Digital Commons Network^™

Reforms And Innovations Regarding Authors' And Performers' Rights In France: Commentary On The Law Of July 3, 1985, Jane C. Ginsburg

Faculty Scholarship

Following thirteen months of parliamentary deliberations, on July 3, 1985, France enacted a law which brings major reforms and additions to its copyright act of March 11, 1957. The new law becomes effective on January 1, 1986. Among the French modernizations and innovations discussed in this Article are the new law's provisions regarding: computer software protection and ownership; royalties for home taping of audio and audiovisual works; and the recognition and regulation of "neighboring rights." These provisions extend statutory protection for the contributions of performing artists, and also accord reproduction and performance rights to the producers of phono- and videograms. …

Authors' Rights In France: The Moral Right Of The Creator Of A Commissioned Work To Compel The Commissioning Party To Complete The Work, André Françon, Jane C. Ginsburg

Faculty Scholarship

The French law protecting authors' rights incorporates two distinct regimes of rights, "pecuniary" rights, and "moral" rights. As the denomination indicates, pecuniary rights pertain to the author's economic interests, and provide the author a monopoly in the reproduction and public performance of his work. Moral rights safeguard the author's "personality" interest in his work. Despite the appellation "moral" rights, the author's claims under French law to the security of his personality as expressed in his work are not precatory: moral rights entail several distinct and enforceable interests. These are: the right to make the work known to the public "droit …

Religious Convictions And Lawmaking, Kent Greenawalt

Faculty Scholarship

In this Article, presented as the 1985-86 Thomas M. Cooley Lectures at the University of Michigan School of Law on March 10-12, 1986, Professor Greenawalt addresses the role that religious conviction properly plays in the liberal citizen's political decisionmaking in a liberal democratic society. Rejecting the notion that all political questions can be decided on rational secular grounds, Professor Greenawalt argues that the liberal democratic citizen may rely on his religious convictions when secular morality is unable to resolve issues critical to a political decision. The examples of animal rights and environmental protection, abortion, and welfare assistance illustrate situations where …

Explaining Habeas Corpus, Larry Yackle

Faculty Scholarship

The conventional rationale underlying postconviction habeas corpus in the Federal forum is that the individual's interest in freedom from unlawful detention warrants a second look at Federal claims already rejected by the State courts. The subject-matter jurisdiction of the habeas courts is explicitly limited to petitions from applicants who allege they are in 'custody' in violation of Federal Law. The courts, however, circumvent the 'custody' requirement if it threatens to obstruct effective Federal postconviction review to protect persons from recalcitrant State authorities. The proposed alternative explanation of habeas corpus is that it makes available a Federal forum in which to …

Antitrust: Fear Of Fairness, Gary S. Lawson

Faculty Scholarship

In December 1985, a comprehensive Reagan administration plan for both substantive and procedural reform of the antitrust laws was made public. Under the plan, the Justice Department's 1984 merger guidelines would be codified in the Clayton Act; restrictions on interlocking directorates would be relaxed; industries affected by imports could seek antitrust waivers as an alternative to tariffs or quotas; plaintiffs could be assessed attorneys' fees for filing frivolous antitrust suits; treble damages would be eliminated in many cases; and the full share of damages of settling defendants (instead of just the settlement amount) would be deducted from the damages available …

Compensation For Victims Of Hazardous Substance Exposure, J. David Prince

Faculty Scholarship

Hazardous wastes, threatening environmental and human safety, are being generated at an alarming rate. In this Article, J. David Prince discusses the threats posed by hazardous wastes and the remedies that are available in Minnesota for dealing with those threats. Professor Prince analyzes a proposed compensation scheme for victims of hazardous waste exposure in Minnesota and suggests that a modification of that scheme be adopted by the Minnesota Legislature.

Rendering Arbitral Awards With Reasons: The Elaboration Of Common Law Of International Transactions, Thomas E. Carbonneau

Faculty Scholarship

With the growth of international trade, arbitration has emerged as the preferred remedy for resolving private international commercial disputes. In fact, among major Western legal systems such as those of England, the United States and France, statutory and decisional law developments indicate a nearly complete acceptance of international arbitral adjudication. This recognition of arbitral procedure and the enforcement of awards, which are given uniform legal recognition and enforcement by domestic legal systems, either as provisions in international conventions or as principles of national statutory or decisional law. These rules, in effect, represent an international consensus on arbitration and constitute a …

Third-Party Action Over Against Workers’ Compensation Employer, Arthur Larson

Faculty Scholarship

Wages

The Invention Of The Municipal Corporation: A Case Study In Legal Change, Joan C. Williams

Faculty Scholarship

No abstract provided.

Reflections On The Substance Of Finality, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Mentally Retarded Criminal Defendants, James W. Ellis, Ruth A. Luckasson

Faculty Scholarship

This Article attempts to provide a preliminary overview of the issues in the Mental Health Standards as they relate to defendants with mental retardation. Part I reviews the history of the treatment of retarded defendants in the criminal justice system. Part II describes the characteristics of people with mental retardation and the consequences of those characteristics. Part III then discusses the extent to which mental retardation should be exculpatory of criminal responsibility. Part IV analyzes the critical importance of competence issues to mentally retarded defendants. Part V elaborates upon dispositional issues including civil commitment and sentencing. Parts VI and VII …

Informed Consent To Participation In Medical Research Employing Elderly Human Subjects, Robert L. Schwartz

Faculty Scholarship

The primary question facing researchers who intend to employ elderly human subjects is whether their subjects' advanced age requires that the protection of their autonomy be accomplished in some manner that is different from that employed to protect other subjects. Answering this question will require an analysis of whether elderly subjects have a greater or lesser interest in autonomy than do others who might be subjects in human research, and whether it is more or less important to protect them from potential research abuse. This article will suggest that the elderly may possess several attributes that require that they be …

Kidnapping: A Modern Definition, John L. Diamond

Faculty Scholarship

No abstract provided.

Public Policy Limitations On Cohabitation Agreements: Unruly Horse Or Circus Pony?, H.G. Prince

Faculty Scholarship

No abstract provided.

Introduction: Literature, Life And The Law, Joel Gora

Faculty Scholarship

No abstract provided.

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

Constitutional Remedies For Underinclusive Statutes: A Critical Appraisal Of Heckler V. Mathews, Bruce K. Miller

Faculty Scholarship

The power of the federal courts to remedy injuries caused by constitutional violations is a fundamental assumption of our constitutional scheme. The Supreme Court's equal protection decisions of the past generation illustrate the extent to which we take this power completely for granted. When confronted with a statute that denies a litigant's fifth or fourteenth amendment right to equal treatment, the Court has rarely limited itself to a simple declaration that the statute is unconstitutional. Such declarations, rather, have been routinely accompanied by awards of often substantial relief to the persons injured by the unconstitutional inequality. The author analyzes Heckler …

Whatever Happened To 1845 - The Missing Decisions Of The Texas Supreme Court, Jim Paulsen, James Hambleton

Faculty Scholarship

Have you ever noticed a gap in the publication of Texas Supreme Court decisions? Both the Harvard "Blue Book" and the University of Texas "Green Book" inform readers that opinions of the court from 1840 to 1844 (the Republic period) can be found in Dallam's Decisions, while decisions from 1846 on (statehood) are available in Texas Reports or the Southwestern Reporter. That's all very clear, but whatever happened to 1845? This article will supply half an answer to this question; perhaps some reader can provide the other half.

Three questions arise. The first, and simplest: Are there any …

Supreme Court Report: Five Wins And Nine Losses For Free Speech Fans, Joel Gora

Faculty Scholarship

No abstract provided.

Efficient Markets, Costly Information, And Securities Research, Jeffrey N. Gordon, Lewis A. Kornhauser

Faculty Scholarship

Courts, administrative policy makers and legal scholars have widely embraced the theory that well-developed markets are efficient. In this Article, Professors Gordon and Kornhauser cast doubt on the wisdom of reliance on the efficient market hypothesis as applied to various areas of corporate law. Their charge is that legal decision makers and scholars have misunderstood the assumptions and limitations of the theory and have neglected recent critical economics scholarship. Professors Gordon and Kornhauser begin by detailing the assertions of the hypothesis in relation to the workings of securities markets, focusing on various asset pricing models used to test the hypothesis …

Motivation, Rationality, And Secular Purpose In Establishment Clause Review, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

The Transformation Of The Fourteenth Amendment: Reflections From The Admission Of Maryland's First Black Lawyers, David S. Bogen

Faculty Scholarship

October 10, 1985, was the one hundredth anniversary of the admission to the bar of the Supreme Bench of Baltimore City of Everett J. Waring, the first black lawyer admitted to practice before the state courts in Maryland. This article explores the efforts of African-American lawyers to establish the right to practice law in Maryland and their role in the larger struggle for political and civil rights.

A Comparison Of The Merger And Acquisition Provisions Of Present Law With The Provisions In The Senate Finance Committee's Draft Bill, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

The Sound Of Silence: An Epistle On Prayer And The Constitution, Walter E. Dellinger Iii

Faculty Scholarship

No abstract provided.

Parchment Matters: A Meditation On The Constitution As Text, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

State Sovereignty And Federal Court Power: The Eleventh Amendment After “Pennhurst V. Halderman”, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Joseph Story's Commentaries On The Constitution: A Belated Review, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

The Military Justice System And Command Accountability, Charles J. Dunlap Jr.

Faculty Scholarship

The Long Commission, which investigated the terrorist bombing of the Beirut Marine barracks, recommended punitive action against officers in the chain of command. The president, however, ruled out courts-martial. This article examines the concept of command accountability and the role of the military justice system.

Professional dereliction and incompetence have rarely been punished since World War II. . . . Failure to do so has bred an atmosphere of professional unaccountability that encourages, because it does not penalize, repetition of failure on the battlefield.

Judge Parker And The Public Service State, Peter G. Fish

Faculty Scholarship

No abstract provided.

A Symposium Of Critical Legal Studies: Introduction, James Boyle

Faculty Scholarship

No abstract provided.