Digital Commons Network^™

The Milosevic Trial - Live: An Iconical Analysis Of International Law's Claim Of Legitimate Authority, Maya Steinitz

Faculty Scholarship

It has been argued that international law has recently "come of age", that it is a fully-fledged legal system like any other. It has also been argued that in order for a normative system to qualify as "law" it must, at the least, claim to possess legitimate authority and to be supreme to other normative systems. This article examines one highly visible development in international law - the criminal war trials - from a sociological perspective, trying to discern whether and how international law claims legitimate authority and supremacy. Specifically, it focuses on a deeply symbolic example of international criminal …

"In A Case, In A Book, They Will Not Take A Second Look!" Critical Reading In The Legal Writing Classroom, Debra Curtis, Judith Karp

Faculty Scholarship

This article is based on a presentation that was first assembled for the Southeastern Regional Legal Writing Conference in September 2003. The theme of that conference was "The Basics and Beyond: Building Solid Skills on Flawed Foundations." As legal writing professions with nine years of teaching experience between us, we immediately honed in on "reading" as a core lawyering skill--though it is the one that seemed most flawed in the first-year legal writing class. We determined that case analysis, statute analysis, synthesis, and application were not possible unless students critically read the material with which they were working. Many students …

Regulation By Software, James Grimmelmann

Faculty Scholarship

Software is neither law nor architecture. It is its own modality of regulation. This Note builds on Larry Lessig’s famous formulation that “code is law” to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that distinguish it from both. The Note identifies four relevant attributes of software: It is ruleish, potentially nontransparent, impossible to ignore, and vulnerable to sudden failure. By assessing the impact of these characteristics in a given context, one can decide whether software is a good or …

Virtual Worlds As Comparative Law, James Grimmelmann

Faculty Scholarship

What would happen if we took seriously the claims of virtual worlds to be genuinely new places? Societies have laws, so why should virtual societies be any different? My topic, then, will not be the law of virtual worlds, but rather law in virtual worlds. If lawyers can learn from studying the legal systems of common law and civil law countries, perhaps we can also learn from studying the legal systems of virtual worlds.

In some cases, these legal systems track our own surprisingly well. In other cases, the contrasts are striking. Both the similarities and differences between real-life law …

Telling Stories, Saving Lives: The Battered Mothers' Testimony Project, Women's Narratives, And Court Reform, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Signals, Assent And Internet Contracting, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

2003-2004 Supreme Court Term: Another Losing Season For The First Amendment, Joel Gora

Faculty Scholarship

No abstract provided.

Question Autonomy, With An Asterisk, Anita Bernstein

Faculty Scholarship

No abstract provided.

Mr. Justice Posner? Unpacking The Statistics, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

No abstract provided.

Paying For Politics, John M. De Figueiredo, Elizabeth Garrett

Faculty Scholarship

No abstract provided.

A New Approach To Health Care Adr: Training Law Students To Be Problem Solvers In The Health Care Context, Linda H. Morton

Faculty Scholarship

This article focuses on the use of actual public health problems to train law students in interdisciplinary problem solving. The author describes the planning, structure, challenges and rewards in teaching her clinical course, Problem Solving and Prevention in Healthcare, to students initially reluctant to work collaboratively in teams, intimidated by a broader community context, and hesitant to interact strategically with other professionals.

Mapping, Habitat Characterization, And Fish Surveys Of The Deep-Water Oculina Coral Reef Marine Protected Area: A Review Of Historical And Current Research., John K. Reed, Andrew N. Shepard, Christopher C. Koenig, Kathryn M. Scanlon, R. G. Gilmore

Faculty Scholarship

Deep-water Oculina coral reefs, which are similar in structure and development to deep-water Lophelia reefs, stretch 167 km (90 nm) at depths of 60-100 m along the eastern Florida shelf of the United States. These consist of numerous pinnacles and ridges, 3-35 m in height, that are capped with thickets of living and dead coral, Oculina varicosa. Extensive areas of dead Oculina rubble are due in part to human impacts (e.g., fish and shrimp trawling, scallop dredging, anchoring, bottom longlines, and depth charges) but also may be due in part to natural processes such as bioerosion, disease, or global warming.

Rethinking Minority Coalition Building: Valuing Self-Sacrifice, Stewardship And Anti-Subordination, Victor C. Romero

Faculty Scholarship

This essay provides an alternative to the conventional self-interest model of coalition building to explore one that relies instead on the three concepts of self-sacrifice, stewardship, and anti-subordination, addressing anticipated counterarguments and providing concrete examples of how this model might work.

Justification, Legitimacy, And Administrative Governance, Matthew D. Adler

Faculty Scholarship

Richard Stewart, in his classic article ‘The Reformation of American Administrative Law,’ argues that the demise of the ’transmission belt’ model of administrative governance creates a crisis of agency legitimacy, and he skeptically surveys a range of possible solutions to the legitimacy crisis. I claim that Stewart’s skepticism is misguided. It may be true that no feasible administrative structure is democratically legitimate; but it is also true, given the logic of moral justification, that in every choice situation confronted by agency decisionmakers, or by those who design agencies, there is some morally permissible and justified choice (perhaps a choice that …

Against “Individual Risk”: A Sympathetic Critique Of Risk Assessment, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli

Faculty Scholarship

When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges. To establish the case for such a position, this article begins by presenting the plight of many sexual minority …

Introduction, Symposium: Who Guards The Guardians?: Monitoring And Enforcement Of Charity Governance, Dana Brakman Reiser, Evelyn E. Brody

Faculty Scholarship

No abstract provided.

Can Good Judges Be Good Politician? Judicial Elections From A Virtue Ethics Approach, Marie Failinger

Faculty Scholarship

In this article, the author argues that it is only possible to determine whether judges are likely to be good judges if we understand the practice of judging and the telos of justice toward which its aims, and that elections cannot help voters determine what qualities are necessary in judges and for what reasons. Moreover, I argue that traditional elections require virtues in politicians which are not often found in good (virtuous) judges, making them an unsuitable way of selecting candidates.

Corporate Responsibility: Ensuring Independent Judgment Of The General Counsel - A Look At Stock Options, Z. Jill Barclift

Faculty Scholarship

Recent corporate scandals and allegations of corporate fraud in public companies have most people asking how things went so wrong. When looking to assess blame for corporate malfeasance, many ask, “Where were the lawyers?” In several high-profile corporate fraud investigations, outside and in-house lawyers were criticized for not doing more to prevent corporate executives from violating the law, and several general counsels were charged with criminal misconduct by state and federal authorities. Why would the general counsel of a public corporation risk his or her career, reputation, and criminal prosecution to assist executives in perpetuating corporate fraud? The answer may …

Intellectual Property Rights And Stem Cell Research: Who Owns The Medical Breakthroughs?, Sean O'Connor

Faculty Scholarship

No abstract provided.

Sexuality And Sovereignty: The Global Limits And Possibilities Of Lawrence Symposium: Legal Rights In Historical Perspective: From The Margins To The Mainstream, Sonia K. Katyal

Faculty Scholarship

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the …

Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca E. Bignami

Faculty Scholarship

No abstract provided.

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Faculty Scholarship

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

Inherently Dangerous: The Potential For An Internet-Specific Standard Restricting Speech That Performs A Teaching Function, H. Brian Holland

Faculty Scholarship

Real or not, we perceive the convergence of several dangers-the physical threat of terrorism, both foreign and domestic; the economic threat of recession, corporate scandal, and globalization; and the social threat of new technology that connects, informs, exposes, and overwhelms us. At this moment, certain First Amendment protections are ripe for circumscription. The question, then, is whether our constitutional right of free speech is relative and conditional. The populist answer is yes. The legal answer is much more complicated.

To that end, this Article carries three goals. The first is to highlight parallel signals from the three branches of government …

P2p And The Future Of Private Copying, Peter K. Yu

Faculty Scholarship

Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate.

Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek …

The Trust And Distrust Of Intellectual Property Rights, Peter K. Yu

Faculty Scholarship

In the past, intellectual property issues were considered complex, obscure, and highly technical; they were only of interest and concern to intellectual property attorneys, legal scholars, technology developers, and rightsholders. Thanks to the Internet and new communications technologies, however, intellectual property has now begun to play a more significant role in society.

In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the conference affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address …

The Status Of Detainees From The Iraq And Afghanistan Conflicts, Srividhya Ragavan, Michael S. Mireles

Faculty Scholarship

The paper is premised on the idea that the future course of international law will be impacted by the United States' ability to adhere to international treaties to which it is a signatory. Hence, the current administration bears a responsibility to avoid unwisely stretching, distorting, or avoiding the principles of international law for short-term gain in a manner that jeopardizes long-term sustainable policy. The United States should be wary of creating a dangerous precedent - not only for the world, but for itself. If the United States shirks from or misinterprets international legal principles, it leaves the forum open for …

Revisiting Medical Error: Five Years After The Iom Report, Have Reporting Systems Made A Measurable Difference, Maxine M. Harrington

Faculty Scholarship

Although the goal of patient safety is a laudable one, it is questionable whether state and national policy can be made on so vague a concept as "medical error." There is neither an accurate baseline nor reliable current data that could be used to validate the effectiveness of reporting systems as tools for improving patient safety. This Article examines the difficulty in estimating the incidence of medical error, including the lack of uniform standards of measurement and the legal and cultural disincentives to accurate reporting of error. Part I provides a brief background of the IOM report and addresses the …

Foreign Law And The Denominator Problem, Ernest A. Young

Faculty Scholarship

No abstract provided.

Innocence, Harmless Error, And Federal Wrongful Conviction Law, Brandon L. Garrett

Faculty Scholarship

This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth …