Digital Commons Network^™

The Law's Many Bodies, And The Manuscript Tradition In English Legal History, David J. Seipp

Faculty Scholarship

Sir John Baker's recent book The Law's Two Bodies supplies a happy occasion to celebrate and reflect on Professor Baker's unique place within the field of English legal history today

Students beginning their study of this subject can well imagine the long history of the English common law as an hourglass. The wide upper chamber of the hourglass is the rich, complex, intricate medieval law of the Year Books. The wide bottom chamber is the equally rich, complex, intricate but very different caselaw of the modem age. The narrow neck of the hourglass can be imagined as the mind of …

Temporary Protection As An Instrument For Implementing The Right Of Return For Palestinian Refugees, Susan M. Akram, Terry Rempel

Faculty Scholarship

The article argues for an internationally harmonized approach to temporary protection for Palestinian refugees and stateless persons. Temporary protection offers protection rights to this huge population of refugees that they lack in any of the main regions in which they have sought refuge. The article establishes the legal framework for temporary protection in the particular historical, legal and political context of the Palestinian refugee situation. It argues for the urgency of a harmonized rights-based protection regime.

Securing Deliberative Democracy, James E. Fleming

Faculty Scholarship

The brochure for the conference frames the questions for our panel on The Constitutional Essentials of Political Liberalism as "What are the implications of Rawls's conceptions of justice as fairness and political liberalism for constitutional theory? Might his account of constitutional essentials provide a useful guiding framework for conceiving the scheme of basic liberties embodied in the American Constitution? How thin are the commitments of our Constitution as compared with our richer commitments to constitutional justice and political justice? What are the implications of Rawls's work for theory of judicial review and for enforcement of constitutional rights and obligations outside …

The Other In International Law: 'Community' And International Legal Order, Maxwell O. Chibundu

Faculty Scholarship

There is a built-in paradox in the emergence of international law over the last decade as a core concern of academics and policy-makers. On the one hand, it is difficult to imagine any other period in history that has witnessed such a profusion of attempts to tame the anarchical society by hedging it in a straight-jacket of legalities. Throughout the 1990s, international conferences generated reams of treaties, codes, and agendas for action. International adjudicatory tribunals proliferated, and endeavored to give teeth to ideas and obligations hitherto thought to be essentially aspirational. And yet, the ability of international law to regulate …

Independent Legal Significance, Good Faith, And The Interpretation Of Venture Capital Contracts, D. Gordon Smith

Faculty Scholarship

Venture capital contracts are inherently incomplete. When interpreting such contracts, courts could deal with the expectations of parties formally by inquiring only about the plain meaning of the contract or qualitatively by enforcing the presumed expectations of the parties, regardless of whether those expectations are expressed in the contract. The Delaware courts have opted for a formal approach. In doing so, they appear to be engaged in an effort to force contracting parties toward completeness. While the duty of good faith appears to respond to the inevitable incompleteness of contracts, the courts largely ignore this duty in preferred stock cases. …

Librarians Bridge Information Gap In Law Courses, Barbara S. Gontrum

Faculty Scholarship

No abstract provided.

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

Stepping Back Through The Looking Glass: Real Conversations With Real Disputants About Institutionalized Mediation And Its Value, Nancy A. Welsh

Faculty Scholarship

This Article describes what a group of real disputants perceives as most valuable about agency-connected mediation before, soon after, and eighteen months after they participated in the process. The Article is based primarily upon qualitative data from in-depth interviews with parents and school officials who participated in special education mediation sessions. Though the specific context of these interviews is obviously important, these disputants and their disputes share many commonalities with disputants and disputes in other contexts and, as a result, these disputants' views have relevance for the broader field of mediation.

These interviews suggest that both before and after disputants …

The Hand That Rocks The Cradle: How Children's Literature Reflects Motherhood, Identity, And International Adoption, Susan Ayres

Faculty Scholarship

Children's books are "a source of law" for children because "[children] are constantly trying to make sense of what is going on around them, and although literature itself is only a constituent of life experience, as a constituent it is potentially of the greatest importance." As adults and lawyers, we can also read children's books as a source of law because they reflect patriarchal ideologies about the family and stigma surrounding adoption. Like other myths, children's books tell stories about origins and constitute not only subjects but are also the foundation of law by reflecting legal norms and projecting legal …

International Adoption & International Comity: When Is Adoption Repugnant, Malinda L. Seymore

Faculty Scholarship

Do judges have the authority to recognize decrees of foreign adoption? Since 1989, over 167,000 parents of children adopted in other countries have needed to know the answer to that question. Adoption creates a parent-child relationship that is not legally different from a biologically created parent-child relationship. Parents are entitled to the same rights and owe the same obligations to adopted children as they do to biological children, and adopted children are entitled to the same benefits as biological children. Adopted children are entitled to the financial support of their parents to the same extent as biological children. Thus, in …

A "Patent" Restriction On Research & Development: Infringers Or Innovators?, Srividhya Ragavan

Faculty Scholarship

The Trade Related Aspects of Intellectual Property Rights ("TRIPS") requires developing nations to harmonize patent regimes as a means to achieve stronger industrial growth. Countries, however, need to adopt effective patent procedures in order to successfully institute a patent regime. In spite of this, international treaties like TRIPS do not properly assist developing nations in establishing appropriate procedural mechanisms capable of complimenting a sophisticated patent regime. Consequently, developing nations may embrace ineffective patent procedures that can eventually further limit industrial growth despite establishing a TRIPS compliant patent regime. The paper uses India as a case study to demonstrate the detriments …

Ancient Roman Munificence: The Development Of The Practice And Law Of Charity, William H. Byrnes Iv

Faculty Scholarship

This article traces Roman charity from its incipient meager beginnings during Rome’s infancy to the mature legal formula it assumed after intersecting with the Roman emperors and Christianity. During this evolution, charity went from being a haphazard and often accidental private event, to a broad undertaking of public, religious, and legal commitment. Charitable giving within ancient Rome was quite extensive and longstanding, with some obvious differences from the modern definition and practice of the activity.

The main differences can be broken into four key aspects. First, as regards the republican period, Roman charity was invariably given with either political or …

The Escalating Copyright Wars, Peter K. Yu

Faculty Scholarship

Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based …

Assessing Client Change In Individual And Family Counseling, Robert L. Fischer

Faculty Scholarship

This article presents outcome data from an ongoing nonintrusive method for evaluating counseling services. Applied to one agency's delivery of solution-focused brief therapy, the method is brief and easily integrated into clinical practice. Using two scaling questions (one to measure daily functioning and the other to measure emotional coping), clinicians asked clients in every session to rate on a scale of 0 to 10 their present status on two dimensions. Data were collected by 40 professional counselors providing services to 3,920 cases during a 2-year period, averaging three counseling sessions per case. Analyses demonstrated statistically significant findings for both functioning …

Interviewing Ex-Employees: One Answer, New Questions, Susan P. Koniak

Faculty Scholarship

In Clark v. Beverly Health and Rehabilitation Services, Inc., 440 Mass. 270, 797 N.E.2d 905 (2003), the Supreme Judicial Court held that a lawyer for a party may contact former employees of the opposing party without violating Mass. r. Prof. C. 4.2. Lawyers who represent entities with former employees are not happy because, where 4.2 applies, the Rule makes it harder for the other side's lawyers to obtain information that might be damaging to the organization. Understandable. But some purport to be aghast, which is ridiculous. The Clark holding is in line with the ABA's position, the text of …

Patents And The Diffusion Of Technical Information, James Bessen

Faculty Scholarship

Does the disclosure requirement of the patent system encourage the diffusion of inventions? This paper builds a simple model where firms choose between patents and trade secrecy to protect inventions. Diffusion is not necessarily more likely with a patent system nor is the market for technology necessarily greater.

"No Provincial Or Transient Notion": The Need For A Mistake Of Age Defense In Child Rape Prosecutions, Jarrod F. Reich

Faculty Scholarship

Suppose a state legislature enacted a law making any theft a crime punishable by twenty years' imprisonment. Within this law was a provision precluding an accused from introducing evidence that he unwittingly took property to which he was not entitled. Suppose further that after this law was enacted, an elderly woman hung her black coat in a restaurant's lobby and, upon leaving, mistakenly retrieved another's black coat.1 Under the hypothetical statute, her mistake could neither hinder the prosecution's case against her nor be asserted by her as a defense. By inadvertently taking another's coat from a crowded restaurant, the woman …

It's The Antigen Stupid, Robert A. Bohrer

Faculty Scholarship

The Orphan Drug Act of 1983 is an attempt at solving an important problem: how to induce a market-driven pharmaceutical industry to develop new therapeutics for diseases affecting relatively small numbers of persons. In the case of protein therapeutics produced by biotechnology, the FDA’s administration of the Act has repeatedly led to litigation and controversy. The principal and recurrent problem has been determining when a second applicant for the approval of a drug to treat an orphan disease (or “indication”) is seeking approval for the “same” drug as a previously approved orphan drug. The problem is how to provide sufficient …

Labor And Finance As Inevitably Transnational: Globalization Demands A Sophisticated And Transnational Lens, Timothy A. Canova, Claire Moore Dickerson, Katherine V.W. Stone

Faculty Scholarship

No abstract provided.

Tax Code Section 527 Groups Not An End-Run Around Mccain-Feingold, Edward B. Foley, Donald B. Tobin

Faculty Scholarship

This article ... will analyze both the statutory and constitutional questions concerning whether 527organizations are ‘‘political committees’’ under FECA and thus subject to the $5,000 cap on the contributions they receive from each donor. The article will also consider whether other forms of tax-exempt organizations besides 527s—most notably so-called 501(c)(4) organizations—provide an alternative means of circumventing this $5,000 contribution limit.

Twist Elasticity And Anchoring In A Lamellar Nematic Phase, Neha M. Patel, M. R. Dodge, Min Hua Zhu, Rolfe G. Petschek, Charles Rosenblatt

Faculty Scholarship

Electrooptic measurements were performed on a lamellar nematic phase in which the mesogenic moieties lie in lamellae that are separated by partially perfluorinated side groups. The twist elastic constant K22 and the quadratic and quartic anchoring strength coefficients are reported. K22 is found to be considerably smaller than that of typical three-dimensional nematics, a con- sequence of the greatly weakened interactions between the spatially separated lamellae.

Dramatic Decline Of Wild South China Tigers Panthera Tigris Amoyensis: Field Survey Of Priority Tiger Reserves, Ronald Tilson, Hu Defu, Jeff Muntifering, Philip J. Nyhus

Faculty Scholarship

This paper describes results of a Sino- American field survey seeking evidence of South China tigers Panthera tigris amoyensis in the wild. In 2001 and 2002 field surveys were conducted in eight reserves in five provinces identified by government authorities as habitat most likely to contain tigers. The surveys evaluated and documented evidence for the presence of tigers, tiger prey and habitat disturbance. Approximately 290 km of mountain trails were evaluated. Infrared remote cameras set up in two reserves captured 400 trap days of data. Thirty formal and numerous informal interviews were conducted with villagers to document wildlife knowledge, livestock …

Comparisons Compared: A Methodological Survey Of Comparisons Of Religion From ‘A Magic Dwells’ To A Magic Still Dwells, David M. Freidenreich

Faculty Scholarship

No abstract provided.

Agroforestry, Elephants, And Tigers: Balancing Conservation Theory And Practice In Human-Dominated Landscapes Of Southeast Asia, Philip J. Nyhus, R L. Tilson

Faculty Scholarship

Large mammal populations theoretically are best conserved in landscapes where large protected areas are surrounded by buffer zones, connected by corridors, and integrated into a greater ecosystem. Multi-use buffer zones, including those containing complex agroforestry systems, are promoted as one strategy to provide both economic benefits to people and conservation benefits to wildlife. We use the island of Sumatra, Indonesia to explore the benefits and limitations of this strategy. We conclude that conservation benefits are accrued by expanding the habitat available for large mammals but more attention needs to be focused on how to reduce and respond to human–wildlife conflict …

Characterizing Human-Tiger Conflict In Sumatra, Indonesia: Implications For Conservation, Philip J. Nyhus, Ronald Tilson

Faculty Scholarship

Human-tiger conflict occurs in Indonesia but there is little recent information about the scope of the problem, and adequate policies are not in place to address the conflict. Published and unpublished reports of conflict between Sumatran tigers Panthera tigris sumatrae, people and their livestock were collected and analysed to characterize the extent, distribution and impact of human-tiger actively conflict on the island of Sumatra, Indonesia. Reportedly, between 1978 and 1997, tigers killed 146 people and injured 30, and killed at least 870 livestock. Conflict was less common in protected areas and more common in inter- mediate disturbance areas such as …

The Abnā' Al-Dawla: The Definition And Legitimation Of Identity In Response To The Fourth Fitna, John P. Turner

Faculty Scholarship

This article will reopen the question about the identity and provenance of the abnā' al-dawla. Who were they? When did they form as a collective and why? The standard view is that the abnā' al-dawla were the backbone of the Abbasid dynasty, coming into existence with that regime after the revolution circa 132/750 and consisting of the original fighters from Khurasan and their descendants, who formed an elite social and political structure of supporters. This privileged status accorded them the moniker abnā' al-dawla (sons/supporters of the dynasty).

A Public View Of Attorney Discipline In Florida: Statistics, Commentary, And Analysis Of Disciplinary Actions Against Licensed Attorneys In The State Of Florida From 1988-2002, Debra Curtis, Billie Jo Kaufman

Faculty Scholarship

This article is intended to serve as a commentary and analysis of a public-eye view of disciplinary actions taken against licensed attorneys in the State of Florida during the past 15 years. The idea for this statistical review arose in 2002, prompted by discussions regarding self-regulation of various professions following the many corporate scandals then playing out in the headlines. Through these discussions, Professors Curtis and Kaufman developed the idea of looking at empirical data--from the Florida Bar to determine how the disciplinary system treated Florida lawyers.

Mome In Hindsight, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Two decades ago, the Virginia Law Review published our article “The Mechanisms of Market Efficiency” (MOME), in which we tried to discern the institutional underpinnings of financial market efficiency. We concluded that the level of market efficiency with respect to a particular fact depends on which of several market mechanisms — universally informed trading, professionally informed trading, derivatively informed trading, and uninformed trading (each of which we explain below) — operates to reflect that fact in market price. Which mechanism is operative, in turn, depends on how widely the fact is distributed among traders, which, I turn, depends on the …

Human Rights, Humanitarian Law And The "War On Terrorism" In Afghanistan, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Papr - Preserving America's Printed Resources: The Role Of Repositories And Libraries Of Record Conference, July 21, 2003, Chicago, Illinois, Bill Sleeman

Faculty Scholarship

No abstract provided.