Digital Commons Network^™

The Leaky Leviathan: Why The Government Condemns And Condones Unlawful Disclosures Of Information, David E. Pozen

Faculty Scholarship

The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, roughly a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.

This Article challenges the standard account of that disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an …

From Hypatia To Victor Hugo To Larry And Sergey: ‘All The World's Knowledge’ And Universal Authors’ Rights, Jane C. Ginsburg

Faculty Scholarship

Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future threatens copyright …

Young Again, Larry Yackle

Faculty Scholarship

This essay revisits an old problem in the law of federal courts: the source of the right of action in Ex parte Young. The core of the story underlying Young is familiar. Shareholders in railroad corporations filed suit in a federal circuit court, claiming that state established rail rates in Minnesota violated the Fourteenth Amendment and the (dormant) Commerce Clause. The circuit court issued a preliminary injunction barring adoption of the rates and prohibiting the defendants from attempting to enforce them. One of the defendants, Minnesota Attorney General Edward T. Young, nonetheless brought a state court mandamus action against the …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Representing The Poor Legal Advocacy And Welfare Reform During Reagan's Gubernatorial Years, Mark N. Aaronson

Faculty Scholarship

No abstract provided.

International Activity And Domestic Law, Adam I. Muchmore

Faculty Scholarship

This invited essay explores the ways States use their domestic laws to regulate activities that cross national borders. Domestic-law enforcement decisions play an underappreciated role in the development of international regulatory policy, particularly in situations where the enforcing State's power to apply its law extraterritorially is not contested. Collective action problems suggest there will be an undersupply of enforcement decisions that promote global welfare and an oversupply of enforcement decisions that promote national welfare. These collective action problems may be mitigated in part by government networks and other forms of regulatory cooperation.

Post-Reform Medicaid Before The Court: Discordant Advocacy Reflects Conflicting Attitudes, Nicole Huberfeld

Faculty Scholarship

The Supreme Court will decide two major Medicaid cases this term that raise major questions about the program and the tensions it creates between the federal government and the states. The Court heard oral arguments on October 3d in Douglas v. Independent Living Center, a dispute between California and its Medicaid providers regarding reimbursement cuts due to California’s budget crisis. The Medicaid providers argue that these proposed cuts are so extreme as to violate federal law and thus the Supremacy Clause. Their contention hinges on the Equal Access Provision of the Medicaid Act, which commands states to pay healthcare providers …

Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe

Faculty Scholarship

In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network theory …

"The Birth Of Death": Stillborn Birth Certificates And The Problem For Law, Carol Sanger

Faculty Scholarship

Stillbirth is a confounding event, a reproductive moment that at once combines birth and death. This Essay discusses the complications of this simultaneity as a social experience and as a matter of law. While traditionally, stillbirth didn't count for much on either score, this is no longer the case. Familiarity with fetal life through obstetric ultrasound has transformed stillborn children into participating members of their families long before birth, and this in turn has led to a novel demand on law.

Dissatisfied with the issuance of a stillborn death certificate, bereaved parents of stillborn babies have successfully lobbied state legislatures …

Becoming Asian American An Interview With Keith Aoki, Frank H. Wu

Faculty Scholarship

No abstract provided.

Legal Medievalism In Lex Mercatoria Scholarship, Ralf Michaels

Faculty Scholarship

This short reaction piece to an article by Emily Kadens asks why a long-refuted story of an alleged uniform medieval lex mercatoria is still being maintained. The answer is that the story serves not as an actual history but instead as a foundation myth. Attempts to falsify the myth with historical data are therefore futile: the myth derives its value not from its truth value but from its symbolic power.

The Puzzling Persistence Of Curtiss-Wright-Based Theories Of Executive Power, Robert D. Sloane

Faculty Scholarship

This is a brief comment on Curtiss-Wright responding to one of the Journal of the National Security Forum's "Ten Questions" for its recently released symposium issue. It describes the origins of Justice Sutherland's controversial thesis, canvasses a few of the many critiques of that thesis, and offers a few reflections on why a theory about executive power that has been vigorously criticized by scholars across the ideological spectrum continues to exert an influence out of proportion to its substantive merits.

States And Networks In The Formation Of International Law, Moria Paz

Faculty Scholarship

No abstract provided.

Five Questions About Non-Muslim Meat: Toward A New Appreciation Of Ibn Qayyim Al-Ǧawziyyah’S Contribution To Islamic Law, David M. Freidenreich

Faculty Scholarship

No abstract provided.

Supremacy Clause Textualism, Henry Paul Monaghan

Faculty Scholarship

Whatever its status in the statutory interpretation "wars," originalism-driven textualism has assumed an increasingly prominent role in constitutional interpretation, at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism", that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims.

First, in important articles, Professor Bradford Clark argues that the clause is "at the epicenter of [our] constitutional structure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of …

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel Bently, Jane C. Ginsburg

Faculty Scholarship

The rise in the seventeenth and eighteenth centuries of a professional class of writers stimulated authors' demands for better remuneration from their writings. The increase in authors who sought to live from their work, rather than from patronage or personal fortune, likely provided at least one impulse for the author-protective provisions of the 1710 Statute of Anne. Under the regime of printing privileges that preceded the Statute of Anne, authors generally received from publisher-booksellers a one-time payment, made when the authors surrendered their manuscripts for publication. Authors whose works enjoyed particularly high demand might negotiate additional payments for new editions …

The U.S. Experience With Mandatory Copyright Formalities: A Love/Hate Relationship, Jane C. Ginsburg

Faculty Scholarship

Copyright formalities – conditions precedent to the existence or enforcement of copyright, such as provision of information about works of authorship that will put the public on notice as to a work’s protected status and its copyright ownership, or deposit of copies of the work for the national library or other central authority, or local manufacture of copies of works of foreign origin – have performed a variety of functions in US copyright history. Perhaps of most practical importance today, formalities predicate to the existence or enforcement of copyright can serve to shield large copyright owners who routinely comply with …

Correct Diagnosis; Wrong Cure: A Response To Professor Suk, Joan C. Williams

Faculty Scholarship

No abstract provided.

Christians In Early And Classical Sunni Law, David M. Freidenreich

Faculty Scholarship

No abstract provided.

The Law And The Host Of The Canterbury Tales, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges

Faculty Scholarship

Professor Christian Joerges delivered the Second Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2003 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Professor Joerges puts forth a three part thesis concerning the “Europeanization of Private Law”, the process by which the European Community influences the legal and political policies of its member states within a framework of transnational cooperation. Joerges first establishes the eroding importance of the idea that legal systems operating at the national level fulfill the goals of …

Playing In The Virtual Arena: Avatars, Publicity, And Identity Reconceptualized Through Virtual Worlds And Computer Games, Jon M. Garon

Faculty Scholarship

In many respects, the commercial and social interactions within virtual worlds are essentially the same as those interactions conducted face-to-face or over less engrossing technologies, however, the immersive nature of the virtual world redefines the nature of the experience. Because virtual worlds mimic their bricks-and-mortar counterparts, they exhibit commercial attributes unlike those of plays, television shows, or motion pictures. To the extent that there is commerce conducted within the medium, the historic separation between commercial conduct and expressive speech must be reconceptualized. In the first instance, such legal line drawing will necessarily be done with crude tools, so this article …

Gender And Nation-Building: Family Law As Legal Architecture Symposium - Nation Building: A Legal Architecture: Articles And Essays, Tracy E. Higgins, Rachel P. Fink

Faculty Scholarship

Although the discipline of family law in the western legal tradition transcends the public/private law boundary in many ways, it is the argument of this Essay that family law, in the private law sense of defining the rights and obligations of members of a family, forms an important part of the legal architecture of nation-building in at least three ways. First, access to the resources of the nation-state devolves through biologically and culturally gendered national boundaries, both reflecting and reinforcing the differential status of men and women in the sphere of the family. Second, the social institution of the family …

A Watershed Moment: Reversals Of Tort Theory In The Nineteenth Century, Jed Handelsman Shugerman

Faculty Scholarship

This article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.

An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to …

Shortchanging The Joint Fight? An Airman’S Assessment Of Fm 3-24 And The Case For Developing Truly Joint Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Closing The Border And Opening The Door: Mobility, Adjustment, And The Sequencing Of Reform, Timothy A. Canova

Faculty Scholarship

Since the enactment of the North American Free Trade Agreement (NAFTA), the U.S.-Mexico border has become increasingly open for trade and private investment. But for the movement of people it is a Porous Border. Meanwhile, Open Border proposals are unpopular and unrealistic due to concerns about national security and the economic impact of low-wage immigrant labor. Discussion is now dominated by Closed Border proposals to build a wall and further militarize the 2000-mile border. Each of these paradigms - the Closed Border, Open Border, and today's Porous Border - fails to address the painful dislocations in Mexican society that inevitably …

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Faculty Scholarship

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …

How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt

Faculty Scholarship

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …

Of Monks, Medieval Scribes, And Middlemen, Peter K. Yu

Faculty Scholarship

Today's copyright debate has generally focused on the digital dilemma created by Internet and new media technologies. Threats created by emerging communications technologies, however, are not new. Throughout history, there have been remarkable similarities between the threats created by new technologies and those posed by older ones.

During the oral argument in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., Justice Stephen Breyer questioned whether the petitioners' counsel would apply the test proposed for the new technology to some once-new technologies, such as the photocopying machine, the videocassette recorder, the iPod, and the printing press. When the counsel quickly responded in the …

Grand Visions In An Age Of Conflict, H. Jefferson Powell

Faculty Scholarship

Last spring Professor Laurence H. Tribe commented that federal constitutional law is in a state of intellectual disarray: "[I]n area after area, we find ourselves at a fork in the road--a point at which it's fair to say things could go in any. of several directions" and we have "little common ground from which to build agreement." No doubt fortuitously, two of our most formidable constitutional scholars, Akhil R. Amar and Jed Rubenfeld, have recently published systematic studies that implicitly challenge Tribe's conclusion that "ours [is] a peculiarly bad time to be going out on a limb to propound a …