Digital Commons Network^™

A Watershed Issue: The Role Of Streamflow Protection In Northwest River Basin Management, Reed D. Benson

Faculty Scholarship

Watershed management has become a popular approach to environmental problems in the Northwest. Federal, regional, state, local, and tribal watershed efforts are in progress throughout the region. The popularity of the watershed approach can be traced to ecological and political factors. Most watershed management activities, however, focus more on land use and riparian measures than on providing and protecting instreamflows. For both legal and political reasons, watershed efforts tend to avoid water rights issues. Such efforts tend not to be well connected with instream flow protection or water resource planning under state law. Unless they address the need for streamflows, …

Artistic Parody: A Theoretical Construct, Sherri L. Burr

Faculty Scholarship

This article looks at artists and copyright holders who sue parodists and claim a violation of the copyright in their works, and proposes increasing the available options for parodists.

Dire Wolf Collects His Due While The Boys Sit By The Fire: Why Michigan Cannot Afford To Buy Into The Death Penalty, Justin P. Brooks, Jeanne Huey Erickson

Faculty Scholarship

No abstract provided.

How Do Judges Decide Divorce Cases?: An Empirical Analysis Of Discretionary Decision Making, Marsha Garrison

Faculty Scholarship

No abstract provided.

Introduction: The Promise Of The Violence Against Women Act Of 1994, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Comparative Risk Assessment In New York, Michael B. Gerrard, Deborah Goldberg

Faculty Scholarship

Comparative risk assessment (CRA) is the examination of the relative risks posed by different dangers, with a view to deciding which dangers deserve the most governmental attention. CRA frequently tries to reduce different problems to a common metric, usually the statistical lives saved by a program, so that apples can be weighed against oranges. This article will discuss and assess the growing use of CRA in New York State.

There are two principal arguments for the use of CRA in the environmental context. The first is that we do not have unlimited resources; we cannot move against all problems simultaneously. …

Theories Of The Corporation And The Tax Treatment Of Corporate Philanthropy Symposium: Corporate Philanthropy Law, Culture, Education, And Politics, Linda Sugin

Faculty Scholarship

This essay is organized as follows: Part I describes the entity model of the corporation as developed in corporate and ethical theory, showing how that model is embodied in the Code and how variations in that model produce different conclusions about the legitimacy of the charitable contribution deduction for corporations. It discusses some issues that arise when corporate philanthropy is considered in the context of the entity theory and how the tax law might respond to those issues. Part II explains how the nexus-of-contracts conception of the corporation, applied as an analytical tool, challenges the tax law's treatment of corporate …

Anti-Essentialism, Relativism, And Human Rights , Tracy E. Higgins

Faculty Scholarship

Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women's freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness. Yet to forge an alternative path is difficult, …

Ruder Report Is A Delicate Compromise, Constantine N. Katsoris

Faculty Scholarship

No abstract provided.

Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson

Faculty Scholarship

Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise …

International Copyright: An Unorthodox Analysis American Association Of Law Schools' Intellectual Property Section's Symposium On Compliance With The Trips Agreement, Hugh C. Hansen

Faculty Scholarship

Professor Hansen reviews the development of copyright from its traditional domestic orientation to the modern emphasis on globalization and harmonization. His commentary analogizes modem trends in international copyright to religious equivalents. He notes that the current players include a "secular priesthood" (the traditional copyright bar and academics), "agnostics and atheists" (newer academics and lawyers, particularly those concerned with technology and the culture of the public domain) and "missionaries" (whose task it is to increase copyright protection around the world and who are primarily driven by trade considerations). The copyright "crusade" has been driven by this last group. The author compares …

Review Essay: “Indians Are Us?: Culture And Genocide In Native North America" By Me Monroe, John P. Lavelle

Faculty Scholarship

Indians Are Us? is a collection of commentaries on American Indian political and social affairs, written in the truculent tone that readers have come to expect from writer Ward Churchill. Like its predecessors, Fantasies of the Master Race and Struggle far the Land, this latest Churchill project consists largely of polemical pieces hastily compiled from obscure leftist publications.

Should The Michigan Supreme Court Adopt A Non-Majority Vote Rule For Granting Leave To Appeal?, Carol A. Parker

Faculty Scholarship

This article examines the evolution of Michigan's appellate court system, the role of a modem supreme court, and the rationale for giving a court discretionary jurisdiction. It also reviews the theory of the non-majority vote rule as a procedural safeguard against abuse of the discretionary review power. The Note also assesses current problems faced by the Michigan Supreme Court which are driven to a large extent by escalating appellate caseloads, and whether adoption of a non-majority vote rule would be an improvement over the status quo. This Note concludes that adoption by the Michigan Supreme Court of a "Rule of …

Self-Defense, Domination, And The Social Contract, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Blending As A Central Process Of Grammar, Mark Bernard Turner

Faculty Scholarship

Constructions are long-term memory associations of form and meaning. How are they formed and learned, how do they change, and how do they combine into new utterances (constructs, communicative performances) in working memory? This chapter analyzes the role and process of conceptual integration (blending) in the creation and use of constructions.

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

Union Lawyer's Obligations To Bargaining Unit Members: A Case Study Of The Interdependence Of Legal Ethics And Substantive Law, The Symposium: The Lawyer's Duties And Liabilities To Third Parties, Russell G. Pearce

Faculty Scholarship

One of the largest groups of purported nonclients to whom lawyers might have obligations are members of bargaining units represented by unions. Despite the much publicized decline of labor unions, they have almost 16.4 million members. In addition, many workers are members of bargaining units represented by labor unions, but are not union members. The relationship of union lawyers to these millions of bargaining unit members, whether members of the union or not, is unclear. An examination of how this relationship influences and is influenced by labor law offers a fascinating case study of the synergy between the substantive law …

Why Mandatory Hiv Testing Of Pregnant Women And Newborns Must Fail: A Legal, Historical, And Public Policy Analysis Special Issue: Mandatory Hiv Testing Of Newborns And Their Mothers, Elizabeth B. Cooper

Faculty Scholarship

The debate surrounding mandatory HIV testing of newborns and pregnant women requires an understanding of the historical context of women in the epidemic. Although the epidemic first was recognized in gay men in 1981, anecdotal reports reveal that women already were dying from what seems to have been HIV-related symptomatology. Indeed, in Gena Corea's book, The Invisible Epidemic, we learn that, as early as 1981, not insignificant numbers of drug-using and former drug-using women were falling ill and not recovering from conditions that normally are not fatal, including bacterial pneumonia. Yet, because we did not necessarily expect these populations to …

Court Mediation And The Search For Justice Through Law, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

Copyright: From Stone Age Caves To The Celestial Jukebox, Nick Allard

Faculty Scholarship

No abstract provided.

The Absence Of Cross-Cultural Communication: Sec Mandatory Disclosure And Foreign Corporate Governance, James A. Fanto

Faculty Scholarship

No abstract provided.

Succeeding In Law School: A Comparison Of Woman's Experience At Brooklyn Law School And The University Of Pennsylvania, Marsha Garrison, Brian Tomko, Ivan Yip

Faculty Scholarship

No abstract provided.

The Violence Against Women Act Project: Teaching A New Generation Of Public Interest Lawyers, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Kiryas Joel And Two Mistakes About Equality , Abner S. Greene

Faculty Scholarship

In 1948, Rebbe Joel Teitelbaum founded the congregation Yetev Lev D'Satmar in Williamsburg, Brooklyn. Over the next twenty-five years, the Satmar Hasidic sect grew, and members started thinking about leaving the urban, heterogeneous setting for a place where they could live in relative isolation. In 1974, Satmar families began leaving Brooklyn for upstate New York. They purchased property in the Town of Monroe, and later, after a zoning dispute with the Town, incorporated as the Village of Kiryas Joel. As of 1990, approximately 10,000 Satmar Jews lived in or around the Village. The Satmars dress in conformance with a semiformal …

Making The Law Safe For Science: A Proposed Rule For The Admission Of Expert Testimony, David L. Faigman

Faculty Scholarship

No abstract provided.

Resolving The Subsidiary Director's Dilemma, Eric J. Gouvin

Faculty Scholarship

Although subsidiaries play a significant role in our economy, surprisingly little has been written about the duties of their directors. Despite widespread acceptance of holding companies as commonplace business entities, several legal problems inherent in the holding company form of ownership remain unresolved. Holding companies raise legal dilemmas for subsidiary directors that are easier to ignore than to resolve. This Article examines the subsidiary director's dilemma and demonstrates that traditional models of corporate structure are not adequate for the subsidiary-parent situation. The Author argues that the law should recognize the special relationship between a parent and its subsidiary and adopt …

Of Vulcans And Values: Judicial Decision-Making And Implications For Judicial Education, Paul Biderman

Faculty Scholarship

This article begins by analyzing scholarly works which have addressed the role of a judge's personal values in the work of the judiciary. I will then attempt to identify where values clearly or arguably enter decisions, not because judges necessarily want them to but because the legal system compels it. In particular, I will explore that role not only in the more visible context of monumental appellate decisions, but also in the seemingly routine actions of every judge who sits on a bench. I will then review some guidelines that have been offered for appropriate application of values in the …

Black Women, Gender Equity And The Function At The Junction, Alfred Dennis Mathewson

Faculty Scholarship

After teaching sports law for several years, I am struck that few people can articulate a coherent general thesis of what gender equity means or a clear vision of what the athletic picture will look like when it has been attained. The law of gender equity, however, is not so difficult to find. The Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1983 (§ 1983) and Title IX of the Civil Rights Act of 1964, as amended by the Education Amendments of 1972, are the major sources of American gender equity law. The Equal Protection Clause has been …

Voices/Voces In The Borderlands: A Colloquy On Re/Constructing Identities In Re/Constructed Legal Spaces, Margaret E. Montoya, Melissa Harrison

Faculty Scholarship

While we believe that the work of healing our cultural dyslexia is partly cognitive, in and through this paper we have tried to enact the experiential aspect. We may approach the entrances of the borderlands through reading and thinking, however we believe that the borderlands is a phenomenon of living, a phenomenon of well-intentioned people interacting in deliberate and thoughtful ways with those who are simultaneously like and unlike us/them. The borderlands require that we bring our critical faculties to bear on life's experiences, but, more often than not, we must suspend them in favor of more charitable and affiliative …

Rethinking Media Liability For Defamation Of Public Figures, John L. Diamond

Faculty Scholarship

No abstract provided.