Law Commons^™

Rent Appropriation And The Labor Law Doctrine Of Successorship, Keith N. Hylton

Faculty Scholarship

When there is a change of corporate control in a business enterprise a question arises as to whether the new employer should be bound by the predecessor's collective bargaining relationship with the union representing the predecessor's employees. This is known as the successorship problem in labor law.' Successorship doctrine is complex and controversial. Several commentators have attempted to reconcile Supreme Court decisions and to ascertain the assumptions underlying the Court's opinions in this area.2 This Article does not attempt to do this, although paradoxically, the arguments presented may lead to reconciliation of many of the Supreme Court's decisions relating to …

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …

Rethinking "Original Intent", David B. Lyons

Faculty Scholarship

Although Dred Scott v. Sandford is one of the Supreme Court's most controversial decisions, it is not often taught or read. But its approach to constitutional interpretation is by no means outdated, and its historical importance has not diminished. So it seems a good example to consider.

The Use Of Risk Assessment Evidence To Prove Increased Risk And Alternative Causation In Toxic Tort Litigation, Michael S. Baram

Faculty Scholarship

Due to the difficulties of proving causation in most toxic tort suits, plaintiffs and defendants in toxic tort litigation have begun to develop and use scientifically sophisticated risk assessments as evidence in proving or disproving causation. This use has led to two new trends in tort liability. First, there is the trend in which risk assessment is used by plaintiffs to buttress claims for future injury or increased risk. Second, there is the trend in which risk assessment is used by defendants to establish that other factors caused, in whole or in part, plaintiffs’ injuries.

This article evaluates these two …

Draft Of A Labor Theory Of Property - 1990, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court in several recent cases has flirted with the notion that labor gives one an entitlement to ownership: a legal right to bar others from the fruits of that labor or to extract payment from them if they use the fruits without permission. Sometimes articulated in terms of "natural rights," and sometimes in terms of "fairness," this notion is at apparent odds with contract law's insistence that the only "fruits of labor" one is obligated to pay for are those one has agreed in advance to buy.

Note On Deserving To Be Born - 1990, Wendy J. Gordon

Scholarship Chronologically

A full reap/sow principle, one that's unsupplemented by any entitlement for need and that extends to both harms and benefits completely, would say that one is not entitled to keep ANYTHING one fails to earn. Including sunlight. Including life itself.

Note On Types Of Corrective Justice - 1990, Wendy J. Gordon

Scholarship Chronologically

One kind of inquiry is to ask: what weight does the claim to reward have? Another is to ask: what are the built-in limits or expectations (places where the claim to reward has zero weight)?

Note On Deserving The Results Of Labor - 1990, Wendy J. Gordon

Scholarship Chronologically

Munzer's formulation seems to talk in the end about largely consensual arrangements, like working for wages.

Note On Causation And Limited Duration Of Intellectual Property; Also Patent Standards - 1990, Wendy J. Gordon

Scholarship Chronologically

Another causation problem is this: "But for" causation is only one type. It has its own problems. But there are other kinds of cause. In tort law these other kinds of cause are lumped together under the rubric "proximate cause", and the difficulties of "proximate cause" doctrine illustrate some of the difficulties.

The Law And Economics Of Organ Procurement, Keith N. Hylton

Faculty Scholarship

This paper presents an economic analysis of the organ procurement system in the U.S. and examines proposals to alleviate the shortage of transplantable organs. The paper's principal conclusions are: (1) Although non-market solutions deserve the highest priority, demand increases fueled by improvements in transplant technology will probably make some market-based solution necessary in the future. (2) Quality deterioration and coercion will not necessarily be worrisome problems under a market-based procurement system.

Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chafee, Jr. and Judge Learned Hand brought a wealth of learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.

Territorial Governments And The Limits Of Formalism, Gary S. Lawson

Faculty Scholarship

For much of this nation's history, the governance of American territories, such as the island of Guam, was one of the most significant and oft-litigated problems of American constitutional law. In modern times, however, issues of territorial governance have been reduced to the status of constitutional arcana. Professor Lawson maintains that this frequently neglected problem of territorial governance is an ideal context in which to conduct the resurgent modern debate concerning separation of powers theory. Accordingly, Professor Lawson undertakes a formalist analysis of the principal institutions of American territorial governance, finding all of them incompatible with a formalist understanding of …

Notes On Misc Re Paper: Property Preemption - 1990, Wendy J. Gordon

Scholarship Chronologically

Sears/Compco said anything not protected by patent copyright etc is not subject to state anti-copying protection. Goldstein says Sears/Compco didn't mean that exactly- rather, states can't control copying where fed statutory policies would be in conflict with the state protection. Section 102b and generations of copyright cases say ideas, systems, etc., are not copyrightable. That wd seem to suggest that even under Goldstein, ideas, etc can't be protected against state law.[1] However, a 1 iteral reading of 301 might suggest Cong decided there should be no preE of such state law protection of ideas.

Letter From Louis Michael Seidman, Louis M. Seidman

Scholarship Chronologically

Dear Wendy:

Thanks for sending me your piece on intellectual property and the restitutionary impulse. As always with your work, I found it fascinating. I'm happy to give you my comments, but I doubt that they will be very useful to you. This is an area I know nothing about, so many of my problems reflect my lack of understanding, rather than any defects in your arguments. With that caveat, and for what it is worth, here are some reactions (many of which, as you will see, are quite trivial):

Notes On Economics Of Suppression - 1990, Wendy J. Gordon

Scholarship Chronologically

The Treatise suggests that the two major strains in copyright are the economic or instrumental perspective, and the authors' rights perspective. This dual perspective parallels the configuration in property and tort law as a whole, where quandaries such as the suppression problem are sometimes analyzed in terms of whether the individual holding an entitlement is a "steward" entrusted with the resource solely for sake of the social good that is likely to result from his or her productive use of it, or a "sovereign" to be left unregulated in managing the resource.

Proposed Organization And Detailed Table Of Contents - 1990, Wendy J. Gordon

Scholarship Chronologically

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zcharia Chaffee Jr. and Judge Learned Hand brought a wealth of learning and a broad perspective to copyright.

Draft Of New Versus Old Authors - 1990, Wendy J. Gordon

Scholarship Chronologically

Virtually all the issues canvassed above embody the tension that exists in seeking to honor the interests of two generations of creators. For example, the essay has discussed the need for new adaptive artists to have a copyright in their own productions and the dangers that the "subconscious copying rule" poses to new creators, particularly in an age of ubiquitous media.

Symposium Draft For Tragic Choices In Everyday Life - 1990, Wendy J. Gordon

Scholarship Chronologically

In the age of high technology, ordinary life situations often demand tragic choices: kidney dialysis, new pesticides, and even simple legal contracts can pose excruciating choices for people from all walks of life and inescapable dangers for innocent victims. This human dilemma-facing a world in which some innocents will die- is paralleled by the central Christian mythos of a willing crucifixion. Law and myth help us clarify the human situation.

Chapter 5 - Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Matrimonial Bonds: Slavery And Divorce In Nineteenth-Century America, Elizabeth B. Clark

Publications

In the covenant of marriage, woman is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master -- the law giving him power to deprive her of her liberty, and to administer chastisement. He has so framed the law of divorce . . . as to be wholly regardless of the happiness of women -- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

Foundations Of Rights Jurisprudence In Israel: Chief Justice Agranat's Legacy, Pnina Lahav

Faculty Scholarship

"Liberty of the individual is a things of the past, or the future, in Palestine", wrote Bernard Joseph, a distinguished member of Israel's "government in the making" in 1948, shortly before Israel was inaugurated as a sovereign state. Joseph's "present" was the dusk of British rule in Palestine. Draconian Defence (Emergency) Regulations suspended conventional liberties ordinary westerners were accustomed to expect and turned Palestine into a police state.

Notes On Lear V. Adkins And Kewanee: "Public Domain" And "Dissemination", Wendy J. Gordon

Scholarship Chronologically

What is the S ct s notion of public domain? Does dissemination play the same role I thinK it should? Here s a looK at patent pol icy. Basically, I think the following shows that the Supreme Court envisages that there s a separate policy which says that things once made public should stay public. Now d tie that to reliance & changes of position. The court doesn t think it through very well; they may have power in mind, or vesting, or just precedent. It s unclear. But it s useful for my purposes that the Court opinion suggests …

Mapping The Human Genome And The Meaning Of Monster Mythology, George J. Annas

Faculty Scholarship

Pre-Columbian cartographers drew their maps to the extent of their knowledge, and then wrote in the margins, "Beyond this point there are dragons." With the voyage of Columbus, we lost both our fear of the geographic frontier and our innocence. We accept that knowledge can generally overpower fear; but we have also learned that the application of new knowledge often has a dark side that can lead to brutality and disaster. The discovery of America, for example, led to unforeseen value conflicts of justice and fairness involving native Americans that were "resolved" only by their merciless subjugation and genocidal destruction. …

Pregnancy, Drugs, And The Perils Of Prosecution, Wendy K. Mariner, Leonard H. Glantz, George J. Annas

Faculty Scholarship

In the war on drugs an offensive has been launched against pregnant women who use drugs. Over the past four years, prosecuting attorneys have been indicting women who use drugs while pregnant. In South Carolina alone, eighteen women who allegedly took drugs during pregnancy were indicted last summer for criminal neglect of a child or distribution of drugs to a minor.' In the only successful prosecution so far, Jennifer Johnson was convicted in Florida for delivering illegal drugs to a minor via the umbilical cord in the moment after her child was born and before the cord was clamped.^{2 …}

The Influence Of Litigation Costs On Deterrence Under Strict Liability And Under Negligence, Keith N. Hylton

Faculty Scholarship

This paper examines the influence of litigation costs on deterrence under strict liability and under negligence. By deterrence, I refer to the effect of the threat of liability on the care exercised by potential injurers. More precisely, this paper takes litigation costs as given and examines the social desirability of the levels of care exercised under negligence and under strict liability.

'Were There No Appeal': The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

Limiting Section 301 Preemption: Three Cheers For The Trilogy, Only One For Lingle And Lueck, Michael C. Harper

Faculty Scholarship

After Lueck the preemption of state law claims by employees covered by collective bargaining agreements seemed to spread.²⁶ Lingle partially stemmed the flow, ²⁷ but the lower courts continue to deny significant state law rights to unionized employees in the name of section 301 and the arbitration process that it has encouraged. ²⁸ Many of these lower court decisions paint a much too broad swath of section 301 preemption through the range of employment rights now being made available by state law.

The fault, I suggest, lies with the preemption test suggested in Lueck and expressly articulated in Lingle …

Notes Of Reference To The Common Law, Wendy J. Gordon

Scholarship Chronologically

Also, when one looks at the common law, one finds throughout an attempt to protect persons who change position in reliance on other's actions from being harmed by such persons' withdrawal; similarly, the common law gives a great deal of protection from harm even when the parties have had no prior dealings.

Costly Litigation And Legal Error Under Negligence, Keith N. Hylton

Faculty Scholarship

In this article, private enforcement under negligence when there is legal error and litigation is costly is examined. Ordover (1978) demonstrated that in a negligence regime in which there is no legal error and litigation is costly, equilibrium requires the presence of actors who refuse to obey the due-care standard. Accordingly, in such a negligence regime, an undercompliance equilibrium must result. Since the existence of litigation costs implies that the socially optimal level of care is greater than that required by the traditional Hand formula, which defines negligence as a failure to take care where the cost of taking care …

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …