Digital Commons Network^™

Granting Forgiveness Or Harboring Grudges: Implications For Emotion, Physiology, And Health, Charlotte Witvliet, Thomas Ludwig, Kelly L. Vander Laan

Faculty Scholarship

Interpersonal offenses frequently mar relationships. Theorists have argued that the responses victims adopt toward their offenders have ramifications not only for their cognition, but also for their emotion, physiology, and health. This study examined the immediate emotional and physiological effects that occurred when participants (35 females, 36 males) rehearsed hurtful memories and nursed grudges (i.e., were unforgiving) compared with when they cultivated empathic perspective taking and imagined granting forgiveness (i.e., were forgiving) toward real-life offenders. Unforgiving thoughts prompted more aversive emotion, and significantly higher corrugator (brow) electromyogram (EMG), skin conductance, heart rate, and blood pressure changes from baseline. The EMG, …

Lucas Rosa V. Park West Bank And Trust Company, Katherine M. Franke

Faculty Scholarship

In July of 1998 something rather mundane happened: Lucas Rosa walked into Park West Bank in Holyoke, Massachusetts and asked for a loan application. Since it was a warm summer day, and because she wanted to look credit-worthy, Rosa wore a blousey top over stockings. Suddenly, the mundane transformed into the exceptional: When asked for some identification, Rosa was told that no application would be forthcoming until and unless she went home, changed her clothes and returned attired in more traditionally masculine/male clothing. Rosa, a biological male who identifies herself as female was, it seems, denied a loan application on …

Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault

Faculty Scholarship

In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously …

Taking Care, Katherine M. Franke

Faculty Scholarship

Care must be taken when human needs are expressed in the odd dialect of legal rights. This delicate act of translation – from private need to public obligation – demands acute sensitivity to the ways in which public responsibility inaugurates a new and complex encounter with a broad array of public preferences that deprive dependent subjects of primary stewardship over the ways in which their needs are met. Both Martha Fineman and Joan Williams have taken on the difficult project of making the ethical and political case for transforming dependency and care – from private or domestic need to public …

Is Article 2 The Best We Can Do?, Robert E. Scott

Faculty Scholarship

You will all be happy to know that, haying listened to my colleagues for the last three hours, I have completely forgotten what I was planning to say. But I haven't forgotten why I am here. I am the proverbial skunk at the garden party, and I hope to fulfill my role as the only skeptic in the group. I must tell you candidly, however, that I agree with everything Gail Hillebrand had to say. That doesn't mean she is going to agree with anything that I have to say, but perhaps there are two skeptics here this afternoon.

My …

Three Nearly Sacred Books In Western Law, George P. Fletcher

Faculty Scholarship

We American lawyers pride ourselves on the secular nature of our legal system. We celebrate the separation of Church and State. We think that the moving spirit of the law is to be found not in eternal truths about the universe but in the contingent needs of social and economic policy. "The life of the law has not been logic: it has been experience," said Oliver Wendell Holmes, Jr., in a sentence that since 1881 has broadcast to every new generation of lawyers the pragmatic foundations of their craft.

We assume that we have little in common with the great …

Do Norms Matter?: A Cross-Country Evaluation, John C. Coffee Jr.

Faculty Scholarship

This Article starts with the recognition that the average private benefits of control vary significantly across countries. But why? The simplest explanation ascribes this variation to differences in law between jurisdictions: for example, the law of jurisdiction X could privilege controlling shareholders by allowing them to extract benefits from their corporation in the form of above-market salaries or non-pro-rata payments in connection with self-dealing transactions. But, this explanation cannot fit all cases. To illustrate, if the substantive law is essentially similar between two jurisdictions while the private benefits of control appear to be significantly different, then some other explanation must …

Unocal Fifteen Year Later (And What We Can Do About It), Ronald J. Gilson

Faculty Scholarship

The coincidence of the new millennium and the fifteenth anniversary of the Delaware Supreme Court's announcement of a new approach to takeover law provides an occasion to evaluate a remarkable experiment in corporate law – the Delaware Supreme Court's development of an intermediate standard of review for appraising defensive tactics. This assessment reveals that Unocal has developed into an unexplained and likely inexplicable preference that control contests be resolved through elections rather than through market transactions. In doing so, the remarkable struggle between the chancery court and the supreme court for Unocal's soul is canvassed. The author also maintains that …

Can Copyright Become User-Friendly? Review: Jessica Litman, Digital Copyright (2001), Jane C. Ginsburg

Faculty Scholarship

In this review, I will first briefly address Professor Litman's evocation of the copyright law-making process. Her discussion of legislative history presents a valuable and compelling account, especially for those unfamiliar with copyright law. Nonetheless, it is not a principal focus of this review. For those who read the Columbia Journal of Law & the Arts (many of whom may well be copyright lawyers), the most provocative portions of the book, to which I will devote most attention, are likely to be the chapters in which Professor Litman (a) reviews and challenges various metaphors for copyright policy (Chapter 5, "Choosing …

Everything I Need To Know About Presidents I Learned From Dr. Seuss, Gary S. Lawson

Faculty Scholarship

Oaths are out of fashion these days. This is an era in which it is widely considered unreasonable to expect the President of the United States to obey basic principles of law and justice, much less to honor something as abstract as an oath. Perjury the violation of a legally binding oath-is publicly defended as proof of the offender's humanity rather than his criminality. And one should not even mention in polite company something as gauche as honoring an oath of marriage. Those pesky vows of marital fidelity were, after all, just words.

Congressional Power To Require Dna Testing, Larry Yackle

Faculty Scholarship

Many states fail to conduct, or even to permit, DNA testing of biological materials in circumstances in which the results might exonerate convicts under sentence of death. Senator Patrick Leahy thinks that Congress should enact a statute requiring states to provide for testing when it promises to reveal the truth. Leahy's idea is sensible as a matter of policy. I mean in this Article to argue that it is also constitutionally feasible.

Copyright Law And Price Discrimination, Michael J. Meurer

Faculty Scholarship

I show that copyright law is intimately connected to price discrimination. First, price discrimination is common in markets for copyrighted works. Second, many features of copyright law affect resale or personal arbitrage and so influence the profitability of price discrimination. For example, the first sale doctrine and the fair use doctrine often facilitate arbitrage and discourage discrimination, while the derivative and public performance rights impede arbitrage and promote discrimination. Third, optimal copyright policy requires attention to the social costs and benefits from price discrimination.

I use models of price discrimination to unify the analysis of a wide range of copyright …

Of Theory And Practice, Tamar Frankel

Faculty Scholarship

Much has been written about theory and practice in the law, and the tension between practitioners and theorists. Judges do not cite theoretical articles often; they rarely "apply" theories to particular cases. These arguments are not revisited. Instead the Essay explores the working and interaction of theory and practice, practitioners and theorists.

The Essay starts with a story about solving a legal issue using our intellectual tools - theory, practice, and their progenies: experience and "gut." Next the Essay elaborates on the nature of theory, practice, experience and "gut." The third part of the Essay discusses theories that are helpful …

Rape, Murder, And Formalism: What Happens If We Define Mistake Of Law?, Gerald F. Leonard

Faculty Scholarship

The criminal law maxim "ignorance of the law is no excuse" represents a broad doctrine of strict liability in an area of law that usually insists on a culpable state of mind as a prerequisite for liability. For that reason, many scholars have attacked the harsh mistake-of-law rules as incompatible with basic principles of culpability. Other scholars have come to the defense of the maxim, and courts have adhered to it quite strongly even as the list of exceptions to the maxim has slowly grown. Oddly enough, however, this debate has proceeded without a definition of mistake of law. Distinguishing …

Party As A "Political Safeguard Of Federalism": Martin Van Buren And The Constitutional Theory Of Party Politics, Gerald F. Leonard

Faculty Scholarship

In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's "political safeguards of federalism" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and …

Tying Law And Policy: A Decision-Theoretic Approach, Keith N. Hylton, Michael Salinger

Faculty Scholarship

This paper offers a decision theoretic framework for analyzing tying law, and presents a critical assessment of post-Chicago tying theory. The decision theoretic framework takes into account the likelihood of judicial error in the application of rules and the costs of such error. We use the decision theoretic framework to assess the proper legal rules regarding tying and technological integration. Three general themes run throughout much of our analysis. First, the per se rule against tying simply has no economic foundation. Second, while the post-Chicago literature established the theoretical possibility of anticompetitive tying, one must know the frequency of anticompetitive …

When Did The Constitution Become Law?, Gary S. Lawson, Guy Seidman

Faculty Scholarship

Conventional wisdom and Supreme Court doctrine hold that the federal Constitution became legally effective on March 4, 1789, when the first session of Congress began. This conclusion is wrong, or at least seriously incomplete. Evidence from the Constitution, its adoption, and contemporaneous understandings reflected in treaties, statutes, and state constitutions demonstrates that the Constitution did not have a single effective date. Instead, different parts of the Constitution took effect in stages, beginning on June 21, 1788, when New Hampshire became the ninth state to ratify the document, and continuing at least until April 30, 1789, when President Washington was sworn …

The Managing Lawmaker In Cyberspace: A New Power Model, Tamar Frankel

Faculty Scholarship

This paper is about the power of The Internet Corporation for Names and Numbers (ICANN). It examines how this power was created, augmented, strengthened, and reigned in. ICANN poses a puzzle. It is essentially an unregulated and undemocratic monopoly. Yet, ICANN's exercise of power has been fairly contained. Since ICANN is a monopoly, what prevents it from taking a far more high-handed and extensive ruling posture?

Even though at first blush my analogy is counterintuitive, I analogize ICANN to a managing lawmakers of market infrastructures, such as the New York Stock Exchange, while recognizing their differences. Unlike theExchange, ICANN has …

Quality Control, Enterprise Liability, And Disintermediation In Managed Care, John V. Jacobi, Nicole Huberfeld

Faculty Scholarship

The authors examine the potential of enterprise liability for managed care organizations in light of current health-care finance realities. They conclude that, despite the recent trend toward more loosely structured managed care organizations, such as disintermediated or patient-directed plans, plan-based enterprise liability best serves the goal of reducing medical injury by permitting a focus on entities with sufficient scope to translate liability pressure into support for systemic risk-reduction measures. Advancing plan-based enterprise liability in an era of disengaged managed care organizations will require an extension of tort liability to firms with little control but much influence over their business partners.

Non-Compete Obligations Of Departing Star Partners And The Right Of Clients To Their Continued Services, Tamar Frankel

Faculty Scholarship

The interests of advisers and their clients may conflict in unexpected ways. One such situation arises when the adviser’s partners or managers (portfolio managers) sign a non-compete agreement with the adviser and later, when they leave, are sought after by clients who wish to continue the relationship. The case is clear if the departing portfolio manager solicits the clients of the adviser in violation of its non-compete undertaking. The case is less clear when the clients wish to follow the departing portfolio manager and press to engage her in violation of the non-compete undertaking. The conflict here is between the …

Is Napster A Vcr? The Implications Of Sony For Napster And Other Internet Technologies, Stacey Dogan

Faculty Scholarship

The staple article of commerce doctrine must strike a balance between a copyright holder's legitimate demand for effective-not merely symbolic-protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce.

In Sony Corp. of America v. Universal City Studios, the Supreme Court created the copyright version of the so-called "staple article of commerce doctrine."'2 Its stated objective was to strike a balance between the incentive objectives of copyright3 and the interests of the public in access to new technology.4 As defined by the Court, the doctrine prevents copyright holders from interfering with …

Conjoined Twins: The Limits Of Law At The Limits Of Life, George J. Annas

Faculty Scholarship

Conjoined twins have been the subject of scientific exhibits, medical study, human curiosity, and even entertainment, but until the year 2000, conjoined twins had never been the subject of a courtroom battle. A unique case that was the subject of two British court decisions deserves study.1 The case illustrates the difficulty of applying legal principles to unprecedented life-and-death decisions involving proposed medical interventions for children — particularly when parents and physicians disagree about what should be done.

“Partial-Birth Abortion” And The Supreme Court, George J. Annas

Faculty Scholarship

Aortion has long been, and remains, the most politicized medical procedure in the United States. It has been the subject of more state and federal legislation than all other medical procedures combined. The U.S. Supreme Court, which almost never hears cases about medical procedures, has regularly heard cases over the past 25 years concerning the constitutionality of various state laws designed to limit abortion. Thus, it was only a matter of time before the Court would hear a case on the constitutionality of laws restricting so-called partial-birth abortion. When the Court heard a challenge to Nebraska's law, statutes relating to …

Researching International Environmental Law, Ronald E. Wheeler

Faculty Scholarship

Question: I would like to use the Internet to research issues involving international law, specifically international environmental law. How can I access relevant information quickly if I have very little information to begin with?

The Merger Between Public Health And Health Law – The Us Situation, Wendy K. Mariner

Faculty Scholarship

Law is an essential tool for protecting the public’s health. It is often the law that turns public health science into public health action. Sanitation, clean air and water, universal vaccination, injury prevention, tobacco control, drug policy, and a vast array of other interventions are achieved through a complex web of local, provincial and national statutes, regulations and judicial cases. The Institute of Medicine in the United States defines public health as “what we, as a society, do collectively to ensure the conditions in which people can be healthy.” And society acts collectively most often through law.

Thus, the merging …

Hunting The Dragon: Reforming The Massachusetts Murder Statute, Sean J. Kealy

Faculty Scholarship

Murder is the most serious of all crimes. Given the grave consequences of murder, both in act and in punishment, one would expect careful, clearly defined elements of the crime. Unfortunately, this is often not the case. Some states, including Massachusetts, have statutes that retain outdated or archaic common law terms that are subject to constant redefinition by judges.

Why Courts Review Arbitral Awards, William W. Park

Faculty Scholarship

Judicial review of arbitral awards constitutes a form of risk management. In most countries courts may vacate decisions of perverse arbitrators who have ignored basic procedural fairness, as well as those of alleged arbitrators who have attempted to resolve matters never properly submitted to their jurisdiction. In some countries judges may also correct legal error or monitor an award's consistency with public policy.

Public scrutiny of arbitration is inevitable at the time of award recognition. Judges can hardly ignore the basic fairness of an arbitral proceeding when asked to give an award res judicata effect by seizing assets or staying …

The Hobbesian Constitution: Governing Without Authority, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

One case in American legal history, perhaps more than any other, starkly presents in a single package many of the most fundamental issues of American structural constitutionalism: the principle of enumerated powers, the concept of limited government, and the place of the United States in a world of sovereign nations. It raises foundational questions about the powers of all major institutions of the national government and serves as an ideal acid test for differing conceptions of the Constitution-and indeed of the American nation-state. In terms of its theoretical scope and consequences, it is one of the most important cases ever …

Is Virtual Trespass An Apt Analogy?, Maureen A. O'Rourke

Faculty Scholarship

Legal doctrine often evolves both more slowly than the conduct and the technology it is intended to regulate and by analogy. When parties argue that previously unheard-of behavior should generate some legal response, the relevant institution often seeks guidance from past experience. Earlier decisions addressing a specific actual context give some confidence that applying the legal rules from these prior situations to the new fact pattern will produce a sensible result. But principles developed to deal with one set of facts can only imperfectly fit another. This imperfect fit often becomes more evident over time, sometimes raising the question of …

Property Rights And Competition On The Internet: In Search Of An Appropriate Analogy, Maureen A. O'Rourke

Faculty Scholarship

Reasoning by analogy is a time-honored method of legal development. However, recent litigation exposes the weakness of applying legal principles developed in the "bricks and mortar" world by analogy to cyberspace. Using recent court decisions that discuss who may access a website and by what means, this Article illustrates how results can change depending on the analogy the court adopts. The Article argues that rather than searching for analogies, courts and legislators could more profitably devote their energies to understanding how the Internet differs from physical space, evaluating whether those differences call for new legal rules, and considering the conflicting …