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When Does Private Discrimination Justify Public Affirmative Action, Ian Ayres, Fredrick E. Vars

Articles

No abstract provided.

Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond "Empty" Toleration To Toleration As Respect, Linda C. Mcclain

Faculty Scholarship

This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …

Effects Of Managed Care On The Professional Autonomy Of Board Certified Physical Therapy Specialist's Practice, Cami Diezel

Department of Physical Therapy Student Theses, Dissertations and Capstones

Purpose: Identify perceptions of professional autonomy of Board Certified Physical Therapy Specialists (BCPTS) who practiced in managed care environments.

Guiding questions: Do BCPTS perceive an increase in professional autonomy as a specialist than as a generalist? How do the perceptions of professional autonomy vary among each specialization? What variables affect perceptions of professional autonomy among BCPTS?

Method: Two-hundred BCPTS throughout the country were randomly chosen as participants. One-hundred-eight respondents were used as subjects.

Data analysis: Frequency distributions and Pearson's correlation coefficient statistic were utilized.

Results: Majority of respondents reported no increase in professional autonomy as a specialist. Greater than three-quarters …

The American Bar Association And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

The ABA explains its proposed moratorium on capital punishment in part on the ground that recent decisions rendered by the Supreme Court and legislation enacted by Congress limit the ability of prisoners under sentence of death to challenge their sentences in the federal courts.' According to the ABA, the Supreme Court has placed numerous hurdles in the path of prisoners who apply to the federal courts for a writ of habeas corpus, claiming that their convictions were obtained or their sentences were imposed in violation of federal law. Congress, for its part, has added even more barriers in Title I …

Disproportionation And Structural Changes Of Tetraarylethylene Donors Upon Successive Oxidation To Cation Radicals And To Dications, Rajendra Rathore, Sergey V. Lindeman, A. S. Kumar, Jay K. Kochi

Chemistry Faculty Research and Publications

The stepwise (one-electron) chemical oxidation of the tetraphenylethylene donor and its substituted analogues (D) can be carried out by electron exchange with aromatic cations or antimony(V) oxidants to selectively afford the cation radical (D^+•) initially and then the dication (D²⁺). The ready interchange of the latter establishes the facile disproportionation (i.e., 2D^+• ⇌ D²⁺ + D) that was originally examined by only transient electrochemical techniques. The successful isolations of the crystalline salts of the tetraanisylethylene cation radical (1^+•) as well as the …

Photoinduced Coupling Of Acetylenes And Quinone In The Solid State As Preorganized Donor−Acceptor Pairs, E. Bosch, S. M. Hubig, Sergey V. Lindeman, Jay K. Kochi

Chemistry Faculty Research and Publications

Crystalline electron donor−acceptor (EDA) complexes of various diarylacetylenes (DA) and dichlorobenzoquinone (DB) are isolated and structurally characterized by X-ray crystallography. Deliberate excitation of either the DB acceptor at λ_DB = 355 nm or the 1:2 [DA, 2DB] complex at λ_CT = 532 nm in the solid state leads to [2 + 2] cycloaddition and identical (isomeric) mixtures of the quinone methide products. Time-resolved (ps) diffuse reflectance spectroscopy identifies the ion-radical pair [DA^•+, DB^•-] as the reactive intermediate derived by photoinduced electron transfer in both photochemical …

The Abcs Of Adr: Making Adr Work In Your Court System, Nancy A. Welsh, Barbara Mcadoo

Faculty Scholarship

So you are thinking about making Alternative Dispute Resolution (ADR) a part of your existing statewide judicial process-but you don't know how. You want to provide litigants with alternative ways to resolve their disputes, through processes such as mediation, arbitration, and summary jury trials. In fact, you have been experimenting with these processes on an ad hoc basis and have had quite a few successes. You think you could accomplish even more if you made ADR a routine part of the judicial process. But you are cautious about the role that your state court system should take in promoting and …

Arbitration In Banking And Finance, William W. Park

Faculty Scholarship

The world's bifurcation into debtors and creditors has created yet another class of people: those involved in resolving disputes between lenders and borrowers. To promote reliability in financial dispute resolution, credit agreements have generally provided that potential controversies will be submitted either to courts in the bank's home jurisdiction, or to courts of a major money center such as London or New York.

Defending The Middle Way: Intermediate Scrutiny As Judicial Minimalism, Jay D. Wexler

Faculty Scholarship

In the last few years, Court-watchers have been particularly busy critiquing the constitutional decisions of the splintered Rehnquist Court. Two of the recurring critiques have posited that the Justices are overly activist and that their opinions are needlessly confusing. American Lawyer's Stuart Taylor, for example, has decried both the "jurisprudential mess" of the Court's recent redistricting decisions' as well as the disturbing activism that Taylor believes marks each of the Equal Protection decisions of the 1995-96 Terman activism that has led him to wonder "whether there is any life at all left in the idea of judicial restraint."' Eva Rodriguez …

Marriage Contracts And The Family Economy, Katharine B. Silbaugh

Faculty Scholarship

One simplified view of contract law is that the state enforces private bargains without looking into the substance of those bargains. From this contractual perspective marriage might look like a contract to exchange services and goods: love, money, the ability to have and raise children, housework, sex, emotional support, physical care in times of sickness, entertainment and so forth. But when the parties to a marriage put these terms in writing, courts only enforce the provisions governing money. This contract/family law rule of selective enforcement disproportionately benefits those who bring more money to a marriage, who are more likely to …

Evaluating The Case For Social Security Reform: Elderly Poverty, Paternalism And Private Pensions, Maria O'Brien

Faculty Scholarship

This Article considers the many arguments currently being made in favor of Social Security pension reform and evaluates each of them in terms of the principal Congressional goal of the program-the elimination of elderly poverty-as well as more recent goals that have been articulated by subsequent commentators such as a reduction in government paternalism and the maximization of retirement income. The Article begins with a short history of the public pension program in the United States and considers at length the details of the various reform proposals that currently enjoy support. In addition it examines the enormously regressive tax structure …

Treatment Alternatives For The Dying Patient: Medical Ethics And The Law, Thomas Wm. Mayo, Robert L. Fine

Faculty Journal Articles and Book Chapters

No abstract provided.

Exploring The Complicationist Gambit: An Austrian Approach To The Economic Analysis Of Law, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

No abstract provided.

Ranking The Environmental Law, Natural Resources Law, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

No abstract provided.

On Commodifying Intangibles, Wendy J. Gordon, Sam Postbrief

Faculty Scholarship

It was made clear long ago that property and value are different things. Value exists. It is a fact. It can arise from law, and much of law aims at creating more value in the world. But value can also arise in spite of law (consider, for example, the fortunes that bootleggers made during the Roaring Twenties), or in law's interstices. When a particular value arises despite a lack of explicit legal protection, its possessors often ask courts or legislatures to give them a legal entitlement to preserve and further exploit that value. Typically the holders demand (1) a liberty …

The Power And The Process: Instructions And The Civil Jury, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The form of the court's charge to the jury affects power relationships among judge and jury, trial and appellate courts, and plaintiffs and defendants. It also influences the role of the jury and the content of the underlying substantive law. Under current federal law, trial judges have virtually complete discretion in making decision about jury charge format, despite the important implications of that decision. This article demonstrates, by using examples, the ways in which the form of the jury charge can make a difference. It then argues that the general charge should remain the norm. This is true first for …

International Commercial Transactions: 1997, Peter Winship

Faculty Journal Articles and Book Chapters

No abstract provided.

Karl Llewellyn In Rome, Peter Winship

Faculty Journal Articles and Book Chapters

No abstract provided.

Intellectual Property As Price Discrimination: Implications For Contract, Wendy J. Gordon

Faculty Scholarship

As people become enamored with the possible benefits of allowing price discrimination in contracts for intellectual goods, they should realize that traditional intellectual property law works by fostering price discrimination among customers. This simple fact has implications for federal pre-emption, and is a reminder of the complexity of the economic issues involved. Increasing a seller's ability to price discriminate will often involve increasing his monopoly power, with dubious welfare effects.

Human Cloning: A Choice Or An Echo, George J. Annas

Faculty Scholarship

The chant is "cloning, cloning, cloning"; but the echo is "choice, choice, choice." From all the hoopla about human cloning as a human choice it would seem that cloning must be the most important scientific issue of our age. My intent in this Commentary is not to join this chorus, but to take advantage of cloning's high visibility to explore the nature of the choice it offers. What is it that makes human cloning at once so appealing to a few and so repulsive to most? The answer, I think, can be found in Roman mythology: Cloning recalls Ovid's myth …

Protecting Patients From Discrimination: The Americans With Disabilities Act And Hiv Infection, George J. Annas

Faculty Scholarship

The Americans with Disabilities Act (ADA) was passed in 1990 to expand the reach of the Rehabilitation Act of 1973 and make discrimination on the basis of disability unlawful. The wheelchair symbol has become a universal sign of disability, but there are, of course, many types of disability that have been the basis of discrimination over the years, including blindness, deafness, epilepsy, cancer, heart disease, and mental retardation. AIDS is a disability under the ADA, and most commentators have assumed that infection with the human immunodeficiency virus (HIV) also qualifies as a disability under this act. It was not, however, …

The Shadowlands: Secrets, Lies, And Assisted Reproduction, George J. Annas

Faculty Scholarship

Americans love babies and technology, and most Americans applaud the ability of the new assisted-reproduction techniques to help infertile couples have children. But these techniques have also given birth to a wide variety of new legal issues, including questions about the identity of the mother and father of the child, the enforcement of preconception contracts, the elements of informed consent, and the disposition of frozen embryos. After almost 20 years of experience and the growth of infertility clinics into a multibillion-dollar industry, it is time to consider establishing national standards and a federal regulatory scheme. Two recent court cases, one …

A National Bill Of Patients' Rights, George J. Annas

Faculty Scholarship

In one of the most enthusiastically received proposals in his January State of the Union address, President Bill Clinton called on Congress to enact a national bill of rights in health care. The President said, “You have the right to know all your medical options, not just the cheapest. You have the right to choose the doctor you want for the care you need. You have the right to emergency room care, wherever and whenever you need it. You have the right to keep your medical records confidential.”

Human Rights And Health - The Universal Declaration Of Human Rights At 50, George J. Annas

Faculty Scholarship

War, famine, pestilence, and poverty have had obvious and devastating effects on health throughout human history. In recent times, human rights have come to be viewed as essential to freedom and individual development. But it is only since the end of World War II that the link between human rights and these causes of disease and death has been recognized.1-3 The 50th anniversary of the Universal Declaration of Human Rights — signed on December 10, 1948 — provides an opportunity to review its genesis, to explore the contemporary link between health and human rights, and to develop effective human-rights …

Protecting Soldiers From Friendly Fire: The Consent Requirement For Using Investigational Drugs And Vaccines In Combat, George J. Annas

Faculty Scholarship

In 1990, following Iraq's invasion of Kuwait, the Department of Defense (DOD) sought a waiver of the informed consent requirements of existing human experimentation regulations from the Food and Drug Administration (FDA). With this waiver, DOD could authorize military use of investigational drugs and vaccines on soldiers involved in the Gulf War without their informed consent. The basis of the waiver request was military expediency. In DOD's words: "In all peace time applications, we believe strongly in informed consent and ethical foundations... but military combat is different." DOD's rationale was that informed consent under combat conditions was "not feasible" because …

Human Rights And Maternal-Fetal Hiv Transmission Prevention Trials In Africa, George J. Annas, Michael A. Grodin

Faculty Scholarship

The human rights issues raised by the conduct of maternal-fetal human immunodeficiency virus transmission trials in Africa are not unique to either acquired immunodeficiency syndrome or Africa, but public discussion of these trials presents an opportunity for the United States and other wealthy nations to take the rights and welfare of impoverished populations seriously. The central issue at stake when developed countries perform research on subjects in developing countries is exploitation. The only way to prevent exploitation of a research population is to insist not only that informed consent be obtained but also that, should an intervention be proven beneficial, …

Cross-Border Securitization: Without Law, But Not Lawless, Tamar Frankel

Faculty Scholarship

The Article discusses two puzzles posed by cross-border securitization.

First, why do the innovators in this area "give away" their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from "giving away" their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a "law merchant," which is later incorporated into domestic laws. In fact, …

Striking A Delicate Balance: Intellectual Property, Antitrust, Contract And Standardization In The Computer Industry, Maureen A. O'Rourke

Faculty Scholarship

Shortly before the Second Intermational Harvard Conference on Internet & Society, the Department of Justice ("DOJ") brought a widely publicized suit against the Microsoft Corporation. In its complaint, the DOJ charged Microsoft with engaging in a variety of antitrust wrongs connected with its alleged monopoly position in the market for personal computer ("PC") operating system software. The Conference panel on Antitrust and the Internet, which had planned to focus on how antitrust law affects standard-setting efforts and the implications for the Intermet, quickly abandoned that topic in favor of discussion of the Microsoft suit.

From Rio To Kyoto: A Study Of The Involvement Of Non-Governmental Organizations In The Negotiations On Climate Change, Chiara Giorgetti

Law Faculty Publications

This Article analyzes the influence of non-governmental actors on the negotiations of the Framework Convention on Climate Change (FCCC or the Convention). In particular, it evaluates the methods employed by NGOs in furthering their substantive agendas, the interaction among various non-governmental actors, and the results of their efforts. This Article considers two kinds of NGOs: business and environmental. Environmental NGOs (ENGOs) are the self-defined representatives of environmental interests. They campaign for the strict reduction of all gases that induce climate change. On the other side, business NGOs (BNGOs) typically represent the interests of those industries that are involved in the …

The Role Of Nongovernmental Organizations In The Climate Change Negotiations, Chiara Giorgetti

Law Faculty Publications

The role of nongovernmental organizations (NGOs) in monitoring the implementation of international treaties, their relevance in the organization of development projects, and their importance in the representation and education of civil society has been acknowledged and valued by both international organizations and national governments. Nongovernmental actors also play an important role in the negotiations of international agreements. Moreover, many UN agencies work closely with NGOs. NGOs have played an important part in numerous environmental conventions, and their role is becoming more clearly defined. The presence of NGOs has also been instrumental in the evolution and development of many international environmental …