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I Want To Live: Medicine Betrayed By Ideology In The Political Debate Over Terri Schaivo, George J. Annas Jan 2005

I Want To Live: Medicine Betrayed By Ideology In The Political Debate Over Terri Schaivo, George J. Annas

Faculty Scholarship

The public's view of the political intrusion into the medical care of Theresa Marie Schiavo is well illustrated by two political cartoons. The first, by Tony Auth, reprinted in the Boston Globe shortly after Congress passed a law authorizing intervention by the federal courts, pictures a horde of congressmen charging mindlessly out of the Capitol, all dressed as physicians-one carrying a saw, another an I.V. pole-with the caption, "Coming Soon to a Sickbed Near You . .. [tihe United States Congress." The second, by Tom Toles, published in the Washington Post shortly after the results of the autopsy report were …

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Family Privacy And Death: Antigone, War, And Medical Research, George J. Annas Jan 2005

Family Privacy And Death: Antigone, War, And Medical Research, George J. Annas

Faculty Scholarship

Death ends the doctor–patient relationship, and legally the patient's right of privacy dies with the patient. Other privacy interests survive, the most central of which are those of the patient's family to bury the body and to prevent the disclosure of some personal information, such as medical information, about the deceased relative. Just what privacy interests encompass and when they can be overridden by other interests — such as freedom of speech or the claims of public policy or medical research — are evolving.1 Family privacy concerning a family member who has died is at the forefront of a …

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“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas Jan 2005

“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas

Faculty Scholarship

For the first time in the history of the United States, Congress met in a special emergency session on Sunday, March 20, to pass legislation aimed at the medical care of one patient — Terri Schiavo. President George W. Bush encouraged the legislation and flew back to Washington, D.C., from his vacation in Crawford, Texas, so that he could be on hand to sign it immediately. In a statement issued three days earlier, he said: “The case of Terri Schiavo raises complex issues. . . . Those who live at the mercy of others deserve our special care and concern. …

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The (Non)Uniqueness Of Environmental Law, Jay D. Wexler Jan 2005

The (Non)Uniqueness Of Environmental Law, Jay D. Wexler

Faculty Scholarship

In everyday discourse, the label "environmental law" signifies a distinct and unique area of the law. The uniqueness of environmental law stems most obviously from the subject matter of environmental legislation and regulation. But does environmental law also differ from other areas of law with respect to how judges ought to approach deciding cases? Should judges act differently somehow when they are deciding an environmental law case as opposed to, for example, a labor law or banking law case? At least one influential scholar - Richard Lazarus of the Georgetown University Law Center - has argued that the distinctive features …

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Falling On Deaf Ears: Is The "Fail-Safe" Triennial Exemption Provision In The Digital Millennium Copyright Act Effective In Protecting Fair Use?, Woodrow Hartzog Jan 2005

Falling On Deaf Ears: Is The "Fail-Safe" Triennial Exemption Provision In The Digital Millennium Copyright Act Effective In Protecting Fair Use?, Woodrow Hartzog

Faculty Scholarship

This Article examines whether the "fail-safe" triennial exemption provision of the DMCA is effective for its intended purpose: to serve as a countermeasure to the DMCA's anti-circumvention provisions by protecting the ability of the public to engage in non-infringing uses of copyrighted works. Ultimately, this Article concludes that there are too many faults in both the structure and the execution of the rule-making provision to meaningfully counteract the adverse effects of the anti-circumvention provisions of the DMCA. Specifically, the rule-making procedure explicitly prohibits exemptions to a class based on the use of the work. This amounts to a rejection of …

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Copyright Law And Subject Matter Specificity: The Case Of Computer Software, Stacey Dogan, Joseph Liu Jan 2005

Copyright Law And Subject Matter Specificity: The Case Of Computer Software, Stacey Dogan, Joseph Liu

Faculty Scholarship

Drawing on recent work by Dan Burk and Mark Lemley in the patent context, this paper explores the extent to which courts have adapted pre-existing copyright doctrines to the special case of computer software. We argue that a number of courts have, as has been widely recognized, significantly adapted copyright doctrines to deal with special features of the computer software market. We further argue that these adaptations have, by and large, positively sought to strike a balance between the copyright act's dual goals of incentive and access. Despite this general trend toward adaptation, however, we point to a handful of …

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Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza Jan 2005

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Faculty Scholarship

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the …

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Good Faith Business Judgment: A Theory Of Rhetoric In Corporate Law Jurisprudence, Sean J. Griffith Jan 2005

Good Faith Business Judgment: A Theory Of Rhetoric In Corporate Law Jurisprudence, Sean J. Griffith

Faculty Scholarship

This Article develops a theory of rhetoric in corporate law jurisprudence. It begins by examining a recent innovation in Delaware case law: the emerging principle of “good faith.” Good faith is an old notion in law generally, but it offers to bring significant change to corporate law, including realignment of the business judgment rule and a shift in the traditional balance between the authority of boards and the accountability of boards to courts. This Article argues, however, that good faith functions as a rhetorical device rather than a substantive standard. That is, it operates as a speech act, a performance, …

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Criminal Law In A Post-Freudian World, Deborah W. Denno Jan 2005

Criminal Law In A Post-Freudian World, Deborah W. Denno

Faculty Scholarship

Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of …

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15th Annual Forum On Affordable Housing & Community Development Law: 2006 Michael Scher Award Given To William C. Kelly, Nestor M. Davidson, Leonard A. Zax Jan 2005

15th Annual Forum On Affordable Housing & Community Development Law: 2006 Michael Scher Award Given To William C. Kelly, Nestor M. Davidson, Leonard A. Zax

Faculty Scholarship

No abstract provided.

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Housing First' For The Chronically Homless: Challenges Of A New Service Model, Nestor M. Davidson Jan 2005

Housing First' For The Chronically Homless: Challenges Of A New Service Model, Nestor M. Davidson

Faculty Scholarship

Increasingly in recent years, policymakers have focused their efforts on ending chronic homelessness and, in particular, on individuals grappling with mental illness, substance abuse, and similar challenges. Central to this effort has been the rise of a new model of service provision called Housing First. Housing First reverses the long-standing practice of conditioning housing on compliance with treatment plans or other service requirements, instead providing immediate independent living for chronically homeless individuals with dual or multiple diagnoses and only then making intensive services available. This Commentary reviews this important policy shift and explores some conceptual and practical challenges in moving …

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Rights Myopia In Child Welfare, Clare Huntington Jan 2005

Rights Myopia In Child Welfare, Clare Huntington

Faculty Scholarship

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict rather than collaboration between the state and families. In lieu of a solely rights-based …

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Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan Jan 2005

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan

Faculty Scholarship

This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …

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Structure Of Regulatory Competition In European Corporate Law, The , Martin Gelter Jan 2005

Structure Of Regulatory Competition In European Corporate Law, The , Martin Gelter

Faculty Scholarship

In its opinions in the cases Centros, Uberseering and Inspire Art, the ECJ has begun to open European corporate law for regulaton of competition, as it has been discussed in the US for several ldecades. This article analyses the stuictual conditions of competition on the supply and demand sides of the market for corporate law, and the impact of supranational influence. In doing so, it identifies several factors that have received little attention in the incipient European debate. The supply-side analysis shows that a European Delaware is implausible because of the interdependence of competitive advantages and the incentives to compete. …

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Law And The Rise Of The Firm , Henry Hansmann, Reiner Kraakman, Richard Squire Jan 2005

Law And The Rise Of The Firm , Henry Hansmann, Reiner Kraakman, Richard Squire

Faculty Scholarship

Organizational law empowers firms to hold assets and enter contracts as entities that are legally distinct from their owners and managers. Legal scholars and economists have commented extensively on one form of this partitioning between firms and owners: namely, the rule of limited liability that insulates firm owners from business debts. But a less-noticed form of legal partitioning, which we call "entity shielding," is both economically and historically more significant than limited liability. While limited liability shields owners' personal assets from a firm's creditors, entity shielding protects firm assets from the owners' personal creditors (and from creditors of other business …

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Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein Jan 2005

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

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Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee Jan 2005

Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee

Faculty Scholarship

This article considers judicial regulation of excessive punishments through the Eighth Amendment.

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How Much Does Money Matter In A Direct Democracy?, John M. De Figueiredo Jan 2005

How Much Does Money Matter In A Direct Democracy?, John M. De Figueiredo

Faculty Scholarship

No abstract provided.

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Are There Any Checks And Balances On The Government's Power To Check Our Balances? The Fate Of Financial Privacy In The War On Terrorism, Eric J. Gouvin Jan 2005

Are There Any Checks And Balances On The Government's Power To Check Our Balances? The Fate Of Financial Privacy In The War On Terrorism, Eric J. Gouvin

Faculty Scholarship

In the three years since the terrorist attacks of September 11th, 2001, the laws affecting money laundering and financial privacy in the United States have been changed to give law enforcement agencies easier access to financial information. Although the changes to the law were passed with the claim that they were needed to intercept terrorist financing, the anti-money laundering provisions enacted by the USA PATRIOT Act are being used routinely against non-terrorist criminal suspects as part of regular law enforcement processes. Although the apprehension of ordinary criminals by any means available will sound perfectly ceptable to many, it is at …

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Changing Paradigms: The Liability Of Corporate Groups In Germany, René Reich-Graefe Jan 2005

Changing Paradigms: The Liability Of Corporate Groups In Germany, René Reich-Graefe

Faculty Scholarship

The German law on affiliated companies and groups of companies ("Konzernrecht"), as embodied in the German Stock Corporation Act of 1965, as amended ("Aktiengesetz"), has often been credited for its innovative approach to the dichotomy of liability strategies relevant to corporate groups-viz., the traditional concept of entity liability based on the fundamental doctrine of the legal separateness of the corporate entity and, accordingly, resulting in a limitation of investor liability as the rule, and discrete and rare occurrences of what is almost poetically designated the "piercing of the corporate veil" ("DurchgriffshaJtung") as narrow and reluctantly crafted exceptions, and the more …

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Lawson Edward Thomas And Miami's Negro Municipal Court, Ernesto A. Longa Jan 2005

Lawson Edward Thomas And Miami's Negro Municipal Court, Ernesto A. Longa

Faculty Scholarship

Highlights Lawson Edward Thomas's career as a civil rights attorney and judge of Miami's apartheid municipal court (1950-1963).

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Wet Water Law: New Mexico Style, G. Emlen Hall Jan 2005

Wet Water Law: New Mexico Style, G. Emlen Hall

Faculty Scholarship

Table of Contents for a course reader. v. 1. The nature of a New Mexico prior appropriation water right -- The attributes of new Mexico water rights -- Surface water and groundwater in New Mexico -- The State Engineer: an administered system -- Statutory adjudications -- New appropriations, transfers and sales of a New Mexico water right -- Emerging issues -- Water planning in New Mexico -- Constraints on the state law of prior appropriation -- v. 2. Emerging local issues -- Federal constraints on the state system -- Native American constraints on the state system -- Interstate water rights.

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Treating Tribes Differently: Civil Jurisdiction Inside And Outside Indian Country, Max J. Minzner Jan 2005

Treating Tribes Differently: Civil Jurisdiction Inside And Outside Indian Country, Max J. Minzner

Faculty Scholarship

This Article attempts to analyze why, in the current jurisdictional framework, tribes are treated differently from states but not differently from each other. This article analyzes the key assumptions underlying jurisdictional and choice of law analyses both inside and outside Indian Country. After a summary overview of current tribal court systems, this Article attempts to identify features of tribal courts that might indicate that they a) might disadvantage non-tribal litigants and b) are threatened by the incursion of concurrent state jurisdiction. The article points to one potential reason that the Court has assumed that all Indian tribes are alike, which …

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Off-White In An Age Of White Supremacy: Mexican Elites And The Rights Of Indians And Blacks In Nineteenth-Century New Mexico, Laura Gomez Jan 2005

Off-White In An Age Of White Supremacy: Mexican Elites And The Rights Of Indians And Blacks In Nineteenth-Century New Mexico, Laura Gomez

Faculty Scholarship

No abstract provided.

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Executive Power And The War On Terror, Norman C. Bay Jan 2005

Executive Power And The War On Terror, Norman C. Bay

Faculty Scholarship

Two important paradigm shifts have occurred in the war on terror. First, the United States has treated terrorism as a military issue, not a law enforcement problem. Second, the United States has centralized its intelligence apparatus under the direction of the newly-created Director of National Intelligence and lowered the wall that separated external security or foreign intelligence activity from internal security or domestic law enforcement. In tandem, these changes are of historic dimension. They also occur against a backdrop in modern times in which the executive branch has steadily accumulated power. In pursuit of the war on terror, we have …

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Private Dispute Resolution In The Card Context: Structure, Reputation, And Incentives, Andrew P. Morriss, Jason Korosec Jan 2005

Private Dispute Resolution In The Card Context: Structure, Reputation, And Incentives, Andrew P. Morriss, Jason Korosec

Faculty Scholarship

Explosive growth in credit, debit, and other card payment systems in recent years has produced a parallel growth in private dispute resolution systems based on the web of contracts entered into by merchants, merchant acquirers, consumers, card issuers, card associations, and transaction processors. These contracts have produced legal systems based on contract and the enforcement of which rests primarily on reputational constraints. To cost-effectively resolve disputes, these private legal systems have evolved innovative procedures using resources at the lowest-possible level, including incentive-payments for producing information and rigid deadlines for parties' actions. This paper describes and analyzes these legal systems and …

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Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault Jan 2005

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. …

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The Effectiveness Of Juvenile Correctional Facilities: Public Versus Private Management, Patrick J. Bayer, David Pozen Jan 2005

The Effectiveness Of Juvenile Correctional Facilities: Public Versus Private Management, Patrick J. Bayer, David Pozen

Faculty Scholarship

This paper uses data on juvenile offenders released from correctional facilities in Florida to explore the effects of facility management type (private for-profit, private nonprofit, public state-operated, and public county-operated) on recidivism outcomes and costs. The data provide detailed information on individual characteristics, criminal and correctional histories, judge-assigned restrictiveness levels, and home zip codes — allowing us to control for the nonrandom assignment of individuals to facilities far better than any previous study. Relative to all other management types, for-profit management leads to a statistically significant increase in recidivism, but relative to nonprofit and state-operated facilities, for-profit facilities operate at …

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Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland Jan 2005

Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland

Faculty Scholarship

In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.

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Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus Jan 2005

Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus

Faculty Scholarship

At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not "follow the flag" to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business …

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