Digital Commons Network^™

Using Tort Law To Secure Patient Dignity, Robin Fretwell Wilson

Faculty Scholarship

The practice of using anesthetized patients to teach pelvic exams on female patients in university hospitals has been well documented for years. A 1992 study showed that 37 percent of U.S. and Canadian medical schools allowed students to use anesthetized women without their consent to learn how to perform pelvic exams. Anecdotal accounts in the U.S. confirm that men are not immune from such indignities. Although patients have been unable, thus, far to enforce their own interests and protect their dignity, the tort system may yet succeed in securing the right of patients to decide who touches their bodies and …

Sharing Sovereignty: Non-State Associations And The Limits Of State Power, Franklin G. Snyder

Faculty Scholarship

The subject of mediating associations and voluntary associations have received much attention in recent years. Both conservative and liberal scholars have invoked the idea that certain institutions that fall somewhere on the spectrum between the State and the Individual play a significant role in society and that they therefore ought to be protected and even cultivated. But much of this work proceeds from a flawed premise, and leads to an instrumental view of these non-State associations that requires that these institutions be justified based on their social utility. This view means that the utility of any given institution usually seems …

Unfilfilled Promises: Achieving Justice For Crimes Against Humanity In East Timor, Kelly Askin, Stefanie Frease, Sonja Starr

Faculty Scholarship

No abstract provided.

Indefinite Material Witness Detention Without Probable Cause: Thinking Outside The Fourth Amendment, Michael Greenberger

Faculty Scholarship

A constitutional issue recently addressed by the United States Court of Appeals for the Second Circuit in United States v. Awadallah, 349 F.3d 42 (2003), has not received the widespread attention of high-profile litigation concerning the Justice Department's other controversial counter-terrorism policies. It is equally important. The issue arises out of Attorney General Ashcroft's announcement shortly after the terrorist attacks of September 11, 2001 that the aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks. Since that time, the Department of Justice has used the federal material witness statute (18 U.S.C. Section 3144) to …

Private Law And Public Stakes In European Integration: The Case Of Property, Daniela Caruso

Faculty Scholarship

In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those ‘public’ matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States’ property systems, restated both in the TEC and in the draft Constitution, cannot be …

Currents And Crosscurrents In The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and …

The Origins Of Cctld Policymaking, Peter K. Yu

Faculty Scholarship

Extract:

A long time ago in a galaxy not so far away, there was a decentralized global network of computers. These computers shared information with each other regardless of how far apart they were and whether there was any direct line of communication between them. In the very beginning, this network was used exclusively by government and military agencies, educational and research institutions, government contractors, scientists, and technology specialists. Instead of the domain names we use today, such as “www. amazon.com,” users typed in numeric addresses, such as “123.45.67.89,” and, later, host names to send information to other computers.

This …

Intellectual Property At A Crossroads: Why History Matters, Peter K. Yu

Faculty Scholarship

Intellectual property is at a crossroads today. As the Commission on Intellectual Property Rights noted in its final report, “[o]ver the last twenty years or so there has been an unprecedented increase in the level, scope, territorial extent and role of IP right protection.” From the rapid privatization and commodification of information to the creation of property rights in bioengineered microorganisms and lifeforms, recent developments in the intellectual property field have sparked major controversies, calling into questions our values, worldviews, and the way society protects and incentivizes human creations and innovations. To grapple with these difficult questions, courts and commentators …

Chicken Little Lives: The Anticipated And Actual Effect Of Sarbanes-Oxley On Corporate Lawyers' Conduct, Susan Saab Fortney

Faculty Scholarship

This article addresses the controversy surrounding the Sarbanes-Oxley Act of 2002, which was seen by many lawyers as threatening the relationship between lawyers and their corporate clients. Part I of this article introduces the topic by providing a brief history of the increased government regulation and enforcement actions that forced lawyers to reexamine their role in representing their clients, beginning with the case of SEC v. National Student Marketing Corp. Part II reviews the organized bar's reaction to Sarbanes-Oxley. Part III focuses on law firms' response to the legislation. Part IV considers the views of individual corporate and securities lawyers …

Privacy, Plaintiff, And Pseudonyms: The Anonymous Doe Plaintiff In The Information Age, Jayne S. Ressler

Faculty Scholarship

No abstract provided.

Hipaa Privacy And Security: Issues For Employer-Sponsored Health Plans, Mary Leto Pareja

Faculty Scholarship

This article discusses issues about privacy standards and provides an overview of security issues related to the Health Insurance Portability and Accountability Act ("HIPAA"). Some of the privacy issues include who must comply, what information is protected, and permissible disclosure of protected information. The overview of security issues covers administrative, physical, and technical safeguards, as well as organizational requirements. Any practitioner who works with employers that sponsor a health plan for their employees should be aware of these issues, as this is a new area of potential risk for those clients.

Governing By Negotiation: The Internet Naming System, Tamar Frankel

Faculty Scholarship

This Article is about the governance of the Internet naming system. The subject is fascinating, not simply because the naming system is an important system affecting the Internet, although it is; and not because the Internet is important, although it is. The subject is fascinating because it offers a rare opportunity to examine and learn from the evolution of an incoherent governance structure. The naming system is special in that it is the product of a new technology; it reflects the changes and pressures brought by the new technology, and involves the interests of government and private entities, domestic and …

Remembering The Role Of Justice In Resolution: Insights From Procedural And Social Justice Theories, Nancy A. Welsh

Faculty Scholarship

It is surely a luxury, at this point in the field of dispute resolution, to be invited to identify those concepts that I view as absolutely essential to our canon. Borrowing a bit from Chris Guthrie's wine illustration, I think it is fair to suggest that today's presentations reveal a very impressive wine cellar, with many bottles of fine wine from which to choose. I will spotlight one part of this wine cellar, where concepts regarding procedural and social justice theories can be found. I will focus primarily on procedural justice but will also reference those theories of social justice …

A Perfect Storm: Mercury And The Bush Administration, Part Ii, Rena I. Steinzor, Lisa Heinzerling

Faculty Scholarship

The Environmental Protection Agency's recent proposal to regulate mercury emissions from power plants, and its final rule on mercury emissions from chlor-alkali facilities, suffer from serious scientific, legal, economic, and distributional flaws. The first installment in this series examined the strong scientific basis for regulating mercury emissions and critiqued the agency's decisions from a legal perspective. This second (and final) installment finds that EPA's decisions also fail from the perspectives of economics and environmental justice. EPA and the Office of Management and Budget's economic analysis of the proposal to regulate mercury from power plants was shoddy and one-sided. EPA and …

Analyzing The Constitutional Tensions And Applicability Of Military Rule Of Evidence 505 In Courts-Martial Over United States Service Members: Secrecy In The Shadow Of Lone Tree, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes MRE 505 in both a comparative and Constitutional context. Part I provides a procedural overview of both MIRE 505, and its federal counterpart, CIPA, for protecting evidence vital to national security in the criminal court context. Both mechanisms for protecting sensitive information are analyzed for their efficiency from a prosecutorial perspective. Part II analyzes the defendant's twin Constitutionally-based rights to present a complete defense and to a public trial. MRE 505, impacts to some degree, these twin rights. Part III then reviews the legal framework of MRE 505 within the salient Lonetree case. Within the context of …

Universal Jurisdiction And The Concept Of A Fair Trial Prosecutor V. Fulgence Niyonteze: A Swiss Military Tribunal Case Study, Joshua E. Kastenberg

Faculty Scholarship

It is the overall goal of this article to assess and evaluate concepts of universal jurisdiction and the interrelated right to a fair trial within the capsule of Prosecutor v. Niyonteze. This article analyzes the Niyonteze trial both within a framework of comparative law and against contemporary international law theories of universal jurisdiction and fair trial standards. In this article the term "due process" is subsumed into the larger concept of a fair trial. Likewise, a specific theory of universal jurisdiction is adopted. While universal jurisdiction and the right to a fair trial are often seen as exclusive areas, this …

Conflict Of Laws (2004), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2002, through November 1, 2003. The article excludes cases involving federalstate conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

Taking Pop-Ups Seriously: The Jurisprudence Of The Infield Fly Rule, Neil B. Cohen, S. W. Waller

Faculty Scholarship

No abstract provided.

History In Journalism And Journalism In History: Anthony Lewis And The Watergate Crisis, Pnina Lahav

Faculty Scholarship

Let me plunge right into a Lewis column to convey his marvelous craft in weaving the past into a contemporary moment. This one is from July 8, 1974. The column is about the oral argument before the Supreme Court in the Executive Privilege case, which was about to enter the constitutional canon as United States v. Nixon. Lewis writes as both eyewitness and commentator. He begins with constitutional history invoking Marbury v. Madison:

"It seemed at times like a constitutional casebook come to life. Marbury v. Madison was not only cited but, for a moment, debated. What exactly …

Too Many Markets Or Too Few? Copyright Policy Toward Shared Works, Michael J. Meurer

Faculty Scholarship

Proper analysis of sharing requires attention to the ways copyright law shapes markets. It also requires an analytic framework that identifies the gains and losses to copyright owners and users operating under the different market forms that can be sustained by different versions of copyright law. My framework will help judges avoid two mistakes that a market failure orientation invites. First, some judges overemphasize transaction costs and fail to appreciate the reasons to apply fair use to sharing even when negotiation and payment costs are zero. One reason is well known: sharing that generates positive externalities may be treated as …

Why Don’T Doctors & Lawyers (Strangers In The Night) Get Their Act Together?, Frances H. Miller

Faculty Scholarship

Health care in America is an expensive, complicated, inefficient, tangled mess – everybody says so. Patients decry its complexity, health care executives bemoan its lack of coherence, physicians plead for universal coverage to simplify their lives so they can just get on with taking care of patients, and everyone complains about health care costs. The best health care in the world is theoretically available here, but we deliver and pay for it in some of the world’s worst ways. Occam’s razor (“Among competing hypotheses, favor the simplest one”) is of little help here. There are no simple hypotheses – everything …

Negotiation As One Among Many Tools, Jennifer Gerarda Brown, Marcia Caton Campbell, Jayne Seminare Docherty, Nancy A. Welsh

Faculty Scholarship

Article Extract

Even as this symposium examines the "canon" of negotiation, we think it is also important to consider negotiation's context. In many cases, negotiation cannot be the first or the only activity that takes place. To make significant progress in the resolution or management of some conflicts, other activities will have to precede or supplement negotiation. This can be particularly true in large-scale, multi-party public disputes.

Consider the following situation, one that might be unfolding even as you read this in any number of places in the United States. The setting is the state of Grace, a relatively small …

Securing Deliberative Democracy, James E. Fleming

Faculty Scholarship

The brochure for the conference frames the questions for our panel on The Constitutional Essentials of Political Liberalism as "What are the implications of Rawls's conceptions of justice as fairness and political liberalism for constitutional theory? Might his account of constitutional essentials provide a useful guiding framework for conceiving the scheme of basic liberties embodied in the American Constitution? How thin are the commitments of our Constitution as compared with our richer commitments to constitutional justice and political justice? What are the implications of Rawls's work for theory of judicial review and for enforcement of constitutional rights and obligations outside …

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

The Escalating Copyright Wars, Peter K. Yu

Faculty Scholarship

Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based …

Labor And Finance As Inevitably Transnational: Globalization Demands A Sophisticated And Transnational Lens, Timothy A. Canova, Claire Moore Dickerson, Katherine V.W. Stone

Faculty Scholarship

No abstract provided.

Tax Code Section 527 Groups Not An End-Run Around Mccain-Feingold, Edward B. Foley, Donald B. Tobin

Faculty Scholarship

This article ... will analyze both the statutory and constitutional questions concerning whether 527organizations are ‘‘political committees’’ under FECA and thus subject to the $5,000 cap on the contributions they receive from each donor. The article will also consider whether other forms of tax-exempt organizations besides 527s—most notably so-called 501(c)(4) organizations—provide an alternative means of circumventing this $5,000 contribution limit.

Characterizing Human-Tiger Conflict In Sumatra, Indonesia: Implications For Conservation, Philip J. Nyhus, Ronald Tilson

Faculty Scholarship

Human-tiger conflict occurs in Indonesia but there is little recent information about the scope of the problem, and adequate policies are not in place to address the conflict. Published and unpublished reports of conflict between Sumatran tigers Panthera tigris sumatrae, people and their livestock were collected and analysed to characterize the extent, distribution and impact of human-tiger actively conflict on the island of Sumatra, Indonesia. Reportedly, between 1978 and 1997, tigers killed 146 people and injured 30, and killed at least 870 livestock. Conflict was less common in protected areas and more common in inter- mediate disturbance areas such as …

The New Moralizers: Transforming The Conservative Legal Agenda, David A. Super

Faculty Scholarship

The essential elements of a wide range of social policies can be described in terms of responses to three basic questions. First, what burdens must the innocent carry? Second, what burdens must the blameworthy bear? And third, how does society assess blame? This Essay examines the increasingly successful efforts of a faction of social conservatives, called here the new moralizers, to reshape the resolution of each of these three issues and with them a wide range of social policies. Although the relative importance of these three questions has varied over time, the twentieth century saw a movement away from costly …

The Quiet "Welfare" Revolution: Resurrecting The Food Stamp Program In The Wake Of The 1996 Welfare Law, David A. Super

Faculty Scholarship

Cash-assistance programs have long been a focus of both liberal and conservative efforts to make symbolic statements. In this regard, the 1966 dismantlement of federal entitlement to cash assistance was nothing new. Although the 1996 welfare law also made deep cuts to in-kind programs, such as food stamps, these programs had less symbolic significance and hence were less often the target of public attacks. This lower political profile gave the Food Stamp Program room to find positive ways to adapt to the key themes that drove the enactment of the 1996 welfare law. In the 1996 welfare law’s wake, the …