Law Commons^™

Jackson V. Birmingham Board Of Education: Title Ix's Implied Private Right Of Action For Retaliation, Elizabeth Mccuskey

Faculty Scholarship

The Supreme Court has penned countless words about the sound of statutory silence.' On March 29, 2005, the Court once again grappled with the meaning of silence in a statute, splitting along familiar 5-4 lines in Jackson v. Birmingham Board of Education.² When the dust cleared, a male coach of a high school girls' basketball team, who was fired in retaliation for protecting his players' Title IX³ rights, possessed a private right of action arising from the statute itself.⁴ Although the Court has retreated from its high-water mark of implying private rights of action,⁵ in …

Chapter 3: Open Source Software: Free Provision Of Complex Public Goods, James Bessen

Faculty Scholarship

Open source software, developed by volunteers, appears counter to the conventional wisdom that private provision of public goods is socially more efficient. But complexity makes a difference. Under standard models, development contracts for specialized software may be difficult to write and ownership rights do not necessarily elicit socially optimal effort. I consider three mechanisms that improve the likelihood that firms can obtain the software they need: pre-packaged software, Application Program Interfaces (APIs) and Free/Open Source software (FOSS). I show that with complex software, some firms will choose to participate in FOSS over both "make or buy" and this increases social …

The Endorsement Court, Jay D. Wexler

Faculty Scholarship

Since 1986, when William H. Rehnquist was confirmed as the sixteenth Chief Justice of the United States, the Supreme Court has virtually rewritten the entire law regarding the First Amendment’s Religion Clauses. With respect to the Free Exercise Clause, the Court, in its 1990 Employment Division v. Smith decision, reversed years of jurisprudence and held that the First Amendment does not entitle religious believers to exemptions from neutral laws of general application. On the Establishment Clause side, the Court recently overturned a series of its earlier decisions on its way to creating a body of law quite amenable to the …

Fair Followers: Expanding Access To Generic Pharmaceuticals For Low- And Medium-Income Populations, Kevin Outterson

Faculty Scholarship

U.S. trade offi cials frequently employ the rhetoric of free riding and piracy when discussing intellectual property (IP) rights for medicines (Drahos with Braithwaite 2002; Benson 2005). The gentler term free rider is applied when developed country governments (OECD) use monopsony power to negotiate price discounts on patented pharmaceuticals (Outterson 2004, 2005b; U.S. Department of Commerce 2004; PhRMA 2005). Poorer governments usually lack suffi cient market power as a purchaser to negotiate discounts for their low- and middle-income populations. In these cases, governments and patients may resort to unlicensed generic drugs and compulsory licensing. In response, U.S. trade offi cials …

Treaty Obligations And National Law: Emerging Conflicts In International Arbitration, William W. Park, Alexander A. Yanos

Faculty Scholarship

In determining the effect of treaties, the adage pacta sunt servanda ("agreements are to be kept") remains a foundation of international law? By contrast, when American courts consider international conventions, the principle barely rises to the rank of analytic starting point.

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Faculty Scholarship

What is “transnational” criminal law? One possibility is foreign criminal law, meaning the scope and substance of what is deemed criminal behavior in other lands and the theories that ostensibly justify punishing for such behavior, indeed deeming it criminal in the first place. Another is foreign criminal procedure, the “how” of foreign criminal law’s “what” and “why”: the rules and practices of investigating crime, prosecuting suspected criminals, and adjudicating criminal cases in other lands or systems. More common meanings, judging from articles in U.S. law reviews, are comparative criminal law and comparative criminal procedure, though these might differ from their …

The Digital Vat (D-Vat), Richard Thompson Ainsworth

Faculty Scholarship

The most sustained U.S. tax policy debate of the past 30 years concerns proposals to replace and/ or supplement the Federal Income Tax with a consumption tax. Public finance economists and legal tax policy scholars challenged and defended the current income tax system on grounds of fairness, efficiency, and simplicity.

This debate over revamping the national taxing scheme has not been argued purely in the academic forum. Concrete legislative proposals have been advanced for a national retail sales tax, a European-style Value Added Tax, as well as a whole host of what David Bradford calls "the two-tiered consumption taxes."

From …

Our Law, Their Law, History, And The Citation Of Foreign Law, David J. Seipp

Faculty Scholarship

The objection to citation of foreign law in U.S. Supreme Court decisions is bad history and bad law. First, let me briefly review how the objection has come to prominence recently. On June 26, 2003, the U.S. Supreme Court decided Lawrence v. Texas, striking down a same-sex sodomy statute. Justice Antonin Scalia, in the course of his dissenting opinion, wrote that the majority's citation of foreign law was "meaningless dicta," "[d]angerous dicta."' He added that the majority's opinion was "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

Foreword: Globe-Hopping Pharmaceuticals, Frances H. Miller

Faculty Scholarship

No abstract provided.

Gendering The Gentrification Of Public Housing: Hope Vi's Disparate Impact On Lowest-Income African American Women, Danielle Pelfrey Duryea

Faculty Scholarship

HOPE VI must have seemed so promising. When, in 1992, the Department of Housing and Urban Development (HUD) introduced the program later dubbed "HOPE VI," replacing the country's worst public housing projects with mixed-income, mixed-use, low-density new developments while providing targeted social services to low-income residents must have seemed like a worthy pursuit indeed. America's most run-down, crime-ridden, and poverty-plagued residential properties could be transformed into "human-scale" New Urbanist streetscapes, aesthetically continuous with surrounding areas, that would inspire pride and community in their residents. Perhaps most importantly, HOPE VI's required social service component might have seemed, at last, to recognize …

Genealogies Of Soft Law, Anna Di Robilant

Faculty Scholarship

The relatively recent blossoming of multiple soft law tools and the calls for a soft harmonization of European private law have invited reflection on the genealogy of soft law. Genealogical arguments have come to play a critical role in the heated European soft law v. hard law debate. While some find the ancestors of soft law in the medieval legal regime and particularly the lex mercatoria, others link soft law to a prolific strand of 19th and early 20th century theories of social law and legal pluralism. At times explicitly invoked, more often im plicitly alluded to, the neo-medieval genealogy …

The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The seminal rulings in 2004 by the International Court of Justice and the Israeli High Court on the legality of the wall/barrier that Israel is building through the occupied West Bank and East Jerusalem provide a study in contrast. While both judgements were critical of the wall/barrier, their judicial approaches and legal conclusions were strikingly divergent, particularly given that the two courts were purporting to rely upon the same principles of international law. The judgements also elicited quite different political and diplomatic reactions, especially among the parties most involved in the Israel/Palestine conflict. This article explores the legal analysis and …

The Constitutional Law Of Presidential Transitions, Jack M. Beermann

Faculty Scholarship

Presidential transition periods are times of uncertainty and contradiction. The outgoing president retains all the formal legal powers of the presidency, yet his last electoral success is four years removed and his political capital is at low ebb. Further complicating the matter is that the transition agendas of the two presidents are unlikely to be aligned. Even if both presidents are from the same political party, their goals in the transition period may be widely disparate. The outgoing president will be concerned with preserving his legacy. The incoming president, on the other hand, will be focused on beginning her own …

Hunger Strikes At Guantanamo: Medical Ethics And Human Rights In A “Legal Black Hole”, George J. Annas

Faculty Scholarship

Being Human, a collection of readings assembled by President George W. Bush's Council on Bioethics, contains a powerful description of the force-feeding of Soviet political prisoner Vladimir Bukovsky, who was on a hunger strike to protest the refusal of prison authorities to provide a lawyer for a fellow inmate who was awaiting trial:

They started feeding me forcibly through the nostril. By a rather thick rubber tube with a metal end on it. . . . The procedure will be that four or five KGB guys will come to my cell, take me to a medical unit, put a straitjacket …

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Intelligent Judging: Evolution In The Classroom And The Courtroom, George J. Annas

Faculty Scholarship

Religious arguments have permeated debates on the role of the law in medical practice at the beginning and the end of life. But nowhere has religion played so prominent a role as in the century-old quest to banish or marginalize the teaching of evolution in science classes. Nor has new genetics research that supports evolutionary theory at the molecular level dampened antievolution sentiment. Requiring public-school science teachers to teach specific religion-based alternatives to Darwin's theory of evolution is just as bad, in the words of political comedian Bill Maher, as requiring obstetricians to teach medical students the alternative theory that …

Dna Testing, Banking, And Genetic Privacy, George J. Annas

Faculty Scholarship

"Who am I?” has always been a fundamental philosophical question that may require decades of reflection to answer. With the advent of DNA analysis, there is a growing public impression that the answer may be found in our genes. Various Internet sites offer descriptions of our ancestral history on the basis of our DNA, as well as testing for specific “disease genes” or general profiles that are used to recommend lifestyle changes, such as foods to be eaten or avoided. Researchers have even suggested that although the scientific evidence is speculative and at best probabilistic, many people will want to …

Sentencing For The 'Crime Of Crimes': The Evolving 'Common Law' Of Sentencing Of The International Criminal Tribunal For Rwanda, Robert D. Sloane

Faculty Scholarship

Absent much prescriptive guidance in its Statute or other positive law, the International Criminal Tribunal for Rwanda (ICTR) has been developing, in effect, a 'common law' of sentencing for the most serious international crimes: genocide and crimes against humanity. While it remains, as the Appeals Chamber has said, premature to speak of an emerging 'penal regime', and the coherence in sentencing practice that this denotes, this comment offers some preliminary reflections on the substantive law and process of sentencing as it has evolved through ICTR practice. Above all, I argue, sentencing must, but has not yet, become an integral part …

Private Law And State-Making In The Age Of Globalization, Daniela Caruso

Faculty Scholarship

The rise of post-national entities, such as the institutions of the European Union and of free-trade regimes, bears no obvious relation to the traditional pillars of western private law (mostly contracts, torts, and property doctrines). The claim of this article is that the global diffusion of private law discourse contributes significantly to the emergence of new centers of authority in the global arena. The article tests the impact of private law arguments in three contexts - the growing legitimacy of regional human rights adjudication, the consolidation of the institutions of the European Union, and the higher binding force of international …

A Restatement (Third) Of Intentional Torts?, Kenneth Simons

Faculty Scholarship

Some intentional tort doctrines have developed in intriguing ways since the Restatement Second was published, and other doctrines remain contentious or obscure. For example, disagreement persists about whether the tort of battery requires merely the (single) intent to make a nonconsensual contact, or the (dual) intent both (1) to contact and (2) either to harm or to offend. The single intent view is much more plausible; the dual intent view cannot make much sense of the liability of well-intentioned doctors for battery if they exceed the patient's consent, or the liability of pranksters, or the well-accepted doctrine of apparent consent. …

Intelligent Design And The First Amendment: A Response, Jay D. Wexler

Faculty Scholarship

In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my …

State Convicts And Federal Courts: Reopening The Habeas Corpus Debate, Larry Yackle

Faculty Scholarship

I know what you are thinking. Of all the things that can conceivably happen in this field, the least likely (the very least likely) is that Congress will take a fresh look at federal habeas corpus for state prisoners. It was only in 1996 that Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA),' which ostensibly "reformed" the scheme by which prisoners employ federal habeas to challenge state criminal convictions or sentences. 2 Passing a bill of this magnitude is no small feat. Once such legislation receives approval from both houses of Congress and the President, no one has …

Videotaped Confessions And The Genre Of Documentary, Jessica Silbey

Faculty Scholarship

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal …

Liability Externalities And The Law: A Comment On Cooter And Porat, Keith N. Hylton

Faculty Scholarship

Robert Cooter and Ariel Porat have offered a simple model of tort liability with sensible reform proposals. Their focus is in on damage levels, and how those levels can be modified to reflect the socially desirable level of externalization. However, to the extent that there is any gain to be achieved by modifying damage awards, it would be better to secure this gain through other approaches, such as adopting a more careful analysis of factual causation or reducing the likelihood of judicial error.

Family Constitutions And The (New) Constitution Of The Family, Linda C. Mcclain

Faculty Scholarship

This article looks at a topic that has received little attention in the legal literature: constitution making by families. Of what interest is it to constitutional law and family law, and to those interested in the state of the family, that families undertake to draft - and are urged by assorted experts on the family to draft - family constitutions (by analogy to the U.S. constitution) and family mission statements (by analogy to corporate mission statements)? This article contends that this reported trend is a fruitful topic of inquiry, since it bears on important questions about the dynamics of family …

Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain

Faculty Scholarship

This essay offers some ABCs for a framework for sex education informed by feminist and liberal principles, in contrast to the conservative sexual economy underlying abstinence-only sex education. It embraces affirmative governmental responsibility to foster sexual and reproductive agency and responsibility and stresses the aims of capacity, equality, and responsibility. An adequate program of sex education should also address how gender role expectations and stereotypes may stand in the way of adolescents developing capacities for responsible self-government and acquiring a sense of personal agency with respect to intimacy and sexuality. The Essay then evaluates such a feminist project in light …

'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain

Faculty Scholarship

Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …

Patent Buy-Outs For Global Disease Innovations For Low- And Middle-Income Countries, Kevin Outterson

Faculty Scholarship

Drug prices are uniquely susceptible to radical price reductions through generic competition. Patented pharmaceuticals may be priced at more than 30 times the marginal cost of production; the excess is the patent rent collected by the drug company while the patent and exclusive marketing periods remain. Patent rents are significant. AIDS drugs which sell for US$10,000 per person per year in the US are sold generically for less than US$200. If patented drugs could be sold at the marginal cost of production, cost effective treatments would become even more attractive, and other interventions would become affordable.

This Article proposes marginal …

Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald F. Leonard

Faculty Scholarship

Even after the publication of Larry Kramer's The People Themselves, the early history of judicial review suffers from the unfortunate influence of Sylvia Snowiss's Judicial Review and the Law of the Constitution. Snowiss misread, among other things, James Iredell's foundational argument in 1786 for the inevitability and necessity of judicial review. Snowiss claimed that early understandings of judicial review conceptualized it not as a legal doctrine but as a doctrine of political and revolutionary resistance. In fact, however, Iredell argued for judicial review as a straightforward, legalistic consequence of popular sovereignty. In Iredell's influential account, the transition from the British …

Torts And Choice Of Law: Searching For Principles, Keith N. Hylton

Faculty Scholarship

If a tortious act (e.g., negligently firing a rifle) occurs in state X and the harm (e.g., killing a bystander) occurs in state Y, which state's law should apply? This is a simple example of the choice of law problem in torts. The problem arises between states or provinces with different laws within one nation and between different nations. In this article I discuss this problem largely in terms of incentive effects and also consider where this topic might be addressed in a torts course.

Are They Human Children Or Just Border Rats?, Susan M. Akram

Faculty Scholarship

No abstract provided.