Digital Commons Network^™

"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt

Faculty Scholarship

The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal …

Do We Have A Right To Speak With Another's Language? Eldred And The Duration Of Copyright, Wendy J. Gordon

Faculty Scholarship

The law embodies two contradictory sets of rights and interests pertaining to copyright and speech. On the one hand. stand authors' claims to deserve compensation and control over their works. On the other hand stand the public's claims to be free to build on and deploy the cultural works that pervade daily life.

Gaining Momentum: A Review Of Recent Developments Surrounding The Expansion Of The Copyright Misuse Doctrine And Analysis Of The Doctrine In Its Current Form, Woodrow Hartzog

Faculty Scholarship

The United States intellectual property ("IP") system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public's ability to make use of and enjoy new ideas and …

American Offshore Business Tax Planning: Can Australian Lawyers Get A Piece Of The Action?, J Clifton Fleming, Jr.

Faculty Scholarship

No abstract provided.

Counselor, Gatekeeper, Shareholder, Thief: Why Attorneys Who Invest In Their Clients In A Post-Enron World Are "Selling Out," Not "Buying In,", A. Christine Hurt

Faculty Scholarship

No abstract provided.

The Takings Clause As A Comparative Right, John Fee

Faculty Scholarship

No abstract provided.

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen L. Norton

Faculty Scholarship

Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics.

This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their …

The Rebirth Of Bioethics: Extending The Original Formulations Of Van Rensselaer Potter, Peter J. Whitehouse

Faculty Scholarship

Van Rensselaer Potter's original concept of bioethics as a global integration of biology and values was designed to guide human survival. His attention to the creation of human knowledge and the incorporation of ecological concepts and values into medicine and health remain important, yet largely neglected, contributions deserving of further elaboration. Bioethicists should heed his warning about unsustainable progress, particularly in health care systems, and work toward changing their behaviors. Incorporating life-affirming spiritual values and extending Potter's global bioethics to a deeper bioethics seem essential.

Speaking Law To Power: Joan Fitzpatrick, 1950-2003 (Obituary), Jennifer Moore

Faculty Scholarship

Her scholarship embraced the rights of refugees and migrants, legal limits on the waging and methodology of war, due process before international tribunals, and essential restraints on the exercise of state power in self-proclaimed emergencies, including the war on terrorism.

Enforcing Internationally Recognized Human Rights Violations Under The Alien Tort Claims Act: An Analysis Of The Ninth Circuit’S Decision In Doe V. Unocal, Joshua E. Kastenberg

Faculty Scholarship

This article analyzes Doe II under a multi-tiered rubric. The first tier involves analyzing whether the Ninth Circuit was correct in its jurisdictional interpretation. The second tier studies the extent to which the Ninth Circuit's use of international law expanded previously accepted usage by United States courts. For example, after reading Doe II, a question arises as to whether the Ninth Circuit created a "complete" universal jurisdiction for torts under the ATCA. The final tier, involves analyzing foreseen legal consequences. That is, does Doe II expand causes of action for foreign human rights violations because the decision reduces possible defenses …

Understanding Conflict In A Postmodern World, Scott H. Hughes

Faculty Scholarship

This article looks at new theories about the nature and dynamics of human systems in conflict.

Dividends Reconsidered, Alan L. Feld

Faculty Scholarship

When JGTRRA 2003 reduced the income tax rate on dividends received by individuals to that of net capital gains, Feld explains, it also changed the relative attractiveness of alternative forms of corporate payout. Interest payments on shareholder debt and compensation to shareholder-employees, which generally provide superior returns to individuals, now yield less after-tax benefit in some circumstances than dividend payments. Feld says the change also calls into question the continuing function of a number of code provisions intended to prevent a "bailout" of corporate earnings at net capital gain rates and whose rules now affect primarily corporate rather than individual …

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.

Consumer Expectations’ Last Hope: A Response To Professor Kysar, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Managed Care’S Crimea: Medical Necessity, Therapeutic Benefit, And The Goals Of Administrative Process In Health Insurance, William M. Sage

Faculty Scholarship

This Essay explores the concept of medical necessity as it has evolved in the judicial and administrative oversight of managed care. The goals of the Essay are to illustrate the range of plausible rationales for establishing administrative procedures to govern medical necessity disputes, and to demonstrate the difficulty of incorporating into those procedures the most important professional and social responsibilities of managed care in today’s health care system. Part I of the Essay explains the ideological and practical significance of medical necessity as managed care has evolved. Part II examines medical necessity as a legal problem, and questions whether current …

The Copyright Divide, Peter K. Yu

Faculty Scholarship

Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to …

The Frictions Of Federalism: The Rise And Fall Of The Federal Common Law Of Interstate Nuisance, Robert V. Percival

Faculty Scholarship

Prior to the erection in the 1970s of a comprehensive federal regulatory infrastructure to protect the environment, transboundary pollution disputes frequently were adjudicated by the U.S. Supreme Court, exercising its original jurisdiction over disputes between states. In a series of cases commencing at the dawn of the Twentieth Century, the Court served as a national arbiter of interstate pollution disputes. This paper reviews the history of the Supreme Court's use of these cases to develop a federal common law of interstate nuisance.

The paper argues that while federal common law initially performed a zoning function by encouraging polluters to relocate …

Brief For American Association On Mental Retardation, The Arc Of The United States, The Judge David L. Bazelon Center For Mental Health Law, The Arc Of Georgia, And The Georgia Advocacy Office, Stripling V. Head, James W. Ellis, Carol M. Suzuki Ms., Norman C. Bay, Christian G. Fritz

Faculty Scholarship

Pursuant to Rule 37.2(b) of the Rules of this Court, The Arc of the United States, el al., move the Court for leave to file a Brief Amici Curiae in support of the petition in the above-entitled case. Counsel for Petitioner has granted his consent to the filing of this brief. Counsel for Respondent, however, has notified counsel for amici that Respondent does not consent.

Amici include national and state professional and voluntary associations concerned with criminA1 proceedings affecting people with mental disabilities. Amici thus have expertise concerning criminal defendants with mental disabilities and the impediments to fair judicial processes …

Brief For American Association On Mental Retardation, The Arc, The Judge David L. Bazelon Center For Mental Health Law, American Academy Of Psychiatry And The Law, And Tash, Tennard V. Dretke, James W. Ellis, Norman C. Bay, Michael Browde, Christian G. Fritz, April Land, Robert Schwartz

Faculty Scholarship

The obstacles placed by the Fifth Circuit in the path of jurors' fair consideration of a defendant's condition are inconsistent with this Court's teachings about the fundamental importance of the jury's role in determining the appropriate penalty in capital cases.

Nonpolar Second-Order Nonlinear And Electrooptic Materials: Axially Ordered Chiral Polymers And Liquid Crystals, Kenneth D. Singer, Rolfe G. Petschek, Victor Ostroverkhov

Faculty Scholarship

This article reviews our work on the development and optimization of chiral, nonpolar media with large second-order nonlinear optical responses. We show how molecular engineering, theory, and measurements can be used to optimize this promising class of nonlinear optical materials. We describe how supramolecular alignment into easily processable materials takes advantage of the relevant molecular hyperpolarizabilities. A wide variety of techniques can be used to fabricate bulk materials belonging to the chiral nonpolar symmetry groups, D∞ and D2. The microscopic chromophore alignment schemes that optimize the nonlinear optical response in such materials are deduced from general symmetry considerations for both …

On The Horns Of An Evidentiary Dilemma: The Intersection Of Federal Rules Of Evidence 806 And 608(B), Alan D. Hornstein

Faculty Scholarship

No abstract provided.

The Thin Line Between Love And Hate: Why Affinity-Based Securities And Investment Fraud Constitutes A Hate Crime, Lisa M. Fairfax

Faculty Scholarship

This article explores the parallels between the prototypical hate crime and affinity fraud—securities and investment fraud that targets identifiable religious, racial and ethnic groups—and asserts that those parallels justify treating affinity fraud as a hate crime.

Marriage Markets, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Secrets And Spies: Extraterritorial Application Of The Economic Espionage Act And The Trips Agreement, Robin Effron

Faculty Scholarship

No abstract provided.

Environmental Justice: Stakes, Stakeholders, Strategies, Eileen Gauna, Shiela Foster

Faculty Scholarship

A quick review of the beginning prominence of and continued work for environmental justice.

The Interior Department's Water 2025: Blueprint For Balance, Or Just Better Business As Usual?, Reed D. Benson

Faculty Scholarship

The U.S. Bureau of Reclamation (USBR or the Bureau) observed its centennial in 2002, and celebrated 100 years of building dams and supplying water for irrigation and other purposes in the western United States. In 2003, the U.S. Department of the Interior (the Interior) and the Bureau shifted their focus to the future of the West and its water supply needs, producing a document called Water 2025: Preventing Crises and Conflict in the West.

Freeing The Innocent: Obtaining Post-Conviction Dna Testing In Florida, Catherine Arcabascio

Faculty Scholarship

No abstract provided.

Subsidized Guardianship: A New Permanancy Option, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Opposing Excessive Use Of Employer Bargaining Power In Mandatory Arbitration Agreements Through Collective Employee Actions, Michael Z. Green

Faculty Scholarship

When you review the modern employment relationship and the role of contract, you have to start with the default position of employment-at-will, which allows an employer, in general, to terminate an employee for good reason, bad reason, or no reason at all. A number of exceptions to the employment-at-will rule exist, including tort and statutory employment discrimination claims that allow employees to seek legal remedies and punitive damage awards from juries. As these exceptions have developed outside of contract law, employers have responded by a major contractual effort to shift these disputes away from the courts and into arbitration. The …

The Pernicious Effect Of Employment Relationships On The Law Of Contracts, Franklin G. Snyder

Faculty Scholarship

The relationship between employment and contract law is peculiar. On the one hand, employment in modern American society seems to be a classic voluntary agreement among consenting adults. It is a "promise or a set of promises," in the wooden but circular language of the Restatement, "for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." Thus, employment relationships figure prominently in a great many landmark contract law decisions, in areas like capacity, duress, certainty, consideration, promissory estoppel, illegality and public policy, anticipatory repudiation, mitigation of …