Digital Commons Network^™

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses Of Electocution And Lethal Injection And What It Says About Us, Deborah W. Denno

Faculty Scholarship

This article discusses the paradoxical motivations and problems behind legislative changes from one method of execution to the next, and particularly moves from electrocution to lethal injection. This article first examines the constitutionality of electrocution, contending that a modern Eighth Amendment analysis of a range of factors, such as legislative trends toward lethal injection, indicates that electrocution is cruel and unusual. It then provides an Eighth Amendment review of lethal injection, demonstrating that injection also involves unnecessary pain, the risk of such pain, and a loss of dignity. The article next presents the author's study of the most current protocols …

Context And Institutional Structure In Attorney Regulation: Constructing An Enforcement Regime For International Arbitration, Catherine A. Rogers

Faculty Scholarship

The question that looms large over the future of international arbitration is: How much should states yield to the international arbitration system? This Article attempts to answer the question as it applies to the specific context of regulating attorney conduct.

Asset Acquisitions: A Colloquy, Samuel C. Thompson Jr.

Faculty Scholarship

No abstract provided.

Two Concepts Of Immortality: Reframing Public Debate On Stem-Cell Research, Frank Pasquale

Faculty Scholarship

No abstract provided.

Judicial And Legislative Checks On Ex Parte Omb Influence Over Administrative Rulemaking, William D. Araiza

Faculty Scholarship

No abstract provided.

Persuasion And Resistance: The Use Of Psychology By Anglo-American Corporate Governance Advocate In France, James A. Fanto

Faculty Scholarship

No abstract provided.

Splitting The Atom Of Marshall's Wisdom, Susan Herman

Faculty Scholarship

No abstract provided.

The Synergy Of Equality And Privacy In Women's Rights, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

The Impossible Dream Come True: A Criminal Law Professor Becomes Juror #7, Stacy Caplow

Faculty Scholarship

No abstract provided.

Not For The Faint Of Heart: Fiscal Management Of Publicly Funded Law Libraries In A Time Of Economic Crisis, Steven D. Hinckley

Faculty Scholarship

The author examines the challenges faced by administrators of publicly funded law libraries in trying to gain sufficient financial support for their institutions at a time of fiscal crisis and during a era of increasing reluctance of state governments to fund libraries and other educational programs.

Inventions, Industry Standards, And Intellectual Property, Mark R. Patterson

Faculty Scholarship

When an industry standard incorporates a patented invention, the demand for products that comply with the standard has two components. Some of the demand may be for the inherent technical advantages of the invention; the patentee is generally entitled to revenues attributable to this demand. But some of the demand is for the benefits of standardization, such as interoperability, and the patentee is not entitled to revenues attributable to this demand. From this point, the article draws two conclusions. First, the amounts to which a patentee is entitled, either in litigation or in licensing negotiations, should be calculated by determining …

Legal Ethics Must Be The Heart Of The Law School Curriculum Symposium: Recommitting To Teaching Legal Ethics- Shaping Our Teaching In A Changing World, Russell G. Pearce

Faculty Scholarship

Despite what seems to be far greater attention paid to the teaching of legal ethics than to any other law school subject, legal ethics remains no better than a second class subject in the eyes of students and faculty. This essay suggests that all efforts at innovation in legal ethics teaching are doomed to a marginal impact at best. Only recognition that legal ethics is the most important subject in the law school curriculum will lead to real and significant changes in the teaching of legal ethics. If the commitment of the legal profession and of legal academia to producing …

E-Reputation: Building Trust In Electronic Commerce, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Recognizing The Interdependence Of Rights In The Antidiscrimination Context Through The World Conference Against Racism , Catherine Powell, Jennifer H. Lee

Faculty Scholarship

This background paper assesses the importance of integrating gender into efforts to address racial discrimination and related intolerance in the WCAR process. While this background paper primarily focuses on racial discrimination, the analysis may be applied to xenophobia and related intolerance where these experiences are "raced" experiences. Addressing these forms of intolerance in a comprehensive manner requires unmasking the ways in which race intersects with gender and other status. A gender analysis is needed to make racism more fully visible, because "racial discrimination does not always affect men and women equally or in the same way." Women often experience compounded …

Electronic Real Estate Documents: Context, Unresolved Cost-Benefit Issues And A Recommended Decisional Process, Sam Stonefield

Faculty Scholarship

This essay begins with a prediction: that electronic real estate documents will soon begin to replace paper documents in many, if not all, phases of residential real estate transactions. It describes the costs and benefits of electronic documents, and the many forces supporting and impeding their widespread adoption. It concludes by urging all those participating in the process to use their best efforts to address the obstacles and to work towards a successful transition to a world of electronic real estate transactions and electronic recording.

The Invisible Patient (Reviewing Sally Satel, How Political Correctness Is Corrupting Medicine (2000)), Barbara A. Noah

Faculty Scholarship

Despite the fact that African-Americans suffer from a variety of health problems at disproportionately higher rates than whites, inequities in the medical system make access to care more difficult for minorities. The problem of racial disparities in health care encompasses more than problems of access or payment, however. Communication difficulties between physician and patient and disparate provision of services covered by insurance also may contribute substantially to health disparities between the races. This review canvasses some of the evidence of differential medical treatment and offers some suggestions that may improve the quality of communication between physicians and patients. In addition …

Giving Suckers (And Salmon) An Even Break: Klamath Basin Water And The Endangered Species Act, Reed D. Benson

Faculty Scholarship

An extreme drought hit the Klamath River Basin of southern Oregon and northern California in 2001, and a remarkable water controversy soon followed. Hundreds of farmers, who for decades had reliably received irrigation water from the federal government's Klamath Project, were told, for the first time, that they would get none that year. Instead, the government would hold the water in Upper Klamath Lake and release it to flow down the Klamath River in an effort to ensure the survival of fish protected by the Endangered Species Act.

Rice V. Cayetano: The Supreme Court Declines To Extend Federal Indian Law Principles To Native Hawaiians Sovereign Rights, Jeanette Wolfley

Faculty Scholarship

As I read and reread the Rice decision, I realized how similar it is to the trend in the recent Indian law cases decided by the Supreme Court. For example, Rice, in many respects, represents the discomfort the Justices feel for upholding "special treatment" of Native Americans under the law. The Court in Rice reversed the Ninth Circuit's decision allowing the State of Hawaii to conduct a Natives-only election of trustees to administer a trust to benefit Native Hawaiians. It found that the Fifteenth Amendment, adopted after the Civil War to prevent states from denying the elective franchise to former …

The Future Of Civil Rights: A Dialogue, Margaret E. Montoya

Faculty Scholarship

Eight social science, humanities, and legal scholars discuss a wide range of perspectives on civil rights (edited by John Paul Ryan). The conversation traverses civil rights stories in the U.S. and abroad since 1968, the relationships between immigration and civil rights, the enforcement of civil rights and the role of the courts, and the impact of September 11 on civil rights in the future. Co-authored with John Paul Ryan, Angelo Ancheta, Erik Bleich, Tim Borstelmann, Gloria Browne-Marshall, Chai Feldblum, Anita Hodgkiss, & John D. Skrentny

A "Freshman" Takes Charge: Judge John J. Parker Of The United States Court Of Appeals, 1925-1930, Peter G. Fish

Faculty Scholarship

No abstract provided.

The Demsetz Thesis And The Evolution Of Property Rights, Thomas W. Merrill

Faculty Scholarship

Both conventional price theory and standard economic accounts of tort and contract law assume fixed property rights. In fact, however, property regimes are not static but change over time. Given the assumption of fixed property that otherwise prevails in economic literature, explaining the evolution of property rights is one of the great challenges for the economic analysis of law.

The point of departure for virtually all efforts to explain changes in property rights is Harold Demsetz’s path‐breaking article, “Toward a Theory of Property Rights.” The article is still widely cited and reproduced, especially in first‐year property courses in law schools. …

The Independence And Democratic Accountability Of The Supreme Court Of Ohio: Recalling The Work Of Frederick Grimke, Paul D. Carrington, Adam R. Long

Faculty Scholarship

No abstract provided.

Please Forgive Me: Transgressors’ Emotions And Physiology During Imagery Of Seeking Forgiveness And Victim Responses, Charlotte Witvliet, Thomas Ludwig, David L. Bauer

Faculty Scholarship

We assessed transgressors’ subjective emotions and physiological responses in a within-subjects imagery study involving 20 male and 20 female participants. Two imagery conditions focused on the transgressor’s actions: participants 1) ruminated about a real-life transgression and 2) imagined seeking forgiveness from the victim. Three imagery conditions focused on the victim’s possible responses: participants imagined their victims responding with 1) a grudge, 2) genuine forgiveness, and 3) reconciliation. Compared to ruminations about one’s transgression or an unforgiving response from the victim, imagery of forgiveness-seeking and merciful responses from victims (forgiveness and reconciliation) prompted improvements in basic emotions (e.g., sadness, anger) and …

From Having Copies To Experiencing Works: The Development Of An Access Right In U.S. Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This essay addresses how current U.S. copyright law responds to new forms of distribution of copyrighted works, through the emerging right to control digital access to copyrighted works, as set out in § 1201 of the 1998 Digital Millennium Copyright Act. When the exploitation of works shifts from having copies to directly experiencing the content of the work, the author's ability to control access becomes crucial. Indeed, in the digital environment, without an access right, it is difficult to see how authors can maintain the exclusive Right to their Writings that the Constitution authorizes Congress to secure. Even if Congress …

Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman

Faculty Scholarship

Innocent fatalities are a concern of all social activity with a capacity to kill. This is especially true when the social activity is the death penalty since an innocent person's execution is not simply a tragic collateral consequence of activity with a non-fatal objective. Instead, the taking of life is the goal of the enterprise, and the killing is the intended act of the state.

There is another difference between accidental fatalities in other social activities and those that occur when the capital system miscarries. Typically, the former fatalities are easy to spot and quantify; the latter are not. Precisely …

Dimensions Of Negligence In Criminal And Tort Law, Kenneth F. Simons

Faculty Scholarship

This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence (unreasonable creation of a risk of harm), a conception that dominates tort law; and cognitive negligence (unreasonable failure to be aware of a risk, either through inadvertence or mistake), a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to …

Delegation And Original Meaning, Gary S. Lawson

Faculty Scholarship

The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall …

Managerial Power And Rent Extraction In The Design Of Executive Compensation, Lucian Arye Bebchuk, Jesse M. Fried, David I. Walker

Faculty Scholarship

This paper develops an account of the role and significance of managerial power and rent extraction inexecutive compensation. Under the optimal contracting approach to executive compensation, which has dominated academic research on the subject, pay arrangements are set by a board of directors that aims to maximize shareholder value. In contrast, the managerial power approach suggests that boards do not operate at arm's length in devising executive compensation arrangements; rather, executives have power to influence their own pay, and they use that power to extract rents. Furthermore, the desire to camouflage rentextraction might lead to the use of inefficient pay …

Protecting The Endangered Human: Toward An International Treaty Prohibiting Cloning And Inheritable Alterations, George J. Annas, Lori B. Andrews, Rosario M. Isasi

Faculty Scholarship

We humans tend to worry first about our own happiness, then about our families, then about our communities. In times of great stress, such as war or natural disaster, we may focus temporarily on our country but we rarely think about Earth as a whole or the human species as a whole. This narrow perspective, perhaps best exemplified by the American consumer, has led to the environmental degradation of our planet, a grossly widening gap in living standards between rich and poor people and nations and a scientific research agenda that focuses almost exclusively on the needs and desires of …

Medical Privacy And Medical Research: Judging The New Federal Regulations, George J. Annas

Faculty Scholarship

Americans support both protecting the privacy of medical records and encouraging medical research. Thus, it is not surprising that a move to change practices in these two areas has generated attention and comment. The new federal regulations, promulgated under the authority of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), were adopted to protect the privacy of medical records. They were not specifically designed to facilitate or limit medical research. Nonetheless, the regulations have prompted strong objections from the biotechnology industry and from academic medicine. The Association of American Medical Colleges and the Biotechnology Industry Organization have argued …