Digital Commons Network^™

Revisiting 'Dreyfus': A More Complete Account Of A Trial By Mathematics, David H. Kaye

Faculty Scholarship

Legal literature and case law depicts the infamous conviction of Alfred Dreyfus for treason and espionage in 1899 as a prime example of the irresistible power of even grossly fallacious mathematical demonstrations to overwhelm a legal tribunal. This essay shows that Dreyfus is not a case of mathematics run amok, unchecked and uncomprehended. To the contrary, the defects in the mathematical proof were dramatically exposed, and this evidence did not lead Dreyfus's judges to condemn him. This history undercuts the reliance of modern courts and commentators on Dreyfus as an indication or illustration of the alleged dangers of probability evidence …

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Faculty Scholarship

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA …

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Faculty Scholarship

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even …

Hoffman V. Red Owl Stores And The Myth Of Precontractual Reliance, Robert E. Scott

Faculty Scholarship

For decades there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly attributable to the unfortunate case of Hoffman v. Red Owl Stores and to the unusual degree of scholarly attention that it has attracted. A careful examination of the record of the Hoffman case reveals facts that are much different from conventional understanding. The disagreement between Joseph Hoffman and Red Owl Stores resulted from a fundamental misunderstanding between the parties regarding the terms of Hoffnan's capital contribution to the franchise. The misunderstanding was largely a product of Hoffnan's penchant for moving assets …

The Twail Discourse: The Emergence Of A New Phase, Madhav Khosla

Faculty Scholarship

One of the most important discourses to have emerged in opposition to mainstream international law has been the third world approaches to international law (TWAIL). This discourse may be divided into two historical phases: TWAIL I and TWAIL II. While TWAIL I was characterised by a focus on colonization and the hegemonic use of international law by powerful nations, TWAIL II has concentrated on international institutions and the impact of globalisation. It is posited that the TWAIL discourse is in the process of entering into a new phase post 9/11. This phase can be understood as one in which TWAIL …

The Imagination Of James Boyd White, Lee C. Bollinger

Faculty Scholarship

For several decades, James Boyd White has been a unique voice in the law. It is a voice of extraordinary intellectual range, of erudition, and of deep commitment to a life of self-understanding and of humane values. His point of access is language – all language, in every context. Armed by a lifetime of thought about words, he justifiably has regarded no field or discipline or communicative activity as foreign and outside his ken. Whoever reads him must feel his sense of intellectual empowerment that our world, sectioned as it is by expertise, would deny us.

A Novel Category Of Vague Abstracta, Jeffrey C. Goodman

Faculty Scholarship

Much attention has been given to the question of ontic vagueness, and the issues usually center around whether certain paradigmatically concrete entities – cats, clouds, mountains, etc. – are vague in the sense of having indeterminate spatial boundaries.  In this paper, however, I wish to focus on a way in which some abstracta seem to be locationally vague.  To begin, I will briefly cover some territory already covered regarding certain types of “traditional” abstracta and the ways they are currently alleged to be vague.  I then wish to discuss two types of “nontraditional” abstracta and the sense in which I …

A Critical Discussion Of Talking Past One Another, Jeffrey C. Goodman

Faculty Scholarship

One sort of usage of the phrase ‘talking past one another’ that is quite prevalent in the philosophical literature suggests the following account of a particular phenomenon of miscommunication: Agent A and agent B talk past one another during a philosophical discussion if and only if A has in mind one meaning or conception of a crucial expression P that is distinct from some meaning or conception of P had in mind by B.  In this paper, however, I argue that this account – given the sort of phenomenon it is intended to be an account of – misses the …

Kyoto's Clean Development Mechanism In Action: India, China And Brazil, Michael B. Gerrard, Siddharth Sethy, Hui Xu, Bruno Gagliardi

Faculty Scholarship

The Kyoto Protocol is the principal international agreement to reduce global climate change. The Clean Development Mechanism (CDM) helps achieve the Protocol’s objectives by allowing developed countries to pay for reductions of greenhouse gases in developing countries.

The developing countries that are most actively involved in the CDM – and that have the greatest potential for future involvement – are India, China and Brazil. The purpose of this article is to describe the CDM, the activities in these three countries under the CDM, and the current and future role of the United States under the CDM.

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

Faculty Scholarship

This article attempts to explain empirically the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as "transaction cost engineers" and "reputational intermediaries." This new model not only helps inform contract theory but also reveals a profoundly different vision than those of existing models for the future of legal education and the profession.

Theorizing The Law/Politics Distinction: Neutral Principles, Affirmative Action, And The Enduring Insight Of Paul Mishkin, Neil S. Siegel, Robert C. Post

Faculty Scholarship

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a public institution resides in the latter, the legal legitimacy of the law as a principled unfolding of professional reason inheres in the former. Mishkin came to believe that although the law required both forms of legitimacy, there was nevertheless serious tension between them, and he dedicated his scholarly career to attempting to theorize this …

Synthetic Biology: Caught Between Property Rights, The Public Domain, And The Commons, Arti K. Rai, James Boyle

Faculty Scholarship

Synthetic biologists aim to make biology a true engineering discipline. In the same way that electrical engineers rely on standard capacitors and resistors, or computer programmers rely on modular blocks of code, synthetic biologists wish to create an array of modular biological parts that can be readily synthesized and mixed together in different combinations. Synthetic biology has already produced important results, including more accurate AIDS tests and the possibility of unlimited supplies of previously scarce drugs for malaria. Proponents hope to use synthetic organisms to produce not only medically relevant chemicals but also a large variety of industrial materials, including …

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca E. Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting -- the Data Retention Directive. Based on a detailed examination of the Directive's legislative …

European Versus American Liberty: A Comparative Privacy Analysis Of Antiterrorism Data Mining, Francesca E. Bignami

Faculty Scholarship

It is common knowledge that privacy in the market and the media is protected less in the United States than in Europe. Since the terrorist attacks of September 11, 2001, it has become obvious that the right to privacy in the government sphere too is protected less in the United States than in Europe. This Article brings alive the legal difference by considering the case-real in the United States, hypothetical in Europe-of a spy agency's database of call records, created for the purpose of identifying potential terrorists. Under U.S. law such an antiterrorism database might very well be legal. But …

Authorized Managerialism Under The Federal Rules— And The Extent Of Convergence With Civil-Law Judging, Thomas D. Rowe Jr.

Faculty Scholarship

This article, part of a symposium marking the fortieth anniversary of the United States District Court for the Central District of California, first surveys the (very considerable) extent to which changes in the Federal Rules of Civil Procedure over the past quarter century have expanded and legitimized the pretrial managerial powers of federal trial-court judges. It then turns to an issue sometimes touched on in prior literature--whether the move toward greater managerialism departs from the "adversarial" model of the judge as passive referee and makes us more like supposedly "inquisitorial" civil-law systems. To the extent that civil-law judges generally exercise …

Legal Information And The Development Of American Law: Writings On The Form And Structure Of The Published Law, Richard A. Danner

Faculty Scholarship

Robert C. Berring's writings about the impacts of electronic databases, the Internet, and other communications technologies on legal research and practice are an essential part of a larger literature that explores the ways in which the forms and structures of published legal information have influenced how American lawyers think about the law. This paper reviews Berring's writings, along with those of other writers concerned with these questions, focusing on the implications of Berring's idea that in the late nineteenth century American legal publishers created a "conceptual universe of thinkable thoughts" through which U.S. lawyers came to view the law. It …

Think Globally, Act Globally: The Limits Of Local Climate Policies, Jonathan B. Wiener

Faculty Scholarship

State-level actions to address global climate change, such as laws and litigation recently undertaken by California and by several Northeastern states to limit greenhouse gas (GHG) emissions, reflect creative legal strategies understandably intended to achieve a major environmental objective while the US federal government has not joined the Kyoto Protocol and has not yet adopted national legislation. But even assuming that forestalling global climate change is urgently needed, state-level action is not the best way to do so. Acting locally is not well suited to regulating moveable global conduct yielding a global externality. Legally, state-level action confronts several obstacles, including …

Negligence In The Air: The Duty Of Care In Climate Change Litigation, James Salzman, David Hunter

Faculty Scholarship

The prospect of tort litigation against private parties has been gaining increasing attention by lawyers. While only three such cases have been filed thus far, observers (including the organizers of this symposium) clearly expect the number to increase significantly. Indeed, if successful, these and future cases will have a huge impact on the industries sued and, as hopeful lawyers have mused, could make the tobacco litigation look small by comparison. But will these cases succeed? As law students all dutifully learn in their first year Torts class, a prima facie negligence claim must satisfy four elements - duty, breach, causation, …

Towards A Right To Privacy In Transnational Intelligence Networks, Francesca E. Bignami

Faculty Scholarship

Antiterrorism intelligence sharing across national borders has been trumpeted as one of the most promising forms of networked global governance. By exchanging information across the world, government agencies can catch terrorists and other dangerous criminals. Yet this new form of global governance is also one of the most dangerous. Even at the domestic level, secrecy and national security imperatives have placed intelligence agencies largely beyond legal and democratic oversight. But at the global level, accountability is missing entirely. Global cooperation among national intelligence agencies is extraordinarily opaque. The nature of the international system compounds the problem: these actors do not …

Synthetic Biology: The Intellectual Property Puzzle, Arti K. Rai, Sapna Kumar

Faculty Scholarship

Synthetic biology, which operates at the intersection of biotechnology and information technology, has the potential to raise, in a particularly acute manner, the intellectual property problems that exist in both fields. A preliminary patent landscape reveals problematic foundational patents that could, if licensed and enforced inappropriately, impede the potential of the technology. The landscape also reveals a proliferation of patents on basic synthetic biology "parts" that could create transaction cost heavy patent thickets. Both foundational patents and patent thickets are likely to be particularly problematic to the extent they read on standards that synthetic biologists would like to establish. Synthetic …

Law School Libraries 2007, Richard A. Danner

Faculty Scholarship

The primary mission of the law school library is to meet the information needs of the faculty and students of the institution it supports. In addition to their role in educating future lawyers, law schools are the major producers of scholarly literature in law and rely on academic law libraries to provide the resources and support needed for research and publication. Beyond support for the core functions of legal education and research, the specific missions of law school libraries vary depending on the size and missions of law schools of different types. Differences among law schools result in differences among …

Testing The Testimonial Concept And Exceptions To Confrontation: “A Little Child Shall Lead Them”, Robert P. Mosteller

Faculty Scholarship

In Crawford v. Washington (2004), the Supreme Court radically transformed the analysis of the Confrontation Clause for hearsay, but left many specific questions unanswered. Two years later in Davis v. Washington (2006), it revisited the subject and answered a few of the unresolved issues, but again left much in doubt, apparently reorienting the focus of the testimonial definition from that of the party making the statement to that of the person receiving it. One of the areas where the new doctrine has greatest potential importance is in cases involving children, particularly cases involving physical and sexual abuse. The importance derives …

A Critical Assessment Of The Cultural And Institutional Roles Of Appellate Courts (Review Essay), Paul D. Carrington

Faculty Scholarship

Reviewing, Daniel Meador et al., Appellate Courts: Structures, Functions, Processes, and Personnel (2d ed. 2006)

Asbestos Lessons: The Consequences Of Asbestos Litigation, Paul D. Carrington

Faculty Scholarship

Abstract not available

The First Restatement Of Agency: What Was The Agenda?, Deborah A. Demott

Faculty Scholarship

No abstract provided.

State And Foreign Class-Action Rules And Statutes: Differences From - And Lessons For? - Federal Rule 23, Thomas D. Rowe Jr.

Faculty Scholarship

No abstract provided.

A Teacher (A Tribute To James Boyd White), H. Jefferson Powell

Faculty Scholarship

Tribute to Professor J.B. White

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Toward A Framework Statute For Supranational Adjudication, Ernest A. Young

Faculty Scholarship

No abstract provided.

Was He Guilty As Charged? An Alternative Narrative Based On The Circumstantial Evidence From 12 Angry Men, Neil Vidmar, Sara Sun Beale, Erwin Chemerinsky, James E. Coleman Jr.

Faculty Scholarship

No abstract provided.