Digital Commons Network^™

U.S. Policy And The United Nations Convention On The Law Of The Sea, John E. Noyes

Faculty Scholarship

This essay examines U.S. attitudes toward the U.N. Convention on the Law of the Sea. Part I characterizes different U.S. perspectives toward foreign policy and international law, noting how these different viewpoints shape attitudes toward U.S. acceptance of the Convention. Part II then compares three concerns that U.S. Convention opponents have raised (relating to navigational freedom, U.S. participation in international institutions, and U.S. leadership in international affairs) to the perspectives associated with of one of the several different foreign policy approaches. Many followers of historically-predominant U.S. foreign policy approaches do not share the concerns of Convention opponents. However, even if …

A Gendered Update On Women Law Deans: Who, Where, Why, And Why Not?, Laura M. Padilla

Faculty Scholarship

This article examines law school deans, how many are women, when they became deans, and what the trajectory is like for their numbers in the future. This article will provide additional empirical information through the 2005-2006 academic year. It will also present results from a survey mailed to all women deans in the fall of 2005 and to a similar number of male deans. Rather than present all the survey summaries at once, I have elected to include results where substantively appropriate.

Clicking And Cringing, Nancy Kim

Faculty Scholarship

Shrinkwrap, clickwrap, and browsewrap licenses have complicated contract law by introducing nontraditional methods of contracting to govern the use of software. The retention of the underlying intellectual property by the licensor, and the malleable qualities of software, give rise to the ability and the need to set parameters of use. The courts have tended to defer to the ownership rights of licensors by claiming that there is valid contract formation, even in "rolling contract" situations. In this Article, I propose that a consumer's assent to a transaction should not be transmuted into blanket assent to each individual term of a …

Interdisciplinary Problem Solving Courses As A Context For Nurturing Intrinsic Values, Janet Weinstein, Linda Morton

Faculty Scholarship

Intrinsic values and motivations are important foundations for career satisfaction and professionalism. The research of Lawrence Krieger and Kennon Sheldon highlights factors critical to the development of intrinsic values and motivations. Our aspiration was to create courses that could stimulate such development in our law students. This article discusses the foundation and goals for our courses, describes our courses, reviews our successes and failures, and poses questions for further study. Throughout our discussion we provide anecdotal data from comments by students and the professionals with whom they worked, indicating the degree to which students seem to be incorporating the goals …

Mae Ngai's Impossible Subjects: Illegal Aliens And The Making Of Modern America, Kerry Abrams

Faculty Scholarship

No abstract provided.

The Constitution Outside The Constitution, Ernest A. Young

Faculty Scholarship

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a …

“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk

Faculty Scholarship

A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …

Antitrust And Ipos In The Supreme Court, Clark C. Havighurst

Faculty Scholarship

This short comment suggests a connection, so far unrecognized, between two antitrust cases currently awaiting decision by the Supreme Court. In one case, the Court is likely, though not certain, to overturn the long-standing rule that resale price maintenance is illegal per se. If that should occur, another case on the Court’s docket, involving the scope of the implied antitrust immunity enjoyed by underwriters of corporate securities offerings, would (or should) look very different. This comment suggests that, if the law of vertical restraints is finally rationalized so that an issuer of a security may lawfully restrict price and other …

A Reverse Notice And Takedown Regime To Enable Public Interest Uses Of Technically Protected Copyrighted Works, Jerome H. Reichman, Graeme B. Dinwoodie, Pamela Samuelson

Faculty Scholarship

No abstract provided.

Some Notes On Principled Pragmatism, Christopher H. Schroeder

Faculty Scholarship

Symposium dedicated to the work of Professor Paul J. Mishkin. This article examines several articles by Mishkin. One of the ideas developed here stresses the importance of being mindful of the wider context within which the Supreme Court operates.

Finding The Golden Mean With Daubert: An Elusive, Perhaps An Impossible, Goal, Robert P. Mosteller

Faculty Scholarship

No abstract provided.

Toward A New Civil Rights Framework, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Reprising Brown Vs. Board Of Education: New Hope Or More Despair, Marie Failinger

Faculty Scholarship

From the perspective of constitutional doctrine, the PICS case is not particularly novel. The central rule of the plurality opinion-that state or local government use of visible racial classifications must survive the courts' "strict scrutiny" even if that use is "benign" and for the benefit of minorities-has been firmly in place at least since City of Richmond v. J.A. Croson Company (1989). Similarly, the PICS plurality followed longstanding case law holding that under the "strict scrutiny" test, the state must show a "compelling interest" when it uses racial preferences and that remedying past racial discrimination and diversity in higher education …

The Perpetual Anxiety Of Living Constitutionalism, Ethan J. Leib

Faculty Scholarship

It certainly seems like the originalists are winning. Professor Jack Balkin--finding that he couldn't beat 'em--joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote “we are all living constitutionalists now.” But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the “ascendant” and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet--and don't think one can embrace Balkin's approach and a true living constitutionalism at the same time.

Pondering Conscience: Civil Disobedience In American Law And Same-Sex Dissent In The Elca, Marie Failinger

Faculty Scholarship

The conflict over marriage rights for gay and lesbian couples seems destined to be one of the key defining fault lines for both the mainline Christian churches and American government in this early part of the twenty-first century. Despite pleas from church leaders, including Mark Hanson, much of the polity of mainline Protestant churches, including the ELCA, the Episcopal Church USA, the United Methodist Church, and others have been sharply divided over the issue.

The issue of same-sex marriage remains both contentious and politically important. Same-sex marriage proponents recently achieved legislative or court victories in Massachusetts and in New Jersey, …

Wands Away (Or Preaching To Infidels Who Wear Earplugs), Laura Spitz

Faculty Scholarship

The juxtaposition between doing--what we might call "practice"--and reading or thinking about doing--what we might call the study of "theory" or "doctrine" or both--evokes familiar debates on what a law school is and the pedagogical choices made by teachers and administrators.

How A Marriage Discrimination Amendment Would Disrespect Democracy In Minnesota, Anthony S. Winer

Faculty Scholarship

The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly anti-democratic. It is extremely wide-ranging in its scope, it obliterates the opportunity of the LGBT community to legislatively advance its interests in the area, it falsely assumes characteristics of the state judiciary that do not in fact exist, and it is drafted with language that is particularly hostile to LGBT concerns and democracy in general. It was a triumph for reason and democracy that this amendment was defeated in 2006. It should never be introduced again. In the unfortunate event that it is introduced again, it should be resoundingly …

The Controversy Over The Legacy Highway In Utah: An Opportunity For Invitational Rhetoric, Carlo A. Pedrioli

Faculty Scholarship

Beginning in the mid 1990s, residents of Utah began to debate the merits of the “Legacy Highway,” a large highway that would run near the Great Salt Lake in an attempt to alleviate the clogged commute on Interstate-15, which runs north/south through Salt Lake City, the state’s capital. Perhaps not surprisingly, environmental groups were upset with this proposed governmental project. Groups like the Advocates for Safe and Efficient Transportation and the Utah Department of Transportation faced off against the Sierra Club, Stop the Legacy Highway, and Utahns for Better Transportation. Generous amounts of rhetoric, including public discussion and litigation, resulted …

Perfect Enforcement Of Law: When To Limit And When To Use Technology, Christina Mulligan

Faculty Scholarship

No abstract provided.

A Decision Theory Approach To The Business Judgment Rule: Reflections On Disney, Good Faith, And Judicial Uncertainty, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Creating Language Crimes: How Law Enforcement Uses (And Misuses) Language, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

A Social Defense Of Sarbanes-Oxley, James A. Fanto

Faculty Scholarship

No abstract provided.

The Next Generation: The Revised Uniform Limited Liability Company Act, Daniel S. Kleinberger

Faculty Scholarship

In July, 2006, the National Conference of Commissioners on Uniform State Laws approved Re-ULLCA - the Revised Uniform Limited Liability Company Act. The product of a three-year drafting process, heavily influenced by 13 advisors appointed by the ABA, the new Act brings major innovations to the law of limited liability companies. This article, written by the two co-reporters for the drafting committee: (i) explains why the Conference decided to draft a new LLC statute, reviews the process through which the Conference produced and approved the new Act, and describes the Act's basic architecture; (ii) highlights the Act's major innovations; and …

Medical Futility Statutes: No Safe Harbor To Unilaterally Refuse Life-Sustaining Treatment, Thaddeus Mason Pope

Faculty Scholarship

Over the past fifteen years, a majority of states have enacted medical futility statutes that permit a health care provider to refuse a patient's request for life-sustaining medical treatment. These statutes typically permit the provider to unilaterally stop LSMT where it would not provide significant benefit or would be contrary to generally accepted health care standards. But these safe harbors are vague and imprecise. Consequently, providers have been reluctant to utilize these medical futility statutes.

This uncertainty probably cannot be reduced. Consensus on substantive measures of medical inappropriateness has proven unachievable. Only a purely process-based approach like that outlined in …

Rethinking Medical Liability: A Challenge To Defense Lawyers, Trial Lawyers, Medical Providers, And Legislators: An Introduction To The Symposium, Thaddeus Pope

Faculty Scholarship

The 2007 University of Memphis Law Review Symposium, Rethinking Medical Liability: A Challenge for Defense Lawyers, Trial Lawyers, Medical Providers, and Legislators, was held on February 16, 2007, at the University of Memphis FedEx Institute of Technology in Memphis, Tennessee. The Symposium brought together scholars and practitioners to assess the traditional malpractice system and quality of care. Americans are engaged in an earnest and profound debate about how to improve and rethink medical liability and improve the quality of medical care. The Symposium presentations and the resulting articles in this issue not only advance the ongoing debate but also offer …

Recovering The Face-To-Face In American Immigration Law, Marie Failinger

Faculty Scholarship

Professor Failinger’s article begins with stories of the Chinese Exclusion period and modern Arizona border immigration. Tracing Emmanuel Levinas’ argument about violence and totalization of the vulnerable Other as it is manifested in discriminatory legislation in these periods, she argues for a return to the Face-to-Face in deciding immigration requests for admission to the U.S. through a rubric of equitable guided discretion.

Introduction, Joel R. Reidenberg

Faculty Scholarship

As a leader in the publication of legal scholarship, the Fordham Intellectual Property, Media and Entertainment Law Journal sought the insights of internationally renowned scholars on critical problems in intellectual property law. In this focused issue, five top scholars tackle timely questions.

From Right To Wrong: A Critique Of The 2000 Uniform Parentage Act, Mary P. Byrn

Faculty Scholarship

In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that radically changed how parentage was determined in the United States. Prior to 1973, the parentage laws of most states failed to identify two legal parents for thousands of children merely because their parents were not married. These "illegitimate" children were considered a "child of no one" under the law and were denied the significant emotional, financial, and legal benefits of having two legal parents. By the early 1970s, however, the conference recognized that such treatment of children was becoming scientifically, …

Mediation At The End Of Life: Getting Beyond The Limits Of The Talking Cure, Thaddeus Mason Pope, Ellen A. Waldman

Faculty Scholarship

Mediation has been touted as the magic band-aid to solve end-of-life conflicts. When families and health care providers clash at the end of life, bioethicists and conflict theorists alike have seized upon mediation as the perfect procedural balm. Dissonant values, tragic choices, and roiling grief and loss would be confronted, managed, and soothed during the emotional alchemy of the mediation process. But what is happening in a significant subset of end-of-life disputes is not mediation as we traditionally understand it. Mediation's allure stems from its promise to excavate underlying needs and interests, identify common ground, and push disputants toward more …

A Home Of Its Own: The Role Of Poverty Law In Furthering Law Schools' Mission, Marie Failinger

Faculty Scholarship

This author argues that poverty advocates who are willing to carefully attend to their law school’s mission and vision, and to give careful thought to how poverty law may play an important role in achieving that vision, may win a more lasting place for poverty law in the curriculum than it has heretofore managed to achieve in most law schools. This article will argue that poverty law can be a key piece in the curriculum of law schools who define their mission, at least in part, as educating lawyers according to one of five paradigms: 1) lawyers as public citizens …