Digital Commons Network^™

A Tale Of Two Copyrights: Literary Property In Revolutionary France And America, Jane C. Ginsburg

Faculty Scholarship

The French and U.S. copyright systems are well known as opposites. The product of the French Revolution, French copyright law is said to enshrine the author: exclusive rights flow from one's (preferred) status as a creator. For example, a leading French copyright scholar states that one of the "fundamental ideas" of the revolutionary copyright laws is the principle that "an exclusive right is conferred on authors because their property is the most justified since it flows from their intellectual creation." By contrast, the U.S. Constitution's copyright clause, echoing the English Statute of Anne, makes the public's interest equal, if not …

Intellectual And Informational Property Rights: Panel Iv - Introduction: Property In Mass Media Law, Lee C. Bollinger

Faculty Scholarship

This is the panel on intellectual and informational property rights. As you can see, there are three panelists other than myself: Ed Kitch, Stephen Carter, and Frank Easterbrook.

I want to begin with just a few thoughts on an area that I know something about: press and media law. I would like to say two things about the notion of property and how it arises in the context of a few problems in the area of mass media law.

Panel Iii: Congressional Control Of The Administration Of Government: Hearings, Investigators, Oversight, And Legislative History, Stephen Williams, Griffin Bell, L. Gordon Crovitz, Peter L. Strauss, Michael Davidson

Faculty Scholarship

My remarks will be the first on the panel to address the problems of legislative history. We have heard two quite illuminating discussions of congressional oversight activities, with which I largely agree philosophically. When one then reaches the questions of why is this happening, and whether anything can be done about it, the issues become more difficult. My remarks address some complications that may arise from the current distaste for legislative history that may make the oversight problem a little bit worse.

International Trade Issues For The 1990s, Jagdish N. Bhagwati

Faculty Scholarship

The open, multilateral trading system, centered on the General Agreement on Tariffs and Trade, is currently at risk. The threat continues to come from familiar directions. But there are new problems too.

Solving The Pretext Puzzle: The Importance Of Ulterior Motives And Fabrications In The Supreme Court's Fourth Amendment Pretext Doctrine, Edwin J. Butterfoss

Faculty Scholarship

This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court's definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court's definition includes both "legal" and fabricated pretexts. In a "legal" pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification …

Stumbling Blocks And Stepping Stonea Newcomers' Guide To Perilous Terrain In Law School, Lois Schwartz, Suzanne Homer

Faculty Scholarship

No abstract provided.

Sec Regulation Of Multijurisdictional Offerings, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Persecution Based On Membership In A Particular Social Group: Jurisprudence In The Federal Republic Of Germany, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Getting Dorothy Out Of Kansas: The Importance Of An Advanced Component To Legal Writing Programs, Barbara Cox, Mary Barnard Ray

Faculty Scholarship

This article explains why an advanced writing component is an integral part of the complete legal writing program, not merely a supplement. It argues that an advanced writing component is as essential to a complete writing program as are the remedial and basic components. The first section outlines the problems caused by the omission of an advanced writing component and explains how incorporating advanced legal writing into existing programs helps all law students, not just those taking the course. The second section describes the advanced legal writing course at the University of Wisconsin Law School6 and explains how the structure …

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

The Influence Of Litigation Costs On Deterrence Under Strict Liability And Under Negligence, Keith N. Hylton

Faculty Scholarship

This paper examines the influence of litigation costs on deterrence under strict liability and under negligence. By deterrence, I refer to the effect of the threat of liability on the care exercised by potential injurers. More precisely, this paper takes litigation costs as given and examines the social desirability of the levels of care exercised under negligence and under strict liability.

Costly Litigation And Legal Error Under Negligence, Keith N. Hylton

Faculty Scholarship

In this article, private enforcement under negligence when there is legal error and litigation is costly is examined. Ordover (1978) demonstrated that in a negligence regime in which there is no legal error and litigation is costly, equilibrium requires the presence of actors who refuse to obey the due-care standard. Accordingly, in such a negligence regime, an undercompliance equilibrium must result. Since the existence of litigation costs implies that the socially optimal level of care is greater than that required by the traditional Hand formula, which defines negligence as a failure to take care where the cost of taking care …

Mapping The Human Genome And The Meaning Of Monster Mythology, George J. Annas

Faculty Scholarship

Pre-Columbian cartographers drew their maps to the extent of their knowledge, and then wrote in the margins, "Beyond this point there are dragons." With the voyage of Columbus, we lost both our fear of the geographic frontier and our innocence. We accept that knowledge can generally overpower fear; but we have also learned that the application of new knowledge often has a dark side that can lead to brutality and disaster. The discovery of America, for example, led to unforeseen value conflicts of justice and fairness involving native Americans that were "resolved" only by their merciless subjugation and genocidal destruction. …

"Were There No Appeal": The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

Professionalism: Rekindled, Reconsidered Or Reformulated?, Nancy J. Moore

Faculty Scholarship

It is increasingly commonplace for bar officials and others to decry what they see as a decline in "professionalism" among lawyers in recent years. For example, in 1984, former Chief Justice Warren Burger gave a speech to an ABA meeting in Las Vegas in which he chastised some members of the profession for taking their freedom to advertise as a "release from all professional restraints," as they use the "same modes of advertising as other commodities from mustard, cosmetics and laxatives to used cars.' 1 Catchy phrases, attractive well-dressed lawyers, and special rates on lossleader items are but some of …

Introduction: Prospects For The Rule Of Law, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The year 1991 marks the bicentennial of the American Bill of Rights. For the nation's legal community, including the Federalist Society, this event has provided the occasion for spirited reconsideration of many of the most important questions asked, and answers provided, by our Constitution's framers concerning the eternal problem of securing and maintaining ordered liberty. Of course, American scholars are free to speculate about these questions from within the comfort of a functioning market order and a stable constitutional system. The respective peoples of the emerging democracies of Central and Eastern Europe have no such luxury. In the aftermath of …

Nancy Cruzan And The Right To Die, George J. Annas

Faculty Scholarship

[...]the majority improperly implied that continued existence and treatment in a persistent vegetative state is either beneficial or neutral, whereas in fact "an erroneous decision not to terminate life-support robs a patient of the very qualities protected by the right to avoid unwanted medical treatment... [a] degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted.5 " Finally, Justice Brennan argued that the Missouri rules are simply out of touch with reality; people do not write elaborate documents about all the possible ways they might die and the various interventions doctors …

An Antitrust Analysis Of Sports League Contracts With Cable Networks, Stephen F. Ross

Faculty Scholarship

This Article discusses the proper antitrust treatment of package sales to cable. Part I considers whether the antitrust laws apply at all to such sales; it concludes that section one of the Sherman Act does apply and that neither the Sports Broadcasting Act of 1961 not baseball's historic exemption from the antitrust laws prevents antitrust scrutiny of these contracts. Part II explains why cable package sales should be analyzed under a rule of reason test focused on the effect of a sale on fan viewership. Finally, Part III responds to several possible objections to the rule of reason standard proposed …

Arbitration And The U.S. Supreme Court: A Plea For Statutory Reform, Thomas E. Carbonneau

Faculty Scholarship

This Article argues for stabilizing and preserving arbitration's necessary and valuable vocation in dispute resolution. It outlines the basic stages in the evolution of the American law of arbitration and studies the underlying motivation of each of its historical phases. It attributes vital significance to the legislative and decisional law developments that led to an early rehabilitation of arbitration in American law, beginning with the enactment of the United States Arbitration Act (FAA) in 1925 and continuing with the ratification of the New York Arbitration Convention and the elaboration of a "hospitable" federal caselaw. Eventually, these developments gave rise to …

A Pocket Part Of Posey's: A Daring Expose Of Posey's Unreported Cases, Jim Paulsen, James Hambleton

Faculty Scholarship

So you have never heard of Posey's Unreported Cases? Or, maybe you have, but you have recurring nightmares in which a judge fixes you with a steely glare and growls: "Well, counsel, it looks like Ms. so-and-so's citation to Posey's is directly on point. What do you say about that?" Fear no more! In this column, you will find what is undoubtedly the most in-depth scholarly investigation ever attempted of Posey's Unreported Cases.

On the surface, the nature of the beast is easily described: Posey's Unreported Cases is a two-volume collection of "consent cases" decided by the old …

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 …

Intercollegiate Athletics And The Assignment Of Legal Rights, Alfred Dennis Mathewson

Faculty Scholarship

This Article arose out of my curiosity about the precise assignment of legal rights6 among colleges and students in the production, sale, and delivery of intercollegiate athletics. What rights might student athletes possess that give rise to legal accountability? Although a system that permits universities, coaches, concessionaires, television networks, and advertisers to reap the wealth sown by student athletes while precluding the latter from contemporaneous enjoyment of pecuniary profit seems patently unfair, my review of the cases uncovered a legal order that does not assign legal rights to student athletes consistent with my view.

They Moved Away: Stories Of Location And Relocation, Jo Carrillo

Faculty Scholarship

No abstract provided.

Toward A Wrongful Termination Statute For California, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Judicial Responsibility In Italy: A New Statute, Ugo Mattei

Faculty Scholarship

No abstract provided.

Has The Chancellor Shot Himself In The Foot? Looking For A Middle Ground On Rule 11 Sanctions, Melissa Lee Nelken

Faculty Scholarship

No abstract provided.

The Cost Of Rule 11, William W. Schwarzer, Jerold S. Solovy

Faculty Scholarship

No abstract provided.

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 …

The Locus Of Sovereignty Judicial Review, Legislative Supremacy, And Federalism In The Constitutional Traditions Of Canada And The United States, Calvin R. Massey

Faculty Scholarship

No abstract provided.