Digital Commons Network^™

Insults And Epithets: Are They Protected Speech?, Kent Greenawalt

Faculty Scholarship

It is a privilege to offer a lecture in this series named for Edward J. Bloustein. Not many lecture series honor sitting university presidents who deliver the first lecture in the series; but President Bloustein is the very rare president whose long tenure in office has been accompanied by continuing academic productivity. That achievement is remarkable.

When I tentatively chose this topic a year ago, I knew it involved the application of philosophical insights to serious practical questions, the kind of work that President Bloustein has done so well. I also knew that the search for those aspects of human …

O'Er The Land Of The Free: Flag Burning As Speech, Kent Greenawalt

Faculty Scholarship

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration …

Socialist And Non-Socialist Approaches To Land Law: Continuity And Change In Somalia And Other African States, Ugo Mattei

Faculty Scholarship

No abstract provided.

A Critical Assessment Of Reid's Work For Hire Framework And Its Potential Impact On The Marketplace For Scholarly Works, Sherri L. Burr

Faculty Scholarship

This article focuses on the marketplace for copyrighted works produced by academics. Academics are hired by universities with the understanding that in addition to teaching, they will conduct research, analyze their research, and publish the results of their analysis. The custom has been at many universities that academics retain the copyright in their scholarly publications and in their lectures when they are reduced to tangible form. This article examines Community for Creative Non-Violence v. James Earl Reid's construction of the "work made for hire" definition in the 1976 Copyright Act and assesses its potential impact on academics. Part I provides …

Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt

Faculty Scholarship

Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …

Rethinking Custodial Interrogation, Daniel B. Yeager

Faculty Scholarship

This Article attempts to resurrect a concept crucial to the Supreme Court lexicon. It is not, however, a police manual. This Article concerns itself solely with questions surrounding the admissibility of confessions, and in so doing, attempts to show that only a reconsideration of custodial interrogation can restore the "significant deprivations" language to the status granted it in Miranda v. Arizona.

Copyright Law And The Myth Of Objectivity: The Idea-Expression Dichotomy And The Inevitability Of Artistic Value Judgments, Amy B. Cohen

Faculty Scholarship

ThIs Article focuses on the problem of how artistic values affect determinatlons of copyright management. It discusses how the copyright statutes embody a congressional desire to have determinations of eligibility for copyright made without regard for the artistic value of the work at issue. This Article also explores the dangers that Justice Holmes and those who have followed hIs lead saw in using assessments of artIstic value to make copyright decIsIons. It also discusses how assessments of artistic value influence copyright infrIngement determInations, specifically through the application of the idea-expression dichotomy, a principle used to determine whether the copyright in …

A Conceptual, Practical, And Political Guide To Rico Reform, Gerard E. Lynch

Faculty Scholarship

RICO is nearing its twentieth birthday, but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes.

As the pressure for change has intensified, and …

Rational Decisionmaking About Marriage And Divorce, Elizabeth S. Scott

Faculty Scholarship

The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

Implementing Brown In The Nineties: Political Reconstruction, Liberal Recollection, And Litigatively Enforced Legislative Reform, James S. Liebman

Faculty Scholarship

Opposed for a decade by a hostile national administration, faced with the prospect for decades to come of an unsympathetic federal judiciary, and amidst declarations of the Second Reconstruction's demise, civil rights organizations have undertaken recently to rethink their litigation agendas. I have two motivations for offering some thoughts in support of that task. First, the civil rights community has requested the assistance of the academy in reshaping the community's litigation agenda and, in my case, in identifying "new strategies for implementing Brown v. Board of Education." Second, my analysis of the principal "old" strategy for implementing Brown, …

Our Localism: Part Ii – Localism And Legal Theory, Richard Briffault

Faculty Scholarship

A central theme in the literature of local government law is that local governments are powerless, incapable of initiating programs on behalf of their citizens or of resisting intrusions by the state. How can scholars make this claim when under state legislation and federal and state judicial decisions local autonomy plays a critical role in the law of school finance, land-use regulation and local government formation and preservation? As we have seen, a partial response turns on the varying assessments of the nature of power. But much of the answer also has to do with differing assumptions about the underlying …

1991 Diplomatic Conference On Uniform Liability Rules For Operators Of Transport Terminals, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Intoxication And Aggression, Jeffrey Fagan

Faculty Scholarship

Evidence of an association between use of illicit substances and aggressive behavior is pervasive. But the precise causal mechanisms by which aggression is influenced by intoxicants are still not well understood. Research on intoxication and aggression often has overlooked the nonviolent behavior of most substance users, controlled use of substances, and the evidence from other cultures of a weak or nonexistent relation between substance use and aggression. There is only limited evidence that ingestion of substances is a direct, pharmacological cause of aggression. The temporal order of substance use and aggression does not indicate a causal role for intoxicants. Research …

A Judicial Postscript To The Church-State Debates Of 1989: How Porous The Wall, How Civil The State?, William W. Van Alstyne

Faculty Scholarship

This work is a continuation of the debate regarding the Establishment Clause. The focus lies with Justice O’Connor’s concurrence in County of Allegheny v. ACLU and how this opinion harkens back to a concept shared by Jefferson and Madison, that the establishment clause is designed to prevent government favoritism.

It Does The Crime But Not The Time: Corporate Criminal Liability In Federal Law, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Challenging Witness Competency , Michael M. Martin

Faculty Scholarship

Despite the modern trend to hear all the evidence, a surprising number of witnesses can still be challenged on competency grounds.

Zealous Representation Bound: The Intersection Of The Ethical Codes And The Criminal Law, Bruce A. Green

Faculty Scholarship

Professional codes adopted by states and based on the Model Rules of Professional Conduct and the Model Code of Professional Responsibility govern lawyers' conduct. The ethical codes, however, fail to address many ethical questions confronting lawyers. In this Article, Professor Bruce Green highlights the ethical codes' weaknesses, particularly as they relate to the conduct of criminal defense attorneys. As he describes, the ethical codes require advocates to represent their clients "zealously," but, at the same time, "within the bounds of the law." When the codes do not proscribe conduct that would advance their clients' causes, conscientious advocates must consider whether …

Dynamics Of Dislocation-Mediated Melting In A Two-Dimensional Lattice In The Presence Of An Oscillatory Applied Strain, Arnold J. Dahm, M. A. Stan, Rolfe G. Petschek

Faculty Scholarship

The temperature and frequency dependence of the power dissipated in a two-dimensional crystal subjected to an applied strain is shown to exhibit a distinct signature for dislocation-dissociation melting. The power absorption is analogous to the case of thin helium films subjected to an applied velocity field. Power loss by dislocation motion in the compressional mode is severely limited by the presence of nonequilibrium densities of interstitial and vacancy defects that are created or annihilated by dislocation climb. Tables of analogs between dislocations, vortices, and charges in two-dimensional systems are presented. The relation of the results to published experiments is discussed.

Critical Behavior Of A Frustrated Ising System, O. Heinonen, Rolfe G. Petschek

Faculty Scholarship

Finite-size-scaling analysis of a simulation of the critical behavior of a nonrandom three-dimensional frustrated system yields a tricritical-like behavior not predicted by a simple Landau-Ginzburg-Wilson theory. We argue that, because of the frustration, the free energy of many phases is close to that of the observed ordered phase and that a complete theory must take into account interactions between fluctuations of order parameters of all these phases. We suggest that these properties are generic to frustrated systems. Related transitions in the model are also discussed.

The Case Against All Encompassing Federal Mass Tort Legislation: Sacrifice Without Gain, Aaron Twerski, R. A. Sedler

Faculty Scholarship

No abstract provided.

Radiative Kaon Capture At Rest In Hydrogen, William J. Fickinger, D. K. Robinson

Faculty Scholarship

The photon spectrum from K- stopping in liquid hydrogen has been measured with a high-resolution (1.5% FWHM at 300 MeV) NaI(Tl) detector. The branching ratios for K-p→Λγ (Eγ=281.4 MeV) and K-p→Σ0γ (Eγ=219.5 MEV) were obtained. The results are RΛγ=(0.86±0.07-0.08+0.1)×10-3 and RΣ0γ=(1.44±0.20-0.10±0.12)×10-3 where the first error is statistical and the second systematic. These results are not in good agreement with published predictions or with previous Λγ measurements.

The Joint Tortfeasor Legislative Revolt: A Rational Response To The Critics, Aaron Twerski

Faculty Scholarship

No abstract provided.

Transitions And Modulated Phases In Chiral Tilted Smectic Liquid Crystals, George A. Hinshaw Jr., Rolfe G. Petschek

Faculty Scholarship

Modulated phases that occur in tilted chiral smectic liquid crystals are discussed within mean-field theory in thin films and in bulk. A chiral term in the free energy containing three order parameters and one gradient can make the free energy of certain defects negative or the bend elastic constant negative. Assuming various possible behaviors for these defect energies we find either a striped state with parallel defect walls or a lattice of hexagonal unit cells containing disclinations bounded by intersecting defect walls in films. Rather different transitions to the striped phase occur when this elastic constant is either positive or …

The Right To Forego Life-Sustaining Treatment: Legal Trends And Emerging Issues, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The Plessy Case: A Legal-Historical Interpretation, David D. Meyer

Faculty Scholarship

No abstract provided.

Equitable Access To Biomedical Advances: Getting Beyond The Rights Impasse, Wendy K. Mariner

Faculty Scholarship

In 1988, gay rights activists and supporters demonstrated outside a Food and Drug Administration building demanding unrestricted access to experimental drugs being tested for the treatment of human immunodeficiency virus ("HIV") infection and acquired immunodeficiency syndrome ("AIDS").² Across the ocean in France, in October of the same year, came an equally insistent demand from women's groups, scientists, and family planning agencies that the pharmaceutical company Groupe Roussel Uclaf put its abortifacient RU 486 back on the market.' Early in 1989, people were outraged when newspapers reported that New Hampshire's Medicaid program would not pay for a life-saving bone marrow …

The Biotechnology Revolution And Its Regulatory Evolution, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Predicting The Future Of Privacy In Pregnancy: How Medical Technology Affects The Legal Rights Of Pregnant Women, George J. Annas

Faculty Scholarship

The bodies of pregnant women are the battleground on which the campaign to define the right of privacy is fought. The ultimate outcome will likely be shaped at least as much by new medical technologies as by politics or moral persuasion. This is because medical technologies do much more than change what we can do: they can radically alter the way we think about ourselves. Technologies have the power to change "not only the relation of man to nature but of man to man."1 More than that, they can alter our very concept of what it means to be human, …

Health Law At The Turn Of The Century: From White Dwarf To Red Giant, George J. Annas

Faculty Scholarship

The evolution of stars is inexorable. From the form in which we currently view our own Sun, it and similar stars eventually expand as their exteriors cool to become red giants. When a red giant runs out of fuel, its exposed core will collapse to form a degenerate white dwarf and, eventually, a dead black dwarf.¹ Health law, as a discipline worthy of our attention, seems to have an opposite trajectory: from black dwarf to white dwarf, it is now on its way to becoming a red giant. The relevance of health law and the reasons for its exponentially …