Digital Commons Network^™

Lawyers And The Practice Of Workplace Equity, Susan Sturm

Faculty Scholarship

Lawyers involved in the pursuit of workplace equity are difficult to pigeon-hole. Of course, the practice of many employment lawyers conforms to conventional understandings of lawyers' roles. These lawyers litigate cases on behalf of management or employees, advise clients about their legal rights and obligations, and define their mission as avoiding liability or winning battles in court.But innovators have crafted interesting and dynamic roles that transcend the traditional paradigm. These innovators connect law, as it is traditionally understood, to the resolution of the underlying problems that create and maintain workplace inequity. Civil rights lawyers working in both public and private …

The Rise And Fall Of Article 2, Robert E. Scott

Faculty Scholarship

In August 13,2001 the National Conference of Commissioners on Uniform State Laws voted eighty-nine to fifty-three to reject the Amendments to Article 2 of the Uniform Commercial Code that had just been approved in May by the American Law Institute. The vote followed a last minute effort by the Article 2 drafting committee to amend the scope provisions of Article 2 in response to continuing criticism from representatives of the software and information industries. Several months later, at the request of the NCCUSL leadership, amended Article 2 with its revised scope provision was withdrawn from the agenda of the ALI …

Inventions, Industry Standards, And Intellectual Property, Mark R. Patterson

Faculty Scholarship

When an industry standard incorporates a patented invention, the demand for products that comply with the standard has two components. Some of the demand may be for the inherent technical advantages of the invention; the patentee is generally entitled to revenues attributable to this demand. But some of the demand is for the benefits of standardization, such as interoperability, and the patentee is not entitled to revenues attributable to this demand. From this point, the article draws two conclusions. First, the amounts to which a patentee is entitled, either in litigation or in licensing negotiations, should be calculated by determining …

Foreword: Phase Ii Of The Genetics Revolution: Sophisticated Issues For Home And Abroad, Frances H. Miller

Faculty Scholarship

The distinguished health law and policy scholars we invite to contribute to the American Journal of Law & Medicine's annual symposium issue are given carte blanche to write about any aspect of the designated topic that appeals to them. The authors in this year's genetics symposium, The Genetic Revolution: Conflicts, Challenges and Conundra, are already well known for their work in the field-in fact three of them have just co-authored the only casebook specifically dedicated to the law, policy and ethics of geneticsl-and we deliberately asked them for relatively short pieces on the theory that taken together their articles would …

The Real Properties Of Contract Law, Michael Madison

Faculty Scholarship

No abstract provided.

From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in § 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress …

Designing Global Climate Regulation, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

Meeting The Challenge Of Cyberterrorism: Defining The Military Role In A Democracy, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles

Faculty Scholarship

Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …

Fencing Off Ideas: Enclosure & The Disappearance Of The Public Domain, James Boyle

Faculty Scholarship

No abstract provided.

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses Of Electocution And Lethal Injection And What It Says About Us, Deborah W. Denno

Faculty Scholarship

This article discusses the paradoxical motivations and problems behind legislative changes from one method of execution to the next, and particularly moves from electrocution to lethal injection. This article first examines the constitutionality of electrocution, contending that a modern Eighth Amendment analysis of a range of factors, such as legislative trends toward lethal injection, indicates that electrocution is cruel and unusual. It then provides an Eighth Amendment review of lethal injection, demonstrating that injection also involves unnecessary pain, the risk of such pain, and a loss of dignity. The article next presents the author's study of the most current protocols …

Retributive Justice: Its Social Context, Neil Vidmar

Faculty Scholarship

Until relatively recently, social psychologists have given less attention to retributive justice than to other forms of justice, such as distributive and procedural justice. Although interest in retributive justice is increasing, the fact remains that social psychological research on retribution has tended to ignore, or at least downplay, the insights of sociologists in deference to an approach that examines how individuals respond to deviant acts. Without rejecting psycholgical analyses, this chpater draws attention to the social context and social consequences of retributive justice. Group dynamics are at play in a wide array of settings in which people respond to rule …

Case Studies Of Pre- And Mid-Trial Prejudice In Criminal And Civil Litigation, Neil Vidmar

Faculty Scholarship

This article presents a number of case studies involving pre- and mid-trial prejudice in criminal and civil litigation. The cases reveal deficiencies in the way that prejudicial publicity has been conceptualized and operationalized in many simulation experiments. The studies reveal that potential juror prejudices that concern lawyers and judges involve more than just main effects of mass media. Pre- and mid-trial prejudice also involves more general prejudices, gossip and rumor, the assertion of community normative values about justice, and conformity pressures. Four categories of prejudice recognized in American law are described and labeled: interest, specific, generic and conformity prejudice. The …

Comparing Precaution In The United States And Europe, Jonathan B. Wiener, Michael D. Rogers

Faculty Scholarship

The regulation of health and environmental risks has generated transatlantic controversy concerning precaution and the precautionary principle (PP). Conventional wisdom sees the European Union endorsing the PP and proactively regulating uncertain risks, while the United States opposes the PP and waits for evidence of harm before regulating. Without favouring either approach, this paper critically analyses the conventional depiction of transatlantic divergence. First, it reviews several different versions of the PP and their different implications. Second, it broadens the transatlantic comparison of precaution beyond the typical focus on single-risk examples, such as genetically modified foods. Through case studies, including hormones in …

Farmworkers As An Environmental Justice Issue: Similarities And Differences, Eileen Gauna

Faculty Scholarship

This paper endeavors to situate farmworker issues within a broader context of issues in environmental regulation. Environmental regulation is itself a subset of a broader universe of environmental justice concerns. In approaching the issue this way, the author highlights some of the similarities farmworker issues share with other regulatory environmental justice issues. The author highlights the dramatic differences as well. Leaving to others the task of describing the dire conditions of the farmworker, the author takes two important examples of regulatory mechanisms designed to protect farmworkers and describe some of the commonalities. The two sites of regulatory activity used are …

Water And Population In The American West, Denise D. Fort

Faculty Scholarship

The American West is justly famed for its sunshine and wide skies.1 However, there is a potent combination of low rainfall and growing population in the West that ensures that water, or the lack of it, will remain another well-known feature of the region. As the number of people sharing already stressed water supplies increases, the economic, ecological, and social costs of providing water become more evident. Agriculture consumes about 90% of the water that is extracted in the West, and the transfer from agricultural to municipal and industrial uses is invariably complex. Increased water extraction has resulted in the …

Principles For Water, Andrew P. Morriss, Bruce Yandle, Terry L. Anderson

Faculty Scholarship

Water issues are often contentious. How much water can one individual use? What must the water quality of water returned from use be? How much water must be allocated to uses such as maintaining sufficient instream flows for aquatic species? For the last century, the United States has largely such answered questions through command and control regulatory schemes rather than through markets and common law dispute resolution processes. The choice of regulation by institutions over other mechanisms has meant a reliance on centralized decisionmaking and a rejection of both the market's more decentralized institutions and the common law.

Recently, water …

Introduction: The Virtues And Vices Of Skeptical Environmentalism, Jonathan H. Adler, Andrew P. Morriss

Faculty Scholarship

Introduction Extract:

The Skeptical Environmentalist: Measuring the Real State of the World by Bjorn Lomborg' is the most talked about environmental book in recent memory. Lomborg's central thesis is relatively straightforward: "Our doomsday conceptions of the environment are not correct." To the contrary, in recent decades humanity's lot has "improved in terms of practically every measurable indicator." Lomborg is not the first author to make this argument,4 but his book is the first to spark such a maelstrom of public attention. Its publication ignited controversy and debate on both sides of the Atlantic. Lomborg himself, an associate professor of statistics …

Property Law: 2001 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohman

Faculty Scholarship

No abstract provided.

Escaping The Common Law's Shadow: Standing In The Light Of Laidlaw, Robert V. Percival, Joanna B. Goger

Faculty Scholarship

No abstract provided.

Mary Joe Frug's Postmodern Feminist Legal Manifesto Ten Tears Later: Reflections On The State Of Feminism Today, Elizabeth M. Schneider, Regina Austin

Faculty Scholarship

No abstract provided.

Standing Upright: The Moral And Legal Standing Of Humans And Other Apes, Adam Kolber

Faculty Scholarship

No abstract provided.

Synthesis And Characterization Of Novel Chiral Chromophores For Nonlinear Optical Applications, Kenneth D. Singer, Rolfe G. Petschek

Faculty Scholarship

We report the design, synthesis and characterization of novel conjugated chiral materials, based on the derivatives of camphorquinone as shown below, for nonlinear optics. Several conjugated chiral monomers have been prepared and characterized. A x-ray single crystal study was also performed on one of the chiral monomer. The chiral conjugated polymers were prepared from polycondensation of conjugated chiral diolmonomer with di-functional and multifunctional co-monomers. We present results of synthesis and characterization of the conjugated chiral materials.

Optimization Of The Nonlinear Optical Response In Chiral Media, Victor P. Ostroverkhov, Oksana Ostroverkhova, Rolfe G. Petschek, Kenneth D. Singer

Faculty Scholarship

This paper describes the development and optimization of chiral, non-polar media with large second-order nonlinear optical responses. We employ molecular engineering, quantum-mechanical sum-over-states theory, and measurements of molecular hyperpolarizability by means of Kleinman-disallowed hyper-Rayleigh scattering in order to understand molecular properties. Then we analyze the appropriate arrangement of the chromophores that produce an optimum axial nonlinear optical medium. Chromophores with large Kleinman disallowed traceless symmetric second rank tensor hyper-polarizabilities β can be aligned so as to result in large susceptibilities, (2), in structures that lack polar order. We found that Λ-shaped chromophores with C2v or similar symmetry are good candidates …

Conjoining International Human Rights Law With Enterprise Liability For Accidents, Anita Bernstein

Faculty Scholarship

No abstract provided.

Braking The Merger Momentum: Reforming Corporate Law Governing Mega-Mergers, James A. Fanto

Faculty Scholarship

No abstract provided.

Universal City Studios, Inc. V. Reimerdes: Promoting The Progress Of Science And The Useful Arts By Demoting The Progress Of Science And The Useful Arts?, Eric W. Young

Faculty Scholarship

No abstract provided.

Of Theory And Practice, Tamar Frankel

Faculty Scholarship

Much has been written about theory and practice in the law, and the tension between practitioners and theorists. Judges do not cite theoretical articles often; they rarely "apply" theories to particular cases. These arguments are not revisited. Instead the Essay explores the working and interaction of theory and practice, practitioners and theorists.

The Essay starts with a story about solving a legal issue using our intellectual tools - theory, practice, and their progenies: experience and "gut." Next the Essay elaborates on the nature of theory, practice, experience and "gut." The third part of the Essay discusses theories that are helpful …

Embracing The Darkness: Logerquist V. Mcvey And The Doctrine Of Ignorance Of Science Is An Excuse, David L. Faigman

Faculty Scholarship

No abstract provided.

Rulemaking's Promise: Administrative Law And Legal Culture In The 1960s And 1970s, Reuel E. Schiller

Faculty Scholarship

No abstract provided.