Digital Commons Network^™

Pregnancy, Drugs, And The Perils Of Prosecution, Wendy K. Mariner, Leonard H. Glantz, George J. Annas

Faculty Scholarship

In the war on drugs an offensive has been launched against pregnant women who use drugs. Over the past four years, prosecuting attorneys have been indicting women who use drugs while pregnant. In South Carolina alone, eighteen women who allegedly took drugs during pregnancy were indicted last summer for criminal neglect of a child or distribution of drugs to a minor.' In the only successful prosecution so far, Jennifer Johnson was convicted in Florida for delivering illegal drugs to a minor via the umbilical cord in the moment after her child was born and before the cord was clamped.^{2 …}

Stumbling Blocks And Stepping Stonea Newcomers' Guide To Perilous Terrain In Law School, Lois Schwartz, Suzanne Homer

Faculty Scholarship

No abstract provided.

Doctors And Lawyers And Wolves, George J. Annas

Faculty Scholarship

Relations between lawyers and physicians, and therefore between law and medicine, are getting more and more destructive and counterproductive. It used to be a joke, but it's not funny anymore. We can't afford the continuing and escalating acrimony between our professions and it's time that we take constructive steps in the public interest to deal with it.

Atari Games V. Nintendo: Does A Closed System Violate The Antitrust Laws, Glynn S. Lunney Jr

Faculty Scholarship

As I rushed through the malls this past Christmas, I noticed a new store, one that would not have been possible just a few years ago. It was a Nintendo boutique. I was permitted only to gaze longingly at the games and accessories on display before being pulled away to shop for the things I would actually buy, but I thought it would be fun to return someday and purchase the system and perhaps a few cartridges and accessones.

So, I must admit that my perspective on the Atari v. Nintendo suits will not be that of an unaffected observer, …

Amplifying Bose Corp. V. Consumers Union: The Proper Scope Of De Novo Appellate Review In Public Person Defamation Cases De Novo Appellate Review In Public Person Defamation Cases, Tigran W. Eldred

Faculty Scholarship

In 1984, the Supreme Court in Bose Corp. v. Consumers Union of United States, Inc.¹⁰ explicitly affirmed its longstanding practice¹¹ of independently reviewing a trial court's actual malice determination. At issue was whether an appellate court was bound under Federal Rule of Civil Procedure 52(a)¹² to defer to a trial court's finding of actual malice. The Court concluded that Rule 52(a) was inapplicable to the actual malice decision and that "[a]ppellate judges ... must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity."¹³ The Court, in accord with New York …

Setting Limits On Autonomy: Saving Money In An Aging Society, Robert L. Schwartz

Faculty Scholarship

In Setting Limits Dr. Daniel Callahan poses a solution: the termination of some kinds of treatment for the very elderly. His solution undercuts autonomy of the individual. This Article describes the values served by autonomy and explains why autonomy is so basic to making health care decisions and why its importance is especially great in the United States. Of course, autonomy is not absolute. This Article will define those classes of cases in which autonomy can be trumped by other interests. The Article will next determine whether the class of cases defined by Dr. Callahan fits within that definition. Finally, …

Bias Crimes: Unconscious Racism In The Prosecution Of Racially Motivated Violence, Tanya K. Hernandez

Faculty Scholarship

Within the past four years, a perceived surge of "bias crimes" has seized the nation's attention. Bias crimes, physical acts of violence used as an outlet for prejudiced hostilities, are usually street crimes spontaneously committed by casual clusters of "normal people on the street" with very little advanced planning. This Note focuses on the physical injuries to persons that result from bias crimes. Such physical injuries represent cog- nizable harms that can be redressed through criminal statutes.'

Free Speech Justifications, Kent Greenawalt

Faculty Scholarship

This Article sets out what I believe are the relevant justifications for free speech, the term "free speech" being meant to cover both freedom of speech and freedom of the press. These are the justifications one might use to assess whether communications fall within a political or judicial principle of free speech and how great the protection of the communications that are covered should be. Such assessments are undertaken in a longer study that is mainly about the ways in which different uses of language affect the application of principles of freedom of speech to the criminalization of behavior. That …

Monopoly Sports Leagues, Stephen F. Ross

Faculty Scholarship

This Article argues that the government should break up both Major League Baseball and the NFL to provide for competing economic entities in each sport. Part I details the harm monopoly sports leagues cause in several different markets and explains why a competitive league structure can correct such harms. Part II discusses why regulatory solutions are poor substitutes for competition as a means of redressing these harms. Part III explains why neither baseball nor football is a "natural monopoly" and argues that no persuasive evidence suggests that rival leagues cannot exist in those sports. Part IV examines how the antitrust …

Seasoned To The Use, Carol Sanger

Faculty Scholarship

Two recent novels, Presumed Innocent and The Good Mother, have more in common than critical success, longevity on best-seller lists and big-name movie adaptations. Both books are about law: Presumed Innocent is a tale of murder in the big city; The Good Mother is the story of a custody fight over a little girl. Central characters in both books are lawyers. Turow is a lawyer, and Miller thanks lawyers. While the books could be classified in other ways – Presumed Innocent as mystery, The Good Mother as women's fiction – each meets a suggested genre specification of a legal novel: …

French Copyright Law: A Comparative Overview, Jane C. Ginsburg

Faculty Scholarship

French copyright law has attracted considerable recent attention in the United States. Debate over the nature and scope of legislation permitting U.S. entry into the Berne Union for the Protection of Literary and Artistic Works spurred some of this interest: because France was a founding member of that Union, some participants in the Berne adherence process perceived "Berne level" copyright protection to be synonymous with "French" copyright protection. As Congress continues to consider modifications to the U.S. copyright law, particularly in the area of moral rights, France again supplies a leading example. And the on-going litigation in France concerning the …

Biomedical Research In The Sea, A Search For Drugs And Novel Compounds., John K. Reed, Shirley A. Pomponi

Faculty Scholarship

Biomedical research has discovered numerous pharmaceutical drugs and novel compounds produced by living organisms. Most of this research has focused on terrestrial sources but a potential reservoir of untapped drugs is being discovered in the oceans. Compounds produced from marine sponges, tunicates, bryozoans, soft corals and algae are being tested as potential agents against cancer, AIDS and other diseases. In this effort, the goal of the Division of Biomedical Marine Research (DBMR) at Harbor Branch Oceanographic Institution (HBOI) is to isolate and identify bioactive compounds from marine organisms. Since 1984 over 16,000 macroorganisms have been collected worldwide by HBOI personnel …

Teaching Mediation As A Lawyering Role Developments, Jacqueline Nolan-Haley

Faculty Scholarship

The growth of the alternative dispute resolution (ADR) movement has generated an increased interest in the study and practice of mediation as a nonadversarial method of conflict resolution. With mediation, individuals settle their disputes using a neutral third party who has no power to impose a settlement. Historically, mediation has been widely neglected in legal education, and-except for those involved in the labor field-lawyers have not practiced it. Recent gains in visibility have not necessarily resulted in widespread acceptance of mediation. In fact, mediation has even been openly resisted by some members of the legal profession.

Racial Reflections: Dialogues In The Direction Of Liberation , Derrick Bell, Tracy Higgins, Sung-Hee Suh

Faculty Scholarship

"New voices" of future lawyers are particularly important in the area of civil rights because racial problems are theirs to confront in the next decades. Teaching techniques developed by Paulo Freire have facilitated the enlistment of students in the racial struggle. By these techniques teachers, as well as students, learn through sharing, and students become active participants, rather than passive observers, in the learning process. The educational process, Freire counsels, ''must begin with the solution of the teacher-student contradiction, by reconciling the poles of the contradiction so that both are simultaneously teachers and students. In the fall of 1988, two …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

Admitted But Not Accepted Outsiders Take An Inside Look At Law School, Lois Schwartz, Suzanne Homer

Faculty Scholarship

No abstract provided.

Cessation Of Family Violence: Deterrence And Dissuasion, Jeffrey Fagan

Faculty Scholarship

Family violence research has only recently begun to investigate desistance. Recent developments in the study of behaviors other than family violence, such as the use of addictive substances, suggest that common processes can be identified in the cessation of disparate behaviors involving diverse populations and occurring in different settings. Desistance is the outcome of processes that begin with aversive experiences leading to a decision to stop. Desistance apparently follows legal sanctions in nearly three spouse abuse cases in four, but the duration of cessation is unknown beyond short study periods. Batterers with shorter, less severe histories have a higher probability …

Some Comments On Professor Neuborne's Paper, Henry Paul Monaghan

Faculty Scholarship

It is a pleasure to have the opportunity to comment upon Professor Neuborne's paper; it is a provoking effort to make sense out of important aspects of the first amendment. At the outset, I should say that there is much in the paper with which I agree. But for the purposes of this essay I will focus on points of disagreement.

Professor Neuborne's specific focus is an analysis of the Security and Exchange Commission's (SEC) regulation of speech. The final twenty-one pages of his paper are directly concerned with analysis and criticism of the existing case law on the subject. …

Independent Agencies – Independent From Whom?, Sally Katzen, Edward Markey, James Miller, Joseph Grundfest, R. Gaull Silberman, Peter L. Strauss

Faculty Scholarship

No abstract provided.

Deconstructing Gender, Joan C. Williams

Faculty Scholarship

No abstract provided.

A Barrel Without Hoops: The Impact Of Counterterrorism On Israel's Legal Culture, Pnina Lahav

Faculty Scholarship

"'Israel's Defense Forces without law is like a barrel without hoops.'"

Terrorism challenges basic notions of Justice and Law. It demoralizes the State by exposing the inability of its institutions to protect life and liberty. It is the tool of desperados, whose devotion to a given cause has dehydrated their conscience, for whom no means is too ruthless in the struggle to attain the end. Once a society has tasted terrorism, its members expect to be struck anytime, anywhere, and for no reason other than their membership in that society. Only through tremendous inner strength can a society exposed to …

A Cure For Scholarship Schizophrenia: A Manifesto For Sane Productivity And Productive Sanity, Ronald B. Brown

Faculty Scholarship

No abstract provided.

Whose Advantage After All: A Comment On The Comparison Of Civil Justice Systems, Herbert L. Bernstein

Faculty Scholarship

No abstract provided.

Risk Communication Law And Implementation Issues In The United States And European Community, Michael S. Baram

Faculty Scholarship

Risk communication has become an important element of public policy in the United States and the European Community (E.C.) for reducing technological risks to workers, product users and community residents. The risk communication process involves disclosure by an industrial firm (or other party) of information about the hazardous attributes of its activity or product to a regulatory agency or to persons who may be at risk, thereby facilitating a shared understanding of the risk and enabling interpretation of various risk prevention and response measures.

There are two general patterns of risk communication. One involves industrial disclosure to a government agency, …

In Search Of The Virtuous Prosecutor: A Conceptual Framework, Stanley Z. Fisher

Faculty Scholarship

Questions about the scope and content of the duty to "seek justice" pervade prosecutorial work. Prosecutors are required to serve in a dual role: they are both advocates seeking conviction and "ministers of justice." Observers have complained about a tendency on the part of prosecutors to prefer the former of these "schizophrenic" obligations to the latter. This is commonly described as a tendency to behave overzealously or according to a "conviction psychology. ' "

Academic Freedom And Governance: A Call For Increased Dialogue And Diversity, Phoebe A. Haddon

Faculty Scholarship

No abstract provided.

The Reception Of Arbitration In United States Law, Thomas E. Carbonneau

Faculty Scholarship

The willingness of any national legal system to endorse the process of arbitral adjudication can be measured by whether its governing statutory law and accompanying case law sustain the validity of arbitration agreements and limit judicial supervision of arbitral proceedings and awards - in effect, whether the laws of a nation establish a cooperative relationship between the courts and the arbitral process. On both scores, United States law on arbitration evinces a clear determination to support the process. The development of the law has given the framework of arbitral adjudication its necessary systemic autonomy.

Hush: The Criminal Status Of Confidential Information After Mcnally And Carpenter And The Enduring Problem Of Overcriminalization, John C. Coffee Jr.

Faculty Scholarship

Each of the last three decades has witnessed an intense public reaction to a distinctive type of "white collar" crime. In the early 1960's, public attention was riveted by the Electrical Equipment conspiracy and the image of senior corporate executives of major firms meeting clandestinely to fix prices. In the mid-1970's, the focus shifted to corporate bribery, as the media ran daily stories regarding questionable payments abroad and illegal political contributions at home. The representative white collar crime of the 1980's is undoubtedly "insider trading." The archetype of this new kind of criminal in the public's mind is Ivan Boesky …

The Role Of The Market Model In Corporate Law Analysis: A Comment On Weiss And White, Merritt B. Fox

Faculty Scholarship

In a recent article, Elliott Weiss and Lawrence J. White sought to establish that seven decisions of the Delaware courts concerning corporation law had little value in predicting the future conduct of courts and corporations under the Delaware Corporations Law. Weiss and White relied, in part, on a statistical analysis of changes in the prices of publicly traded shares in Delaware corporations to show that the seven studied decisions had no statistically significant market impact.

In this Comment, Professor Fox takes issue with the explanation Weiss and White give for their data. Although the absence of an observed market impact …

One Hundred And Two Years Later: The U.S. Joins The Berne Convention, Jane C. Ginsburg, John M. Kernochan

Faculty Scholarship

In historic votes on October 5 and October 12, the U.S. Senate and House of Representatives unanimously approved legislation designed to bring U.S. law into compliance with the Berne Convention. The legislation was signed by President Reagan on October 31, 1988. Also signed by the President was a Senate Resolution of October 20 of Ratification of the Berne Convention. Following deposit of the requisite instruments with the World Intellectual Property Organization in Geneva, U.S. adherence to Berne took effect on March 1, 1989.

For the U.S., this momentous step is the culmination of decades of struggle, including many failed attempts …