Digital Commons Network^™

Racist Health Care?, Barbara A. Noah

Faculty Scholarship

During the past few years, rationing has become an explicit feature in decisions concerning optimal delivery of health care services, and it poses difficult choices for health care providers and policymakers. Insurers and patients increasingly must balance the desire for access to every possible treatment against concerns about affordability. Costdriven treatment decisions are becoming an unavoidable reality for most patients. Apparently, however, another more pernicious type of rationing occurs in this country. It does not depend on factors such as the likelihood of an optimal outcome, the comparative efficacy of different available treatment modalities, or even the ability to pay …

"Weightier Than A Mountain": Duty, Hierarchy, And The Consumer In Japan, Anita Bernstein, Paul Fleming

Faculty Scholarship

No abstract provided.

You Really Have Come A Long Way: An Analysis And Comparison Of Role Conflict Experienced By Women Attorneys Today And By Educated Women Twenty Years Ago, Jackie Slotkin

Faculty Scholarship

No abstract provided.

Chapter 11 Case Management And Delay Reduction: An Empirical Study, Samuel Bufford

Faculty Scholarship

Chapter 11 bankruptcy cases will drag on interminably if judges let them. The recent nine-month O.J. Simpson trial was short compared to the careers of some chapter 11 bankruptcy cases. The typical duration of chapter 11 cases can be reduced remarkably, however, through moderate judicial case management.

The data in this study show that relatively modest judicial case management can squeeze a substantial amount of delay out of chapter 11 cases within the context of the present bankruptcy law. The case management program in this study, applied to 81.2% of the chapter 11 case load, shortened by 24.1% the time …

Dire Wolf Collects His Due While The Boys Sit By The Fire: Why Michigan Cannot Afford To Buy Into The Death Penalty, Justin P. Brooks, Jeanne Huey Erickson

Faculty Scholarship

No abstract provided.

Aids–Phobia, David I. Levine, Carel J. Stolker

Faculty Scholarship

No abstract provided.

Combating Impunity: Some Thoughts On The Way Forward, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

"Irresponsible" Reproduction, Linda C. Mcclain

Faculty Scholarship

In recent years, there have been countless calls for reversing the rise in irresponsibility in American society.' Calls for restoring personal responsibility in both private and political life sound from both of the major political parties as well as from various cultural critics, pundits, and academics. 2 Proponents of a return to personal responsibility wage their battle on numerous fronts, advocating a cultural revolution, a moral revival, and a recovery of "virtue" to bring about a reformation of attitudes and behaviors regarded as troublesome. 3 Many voices now urge that law and public policy should encourage, or require, personal responsibility …

Comment On The Tort/Crime Distinction: A Generation Later, Michael C. Harper

Faculty Scholarship

Perhaps unsurprisingly, Professor Epstein has used the occasion of this Symposium to again voice his disapproval of the modern regulatory state.' Those of you who know me will not be surprised to hear that I disagree with the bald assertions and assumptions he makes concerning that issue. In my view, compelling reasons justify the kinds of environmental and, at least in the absence of pervasive independent employee collective representation at the work place, worker safety laws attacked by Professor Epstein.² However, I will refrain from compounding the diversion by engaging Professor Epstein on these normative issues.

Instead, I will …

Norms Of Communication And Commodification, Wendy J. Gordon

Faculty Scholarship

Around the laws that regulate information and communication swarm a host of related nonlegal norms: norms of secrecy, confidentiality, and privacy; of anonymity, source-identity, and citation; of quotation, paraphrase, and hyperbole; norms of free copying and norms of obtaining permission; norms of gossip and of blackmail. The articles by Saul Levmore and Richard McAdams provide useful windows on some of the ways these laws and norms interact. The two articles also provide insight into the comparative advantage possessed in some circumstances by law and by nonlegal norms, respectively, when information and communication are at issue. In my brief Comment I …

The Promised End: Constitutional Aspects Of Physician-Assisted Suicide, George J. Annas

Faculty Scholarship

The debate over physician-assisted suicide has dramatically shifted to a discussion of constitutional issues. This spring, within a month of each other, U.S. Circuit Courts of Appeals on both coasts ruled that state prohibitions of assisted suicide are unconstitutional when applied to physicians who prescribe lethal medication for terminally ill, competent adults who wish to end their lives. The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and the Second Circuit includes New York, Connecticut, and Vermont. Both courts reached the same conclusion but for different legal reasons.

The Promised End — Physician-Assisted Suicide And Abortion, George J. Annas

Faculty Scholarship

The debate over late term intact dilation and evacuation abortions (so-called "partial birth" abortions) has been an uncomfortable one for those in the pro-choice community.' Although the United States Senate narrowly refused to override President Clinton's veto of a bill criminalizing this procedure, many in Congress agreed with Senator Daniel Patrick Moynihan (D-N.Y.) that it was "as close to infanticide as anything I have come upon." States have a compelling interest in preventing infanticide that is not contradicted by a woman's constitutional right to decide whether to continue a pregnancy. Similarly, states have a legitimate and perhaps even compelling interest …

Medicine And Human Rights: Reflections On The Fiftieth Anniversary Of The Doctors’ Trial, George J. Annas, Michael A. Grodin

Faculty Scholarship

1996 marks the fiftieth anniversary of the commencement of the trial of Nazi physicians at Nuremberg, a trial that has been variously designated as the "Doctors' Trial" and the "Medical Case." In addition to documenting atrocities committed by physicians and scientists during WWII, the most significant contribution of the trial has come to be known as the "Nuremberg Code," a judicial codification of 10 prerequisites for the moral and legal use of human beings in experiments. Anniversaries provide us with an opportunity to reflect upon the past, but they also ena ble us to renew our efforts to plan for …

Bringing Foucault Into Law And Law Into Foucault, Hugh Baxter

Faculty Scholarship

The announced purpose of Alan Hunt and Gary Wickham 's book Foucault and Law, is "to demonstrate the pertinence of [Michel] Foucault for contemporary issues in legal studies. " In this review essay, I acknowledge the important contributions Hunt and Wickham have made, both in introducing basic Foucaultian concepts to a legal academic audience, and in identifying the defects in Foucault's explicit discussions of law. Yet, I contend, the authors turn too quickly from Foucault's work toward their own new research project, the "sociology of law as governance." Rather than constructing a new subdiscipline of the sociology of law, I …

Feminism, Law, And Bioethics, Karen H. Rothenberg

Faculty Scholarship

Feminist legal theory provides a healthy skepticism toward legal doctrine and insists that we reexamine even formally gender-neutral rules to uncover problematic assumptions behind them. The article first outlines feminist legal theory from the perspectives of liberal, cultural, and radical feminism. Examples of how each theory influences legal practice, case law, and legislation are highlighted. Each perspective is then applied to a contemporary bioethical issue, egg donation. Following a brief discussion of the common themes shared by feminist jurisprudence, the article incorporates a narrative reflecting on the integration of the common feminist themes in the context of the passage of …

Separating From Children, Carol Sanger

Faculty Scholarship

On September 1, 1939, in anticipation of the imminent German bombing of British cities, 150,000 children were assembled at the railway stations of London and sent throughout the day to "'destinations unknown'" in the English countryside. Mothers and children under five were evacuated together but school-age children were shipped out to rural billets in school groups, accompanied only by their teachers and civil defense volunteers. Forty years later, an observer remembered the day vividly:

[T]he mothers [were] trying to hold back their tears as they marched these little boys and girls in their gas masks into the centre …. The …

Positivism And The Separation Of Law And Economics, Avery W. Katz

Faculty Scholarship

The modem field of law and economics – that is, the application of economic analysis to legal subjects other than trade and business regulation – is now over thirty years old, but it remains controversial in the legal academy and, to a lesser extent, in the profession at large. Since its beginnings in the early 1960s, the economic approach has provoked substantial opposition and antagonism. The sources of this resistance, however, are a matter of dispute. Many economists and economically influenced lawyers attribute it to more traditional lawyers' reluctance to learn a new and unfamiliar set of concepts and techniques. …

Three Models Of Affirmative Action Beneficiaries, Thomas W. Merrill

Faculty Scholarship

What has caused the affirmative action debate to become so acrimonious? Perhaps some insight may be gained By considering three competing models of affirmative action beneficiaries that underlie this debate: (1) the outsider group model; (2) the interest group model; and (3) what I will call the adversity group model.

Should Lawyers Obey The Law?, William H. Simon

Faculty Scholarship

At the same time that it denies authority to nonlegal norms, the dominant view of legal ethics (the "Dominant View") insists on deference to legal ones. "Zealous advocacy" stops at the "bounds of the law."

By and large, critics of the Dominant View have not challenged this categorical duty of obedience to law. They typically want to add further public-regarding duties, but they are as insistent on this one as the Dominant View.

Now the idea that lawyers should obey the law seems so obvious that it is rarely examined within the profession. In fact, however, once you start to …

Bargaining About Future Jeopardy, Daniel Richman

Faculty Scholarship

The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants – those who plead guilty instead of standing trial – the Double Jeopardy Clause simply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring …

Viewpoints From Olympus, Kent Greenawalt

Faculty Scholarship

This Essay examines the Supreme Court's treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy's opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in …

Confusing Punishment With Custodial Care: The Troublesome Legacy Of Estelle V. Gamble, Philip Genty

Faculty Scholarship

For the better part of two centuries, imprisonment has been the primary means of punishment for non-capital offenses in the United States. A person, once convicted, is turned over to an institution that will regulate every minute of her or his life. Yet, despite the central role that prisons have long played in our society, the use of the Constitution to regulate conditions of confinement in prisons is a relatively recent phenomenon. Certainly, part of this has to do with the fact that constitutional litigation did not begin in earnest until the "rediscovery" of the Civil War era civil rights …

Democracy And Feminism , Tracy E. Higgins

Faculty Scholarship

Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …

Theories Of The Corporation And The Tax Treatment Of Corporate Philanthropy Symposium: Corporate Philanthropy Law, Culture, Education, And Politics, Linda Sugin

Faculty Scholarship

This essay is organized as follows: Part I describes the entity model of the corporation as developed in corporate and ethical theory, showing how that model is embodied in the Code and how variations in that model produce different conclusions about the legitimacy of the charitable contribution deduction for corporations. It discusses some issues that arise when corporate philanthropy is considered in the context of the entity theory and how the tax law might respond to those issues. Part II explains how the nexus-of-contracts conception of the corporation, applied as an analytical tool, challenges the tax law's treatment of corporate …

Anti-Essentialism, Relativism, And Human Rights , Tracy E. Higgins

Faculty Scholarship

Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women's freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness. Yet to forge an alternative path is difficult, …

Work Of Knowledge , Abner S. Greene

Faculty Scholarship

Interpretation involves the acquisition of knowledge. We are continually confronted with the results of purposive action. Sometimes these results are written texts, such as statutes or novels. Other times these results are events in the physical world, actions that we observe or the results of actions about which we are told. To make sense of these results of purposive action, that is, to make the results be more than just a jumble of sense impressions, the observer must find a way of organizing the material with which he or she is presented. These methods of organizing the results of purposive …

How We Lost The High-Tech War Of 2007: A Warning For The Future, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Self-Defense, Domination, And The Social Contract, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Real Estate Brokerage: Recent Changes In Relationships And A Proposed Cure, Ronald B. Brown, Joseph M. Grohman, Manuel R. Valcarcel

Faculty Scholarship

No abstract provided.

Professionalism, Gender And The Public Interest: The Advocacy Of Protection, Minna J. Kotkin

Faculty Scholarship

No abstract provided.