Law Commons^™

Sacred Visions Of Law, Robert L. Tsai

Faculty Scholarship

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

The Scopes Trope, Jay D. Wexler

Faculty Scholarship

In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in thedustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's …

Jumping Frogs, Endangered Toads, And California's Medical-Marijuana Law, George J. Annas

Faculty Scholarship

Mark Twain wasn't thinking about federalism or the structure of American government when he wrote “The Celebrated Jumping Frog of Calaveras County.” Nonetheless, he would be amused to know that today, almost 150 years later, the Calaveras County Fair and Jumping Frog Jubilee not only has a jumping-frog contest but also has its own Frog Welfare Policy. The policy includes a provision for the “Care of Sick or Injured Frogs” and a limitation entitled “Frogs Not Permitted to Participate,” which stipulates that “under no circumstances will a frog listed on the endangered species list be permitted to participate in the …

Unspeakably Cruel: Torture, Medical Ethics, And The Law, George J. Annas

Faculty Scholarship

Torture is a particularly horrible crime, and any participation of physicians in torture has always been difficult to comprehend. As General Telford Taylor explained to the American judges at the trial of the Nazi doctors in Nuremberg, Germany (called the “Doctors' Trial”), “To kill, to maim, and to torture is criminal under all modern systems of law . . . yet these [physician] defendants, all of whom were fully able to comprehend the nature of their acts . . . are responsible for wholesale murder and unspeakably cruel tortures.” Taylor told the judges that it was the obligation of the …

Holmes On The Lochner Court, Gerald F. Leonard

Faculty Scholarship

For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is …

'Bend It Like Beckham' And 'Real Women Have Curves': Constructing Identity In Multicultural Coming-Of-Age Stories, Linda C. Mcclain

Faculty Scholarship

This Article looks at the coming-of-age stories in two recent films, Bend It Like Beckham and Real Women Have Curves, as an avenue to explore the question of constructing identity. Both films, arising out of the filmmakers' experiences, aim to offer representations of particular individuals in minority groups that challenge dominant representations. They also offer aspirational visions of how such individuals might find a way to construct a hybrid identity that allows them to negotiate their place within the various groups that claim them and within the broader society. How, the article asks, do the heroines in these films find …

Falling On Deaf Ears: Is The "Fail-Safe" Triennial Exemption Provision In The Digital Millennium Copyright Act Effective In Protecting Fair Use?, Woodrow Hartzog

Faculty Scholarship

This Article examines whether the "fail-safe" triennial exemption provision of the DMCA is effective for its intended purpose: to serve as a countermeasure to the DMCA's anti-circumvention provisions by protecting the ability of the public to engage in non-infringing uses of copyrighted works. Ultimately, this Article concludes that there are too many faults in both the structure and the execution of the rule-making provision to meaningfully counteract the adverse effects of the anti-circumvention provisions of the DMCA. Specifically, the rule-making procedure explicitly prohibits exemptions to a class based on the use of the work. This amounts to a rejection of …

Lost In Translation: From U.S. Corporate Charter Competition To Issuer Choice In International Securities Regulation, Frederick Tung

Faculty Scholarship

Corporate charter competition among U.S. states has been held out as a model of welfare-enhancing regulatory competition. Proponents of this story also rely on it as a basis for promoting regulatory competition in international securities regulation. Issuer choice proponents argue that an issuer of securities should be permitted to choose the securities regulation of any nation to govern its securities offerings and trading worldwide. This Article challenges the notion that the claimed success of corporate charter competition among U.S. states argues in favor of issuer choice for international securities regulation.

Even granting the assumptions of race-to-the-top advocates and accepting the …

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson

Faculty Scholarship

The nondelegation doctrine, as it has been traditionally understood, maintains that the federal Constitution places limits (however modest) on the kind and quantity of discretion that Congress can grant to other actors. Eric Posner and Adrian Vermeule have recently described this doctrine as a "neurotic burden"' on the legal system that "lacks any foundation in constitutional text and structure, in standard originalist sources, or in sound economic and political theory.''2 They agree that the Constitution forbids Congress from delegating the formal power to enact legislation through the Article I voting process,3 but they argue that "a statutory grant of authority …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Faculty Scholarship

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the …

Same Sex Marriage And Its Implications For Employee Benefits: Proceedings Of The 2005 Meeting Of The Association Of American Law Schools Sections On Employee Benefits, And Sexual Orientation And Gender Identity Issues, Maria O'Brien, Constance Hiatt, Shannon Minter, Teresa S. Collett

Faculty Scholarship

Professor Maria O'Brien Hylton*: Welcome to this session on "Same Sex Marriage and its Implications for Employee Benefits." I'm Maria Hylton and I will introduce our speakers and moderate the program.

Our first speaker is Constance Hiatt, who is a partner with the Hanson Bridgett law firm here in San Francisco. She represents mostly large employers and large employee benefit plans, including the State of California's 401(k) and 457 plans as well as the University of California's benefits office. So, she has extensive experience in the employee benefits area and she came to us, to me really, through several …

Cry Me A River: The Limits Of 'A Systemic Analysis Of Affirmative Action In American Law Schools', Angela Onwuachi-Willig, Kevin Johnson

Faculty Scholarship

This article is a response to Richard H. Sander's article, A Systemic Analysis of Affirmative Action in American Law Schools, which recently appeared in the Stanford Law Review. In his article, Professor Sander argues that affirmative action in law schools harms, rather than helps, African American law students by setting up African American students, who are out-matched by their white peers in terms of undergraduate grade point average and LSAT scores, for failure. Specifically, Professor Sander contends that because affirmative action enables African Americans to attend law schools for which they are unqualified, they are more likely to perform poorly …

Copyright Norms And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

Copyright policy must resolve intelligently the tension between upstream and downstream creators, between incentives to create and incentives to use. Downstream at1thors who copy and transform others' images or words as an input to new creativity have. obvious free speech concerns. So do simple copiers in those many instances where even non-creative copying is essential for expressing one's ideas or allegiances.

Part of the tension is economic. Because virtually every author :needs access to predecessor texts, a legislature that increases copyright protection for ·today's creators simultaneously increases tomorrow's costs of creation ¹ or use. But the issue goes far beyond …

Even Non-Extremists Get The Blues: The Rhetoric Of Copyright, Wendy J. Gordon, Lois Wasoff

Faculty Scholarship

The participants in this dialogue are Wendy Gordon and Lois Wasoff. Each is an intellectual property expert who has immersed herself in copyright law and policy for over twenty years. Neither sits at an extreme end of the policy spectrum, yet the two disagree over a wide range of issues. The editors of this volume thought their discussions could prove useful to others struggling with copyright dilemmas. Accordingly, Gordon and Wasoff sat down with a tape recorder for us. In edited form, their dialogue follows here.

The Practice Of Marriage, Katharine B. Silbaugh

Faculty Scholarship

Over the past 40 years, robust law has developed addressing the treatment of non-marital cohabitants. Consequently, the government's gatekeeping role operates somewhat differently than before. States are now more clearly policing the social benefits and the symbolism accompanying marriage, having agreed to provide many of its legal benefits to non-marital couples. This article investigates the state's current role in articulating and managing, as well as responding to, the social meaning of marriage in the context of three recent high profile cases: the prosecution of polygamist Tom Green, the Goodridge same sex marriage case in Massachusetts, and the challenge to Michael …

Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer

Faculty Scholarship

The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …

Is Obtaining An Arrestee's Dna A Valid Special Needs Search Under The Fourth Amendment? What Should (And Will) The Supreme Court Do?, Tracey Maclin

Faculty Scholarship

An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex …

Family Privacy And Death: Antigone, War, And Medical Research, George J. Annas

Faculty Scholarship

Death ends the doctor–patient relationship, and legally the patient's right of privacy dies with the patient. Other privacy interests survive, the most central of which are those of the patient's family to bury the body and to prevent the disclosure of some personal information, such as medical information, about the deceased relative. Just what privacy interests encompass and when they can be overridden by other interests — such as freedom of speech or the claims of public policy or medical research — are evolving.1 Family privacy concerning a family member who has died is at the forefront of a …

“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas

Faculty Scholarship

For the first time in the history of the United States, Congress met in a special emergency session on Sunday, March 20, to pass legislation aimed at the medical care of one patient — Terri Schiavo. President George W. Bush encouraged the legislation and flew back to Washington, D.C., from his vacation in Crawford, Texas, so that he could be on hand to sign it immediately. In a statement issued three days earlier, he said: “The case of Terri Schiavo raises complex issues. . . . Those who live at the mercy of others deserve our special care and concern. …

Turning From Damage Caps To Information Disclosure: An Alternative To Tort Reform, Kathryn Zeiler

Faculty Scholarship

Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. Recently the Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This Case Study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and …

The Nature Of Arbitral Authority: A Comment On Lesotho Highlands, William W. Park

Faculty Scholarship

Arbitration unfolds within an enclosure created by the contract terms and the applicable arbitration law. Some measure of judicial scrutiny must be imposed to ensure that an award does not fall beyond an arbitrator’s authority. But how should one identify excess of authority? The House of Lords decision in Lesotho Highlands v. Impreglio serves as a prism through which to separate several themes that inhere in the nature of arbitral authority. In rejecting arguments that an error about the currency of an award represented an excess of jurisdiction, their Lordships confirmed a healthy appreciation that arbitrators do not exceed their …

Constitutionalism, Judicial Review, And Progressive Change, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change …

Calabresi And The Intellectual History Of Law And Economics, Keith N. Hylton

Faculty Scholarship

This essay traces the vein of thought represented by Calabresi's "The Costs of Accidents", both backward in time to examine its sources, and forward to its impact on current scholarship. I focus on three broad topics: positive versus normative law and economics, positivist versus anti-positivist thinking in law, and the assumption of rationality in law and economics.

Common Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly Krawiec, Kathryn Zeiler

Faculty Scholarship

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …

The Scope And Jurisprudence Of The Investment Management Regulation, Tamar Frankel

Faculty Scholarship

This Essay reviews three periods of investment company regulation by the Securities and Exchange Commission. It focuses on the period of 1975 to 2000 in which the Commission granted exemptions on conditions, thus deregulating and reregulating, case by case and finally codifying the exemptions in an exemptive rule. The Essay analyses this form of rule-making and compares it to prosecution, settlements, and initial rule-making that typifies the recent years. The Essay concludes that the common law method of legislation, especially when it involves a "bargain" between the regulators and law-abiding regulated institutions who wish to innovate, is likely to lead …

Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson

Faculty Scholarship

Does the Constitution limit the extent to which Congress can grant discretion to other actors? The traditional nondelegation doctrine says yes, though advocates of the doctrine strongly disagree about the source of that principle and the location of the line between permissible and impermissible discretion. A number of modern scholars and judges, however, doubt whether the Constitution contains any such principle. This article demonstrates that the Constitution constrains Congress's ability to grant discretion to other actors through the requirement that laws for carrying federal power into execution must be "necessary and proper." The words "necessary" and "proper" have distinct constitutional …

The Theory Of Penalties And The Economics Of Criminal Law, Keith N. Hylton

Faculty Scholarship

This paper presents a model of penalties that reconciles the conflicting accounts optimal punishment by Becker, who argued penalties should internalize social costs, and Posner, who suggested penalties should completely deter offenses. The model delivers specific recommendations as to when penalties should be set to internalize social costs and when they should be set to completely deter offensive conduct. I use the model to generate a positive account of the function and scope of criminal law doctrines, such as intent, necessity, and rules governing the distinction between torts and crimes. The model is also consistent with the history of criminal …

Bargaining And Distribution In Special Education, Daniela Caruso

Faculty Scholarship

The problem of unequal access to educational services in the US has received the attention of courts and legislators for several decades. A traditional source of inequality, increasingly addressed by scholars and law-makers, is the discrimination against students with disabilities, who were once deprived tout court of real educational opportunities.' In this field, legislative intervention has been momentous and political forces across ideological lines have converged to provide children with disabilities proper access to public learning. The reform of special education has achieved tangible results in the last thirty years and has provided children with unprecedented opportunities.

The Republic Of Choice, The Pledge Of Allegiance, The American Taliban, Pnina Lahav

Faculty Scholarship

In two important books, The Republic of Choice and The Horizontal Society, published in 1990 and 1999 respectively, Lawrence M. Friedman presents his theories of a massive social transformation which occurred in the last century. I wish to examine these theories through the prism of two cases: Elk Grove Unified School District v. Newdow3 and Hamdi v. Rumsfeld,4 both decided in the spring of 2004. Both Newdow and Hamdi have been at the center of public controversy for many months; each case carries many of the ingredients presented in Friedman's The Republic of Choice and The Horizontal Society. I shall …