Digital Commons Network^™

Computer Programs In Europe: A Comparative Analysis Of The 1991 Ec Software Directive, Jerome Huet, Jane C. Ginsburg

Faculty Scholarship

Long awaited – if not feared – in the computer industry, where its elaboration had evoked heated debate, the European Council Directive of May 14, 1991 on the Legal Protection of Computer Programs (the "Directive" or "Software Directive")has imposed common principles of copyright protection on the twelve Member States of the European Community (the "EC", the "Community"). As it declares in its preamble, the Directive responds to the need to ensure the proper functioning of a single marketand, to that end, to eliminate man), of the current differences among the Member States' legal systems.

In the domain of European copyright …

Rouge Et Noir Reread: A Popular Constitutional History Of The Angelo Herndon Case, Kendall Thomas

Faculty Scholarship

In 1932, Eugene Angelo Braxton Hemdon, a young Afro-American member of the Communist Party, U.S.A., was arrested in Atlanta and charged with an attempt to incite insurrection against that state's lawful authority. Some five years later, in Herndon v. Lowry, Herndon filed a writ of habeas corpus asking the U.S. Supreme Court to consider the constitutionality of the Georgia statute under which he had been convicted. Two weeks before his twenty-fourth birthday, the Court, voting 5-4, declared the use of the Georgia political-crimes statute against him unconstitutional on the grounds that it deprived Herndon of his rights to freedom …

The Reasonable Woman And The Ordinary Man, Carol Sanger

Faculty Scholarship

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee.

Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony …

Judicial Deference To The Pto's Interpretations Of The Patent Law, R. Carl Moy

Faculty Scholarship

This article attempts to provide a basis upon which to preserve the Federal Circuit's current lawmaking primacy. Given the large body of preexisting literature on Chevron, USA, Inc v. Natural Resources Defense Council, it does not address whether Chevron allocates power between agencies and the courts optimally. Rather, the article examines how the PTO's statutory interpretations should be reviewed under Chevron. In Section I, the article places the examination in context by describing the Chevron decision and its general implications. Section II of the article examines how Chevron should be applied specifically in the context of reviewing statutory interpretations of …

Long Overdue: The Single Guaranteed Minimum Income Program, David Allen Larson

Faculty Scholarship

This article provides an overview of income support programs in the United States. The article first examines proposals for a guaranteed income. This initial examination consists of four separate sections. It begins with a summary of negative income tax plans. Second, it discusses legislation introduced in the United States Congress. Third, current guaranteed income proposals are examined. Finally, it concludes with a brief examination of social experiments conducted in several communities. Because no proposal for a comprehensive guaranteed income program has been adopted, this article next discusses the income maintenance programs including a short description and selected statistical information.

Case Management In The Eastern District Of Virginia, In Symposium, Civil Litigation In The 1990'S, Part Ii, A. Kimberley Dayton

Faculty Scholarship

Part I of this Article describes the administrative structure of the Eastern District of Virginia and its case management practices. Part II demonstrates that, despite the Eastern District of Virginia's status as one of the busiest federal district courts, it has consistently been one of the most efficient and effective federal courts in the nation. As a result, in Part III, this Article concludes that the experience of the Eastern District of Virginia raises many questions about the premises underlying the Civil Justice Reform Act, the proposed amendments to the Federal Rules, and the means by which Congress and the …

Patriarchy, Paternalism, And The Masks Of Fetal Protection., A. Kimberley Dayton

Faculty Scholarship

This essay is a response to John Kennedy's defense of Johnson Controls, Inc.'s fetal protection policy which was struck down last year in International Union, UAW v. Johnson Controls, Inc. A unanimous Supreme Court held in the case that the policy, which excluded women from a "fetotoxic" workplace, violated the federal employment discrimination laws. The Court's decision was issued only a day before Kennedy was scheduled to debate the issue of whether Title VII bars fetal protection policies with Professor Elinor Schroeder at the Kansas Journal's first symposium on March 21-22. 1991. The Court's decision rendered the technical statutory issues …

Skills For Diversity: Description, Evaluation And Recommendations, Eric S. Janus

Faculty Scholarship

In May 1991, the William Mitchell College of Law Faculty voted to offer to all first year students the following fall a program to assist students "in learning how to work effectively with diverse others in professional situations." The faculty directed that the program be supervised by a member of the full time faculty, and that reaction to the program be evaluated by the Curriculum Committee. During the Summer 1991, the dean appointed me to supervise the program, and I asked Assistant Dean Joan Bibelhausen to assist me. The two of us worked closely with an informal group called the …

Thelma And Louise And Bonnie And Jean: Images Of Women As Criminals, Susan Herman

Faculty Scholarship

No abstract provided.

The Gaps Between The Fingers Of The Invisible Hand, Bailey Kuklin

Faculty Scholarship

No abstract provided.

The Fdic As Holder In Due Course: Some Law And Economics, Marie T. Reilly

Faculty Scholarship

When a federally insured bank fails, the Federal Deposit Insurance Corporation (the "FDIC") typically intervenes to protect depositors. As part of the bailout, the FDIC undertakes the role of liquidator of the bank's assets, both physical and intangible. A bank's tangible assets consist primarily on its loan portfolio, that is, its rights to receive repayment from borrowers. A failed bank's loan portfolio is packaged with "troubled" loans, which are of doubtful collectibility for a variety of reasons. In most cases, the borrower is insolvent and simply cannot repay the loan. In other cases, the bank's right to repayment is subject …

Truth In Evidence And The Privilege Clause–A Compromised Relationship, James R. Mccall

Faculty Scholarship

No abstract provided.

Risky Business: Setting Public Health Policy For Hiv-Infected Health Care Professionals, Leonard H. Glantz, Wendy K. Mariner, George J. Annas

Faculty Scholarship

An analysis of the restrictive proposals provoked by the case of Kimberly Bergalis and four other patients apparently infected with HIV during the course of dental treatment reveals that they resulted from an inability to evaluate appropriately the infinitesimal risk of HIV transmission from practitioner to patient. The proposals also resulted from an effort to create risk prevention policy without appreciating the distinction between regulating things or procedures, which have no human rights, and regulating people, who have rights that should not be infringed without serious justification. This analysis demonstrates that the proposed restrictive policies are not justified because they …

Sticks And Stones Can Break My Name: Nondefamatory Negligent Injury To Reputation, Katharine B. Silbaugh

Faculty Scholarship

If a reputation is injured, does it matter whether defamation is the cause? Injury to reputation differs from other items of damage a plaintiff enumerates. Tradition links it to particular tortious conduct-defamation-on the part of a defendant. This Comment examines ordinary negligent conduct as an alternative ground for recovery for injury to reputation.

The Economics And Politics Of Emergency Health Care For The Poor: The Patient Dumping Dilemma, Maria O'Brien

Faculty Scholarship

As the numbers of uninsured mount⁴ because of job dislocations, exhaustion of benefits, and unaffordably high premiums, the incidence of "dumping" by private hospitals is, predictably, on the rise. Dumping occurs when a hospital, in violation of federal or state law, transfers an emergency patient to another (usually public) hospital or simply refuses any treatment based on the patient's inability to pay.5 In addition to the completely uninsured, favorite dumping targets include Medicare and Medicaid patients, AIDS patients, and cancer patients whose therapy may cost more than the maximum reimbursement under private insurance.

Dumping is merely a part of …

The Changing Landscape Of Human Experimentation: Nuremberg, Helsinki, And Beyond, George J. Annas

Faculty Scholarship

Since World War II there have been persistent efforts at both the national and international level to develop rules to protect the rights and welfare of subjects of human experimentation.' These efforts have focused primarily on codifying the rights of subjects, and protecting their welfare by prior peer review of research protocols. In recent years research regulations have been under attack by politicians, drug companies, researchers, and advocacy groups. In less than half a century, human experimentation has been transformed from a suspect activity into a presumptively beneficial activity. With this transformation, traditional distinctions between experimentation and therapy, subject and …

Health Warnings, Smoking, And Cancer - The Cipollone Case, George J. Annas

Faculty Scholarship

The figures have become familiar. Tobacco use has been declared "the single most important preventable cause of [premature] death in the United States, accounting for one of every six deaths, or some 390,000 deaths annually. "The health goals of the nation for the year 2000 call for reducing the prevalence of cigarette smoking to 15 percent among adults (a 48 percent decrease from the current 29 percent) and reducing the rate of beginning smoking among teenagers to 15 percent (a 50 percent decrease from the current rate of 30 percent). The goal of reducing smoking in the United States is …

Foreword: The Constitution Of Responsibility, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The American legal academy is decidedly nationalistic. Comparative law tends to be a minor part of the law school curriculum, and discussion of alternative legal systems almost never finds its way into mainstream courses like constitutional law. As a result, much that is distinctive about American constitutionalism, and the American legal system in general, is often taken for granted. The federal Constitution, for example, says much about governmental structure, power, and limitations, but virtually nothing about the obligations of citizens to one another or to the government.' This feature of the American Constitution starkly sets it apart from many of …

The Poverty Of Privacy?, Linda C. Mcclain

Faculty Scholarship

This Article has two aims. First, it defends a continuing role for the right of privacy in arguments -for women's reproductive freedom against charges that privacy is an impoverished concept. Second, it raises cautions about certain feminist critiques of privacy that would ground this freedom in notions of reproductive responsibilities. As this Article was first presented at a conference, "Reproductive Issues in a Post-Roe' World," held in the wake of Webster v. Reproductive Health Services,2 the first question is: Are we now, given the Supreme Court's recent decision in Planned Parenthood v. Casey,' in a "post-Roe world"? Furthermore, what remains …

L'Arbitrage Et Le Recouvrement Des Prêts Consentis À Des Débiteurs Étrangers, William W. Park

Faculty Scholarship

L'auteur explore le rile complexe de 'arbitrage dans le rglement des difflrends financiers intemationaux impliquant des dettes privies et publiques. II onus rappelle que le diveloppement 6conomique global bnlficie d'un climat de confiance dons les relations commerciales internationales. Los doctrines juridiques et les procidures qui ajoutent de l'incertitude dans le processus de remboursement des prfts ne peuvent que freiner I'allocation de crdits qui pourraient autrement favoriser le commerce et l'investissement outre-frontikre, particuli~rement dons les pays en vole do diveloppement.

The author explores the complex role of arbitration in the settlement of international financial controversies involving both private and public debt. …

An Interpretivist Agenda, Gary S. Lawson

Faculty Scholarship

As I write these words, bevies of law clerks assigned to cases involving the Bill of Rights are dutifully editing their bench memos for publication in the national reporter system. Once printed, these bench memos will be solemnly treated by lawyers, scholars, other law clerks, and the occasional judge who runs across them as legally significant, or even binding, interpretations of the Constitution. Two features of this burgeoning mass of otherwise unpublishable law review comments bear mention. First, most of them are tedious, tendentious, pretentious, and badly reasoned when reasoned at all, just as one would expect from authors who …

Proving The Law, Gary S. Lawson

Faculty Scholarship

Interpretative theory has become a major growth industry over the past two decades. Legal academics in particular have invested heavily in the enterprise, producing a burgeoning literature that addresses many of the most important problems of legal interpretation.1 The discussion to date, however, has largely neglected one critical aspect of interpretative theory: the selection of appropriate standards of proof for legal propositions. That neglect will not bother or surprise interpretative skeptics who doubt the utility of searching for "true" or "better" meanings of texts, but it ought to prove troubling to any theorist who wants to make absolute or comparative …

Socially Responsible Investing In An Inefficient Market: Doing Good Versus Doing Well, Maria O'Brien

Faculty Scholarship

The debate about the desirability and efficacy of socially responsible investing (SRI) is about as old as the practice of investing itself. Indeed, in spite of a persistent inability on the part of all participants in the debate to develop a simple, coherent definition of what is meant by socially responsible investing, the debate continues. Many funds that purport to engage in SRI have surprisingly little in common. However, if a single political issue could be said to have attracted the attention of virtually every socially responsible fund currently in existence, it would have to be South Africa's abhorrent practice …

The Internalization Paradox And Workers' Compensation, Keith N. Hylton, Steven E. Laymon

Faculty Scholarship

By providing a scientific link between the compensatory and deterrence goals of tort law, the Pigovian theory of externalities has had an enormous influence on modem torts scholarship and tort doctrine.

Equity And Hierarchy: Reflections On The Harris Execution, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The legal controversy surrounding the execution of Robert Alton Harris is only one in a series of cases over the past few months testing the proper relationship between the Supreme Court and the inferior federal courts. Controversy over inferior federal court grants or denials of injunctions concerning Haitian refugees1 and the French abortion pill2 have starkly raised, as does the Harris case3, profound questions concerning Supreme Court review of inferior court rulings on issues involving equitable relief. The Harris case did not display the American legal system at its finest. None of the participants in the process distinguished themselves-not the …

Entail In Two Cities: A Comparative Study Of Long Term Leases In Birmingham, England And Baltimore, Maryland 1700-1900, Garrett Power

Faculty Scholarship

Urban planning is often thought of as a conscious collection of governmental choices made as to the shape and social structure of the city. Thoughtful and forward looking public policies are viewed as mapping out the future. Overlooked or understated in this estimation are the less purposeful influences on the urban morphology and city sociology. This paper examines one such influence, land tenure, by taking a comparative look at the residential development of Birmingham, England, and Baltimore, Maryland, between 1700 and 1900. Birmingham and Baltimore both housed their working class populations in densely-packed dwellings with shared party walls. And both …

Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen F. Ross

Faculty Scholarship

The purpose of this paper is to explore what, if anything, Congress should do about the canons of statutory construction to prevent judges who are more conservative (or perhaps, in a future era, more progressive) than the majority of the legislature from employing those canons to distort or frustrate legislative policy preferences.

No "Sweat"? Copyright And Other Protection Of Works Of Information After Feist V. Rural Telephone, Jane C. Ginsburg

Faculty Scholarship

The Supreme Court's unanimous decision last Term in Feist Publications, Inc. v. Rural Telephone Service Co. proscribed copyright protection for works of information that fail to manifest a modicum of creative originality in selection or arrangement. Discarding a long – if lately uneasy – tradition of U.S. copyright coverage of informational works that display far greater industriousness than imagination, the Court ruled that copyright does not secure the "sweat of the brow" or the investment of resources in the compilation of a work of information. The Court thus stripped away or sharply reduced the copyright protection afforded a variety …

Voting Rights, Home Rule, And Metropolitan Governance: The Secession Of Staten Island As A Case Study In The Dilemmas Of Local Self-Determination, Richard Briffault

Faculty Scholarship

On January 1, 1898, amid fanfare and celebration, the city of Greater New York – "the greatest experiment in municipal government the world has ever known" – was born. The consolidation of the cities, counties, and towns on the New York State side of New York Harbor into one great metropolis was a capstone to one century of rapid economic and population growth and a fitting harbinger of a new century of urban greatness for the region and, indeed, the nation. Now, with another century mark approaching, there is a distinct possibility that the City of New York, already beset …

Hungarian Legal Reform For The Private Sector, Cheryl W. Gray, Rebecca J. Hanson, Michael A. Heller

Faculty Scholarship

Hungary is in the midst of a fundamental transformation toward a market economy. Although Hungary has long been in the forefront of efforts to reform socialism itself, after 1989 the goals of reform moved from market socialism toward capitalism, as the old Communist regime lost power and the idea of widespread private ownership gained acceptance. The legal framework – the "rules of the game – is now being geared toward encouraging, protecting, and rewarding entrepreneurs in the private sector.

This Article describes the evolving legal framework in Hungary in several areas: constitutional, real property, intellectual property, company, foreign investment, contract, …