s cyclical history of expectation and disappointment, with ideas as …

Foreword, Maria O'Brien

Faculty Scholarship

Over the past twenty or so years, the range of employee benefits offered by employers - both large and small - has expanded dramatically. The old (and relatively short) list of "fringes" typically included health insurance, a pension plan, paid holidays and group life insurance. There was, of course, some variation in this list, especially across industries. But, by and large, employers did not concern themselves in a formal way with "modern" benefits such as elder care, child care, legal assistance, flex time, and parental leaves. As a recent study by the Society for Human Resource Management' suggests, employers have …

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 …

The Limits Of State Laws To Protect Genetic Information, George J. Annas

Faculty Scholarship

During the 2000 presidential campaign, Al Gore characterized the DNA code as a secret code like that of the Nazis. In his words, “with the completion of the Human Genome, we are on the verge of cracking another enemy's secret code. When we intercept and decipher the coded messages that cancer sends from cell to cell, we will turn the tide, and win the war against cancer.” Gore was expanding the metaphor of the war on cancer, and commandeering the DNA code in the service of that metaphor. At about the same time, then president Bill Clinton called the DNA …

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 …

“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 …

Genetic Testing For Susceptability To Disease From Exposure To Toxic Chemicals: Implications For Public And Worker Health Policies, Michael S. Baram

Faculty Scholarship

The Environmental Genome Program intends to identify "susceptibility genes" that would indicate if a person is more vulnerable to cancer or other disease as a result of exposure to certain chemicals in the workplace, the environment, foods, or other products. Research findings and the capability to test persons for such genes are likely to impugn and challenge health policies and regulatory programs that do not take genetic susceptibility into account when conferring health benefits and restricting chemical exposures. This article focuses on the Occupational Safety and Health Administration (OSHA) and discusses four options available to this agency for protecting genetically …

Reflections On Environmental Justice, Michael B. Gerrard

Faculty Scholarship

Environmental justice is a very hot topic. Yesterday's New York Times on the front page of the Metropolitan section had a story stating: Mid-Sized Plants Headed to Poor Areas. The story stated, "The Pataki administration acknowledges in its own study that the electric generators that it wants to install around New York City would go into poor heavily minority communities, a finding that supports some of the arguments of the project's opponents. This is quoting an unreleased environmental justice analysis that may or may not be valid, but it certainly shows how hot a topic it is. This morning …

Criminal Theory In The Twentieth Century, George P. Fletcher

Faculty Scholarship

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability – normative and descriptive – are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is …

Do Norms Matter?: A Cross-Country Evaluation, John C. Coffee Jr.

Faculty Scholarship

This Article starts with the recognition that the average private benefits of control vary significantly across countries. But why? The simplest explanation ascribes this variation to differences in law between jurisdictions: for example, the law of jurisdiction X could privilege controlling shareholders by allowing them to extract benefits from their corporation in the form of above-market salaries or non-pro-rata payments in connection with self-dealing transactions. But, this explanation cannot fit all cases. To illustrate, if the substantive law is essentially similar between two jurisdictions while the private benefits of control appear to be significantly different, then some other explanation must …

Disclosure Norms, Eric L. Talley

Faculty Scholarship

The purpose of this Article is to interrogate the relationship between judicial error and extralegal norms more formally, focusing particularly on typical corporate disclosure contexts. In so doing, I shall argue that this relationship is far less clear-cut than much of the literature suggests. Using a formal, game-theoretic model of information disclosure, I demonstrate that in the presence of judicial error, a society that benefits from extralegal norms of honest disclosure might ironically favor more expansive legal regulation than would a similarly situated society in which norms are weak or nonexistent. Thus, in contrast to the common argument that norms …

Theorizing Yes: An Essay On Feminism, Law, And Desire, Katherine M. Franke

Faculty Scholarship

In this Essay, Professor Franke observes that, unlike feminists from other disciplines, feminist legal theorists have neglected to formulate a positive theory of female sexuality. Instead, discussions of female sexuality have been framed as either a matter of dependency or danger. Professor Franke begins her challenge to this scheme by asking why legal feminism has accepted unquestionably the fact that most women reproduce in their lifetimes. Why have not social forces that incentivize motherhood – a dynamic she terms repronormativity – been exposed to as exacting a feminist critique as have heteronormative forces that normalize heterosexuality? Furthermore, she continues by …

Look Who's Extrapolating: A Reply To Hoffmann, Valerie West, Jeffery Fagan, James S. Liebman

Faculty Scholarship

In late March, a reporter called with news of a pirated copy of Professor Joseph Hoffinann's soon-to-be-published "attack" on our study, A Broken System: Error Rates in Capital Cases, 1973-1995. Did we care to comment? Obtaining our own copy revealed that Professor Hoffmann's fusillade missed its mark (he misstates what we did) and boomeranged (his mischaracterizations of our analysis accurately describe his own). We do care to comment, and Hoffmann and the Indiana Law Journal have graciously let us do so.

Hoffmann's main claim is that we "extrapolated" the 68% rate of reversible error we reported for capital verdicts …

Publication Rules In The Rulemaking Spectrum: Assuring Proper Respect For An Essential Element, Peter L. Strauss

Faculty Scholarship

Imagine a visitor who seeks to catalog the variety of written texts American government uses to communicate its powers and its citizens' rights and obligations. She might organize those texts into the following pyramid:

• A Constitution, adopted by "the people"

• Hundreds of statutes, adopted by an elected Congress

• Thousands of regulations, adopted by politically responsible executive officials

• Tens of thousands of interpretations and other guidance documents, issued by responsible bureaus

• Countless advice letters, press releases, and other statements of understanding, generated by individual bureaucrats

On inquiry she would find that we understand passably well the …

The Dynamic Analytics Of Property Law, Michael A. Heller

Faculty Scholarship

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches – creating new ideal types and synthesizing existing ones – that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Health Care, Technology And Federalism, Kevin Outterson

Faculty Scholarship

The regulation of health care has traditionally been the province of the states, most often grounded in the police power. In Colonial times, this division of responsibility was a rational response to the technological level of the eighteenth century, although even in the youth of the Republic some health and safety regulation required national and international action. With the growth of distancecompression technology, the increase in mobility of goods and services, and a significant federal financial role in health care, the grip of the police power on the regulation of health care has been weakened. Discussion of the police power …

Reasoning With Rules, Joseph Raz

Faculty Scholarship

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from …

Multiracial Matrix: The Role Of Race Ideology In The Enforcement Of Antidiscrimination Laws, A United States-Latin America Comparison, Tanya K. Hernandez

Faculty Scholarship

This Article examines the role of race ideology in the enforcement of antidiscrimination laws. Professor Hernandez demonstrates the ways in which the U.S. race ideology is slowly starting to resemble the race ideology of much of Latin America. The evolving U.S. race ideology is a multiracial matrix made up of four precepts: (1) racial mixture and diverse racial demography will resolve racial problems; (2) fluid racial classification schemes are an indicator of racial progress and the colorblind abolition of racial classifications an indicator of absolute racial harmony; (3) racism is solely a phenomenon of aberrant racist individuals; and (4) focusing …

The Role Of Law In The Functioning Of Federal Systems, George A. Bermann

Faculty Scholarship

Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes …

Taxing International Income: Inadequate Principles, Outdated Concepts, And Unsatisfactory Policies, Michael J. Graetz

Faculty Scholarship

It is a pleasure to be here today to deliver the first David R. Tillinghast Lecture of the 21st century, a lecture honoring a man who has done much to shape' and stimulate our thinking about the international tax world of the 20th.

Our nation's system for taxing international income today is largely a creature of the period 1918-1928; a time when the income tax was itself in childhood. From the inception of the income tax (1913 for individuals, 1909 for corporations) until 1918, foreign taxes were deducted like any other business expense. In 1918, the foreign tax credit (FTC) …

Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester

Faculty Scholarship

Restrictive covenants are an increasingly common feature of employment, used across a wide range of industries, occupations, and employees. In its most common form, a restrictive covenant prohibits an employee from competing with the employer within a certain geographic area fora specified period of time after departure, usually one or two years. Sometimes these clauses are drawn more narrowly, proscribing specific activities such as continued dealings with former customers. Regardless of scope, the typical remedy when an employee breaches such a covenant is injunctive relief.

A substantial literature within law and economics debates the merits of restrictive covenants from an …