Digital Commons Network^™

The Reasonable Woman And The Ordinary Man, Carol Sanger

Faculty Scholarship

Nineteen ninety-one was a seismic year for sexual harassment. The first localized shift occurred in January, when the Ninth Circuit established that the standard by which sexual harassment in the workplace would be judged was no longer the reasonable man or even the reasonable person but rather the reasonable woman. In October a larger audience felt a much stronger jolt when Anita Hill spoke before the Senate Judiciary Committee.

Hill testified that Supreme Court nominee Clarence Thomas had sexually harassed her while she worked for him at the Department of Education and at the Equal Employment Opportunity Commission. Her testimony …

Institutional Reform In Eastern Europe: Evolution Or Design?, Roman Frydman, Andrzej Rapaczynski

Faculty Scholarship

Most recent studies of privatization in Eastern Europe focus on its impact on individual enterprises. In our previous work, we examined this issue from the viewpoint of the future corporate governance structure in Eastern Europe. The aggregate effects of privatization have been largely neglected, perhaps on the assumption that they have no particular bearing on how privatization is to be effected at the enterprise level. It is very important, however, to link the discussion of the various approaches to large-scale privatization with a consideration of other obstacles in the transition to a market economy. These obstacles, which include the weakness …

The Economics And Politics Of Emergency Health Care For The Poor: The Patient Dumping Dilemma, Maria O'Brien

Faculty Scholarship

As the numbers of uninsured mount⁴ because of job dislocations, exhaustion of benefits, and unaffordably high premiums, the incidence of "dumping" by private hospitals is, predictably, on the rise. Dumping occurs when a hospital, in violation of federal or state law, transfers an emergency patient to another (usually public) hospital or simply refuses any treatment based on the patient's inability to pay.5 In addition to the completely uninsured, favorite dumping targets include Medicare and Medicaid patients, AIDS patients, and cancer patients whose therapy may cost more than the maximum reimbursement under private insurance.

Dumping is merely a part of …

An Interpretivist Agenda, Gary S. Lawson

Faculty Scholarship

As I write these words, bevies of law clerks assigned to cases involving the Bill of Rights are dutifully editing their bench memos for publication in the national reporter system. Once printed, these bench memos will be solemnly treated by lawyers, scholars, other law clerks, and the occasional judge who runs across them as legally significant, or even binding, interpretations of the Constitution. Two features of this burgeoning mass of otherwise unpublishable law review comments bear mention. First, most of them are tedious, tendentious, pretentious, and badly reasoned when reasoned at all, just as one would expect from authors who …

Equity And Hierarchy: Reflections On The Harris Execution, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The legal controversy surrounding the execution of Robert Alton Harris is only one in a series of cases over the past few months testing the proper relationship between the Supreme Court and the inferior federal courts. Controversy over inferior federal court grants or denials of injunctions concerning Haitian refugees1 and the French abortion pill2 have starkly raised, as does the Harris case3, profound questions concerning Supreme Court review of inferior court rulings on issues involving equitable relief. The Harris case did not display the American legal system at its finest. None of the participants in the process distinguished themselves-not the …

Foreword: The Constitution Of Responsibility, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The American legal academy is decidedly nationalistic. Comparative law tends to be a minor part of the law school curriculum, and discussion of alternative legal systems almost never finds its way into mainstream courses like constitutional law. As a result, much that is distinctive about American constitutionalism, and the American legal system in general, is often taken for granted. The federal Constitution, for example, says much about governmental structure, power, and limitations, but virtually nothing about the obligations of citizens to one another or to the government.' This feature of the American Constitution starkly sets it apart from many of …

Sticks And Stones Can Break My Name: Nondefamatory Negligent Injury To Reputation, Katharine B. Silbaugh

Faculty Scholarship

If a reputation is injured, does it matter whether defamation is the cause? Injury to reputation differs from other items of damage a plaintiff enumerates. Tradition links it to particular tortious conduct-defamation-on the part of a defendant. This Comment examines ordinary negligent conduct as an alternative ground for recovery for injury to reputation.

Long-Term Debt, The Term Structure Of Interest And The Case For Accrual Taxation, Theodore S. Sims

Faculty Scholarship

During the past 25 years, the Internal Revenue Code has become increasingly sophisticated in its treatment of long-term debt. That transformation occurred as part of a wider set of legislative changes, changes that have made the Code generally more sensitive to the consequences of compound interest and discounted (or present) values. Much of this was dictated by necessity. By ignoring the effects of compound interest, the Code often measured income in a way that was economically unsound, and thereby allowed taxpayers to take advantage of the statutory shortcomings, often with dramatic, unanticipated results.

Efficiency And Individualism, Gary S. Lawson

Faculty Scholarship

Law and economics-the systematic application of neoclassical price theory to legal problems has dominated the legal academy in recent years. One recent study found that law and economics "for several decades appears to have pervaded about one quarter of scholarship in elite law reviews," and that figure may seriously

understate the theory's influence. A number of justifiably well regarded scholarly journals devote themselves almost exclusively to economic analysis of law, and the subject is now a regular part of law school curricula.' Perhaps most importantly, law and economics is a pervasive and influential presence in informal academic discussions. Even legal …

The Poverty Of Privacy?, Linda C. Mcclain

Faculty Scholarship

This Article has two aims. First, it defends a continuing role for the right of privacy in arguments -for women's reproductive freedom against charges that privacy is an impoverished concept. Second, it raises cautions about certain feminist critiques of privacy that would ground this freedom in notions of reproductive responsibilities. As this Article was first presented at a conference, "Reproductive Issues in a Post-Roe' World," held in the wake of Webster v. Reproductive Health Services,2 the first question is: Are we now, given the Supreme Court's recent decision in Planned Parenthood v. Casey,' in a "post-Roe world"? Furthermore, what remains …

L'Arbitrage Et Le Recouvrement Des Prêts Consentis À Des Débiteurs Étrangers, William W. Park

Faculty Scholarship

L'auteur explore le rile complexe de 'arbitrage dans le rglement des difflrends financiers intemationaux impliquant des dettes privies et publiques. II onus rappelle que le diveloppement 6conomique global bnlficie d'un climat de confiance dons les relations commerciales internationales. Los doctrines juridiques et les procidures qui ajoutent de l'incertitude dans le processus de remboursement des prfts ne peuvent que freiner I'allocation de crdits qui pourraient autrement favoriser le commerce et l'investissement outre-frontikre, particuli~rement dons les pays en vole do diveloppement.

The author explores the complex role of arbitration in the settlement of international financial controversies involving both private and public debt. …

Setting Standards For The Use Of Dna-Typing Results In The Courtroom — The State Of The Art, George J. Annas

Faculty Scholarship

DNA typing, sometimes called DNA fingerprinting or profiling, has been the focus of heated exchanges in courtrooms, the popular press, and scientific journals. It is a powerful law-enforcement weapon, especially in cases of rape, because it has the potential to exonerate a suspect or to place him at the scene of a crime. On the other hand, it is of no use in rape cases like those in which William Kennedy Smith and Mike Tyson were accused, in which coitus is conceded to have occurred and the only real issue is consent. When should judges permit evidence from DNA typing …

Changing The Consent Rules For Desert Storm, George J. Annas

Faculty Scholarship

Shortly before the beginning of Operation Desert Storm, during Desert Shield, the U.S. military sought a waiver of requirements for informed consent for the use of investigational drugs and vaccines on our troops in the Persian Gulf. The danger of chemical and biologic warfare was seen as demanding this waiver, although the Nuremberg Code, other codes of medical ethics, and respect for the human rights of American soldiers seemed to caution against it. One year later it seems reasonable to review this decision. The legal maneuvering to revise consent regulations for wartime conditions provides a case study that highlights three …

Using Genes To Define Motherhood - The California Solution, George J. Annas

Faculty Scholarship

Sometimes (although not often) new forms of medical technology raise unique legal and social-policy issues that require new laws. In vitro fertilization, followed by the transfer of the embryo to a woman who did not contribute the ovum, is such a technique, because when the child's gestational mother is not the child's genetic mother, society must decide which is the child's legal mother. A California Court of Appeal, the first appellate court anywhere in the world to rule on this issue, decided in late 1991 that genes determine motherhood.

Adding Injustice To Injury - Compulsory Payment For Unwanted Treatment, George J. Annas

Faculty Scholarship

A New York court this year issued one of the most disturbing and aberrant appellate opinions of the past two decades concerning the right to refuse treatment.1 In my view, the judges ruling in Grace Plaza v. Elbaum made a series of errors: they assumed that institutions can have ethics apart from those of their physicians; they believed that both institutions and physicians are primarily motivated by money; and they approved the use of legal threats by institutions and physicians against patients and their families. In this court's idiosyncratic view, dying and medical care seem to be not about …

The Supreme Court, Liberty, And Abortion, George J. Annas

Faculty Scholarship

Abortion has aroused intense personal and political passions for almost two decades in the United States, and demeaning sloganeering has long substituted for reasoned discourse. Just as few people have actually read the 1973 ruling in Roe v. Wade, few people who have expressed their opinion on the Supreme Court's ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, which has been condemned by activists on both sides of the debate about abortion rights, have read it. In one poll, however, more than 70 percent of Americans agreed with the restrictions upheld by the Court as they understood …

Intra-Professional Warfare Between Prosecutors And Defense Attorneys, Nancy J. Moore

Faculty Scholarship

Until recently, I was only vaguely aware of the ongoing "war" be- tween the United States Department of Justice and the American Bar Association over the ethical conduct of prosecutors in their relation- ships with criminal defense attorneys.' Indeed, while I had always covered some aspects of prosecutorial misconduct in my professional responsibility course, I had never included either of the two ethics rules debated in this symposium-Model Rules 4.2 [hereinafter "the anti- contact rule"]2 and 3.8(f) [hereinafter "the subpoena rule"].3

The Internalization Paradox And Workers' Compensation, Keith N. Hylton, Steven E. Laymon

Faculty Scholarship

By providing a scientific link between the compensatory and deterrence goals of tort law, the Pigovian theory of externalities has had an enormous influence on modem torts scholarship and tort doctrine.

The Tragedy Of The Interstate Child: A Critical Reexamination Of The Uniform Child Custody Jurisdiction Act And The Parental Kidnaping Prevention Act, Anne B. Goldstein

Faculty Scholarship

This Article's thesis is that the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnaping Prevention Act (PKPA) have not eliminated jurisdictional competition because a federal system such as ours cannot achieve both of the Acts' two main instrumental goals - preventing or punishing "child snatching" and promoting well-informed decisions. Our system commits custody decisions to sovereign states, which make and modify the decisions according to indeterminate precepts. Such a system will inevitably create some version of the interstate child; so long as these features of our system persist, legislation cannot solve the problem. Therefore, although this Article proposes …

Law And Literature: Representing Lesbians, Anne B. Goldstein

Faculty Scholarship

What is involved in representing a lesbian in law or in literature? The premise of this Article is that the work of novelists is enough like the work of lawyers that useful insights can be drawn in at least one direction. That is, lawyers can learn how to represent lesbian clients better by studying books with lesbian characters.

Codification Of Supplemental Jurisdiction: Anatomy Of A Legislative Proposal, Arthur D. Wolf

Faculty Scholarship

The historic nature of congressional action in codifying supplemental jurisdiction in section 1367 calls for a close examination of the legislative process and product. Section I of this Article presents a brief survey of the development of supplemental jurisdiction. Section II examines the history of the legislative process that produced section 1367. Section III contains a preliminary review of judicial decisions under the new supplemental jurisdiction statute. The Article concludes with some editorial remarks regarding the statute and the process by which it became public law.

The Changing Landscape Of Human Experimentation: Nuremberg, Helsinki, And Beyond, George J. Annas

Faculty Scholarship

Since World War II there have been persistent efforts at both the national and international level to develop rules to protect the rights and welfare of subjects of human experimentation.' These efforts have focused primarily on codifying the rights of subjects, and protecting their welfare by prior peer review of research protocols. In recent years research regulations have been under attack by politicians, drug companies, researchers, and advocacy groups. In less than half a century, human experimentation has been transformed from a suspect activity into a presumptively beneficial activity. With this transformation, traditional distinctions between experimentation and therapy, subject and …

The Role Of Institutional Factors In Protecting Individual Liberties, Thomas W. Merrill

Faculty Scholarship

Questions about the efficacy of the Bill of Rights cry out for serious comparative legal scholarship. Robert Ellickson and Frank Easterbrook suggest that one might approach these questions by looking at different state constitutions. One might also look more seriously at the different constitutional regimes around the world, and try to draw some judgments about what impact, if any, different types of constitutional arrangements have on individual rights. We have heard expressions of skepticism about this approach, but there has been very little serious comparative scholarship by constitutional law scholars in this country. The scholarly tradition in America has been …

The Relevance Of Coherence, Joseph Raz

Faculty Scholarship

Coherence is in vogue. Coherence accounts of truth and of knowledge have been in contention for many years. Coherence explanations of morality and of law are a newer breed. I suspect that like so much else in practical philosophy today they owe much of their popularity to John Rawls. His writings on reflective equilibrium, while designed as part of a philosophical strategy which suspends inquiry into the fundamental questions of moral philosophy, had the opposite effect. They inspired much constructive reflection about these questions, largely veering toward coherence as the right interpretation both of reflective equilibrium and of moral philosophy. …

Pluralism, Parental Preference, And Child Custody, Elizabeth S. Scott

Faculty Scholarship

Modern child custody law faces an important challenge in responding to pluralistic and evolving gender and parenting roles. Professor Scott finds rules favoring maternal custody, joint custody, and the best interests of the child wanting; she argues that the optimal response to the current pluralism in family structure is a rule that seeks to replicate past parental roles. This "approximation" standard promotes continuity and stability for children. It encourages cooperative rather than conflictual resolution of custody, thereby ameliorating the destructive effects of bargaining at divorce. It also recognizes and reinforces role change in individual families, encouraging both parents to invest …

The Political Ecology Of Takeovers: Thoughts On Harmonizing The European Corporate Governance Environment, Ronald J. Gilson

Faculty Scholarship

Economic policy debate in the United States during the 1980s focused on the dynamics of bidder and target tactics in hostile takeovers. Confronted with the largest transactions in business history, financial economists took advantage of developments in econometric techniques to conduct virtually real time studies of the impact on firm value of each new bidder tactic and target defense. For courts and lawyers, hostile takeovers subjected standard features of corporate law to the equivalent of a stress x-ray, revealing previously undetected doctrinal cracks. Congress held seemingly endless hearings on the subject, although managing to enact only relatively innocuous tax penalties …

Microcolins A And B, New Immunosuppressive Peptides From The Blue-Green Alga Lyngba Majuscula., F. E. Koehn, Ross E. Longley, John K. Reed

Faculty Scholarship

Microcolin A [1] and microcolin B [2] are new immunosuppressive lipopeptides isolated from a Venezuelan sample of the blue-green alga Lyngbya majwcnh. The microcolins are potent inhibitors of the murine mixed lymphocyte response and murine P-388 leukemia in vitro. Isolation and structure elucidation of 1 and 2 by nmr, mass spectral, and chemical methods are described.

Marine organisms have emerged as an abundant source of novel peptide secondary metabolites (1). Several of these, such as the didemnins ( 2 4 ) , dolastatins ( 5 4 , and discodermins (9-11), have been shown to possess striking biological activity, for the …

Of Harms And Benefits: Torts, Restitution, And Intellectual Property, Wendy J. Gordon

Faculty Scholarship

Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land, intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.

Eastern Atlantic Expedition: Submersible And Scuba Collections For Bioactive Organisms From The Azores To Western Africa., John K. Reed, Shirley A. Pomponi

Faculty Scholarship

Research expeditions conducted by Harbor Branch Oceanographic Institution on the R/V Sea Diver in 1990 and on the R/V Seward Johnson in 1991 explored the waters of the Azores, Madeira Islands. Salvage Islands, Canary Islands, Republic of Cape Verde, and the west African countries Senegal and Sierra Leone. The objectives were to collect marine macro- and microorganisms for the purpose of isolating novel, biologically active compounds with potential as therapeutic agents for human diseases. A total of 1,756 samples of macroinvertebrates and algae were collected at 254 sites, utilizing submersible. scuba, trawl, and dredge. During 69 operational days, 28 diver-scientists …

Submersible Studies Of Deep-Water-Oculina And Lophelia Coral Banks Off Southeastern U.S.A., John K. Reed, Harbor Branch Oceanographic Institute

Faculty Scholarship

Two types of deep-water coral banks occur off the coast of southeastern United States: Oculina and Lophelia/Enallopsammia. The Oculina banks form an extensive reef system at depths of 70-100 m along the shelf edge off central eastern Florida. These reefs are comprised of >100 individual pinnacles and ridges which are up to 24 min height. Each pinnacle is actually a bank of unconsolidated sediment and coral debris that is capped on the slopes and crest with living colonies of Oculina varicosa. the ivory tree coral. In comparison, deep-water banks of Lophelia and Enallopsammia corals occur at depths of 490-870 m …