Digital Commons Network^™

Three Limitations Of Deliberative Democracy: Identity Politics, Bad Faith, And Indeterminancy, William H. Simon

Faculty Scholarship

In Democracy and Disagreement, Amy Gutmann and Dennis Thompson elaborate a liberal political style designed to complement the substantive liberalism they and others have developed in recent years. The style they portray is deliberative, and its essence is the appeal to principle.

Parallel Litigation, James P. George

Faculty Scholarship

Parallel litigation--a dispute generating multiple lawsuits--is not a new phenomenon and is not limited to celebrities or sensational controversies. Besides the publicity-generating lawsuits noted above, divorce actions have a long history of parallel lawsuits and conflicting judgments. Recent years have seen an expansion both in the incidence and the subject matter of parallel lawsuits, perhaps fueled by the traditional motivations of home-court advantage and differing laws, along with the expansion of personal jurisdiction rules in the past fifty years.

In spite of this increase, the vocabulary remains imprecise and ambiguous. Parallel litigation would seem to mean identical or mirror image …

Resolving Conflicting International Data Privacy Rules In Cyberspace, Joel R. Reidenberg

Faculty Scholarship

While core principles for the fair treatment of personal information are common to democracies, privacy rights vary considerably across national borders. This article explores the divergences in approach and substance of data privacy between Europe and the United States. It argues that the specific privacy rules adopted in a country have a governance function. The article shows that national differences support two distinct political choices for the roles in democratic society assigned to the state, the market and the individual: either liberal, market-based governance or socially-protective, rights-based governance. These structural divergences make international cooperation imperative for effective data protection in …

Testing For Genetic Traits: The Need For A New Legal Doctrine Of Informed Consent , Elizabeth B. Cooper

Faculty Scholarship

Innovative medical technology has made it possible to test whether you are at increased risk for certain types of cancer. The mere processing of a vial of blood can reveal whether you have a genetic predisposition to develop breast, ovarian, or prostate cancer, or other life-threatening conditions. The Human Genome Project, an international endeavor seeking to map our genetic structures, has facilitated this increasing ability to test for genetic flaws. It is expected that as the human genetic map is filled in, and as flaws in our fundamental building blocks are identified, there will be a concomitant drive to test …

Collision Law In The Next Millennium, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Nichiren’S Risshō Ankoku Ron And Canon Formation, William E. Deal

Faculty Scholarship

Regardless of his own stated purpose or expected outcome for the Risshõ ankoku ron, one of Nichiren’s accomplishments in writing this treatise was the articulation of a canon, that is, a list of texts that were deemed true and authoritative from his perspective, as distinguished from other writings that were not. This essay explores the process of canon formation in Nichiren Buddhism, focusing on the structure and argument of the Risshõ ankoku ron. Noting five notions present in the process of canon formation, namely, selectivity, hierarchy, closure, orthodoxy, and legitimation, it examines the particular way these elements are manifest in …

Measuring Gender Equity, Alfred Dennis Mathewson, Robert D. Rogers

Faculty Scholarship

It is our intent to provide some insight into the development of compliance plans with an eye toward a university's athletic program policy. In Part I, we explore conventional attempts to measure relative demand and its use in litigated cases. In Part II, we describe the measurement instrument we used to conduct the empirical study. Our study is distinguished from conventional efforts in two respects.2 7 First, we did not seek to measure the number of athletes with interest and ability. Rather we sought to measure the relative amounts of athletic participation that would be consumed if a university satisfied …

Are We To Be A Nation?: Federal Powers Vs "States’ Rights" In Foreign Affairs, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Constitutional Law-Bill Of Attainder-Fifth Circuit Holds That The Special Provisions Of The Telecommunications Act Of 1996 Are Not A Bill Of Attainder, Thomas H. Lee

Faculty Scholarship

No abstract provided.

Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins

Faculty Scholarship

The public/private distinction has been a target of thoroughgoing feminist critique for quite some time now. Indeed, attacking the public/private line has been one of the primary concerns (if not the primary concern) of feminist legal theorizing for over two decades. If Carole Pateman is correct, one would think that this particular problem might be assigned to the category of "finished business" by this time. In this Essay, I do argue that the critique is, in certain ways, finished business in that it is no longer particularly useful in its most common forms. More importantly, however, I suggest several ways …

Diseases Of Meaning, Manifestations Of Health, And Metaphor, Peter J. Whitehouse

Faculty Scholarship

Disease and health are commonly thought of as distinct opposites. We propose a different view in which both may be seen to be facets of healthy functioning, each necessary for the other, each giving rise to the other. Thus, disease may be thought of as a manifestation of health. It is the healthy response of an organism striving to maintain physical, psychologic, and spiritual equilibrium. Disease is not necessarily to be avoided, blocked, or suppressed. Rather, it should be understood to be a process of transformation. The process should therefore be facilitated because it is an integral part of the …

Design And Optimization Of Chromophores For Liquid Crystal And Photorefractive Applications, Kenneth D. Singer, V. Ostoverkhov, Rolfe G. Petschek

Faculty Scholarship

Organic chromophores have been exploited for a wide range of discrete optical and electronic functions as well as a growing number of combined opto-electronic functions. We are pursuing development of organic and polymer materials for a range of applications that require properties including liquid crystallinity, second order optical nonlinearity, photorefractivity and, more recently, special nonlinear optical behavior involving molecular chirality.

Civil Society And Multiple Repositories Of Power Symposium On Legal And Constitutional Implications Of The Calls To Revive Civil Society: Ii. The Constitution Of Civil Society, Abner S. Greene

Faculty Scholarship

The primary goal of civil society revivalists is not the revival of civil society. It is the empowerment of otherwise alienated citizens. Reviving civil society is seen as the principal means to that end, but it is not the only means. To be sure, the revivalists focus their attention on participation in nongovernmental associations. But the ways of overcoming alienation are plural, and they include participation in government, participation in nongovernmental associations, and assertions of individual rights against various forms of collective will. In this brief essay, I first explain why only a pluralist understanding of human flourishing fits with …

Reflections On Monell’S Analysis Of The Legislative History Of §1983, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

When Is Property Intellectual: The Leveraging Problem Essays, Mark R. Patterson

Faculty Scholarship

Patents and copyrights protect inventions and expression; they do not protect products. This distinction, I argue in this essay, is a key to the antitrust problem of the "leveraging" of intellectual property. In a typical leveraging case, the manufacturer of a durable good, like a copier or computer, refuses to sell replacement parts for its equipment unless the purchaser also hires the manufacturer to service the equipment. Such a practice can be illegal under antitrust law, but when the leveraging products-in this example, replacement parts-are protected by patent or copyright, the manufacturer will often claim that the leveraging is a …

When Bad Things Happen To Good Intentions: The Development And Demise Of A Task Force Examining The Drugs-Violence Interrelationship Symposium On Drug Crimes, Deborah W. Denno

Faculty Scholarship

Between 1994-1996, I was one of twenty-eight members of a Drugs-Violence Task Force, created to report to the United States Sentencing Commission specific findings, conclusions, and recommendations concerning the interrelationship (if any) between drugs and violence. Much of the controversy concerning how to approach the drugs-violence problem reflects two conflicting and long-held views of drugs and crime: the criminal justice view, which emphasizes detecting and punishing drug offenders, and the public health view, which advocates treating the drug addiction that leads some individuals to commit crime. Traditionally, the criminal justice view is associated with a “tough on crime” attitude that …

Judicial Hostility Toward Labor Unions--Applying The Social Background Model To A Celebrated Concern , James J. Brudney, Sara Schiavoni, Deborah J. Merritt

Faculty Scholarship

Brudney, Schiavoni, and Merritt address an important debate dividing lawyers And political scientists: To what extent do extra doctrinal factors such as political party, gender, and professional experience influence judicial decision making? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of Judicial bias. By including every federal court of appeals decision applying the Act over a seven year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decision …

Introduction - Denver Journal Of International Law And Policy, Thomas E. Carbonneau

Faculty Scholarship

The reconciliation of national law with a transborder standard is at the heart of the European enterprise to create an integrated legal process. Such reconciliation is also necessary to establish a unified political community with common core values. The various cases that are analyzed in this issue address critical questions of law and policy, and demonstrate the court’s progress in elaborating a communitarian practice in the various subject areas.

In the cases that are studied, the ECJ rendered preliminary rulings on previously unresolved issues of Community law. The ECJ has the power under Article 177 ofthe EC Treaty to issue …

Refocusing The Burden Of Proof In Criminal Cases: Some Doubt About Reasonable Doubt, Lawrence Solan

Faculty Scholarship

No abstract provided.

Gender Bias, Cognition And Power In The Legal Academy, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Then Technological Family: What's New And What's Not, Marsha Garrison

Faculty Scholarship

No abstract provided.

Finley, Forbes And The First Amendment: Does He Who Pays The Piper Call The Tune?, Joel Gora

Faculty Scholarship

No abstract provided.

The Case For A European Securities Commission, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Of Hungry Wolves And Horizontal Conflicts: Rethinking The Justifications For Bank Holding Company Liability, Eric J. Gouvin

Faculty Scholarship

To what extent should bank holding companies bear the costs of bank failure? Current banking law provides a number of ways to impose liability on bank holding companies for bank failure. Those devices, however, have developed haphazardly and sometimes rest on inconsistent theoretical foundations. This Article critiques the regulatory justifications that have been offered for holding company liability and offers an alternative justification for imposing liability on holding companies based on the idea that directors of bank subsidiaries suffer from an especially difficult form of horizontal conflict--the situation where the board of directors owes several different duties and chooses to …

The Uniqueness Of Federal Prosecutors, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

No abstract provided.

Peace And The Political Imperative Of Legal Reform In Palestine, George Bisharat

Faculty Scholarship

No abstract provided.

Massachusetts' Domestic Partnership Challenge: Hope For A Better Future, Jennifer Levi

Faculty Scholarship

Acknowledging that its decision means that "some household members" may be without a "critical social necessity," the Massachusetts Supreme Iudicial Court (SJC) ruled in Connors v. City of Boston that Boston Mayor Thomas M. Menino's executive order granting health insurance benefits to the domestic partners of city employees could not stand in the face of a Massachusetts state insurance law. In Connors, the SJC simultaneously recognized that although the demographics of Massachusetts households have changed within the more than forty years since the state insurance law, G.L. c. 32B (Chapter 32B), was adopted, that law nevertheless constrains municipalities from extending …

Not Him, Sister's Stories & Teresita (Poems), Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.

Commercial And Corporate Lawyers 'N The Hood, Alfred Dennis Mathewson

Faculty Scholarship

I shall begin the development of this proposition with a theme from a "Last Lecture" I was asked to deliver by the UNM Campus Ministries several years ago. I was asked to pretend that I would die immediately after giving the lecture. I opened the lecture with a story my mother used to tell us about the time she was traveling on Trailways with two of my older brothers, then toddlers. The bus driver asked her to move to the back of the bus. She had not wanted to get up but decided that compliance with the demand was in …

Emphasizing Torts In Claims Of Discrimination Against Black Female Athletes, Alfred Dennis Mathewson

Faculty Scholarship

In Black Women, Gender Equity and the Function at the Junction, I argued that an equality-based legal regime does not provide an adequate remedy for African-American female athletes. Instead I suggested that a tort-based regime may be more appropriate. I did so knowing that gender and racial discrimination are torts and I did not intend to suggest otherwise. They are statutory torts founded upon equality principles. What I intended was to draw more upon the general tort principles involved in an antidiscrimination action. I specifically invoked the notion of using mass tort theories. I wish to sketch a brief but …