Digital Commons Network^™

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of …

Viewpoints From Olympus, Kent Greenawalt

Faculty Scholarship

This Essay examines the Supreme Court's treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy's opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in …

What Does A White Woman Look Like? Racing And Erasing In Law, Katherine M. Franke

Faculty Scholarship

In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. The concept of justiciability can be understood as a set of rules determining what stories courts are allowed to tell about who we are and who we can be. In this sense, Ronald Dworkin's account of judging as writing ongoing chapters in a chain novel provides a compelling conception of law as both describing where we have been and directing where we are going. If the salience …

Intellectual Property Policy Online: A Young Person’S Guide, James Boyle

Faculty Scholarship

This is an edited version of a presentation to the "Intellectual Property Online" panel at the Harvard Conference on the Internet and Society, May 28-31, 1996. The panel was a reminder of both the importance of intellectual property and the dangers of legal insularity. Of approximately 400 panel attendees, 90% were not lawyers. Accordingly, the remarks that follow are an attempt to lay out the basics of intellectual property policy in a straighforward and non-technical manner. In other words, this is what non-lawyers should know (and what a number of government lawyers seem to have forgotten) about intellectual property policy …

Norms Of Communication And Commodification, Wendy J. Gordon

Faculty Scholarship

Around the laws that regulate information and communication swarm a host of related nonlegal norms: norms of secrecy, confidentiality, and privacy; of anonymity, source-identity, and citation; of quotation, paraphrase, and hyperbole; norms of free copying and norms of obtaining permission; norms of gossip and of blackmail. The articles by Saul Levmore and Richard McAdams provide useful windows on some of the ways these laws and norms interact. The two articles also provide insight into the comparative advantage possessed in some circumstances by law and by nonlegal norms, respectively, when information and communication are at issue. In my brief Comment I …

Cowboys, Camels, And The First Amendment: The Fda's Restrictions On Tobacco Advertising, George J. Annas

Faculty Scholarship

The Marlboro Man and Joe Camel have become public health enemies number one and two, and removing their familiar faces from the gaze of young people has become a goal of President Bill Clinton and his health care officials. The strategy of limiting the exposure of children to tobacco advertisements is based on the fact that almost all regular smokers begin smoking in their teens. This approach is politically possible because most Americans believe that tobacco companies should be prohibited from targeting children in their advertising.

"Irresponsible" Reproduction, Linda C. Mcclain

Faculty Scholarship

In recent years, there have been countless calls for reversing the rise in irresponsibility in American society.' Calls for restoring personal responsibility in both private and political life sound from both of the major political parties as well as from various cultural critics, pundits, and academics. 2 Proponents of a return to personal responsibility wage their battle on numerous fronts, advocating a cultural revolution, a moral revival, and a recovery of "virtue" to bring about a reformation of attitudes and behaviors regarded as troublesome. 3 Many voices now urge that law and public policy should encourage, or require, personal responsibility …

The Evolution Of Race In The Law The Supreme Court Moves From Approving Internment Of Japanese Americans To Disapproving Affirmative Action For African Americans, Frank H. Wu, Reggie Oh

Faculty Scholarship

No abstract provided.

Beyond Self–Interest: Asian Pacific Americans Toward A Community Of Justice, Frank H. Wu

Faculty Scholarship

No abstract provided.

Toestanden In Amerika, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

Race Law And Justice: The Rehnquist Court And The American Dilemma,, Frank H. Wu

Faculty Scholarship

No abstract provided.

Changing America: Three Arguments About Asian Americans And The Law, Frank H. Wu

Faculty Scholarship

No abstract provided.

Beyond The Model Minority Myth: Why Asian Americans Support Affirmative Action, Frank H. Wu, Theodore Hsien Wang

Faculty Scholarship

No abstract provided.

The Limits Of Borders: A Moderate Proposal For Immigration Reform, Frank H. Wu

Faculty Scholarship

No abstract provided.

Application Of International Water Law To Transboundary Groundwater Resources, And The Slovak-Hungarian Dispute Over Gabcikovo-Nagymaros, Gabriel Eckstein

Faculty Scholarship

The growth in global population and economic development has resulted in tremendous pressures on existing sources of fresh water. Human water use over the past three centuries increased by a factor of thirty-five and is growing by four to eight percent annually. Coupled with recurring international disputes over water resources, poor water management, and the realization that water is an indispensable but finite resource, these trends have propelled the use and management of transboundary groundwater resources to the forefront of legal debate.

Until recently, matters relating to groundwater resources were relatively ignored in the context of international law applicable to …

Rationing Health Care And The Need For Credible Scarcity: Why American's Can't Say No, Wendy K. Mariner

Faculty Scholarship

With adequate cost containment unlikely in the foreseeable future, health care use will have to be curtailed, ideally with open and explicit criteria for equitably allocating resources or rationing. Yet, consensus on any such criteria appears remote because Americans cannot say no to health care. Americans may refuse to accept rationing for two reasons. The absence of any global limitation on health care resources may encourage patients to believe that health care resources are not scarce and do not need to be rationed. A belief in vitalism--that everyone is morally entitled to unlimited longevity and good health--may discourage setting limits …

Mandatory Prelicensure Legal Internship: A Renewed Plea For Its Implementation In Light Of The Maccrate Report, Stephen R. Alton

Faculty Scholarship

Since its publication in 1992, virtually everyone who has any opinion about American legal education has been talking about the Mac- Crate Report. Relatively few among this multitude seem actually to have read the report itself. The purpose of this essay is to present an overview of this thoughtful document, along with some thoughts of my own regarding its implications for the future of legal education, particularly its implications for a mandatory prelicensure legal internship.

Elizabeth's Story: Exploring Power Imbalances In Divorce Mediation, Scott H. Hughes

Faculty Scholarship

Case study of many spouses who enter the divorce process with severe deficits in their abilities to deal with the emotional, economic, intellectual, and logistical issues which arise. Mediation may not be adviseable when there is an inequality of bargaining power due to abuse, inexperience, ignorance, socialization and/or the grieving process.

Human Rights Environmentalism: Forging Common Ground, Gabriel Eckstein, Miriam Gitlin

Faculty Scholarship

Since the early 1970s, the international community has widely acknowledged the nexus between human rights and environmental protection. References to this association and even to a human right to some minimal quality of environment, can be found in numerous international instruments. The Stockholm Declaration on the Human Environment, for example, proclaims that human beings have the "fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being." Similarly, the Additional Protocol to the American Convention on Human Rights states that "everyone shall have the right to live …

The Reauthorization Of Superfund: Can The Deal Of The Century Be Saved?, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Religious Outlaws: Narratives Of Legality And The Politics Of Citizen Interpretation, Barbara L. Bezdek

Faculty Scholarship

No abstract provided.

Legal Process And The Past Of Antitrust, William L. Reynolds, Spencer Weber Waller

Faculty Scholarship

No abstract provided.

Epilogue: Making Reconceptualization Of Violence Against Women Real, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

The Developing Role Of Non-Governmental Organizations In Global Policy And Law Making, Charlotte Ku

Faculty Scholarship

The history of international relations in the twentieth century may appear principally to be the story of the state.

At the same time, the history of international relations in the twentieth century is also one of international organizations as a means to support and strengthen the state's ability to discharge its primary functions of promoting order in the international system and ensuring the security of its own citizens.

An even more aggressive approach to meeting the needs of states is through aid programs like the UN Development Program.

These international organizations were created by governments, usually by treaty, to address …

Reconsidering Flood V. Kuhn, Stephen F. Ross

Faculty Scholarship

Within the academia, two very different groups of legal scholars have devoted a great deal of attention to Flood v. Kuhn. Those specializing in sports law have either attached Flood as a ridiculous decision that improperly distinguished between baseball and other professional sports, or have praised it for waging guerrilla warfare on the idea that Section 1 of the Sherman Act should apply to intra-league arrangements by owners of the professional sports teams. Those viewing Flood through the lens of statutory interpretation perceive the decision as adhering rigidly to the principle of stare decisis; this rigidity has been …

Arbitral Justice: The Demise Of Due Process In American Law, Thomas E. Carbonneau

Faculty Scholarship

Arbitration consists of a process for resolving disputes in a final and binding manner outside the traditional court system. The rules that govern arbitration provide for flexible proceedings and do not require the strict application of legal rules.

Owing largely to the holdings of the U.S. Supreme Court, arbitration law and procedure have emerged from the obscurity of specialized practice and entered the adjudicatory mainstream.

In 1925, with the enactment of the U.S. Arbitration Act, the U.S. Congress declaredthe rehabilitation of arbitral justice and dispute resolution. These provisionsanticipated, in effect, the modern, world-wide legislative legitimization ofarbitration. Primarily because of the …

Exploiting The Artist's Commercial Identity: The Merchandizing Of Art Images, Jane C. Ginsburg

Faculty Scholarship

"Merchandizing properties" are not a recent arrival on the copyright and trademark scene. As early as the 1930s, the Walt Disney Company foresaw the substantial economic gains from licensing the images of its animated motion picture characters in a variety of consumer media, from publications, to soft toys, clothing and household items. Most recently, the World Intellectual Property Organization has prepared a substantial comparative law study of "Character Merchandising." The merchandizing of fine arts images, however, is a more recent development, and is one that has so far received less attention from academic commentators. This article offers some preliminary observations, …

The Constitutional Responsibility Of Congress For Military Engagements, Lori Fisler Damrosch

Faculty Scholarship

The U.S.-led military operation in Haiti has unfolded with minimal violence and few casualties so far. That factual proposition – which is necessarily subject to revision – has important ramifications under both U.S. constitutional law and international law. On the constitutional level, the avoidance of hostilities defused what was poised to become a serious confrontation between the President and the Congress. On the international level, doubts in some quarters about the legitimacy of a forcible intervention, although not entirely allayed, were somewhat quieted with the achievement of a negotiated solution, which enabled U.S. troops to bring about the return to …

Re-Engineering Corporate Disclosure: The Coming Debate Over Company Registration, John C. Coffee Jr.

Faculty Scholarship

Statutory obsolescence is the fate of all legislation. At some point in the natural "life cycle" of any statute, courts tend to move from purposive statutory construction, focused on the actual legislative intent, to greater deference towards administrative expertise as they implicitly recognize that the original legislative intent no longer fits the contemporary institutional landscape. Given that the federal securities laws were passed during the 1930s, they have now entered the geriatric zone where their possible obsolescence must be considered. Some academics have already called for the SEC's elimination on precisely this basis. Practitioners complain about the "metaphysical" and "hypertechnical" …

Proposed Evidence Rules 413 To 415 – Some Problems And Recommendations, James S. Liebman

Faculty Scholarship

Section 320935 of the Violent Crime Control and Law Enforcement Act of 1994 proposes three new Federal Rules of Evidence-Rules 413-415 – that would liberalize the admissibility of "propensity evidence" in criminal and civil cases involving allegations of sexual assault and child molestation. This Article expresses some reservations about, and suggests some alternatives to, Proposed Rules 413-415.