Digital Commons Network^™

Litigating Time In America At The Turn Of The Twentieth Century, Jenni Parrish

Faculty Scholarship

No abstract provided.

Foreign Inspired Courts As Agencies Of Peace In Troubled Societies A Plea For Realism And For Creativity, Ugo Mattei

Faculty Scholarship

No abstract provided.

Vouchers And Steering, Vincent A. Blasi

Faculty Scholarship

Does the Establishment Clause require that educational voucher programs not be designed in a manner that encourages parents to choose religious schools over secular alternatives? If there is such an "anti-steering" principle implicit in the First Amendment, how should courts elaborate and enforce it?

In this response, I will compare how Professors Lupu and Tuttle and the Court majority in Zelman v. Simmons-Harris, the decision last June upholding the Cleveland voucher plan, answer these important questions. I will evaluate their analyses at three levels: (1) basic Establishment Clause values and priorities; (2) doctrinal standard for identifying impermissible favoritism toward …

Separation And Interpretation, Philip A. Hamburger

Faculty Scholarship

Should the establishment clause be interpreted in terms of "separation between church and state"? If not, how should the establishment clause be interpreted?

At stake, first, is the character of religious freedom in the United States. In particular, will lingering separationist notions continue to affect the interpretation of the First Amendment? Notwithstanding the claims made on behalf of separation, there is reason to fear that it is not the religious freedom guaranteed by the First Amendment. Indeed, it will be seen that the interpretation of the First Amendment in terms of "separation of church and state" has tangibly diminished this …

The First Decade: Critical Reflections, Or "A Foot In The Closing Door", Kimberlé W. Crenshaw

Faculty Scholarship

In the introduction to Critical Race Theory: The Key Writings That Formed the Movement, Gary Peller, Neil Gotanda, Kendall Thomas, and I framed the development of Critical Race Theory (CRT) as a dialectical engagement with liberal race discourse and with Critical Legal Studies (CLS). We described this engagement as constituting a distinctively progressive intervention within liberal race theory and a race intervention within CLS. As neat as this sounds, it took almost a decade for these interventions to be fleshed out fully. Reflecting on the past ten years of CRT, this Article explores the course of these interventions from the …

Patent Signals, Clarisa Long

Faculty Scholarship

Courts and commentators often treat intellectual property as if the private value of the rights stemmed entirely from the control legal rules conferred over the protected subject matter. While the literature has devoted an enormous amount of time, paper, and ink to the discussion of whether legal rules grant the optimal amount of exclusivity, it has not considered whether it has been examining all the functions of patents This Article provides a new general framework for analyzing the function and effect of intellectual property rules. Rather than focusing on patents as a mechanism for privatizing information, this Article instead frames …

Trade And Poverty In The Poor Countries, Jagdish N. Bhagwati, T.N. Srinivasan

Faculty Scholarship

While freer trade, or “openness” in trade, is now widely regarded as economically benign, in the sense that it increases the size of the pie, the recent anti-globalization critics have suggested that it is socially malign on several dimensions, among them the question of poverty.

Their contention is that trade accentuates, not ameliorates, and that it deepens, not diminishes, poverty in both the rich and the poor countries. The theoretical and empirical analysis of the impact of freer trade on poverty in the rich and in the poor countries is not symmetric, of course. We focus here only on the …

How Copyright Got A Bad Name For Itself, Jane C. Ginsburg

Faculty Scholarship

This Essay does not attempt a comprehensive review of recent U.S. copyright legislation and caselaw. Instead, it offers an analytical framework that will allow me to be both informative and opinionated. I propose first to expose some examples of the kind of copyright owner overreaching that has correctly given copyright a bad name. I then will argue that not all the bad publicity is deserved. Rather, much of the last years' legislation and caselaw, instead of overreaching, appropriately reaches out to address new problems prompted by new technologies, so as to strike a happier balance between copyright owner, intermediary, and …

Understanding Enron: "It's About Gatekeepers, Stupid", John C. Coffee Jr.

Faculty Scholarship

What do we know after Enron's implosion that we did not know before it? The conventional wisdom is that the Enron debacle reveals basic weaknesses in our contemporary system of corporate governance. Perhaps, this is so, but where is the weakness located? Under what circumstances will critical systems fail? Major debacles of historical dimensions – and Enron is surely that – tend to produce an excess of explanations. In Enron's case, the firm's strange failure is becoming a virtual Rorschach test in which each commentator can see evidence confirming what he or she already believed.

The Invisible Patient (Reviewing Sally Satel, How Political Correctness Is Corrupting Medicine (2000)), Barbara A. Noah

Faculty Scholarship

Despite the fact that African-Americans suffer from a variety of health problems at disproportionately higher rates than whites, inequities in the medical system make access to care more difficult for minorities. The problem of racial disparities in health care encompasses more than problems of access or payment, however. Communication difficulties between physician and patient and disparate provision of services covered by insurance also may contribute substantially to health disparities between the races. This review canvasses some of the evidence of differential medical treatment and offers some suggestions that may improve the quality of communication between physicians and patients. In addition …

Guilds At The Millennium: Antitrust And The Professions: Introduction, Susan Beth Farmer

Faculty Scholarship

This Article is an Introduction to the Symposium Issue of the Loyola Consumer Law Review. The papers published in the symposium issue were originally presented at the meeting of the Section on Antitrust and Economic Regulation of the Association of American Law Schools (AALS) at the Association Annual Conference in 2002.

Antitrust Options To Redress Anticompetitive Restraints And Monopolistic Practices By Professional Sports Leagues, Stephen F. Ross

Faculty Scholarship

The hallmark of an antitrust violation is an agreement which has the effect of raising price, lowering output, or rendering output unresponsive to consumer demand. Owners of clubs comprising Major League Baseball, the National Football League, the National Basketball Association, and the National Hockey League engage in a variety of exploitative activities that consumers cannot avoid by substituting rival products. The purpose of this Article is to analyze specific areas where these monopoly sports leagues harm a variety of groups, through the maintenance of a monopolistic structure that precludes competitive entry, or through specific restraints that have demonstrable anticompetitive effects. …

The Ballad Of Transborder Arbitration, Thomas E. Carbonneau

Faculty Scholarship

International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade …

Erwin Griswold's Tax Law – And Ours, Michael J. Graetz

Faculty Scholarship

It is a pleasure for me to be here today to deliver the Erwin N. Griswold Lecture. And it is an honor to follow those who have graced this lectern before me. They include important mentors to me. Several are close friends. Today, we are in a quiet interlude awaiting the next serious political debate about restructuring the nation's tax system. No fundamental tax policy concerns are at stake in the current disputes over economic stimulus or in the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments are concerned …

School Vouchers And Religious Liberty: Seven Questions From Madison's Memorial And Remonstrance, Vincent A. Blasi

Faculty Scholarship

In the immediate aftermath of the Revolutionary War, many upstanding citizens of the fledgling state of Virginia were not pleased. They were, in fact, appalled by the decline they perceived in the state of public morals. Newspaper editorials, sermons, and speeches in public assemblies resounded with references to the recent upsurge in gambling, whoring, cockfighting, and public drunkenness. That such departures from the straight and narrow are not uncommon in postwar periods, following all the social dislocations of military mobilization, was no consolation to Virginians eager to show a doubting world that government by the people could work.

The root …

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

Webwatch—Legal Self-Help, Pat Newcombe

Faculty Scholarship

No abstract provided.

Availability Of Works Cited In Recent Law Review Articles On Lexis, Westlaw, The Internet, And Other Databases, Simon Canick

Faculty Scholarship

In this study, a group of recent law articles was examined to determine the proportion of cited resources that are easily findeable online. Searches were conducted in databases such as LEXIS and Westlaw, and on the Internet, for full-text versions of every source cited in seven articles. The results have been broken down into 13 categories, including: federal cases, books, foreign law, and legal periodicals pre-1990. Not surprisingly coverage differs widely between the categories. Overall the study found that 77% of the 1,984 citations in the articles reviewed are available online. This article concludes with a general discussion of why …

Facing The Urban Future After September 11, 2001, Richard Briffault

Faculty Scholarship

In this essay I would like to address briefly four issues of importance to local governments raised by the September 11 attack and its aftermath. These issues are the role of local governments in addressing questions of public safety and preparedness; the relations among local governments within a region in responding to terrorism; the role of the federal government in the local response to terrorism; and the implications of September 11 for the structures and functions of local government. These issues are interconnected. Certainly, an effective local response to the public safety challenge posed by terrorism will require more coordinated …

Should I Have Learned To Cook? Interviews With Women Lawyers Juggling Multiple Roles, Jackie Slotkin

Faculty Scholarship

No abstract provided.

Cloning And The U.S. Congress, George J. Annas

Faculty Scholarship

In the immediate aftermath of the birth of Dolly the sheep, the national debate over the banning of human cloning focused almost exclusively on the issue of safety. President Bill Clinton's National Bioethics Advisory Commission, for example, recommended in 1997 that Congress impose a five-year moratorium on attempts to clone a human because of the likely physical harm to the cloned infant. Congress did not act on this suggestion, but even if it had, that moratorium would already be almost over. Cloning is now back on the congressional agenda, with a new focal point: the creation of cloned embryos for …

Foreword, Dave Owen

Faculty Scholarship

No abstract provided.

Two Concepts Of Immortality: Reframing Public Debate On Stem-Cell Research, Frank Pasquale

Faculty Scholarship

No abstract provided.

Splitting The Atom Of Marshall's Wisdom, Susan Herman

Faculty Scholarship

No abstract provided.

Common Law And Statutory Restrictions On Access: Contract, Trespass, And The Computer Fraud And Abuse Act, Maureen A. O'Rourke

Faculty Scholarship

Is copyright law relevant to the terms of access to information? Certainly, few would seriously contend that breaking into a locked filing cabinet to obtain access to a manuscript is not sanctionable, even if the intruder had some purpose that copyright law would applaud with respect to the information contained in the manuscript itself. Many instinctively believe that one must pay the asking price and respect the terms that accompany a copyrighted work or face the consequences under some set of laws like copyrights or contracts. In short, society likely generally believes that market forces regulate the conditions of access …

Bridging The Digital Divide: Equality In The Information Age, Peter K. Yu

Faculty Scholarship

The digital revolution has transformed the lives of many, but also has left untouched the lives of many others. As a result, a large segment of the world population misses out on the tremendous political, social, economic, educational, and career opportunities created by the digital revolution. This gap between the information haves and have-nots is commonly referred to as the digital divide.

Although evidence suggested that the digital divide in the United States is closing, the same is not true for the less developed countries. In light of the alarming disparities between the information haves and have-nots, the Howard M. …

Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler

Faculty Scholarship

Although law and religion scholars have long argued about whether American culture marginalizes religious belief, many important indicators suggest that religion indeed plays a prominent role in contemporary American life. America is an extremely religious nation. Polls consistently show that about ninety percent of Americans continue to believe in God, and both church attendance and membership remain at high levels. This religiosity, moreover, spills out into the public square. A great many Americans rely on religious reasons when thinking and talking about public issues. Ninety percent of the members of Congress, by one report, consult their religious beliefs when voting …

Patent Settlement Agreements: Preliminary Views, Joseph F. Brodley, Maureen A. O'Rourke

Faculty Scholarship

Settlements between S competitors in patent cases raise important and sensitive antitrust issues. Patent settlement agreements may create or maintain a monopoly in technology or innovation markets and may also effectuate a monopoly or cartel in related goods markets. Indeed, absent the patent rights, certain terms of patent settlement agreements may be per se antitrust violations. Further, anticompetitive patent settlements-unlike most antitrust conspiracies-are enforceable in court, providing the parties with an effective means of preventing the cheating that is the bane of cartels. Thus, the antitrust risk that a settlement agreement may operate as a disguised cartel has long been …

Comment On Data Protection Statutes And Bioinformatic Databases, Wendy J. Gordon

Faculty Scholarship

We have heard from the lawyer, the advocate's perspective of some of the legal issues involved in database protection and bioinformatics, and now we are going to hear an academic perspective on these issues. Professor Dennis Karjala is a professor at the Arizona State University College of Law with an interesting background. He has a Ph.D. in electrical engineering and taught in that field before going to law school at Boalt, and he is an internationally renowned expert on copyright law and computer law issues. Professor Karjala is going to talk to us about database protection issues. His presentation will …

Protecting The Endangered Human: Toward An International Treaty Prohibiting Cloning And Inheritable Alterations, George J. Annas, Lori B. Andrews, Rosario M. Isasi

Faculty Scholarship

We humans tend to worry first about our own happiness, then about our families, then about our communities. In times of great stress, such as war or natural disaster, we may focus temporarily on our country but we rarely think about Earth as a whole or the human species as a whole. This narrow perspective, perhaps best exemplified by the American consumer, has led to the environmental degradation of our planet, a grossly widening gap in living standards between rich and poor people and nations and a scientific research agenda that focuses almost exclusively on the needs and desires of …