Law Commons^™

The Mote In Thy Brother’S Eye: A Review Of Human Rights As Politics And Idolatry, William M. Carter Jr.

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Michael Ignatieffs provocatively titled collection of essays, Human Rights As Politics and Idolatry [hereinafter Human Rights], is a careful examination of the theoretical underpinnings and contradictions in the area of human rights. At bottom, both of his primary essays, Human Rights As Politics and Human Rights As Idolatry, make a claim that is perhaps contrary to the instincts of human rights thinkers and activists: namely, that international human rights can best be philosophically justified and effectively applied to the extent that they strive for minimal ism. Human rights activists generally argue for the opposite conclusion: that international human rights be …

Troxel And The Rhetoric Of Associational Respect, David J. Herring

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A recent decision by the United States Supreme Court has brought into sharp focus important questions about the nature and extent of parents' prerogatives to dictate how their children are raised. In the case of Troxel v. Granville, the Court addressed a Washington third-party visitation statute that permitted "any person" to petition for visitation with a child. Under the statute, a petitioner had to allege that visitation would serve the child's best interest. A judge hearing such a petition could order visitation whenever he or she found that such visitation may serve the child's best interest.

The United States …

School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake

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This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct …

What's My Copy Right?, Michael J. Madison

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This piece consists of an early 21st century whimsy, a dialogue that borrows and blends history and humor to illustrate some puzzles of copyright law in the context of digital technology (with references to Folsom v. Marsh and Abbott & Costello).

The Struggle For Sex Equality In Sport And The Theory Behind Title Ix, Deborah Brake

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Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. …

Designing Electronic Casebooks That Talk Back: The Cato Program, Kevin D. Ashley

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Electronic casebooks offer important benefits of flexibility in control of presentation, connectivity, and interactivity. These additional degrees of freedom, however, also threaten to overwhelm students. If casebook authors and instructors are to achieve their pedagogical goals, they will need new methods for guiding students. This paper presents three such methods developed in an intelligent tutoring environment for engaging students in legal role-playing, making abstract concepts explicit and manipulable, and supporting pedagogical dialogues. This environment is built around a program known as CATO, which employs artificial intelligence techniques to teach first-year law students how to make basic legal arguments with cases. …

Becoming Visible: The Ada's Impact On Healthcare For Persons With Disabilities, Mary Crossley

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This Article will adopt the perspective of individuals with disabilities in their encounters with the health care finance and delivery system in the United States, and will pose the question of what the past decade has shown the ADA to mean (or not mean) for those individuals' ability to seek, receive, and pay for effective health care services. To that end, this Article will provide an overview of three broad areas on which the ADA has had varying degrees of impact.

Part II of the Article will examine how the ADA has affected the rights of an individual with a …

Benign Hegemony? Kosovo And Article 2(4) Of The U.N. Charter, Jules Lobel

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The 1999 U.S.-led, NATO-assisted air strike against Yugoslavia has been extolled by some as leading to the creation of a new rule of international law permitting nations to undertake forceful humanitarian intervention where the Security Council cannot act. This view posits the United States as a benevolent hegemon militarily intervening in certain circumstances in defense of such universal values as the protection of human rights. This article challenges that view. NATO's Kosovo intervention does not represent a benign hegemony introducing a new rule of international law. Rather, the United States, freed from Cold War competition with a rival superpower, is …

Complexity And Copyright In Contradiction, Michael J. Madison

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The title of the article is a deliberate play on architect Robert Venturi's classic of post-modern architectural theory, Complexity and Contradiction in Architecture. The article analyzes metaphorical 'architectures' of copyright and cyberspace using architectural and land use theories developed for the physical world. It applies this analysis to copyright law through the lens of the First Amendment. I argue that the 'simplicity' of digital engineering is undermining desirable 'complexity' in legal and physical structures that regulate expressive works.

Documentary Credit Law And Practice In The Global Information Age, Jacqueline D. Lipton

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Documentary letters of credit have historically been an important and popular method of payment in international trading transactions. In fact, they have been described as the "life-blood of international commerce." A number of uniform international practices have developed for their use, many of which are codified in international rules such as the UCP 500. However, in the global information age, as the nature of international commerce changes, so too must the operation of such payment mechanisms. With the increase in electronic trading, the "documentary" nature of these credits may require some revision. This paper examines ways in which the law …

The Cruelest Of The Gender Police: Student-To-Student Sexual Harassment And Anti-Gay Peer Harassment Under Title Ix, Deborah L. Brake

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Title IX, like other sex discrimination laws, addresses discrimination that occurs because of an individual’s sex. Courts interpreting Title IX, like those interpreting Title VII of the Civil Rights Act of 1964, have struggled to demarcate a line separating discrimination because of sex from discrimination because of sexual orientation. This article constructs an argument for viewing anti-gay discrimination, and in particular anti-gay harassment between students, as a form of sex discrimination under Title IX. The article first explores why school inaction in the face of sexual harassment discriminates on the basis of sex. Although sex discrimination law generally has long …

The Disability Kaleidoscope, Mary Crossley

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The question of whom our society truly wants to protect from adverse discrimination based on bodily difference is ultimately a question for the body politic. The aim of this article, by contrast, is to use the analytical tools provided by scholars in the field of disability studies to scrutinize how lawmakers to date have understood the concept of impairment as one form of bodily difference. By viewing administrative and judicial treatments of impairment through a disability studies lens, I have sought to give the disability kaleidoscope a turn and thus to provide the reader with an altered view of impairment …

Legal-Ware: Contract And Copyright In The Digital Age, Michael J. Madison

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ProCD, Inc. v. Zeidenberg, which enforced a shrinkwrap license for computer software, has encouraged the expansion of the shrinkwrap form beyond computer programs, forward, onto the Internet, and backward, toward such traditional works as books and magazines. Authors and publishers are using that case to advance norms of information use that exclude, practically and conceptually, a robust public domain and a meaningful doctrine of fair use. Contesting such efforts by focusing on the contractual nature of traditional shrinkwrap, by relying on market principles, on adhesion theory, on commercial law concepts of usage and custom, or on federal preemption doctrine, feeds …

Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley

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This article examines issues potentially raised under the Americans with Disabilities Act (ADA) by states' decisions whether and how to include disabled Medicaid recipients in the massive shift towards Medicaid managed care. Part II briefly examines the special issues that disabled Medicaid recipients pose with respect to managed care enrollment. These include issues of cost, quality, access, and program design and implementation. Part III describes various approaches that state programs have taken or are proposing to take with respect to the enrollment of disabled Medicaid recipients in managed care. These approaches range from simply excluding the SSI population from managed …

Direct Effect Of International Economic Law In The United States And The European Union, Ronald A. Brand

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One of the most important and challenging issues in international law is the manner in which we address the relationship between the individual and the international legal system. The traditional framework, in which we set a "sovereign" government between the individual and the development and application of the rules, is no longer sufficient in all circumstances. The fact that governments feel insecure or threatened by the application of international legal rules in actions brought by individuals is not sufficient reason to preclude that development. The purpose of government is not to perpetuate traditional power structures, it is to provide security …

Sex As A Suspect Class: An Argument For Applying Strict Scrutiny To Gender Discrimination, Deborah Brake

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In United States v. Commonwealth of Virginia' ("VMI"), the Supreme Court has a landmark opportunity to revisit the legal standard courts should use to review classifications which treat men and women differently. The VMI case involves an equal protection challenge to the state's exclusion of women from VMI and its establishment of an alternative, sex-stereotyped women's leadership program as a remedy to that exclusion. The United States, which brought the case against VMI, has asked the Supreme Court to rule that sex-based classifications, like classifications based on race, must be subjected to the highest level of constitutional scrutiny, or "strict …

Choice, Conscience, And Context, Mary Crossley

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Building on Professor Michael H. Shapiro's critique of arguments that some uses of new reproductive technologies devalue and use persons inappropriately (which is part of a Symposium on New Reproductive Technologies), this work considers two specific practices that increasingly are becoming part of the new reproductive landscape: selective reduction of multiple pregnancy and prenatal genetic testing to enable selective abortion. Professor Shapiro does not directly address either practice, but each may raise troubling questions that sound suspiciously like the arguments that Professor Shapiro sought to discredit. The concerns that selective reduction and prenatal genetic screening raise, however, relate not to …

External Sovereignty And International Law, Ronald A. Brand

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This essay addresses the need to redefine current notions of sovereignty. It returns to earlier concepts of subjects joining to receive the benefits of peace and security provided by the sovereign. It diverges from most contemporary commentary by avoiding what has become traditional second-tier social contract analysis. In place of a social contract of states, this redefinition of sovereignty recognizes that international law in the twentieth century has developed direct links between the individual and international law. The trend toward democracy as an international law norm further supports discarding notions of a two-tiered social contract relationship between the individual and …

Medical Futility And Disability Discrimination, Mary Crossley

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The concept of medical futility, which originally developed in the medical literature as a basis for allocating between physician and patient decisional authority regarding end-of-life treatment, is increasingly appearing in discussions regarding possible methods of containing medical costs by limiting treatment. This use of medical futility as a rationing mechanism, whether by a state Medicaid program or by a hospital, raises concerns regarding its impact on persons with severe disabilities near the end of life. This article considers how the applicability of the Americans with Disabilities Act to cost-conscious futility policies might be analyzed. After developing arguments that proponents and …

Of Diagnoses And Discrimination: Discriminatory Nontreatment Of Infants With Hiv Infection, Mary Crossley

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Evidence of physician attitudes favoring the withholding of needed medical treatment from infants infected with HIV compels a reassessment of the applicability and adequacy of existing law in dealing with selective nontreatment. Although we can hope to have learned some lessons from the Baby Doe controversy of the mid-1980s, whether the legislation emerging from that controversy, the Child Abuse Amendments of 1984, has ever adequately dealt with the problem of nontreatment remains far from clear. Today, the medical and social characteristics of most infants infected with HIV introduce new variables into our assessment of that legislation. At stake are the …

Exchange Loss Damages And The Uniform Foreign-Money Claims Act: The Emperor Hasn't All His Clothes, Ronald A. Brand

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In 1989, the National Conference of Commissioners on Uniform State Laws approved a new Uniform Foreign-Money Claims Act. This Act is designed to change and clarify the law regarding judgments on obligations denominated in a foreign currency. It does so by recognizing that old rules preventing judgment in a foreign currency - developed in times of a strong dollar - are inappropriate. Unfortunately, in seeking fairness for plaintiffs when the U.S. dollar is weak, the Act replaces rigid old rules with stiff new rules that fail to address the basic issue of appropriate damages for exchange rate losses. While the …