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The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder Jul 2001

The Poetics Of The Pragmatic: What Literary Criticisms Of Law Offers Posner, Guyora Binder

Journal Articles

The process by which we represent our society's will and welfare in the medium of law is an imaginative and expressive one, narrating the path from a virtuous past to a decent future, informed by aesthetic judgment. In Literary Criticisms of Law, Guyora Binder and Robert Weisberg argued that, because law is literary in this sense, scholars can use the methods of literary criticism to "read" the law and to subject it to critical evaluation and reflective aesthetic judgment. In reviewing that book, Judge Richard Posner reasserted his long-held position that it is most useful to evaluate law economically rather …


Racial Purity Laws In The United States And Nazi Germany: The Targeting Process, Judy Scales-Trent May 2001

Racial Purity Laws In The United States And Nazi Germany: The Targeting Process, Judy Scales-Trent

Journal Articles

No abstract provided.


Of Duncan, Peter And Thomas Kuhn, John Henry Schlegel Mar 2001

Of Duncan, Peter And Thomas Kuhn, John Henry Schlegel

Journal Articles

No abstract provided.


Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Wa Mutua Feb 2001

Justice Under Siege: The Rule Of Law And Judicial Subservience In Kenya, Makau Wa Mutua

Journal Articles

The piece examines the tortured history of the judiciary in Kenya and concludes that various governments have deliberately robbed judges of judicial independence. As such, the judiciary has become part and parcel of the culture of impunity and corruption. This was particularly under the one party state, although nothing really changed with the introduction of a more open political system. The article argues that judicial subservience is one of the major reasons that state despotism continues to go unchallenged. It concludes by underlining the critical role that the judiciary has to play in a democratic polity.


Environmental Certification Systems And U.S. Environmental Law: Closer Than You May Think, Errol E. Meidinger Feb 2001

Environmental Certification Systems And U.S. Environmental Law: Closer Than You May Think, Errol E. Meidinger

Journal Articles

Many industrial organizations are committing to achieve improved environmental performance through non-governmentally instituted environmental certification programs. Such programs typically define the environmental standards that firms must meet as well as the organizational mechanisms required to achieve and "certify" compliance. Well known examples include the chemical industry's "Responsible Care" program, the International Organization for Standardization's "ISO 14000" environmental management program, and the Forest Stewardship Council's well-managed forests program.

Because of their ostensibly private and voluntary nature, environmental certification programs are often presumed to be separate and distinct from law. In fact, however, they are deeply intertwined with law, and seem likely …


Patents For Chemicals, Pharmaceuticals And Biotechnology: Fundamentals Of Global Law, Practice And Strategy By Philip W. Grubb, Michael J. Malinowski Jan 2001

Patents For Chemicals, Pharmaceuticals And Biotechnology: Fundamentals Of Global Law, Practice And Strategy By Philip W. Grubb, Michael J. Malinowski

Journal Articles

No abstract provided.


Re-Interpreting The Effect Of Rights: Career Narratives And The Americans With Disabilities Act, David M. Engel, Frank W. Munger Jan 2001

Re-Interpreting The Effect Of Rights: Career Narratives And The Americans With Disabilities Act, David M. Engel, Frank W. Munger

Journal Articles

No abstract provided.


Insurer Moral Hazard In The Workers' Compensation Crisis: Reforming Cost Inflation, Not Rate Suppression, Martha T. Mccluskey Jan 2001

Insurer Moral Hazard In The Workers' Compensation Crisis: Reforming Cost Inflation, Not Rate Suppression, Martha T. Mccluskey

Journal Articles

This article challenges the standard story of the insurance crisis that led to the near-collapse and major reform of a number of states’ workers’ compensation programs in the 1980s and 1990s.

In the prevailing account, insurance costs rose due to expanding costs of benefits for injured workers’, much of which was blamed on wasteful or abusive "moral hazard" by workers and their lawyers and doctors. Because state regulators had substantial power to control insurance rates, this account claims governments tried to suppress prices in the face of rising benefit costs in a misguided attempt to avoid political trade-offs between labor …


Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld Jan 2001

Subjectship, Citizenship, And The Long History Of Immigration Regulation, Robert J. Steinfeld

Journal Articles

No abstract provided.


Transgressing The Border Between Protection And Empowerment For Domestic Violence Victims And Older Children: Empowerment As Protection In The Foster Care System, Susan Vivian Mangold Jan 2001

Transgressing The Border Between Protection And Empowerment For Domestic Violence Victims And Older Children: Empowerment As Protection In The Foster Care System, Susan Vivian Mangold

Journal Articles

No abstract provided.


Data Wars: How Superseding Forsham V. Harris Impacts The Federal Grant Award Process, Elizabeth G. Adelman Jan 2001

Data Wars: How Superseding Forsham V. Harris Impacts The Federal Grant Award Process, Elizabeth G. Adelman

Journal Articles

No abstract provided.


"The Most Glorious Story Of Failure In The Business": The Studebaker-Packard Corporation And The Origins Of Erisa, James A. Wooten Jan 2001

"The Most Glorious Story Of Failure In The Business": The Studebaker-Packard Corporation And The Origins Of Erisa, James A. Wooten

Journal Articles

The Studebaker-Packard Corporation occupies a distinctive place in the lore of the Employee Retirement Income Security Act of 1974. No single event is more closely associated with ERISA than the shutdown of the Studebaker plant in South Bend, Indiana. Soon after the plant closed in December 1963, Studebaker terminated the retirement plan for hourly workers, and the plan defaulted on its obligations. The plight of Studebaker employees quickly emerged as a symbol of the need for pension reform. This article examines the history of the Studebaker-Packard Corporation to understand why and how the shutdown came to play a role in …


A Somewhat Modest Proposal To Prevent Adultery And Save Families: Two Old Torts Looking For A New Career, William R. Corbett Jan 2001

A Somewhat Modest Proposal To Prevent Adultery And Save Families: Two Old Torts Looking For A New Career, William R. Corbett

Journal Articles

No abstract provided.


Institutional Conflicts And Responsibilities In An Age Of Academic-Industry Alliances, Michael J. Malinowski Jan 2001

Institutional Conflicts And Responsibilities In An Age Of Academic-Industry Alliances, Michael J. Malinowski

Journal Articles

No abstract provided.


Managed Care Liability For Breach Of Fiduciary Duty After Pegram V. Herdrich: The End Of Erisa Preemption For State Law Liability For Medical Care Decision Making, Edward P. Richards, Thomas R. Mclean Jan 2001

Managed Care Liability For Breach Of Fiduciary Duty After Pegram V. Herdrich: The End Of Erisa Preemption For State Law Liability For Medical Care Decision Making, Edward P. Richards, Thomas R. Mclean

Journal Articles

No abstract provided.


Foreword: Academic-Industry Collaborations In The Clinic, Michael J. Malinowski Jan 2001

Foreword: Academic-Industry Collaborations In The Clinic, Michael J. Malinowski

Journal Articles

No abstract provided.


A Matter Of Class: The Impact Of Brown V. Mclean On Employee Discharge Cases, Christina M. Sautter Jan 2001

A Matter Of Class: The Impact Of Brown V. Mclean On Employee Discharge Cases, Christina M. Sautter

Journal Articles

No abstract provided.


Two Fallacies About Dna Data Banks For Law Enforcement, David H. Kaye Jan 2001

Two Fallacies About Dna Data Banks For Law Enforcement, David H. Kaye

Journal Articles

This commentary on the article Legal and Policy Issues in Expanding the Scope of Law Enforcement DNA Data Banks, 67 Brook. L. Rev. 127 (2001), by Mark Rothstein and Sandra Carnahan, argues that the case for confining law enforcement DNA databases to noncoding loci and to samples from individuals convicted of violent crimes is quite weak.

It describes alternative approaches, including the possibility of a population-wide database; the privacy implications of the loci now used in forensic identification; the law governing DNA dragnets; and the limits on DNA databases imposed by recent cases on searches and seizures. It notes the …


The Constitutionality Of Dna Sampling On Arrest, David H. Kaye Jan 2001

The Constitutionality Of Dna Sampling On Arrest, David H. Kaye

Journal Articles

Every state now collects DNA from people convicted of certain offenses. Law enforcement authorities promote offender DNA databanking on the theory that it will identify offenders who commit additional crimes while or probation or parole, or after they have finished serving their sentences. Even relatively small databases have yielded such dividends. As these database searches uncover the perpetrators of rapes, murders, and other offenses, the pressure builds to expand the coverage of the databases.

Recent proposals call for extending not merely the scope of crimes for which DNA databanking would be used, but also the point at which the samples …


The Dynamics Of Daubert: Methodology, Conclusions, And Fit In Statistical And Econometric Studies, David H. Kaye Jan 2001

The Dynamics Of Daubert: Methodology, Conclusions, And Fit In Statistical And Econometric Studies, David H. Kaye

Journal Articles

This paper reviews the development of the law governing the admissibility of statistical studies. It analyzes the leading cases on scientific evidence and suggests that both the "reliability" and the "general acceptance" standards raise two major difficulties - the "boundary problem" of identifying the type of evidence that warrants careful screening and the "usurpation problem" of keeping the trial judge from closing the gate on evidence that should be left for the jury to assess.

The paper proposes partial solutions to these problems, and it applies them to statistical and econometric proof, particularly in the context of a recent antitrust …


Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero Jan 2001

Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero

Journal Articles

This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role and greater …


Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero Jan 2001

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Journal Articles

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …


On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero Jan 2001

On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero

Journal Articles

The poignant story of a little boy fished out of the sea after losing his mother to the elements captured the country's imagination and ignited a political firestorm. The Elián González saga drew conflicting opinions from nearly every branch of American local, state, and federal governments.

This article takes no specific position on Elián's situation. Rather, this artivle values the González story for putting a human face on often faceless legal issues. More specifically, Elián's saga raises the following important question: When should the right of the human being to be treated as an individual trump the right of government …


Rape And Force: The Forgotten Mens Rea, Kit Kinports Jan 2001

Rape And Force: The Forgotten Mens Rea, Kit Kinports

Journal Articles

In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was …


Choice And Boundary Problems In Logerquist, Hummert, And Kumho Tire, David H. Kaye Jan 2001

Choice And Boundary Problems In Logerquist, Hummert, And Kumho Tire, David H. Kaye

Journal Articles

This article, part of a symposium on the opinion of the Arizona Supreme Court in Logerquist v. McVey, questions that court’s rationales for refusing to apply heightened scrutiny to psychiatric testimony about the retrieval of repressed memories. It also challenges the court’s use of a “personal observations” exception to the heightened scrutiny standard of Frye v. United States. It proposes that a better solution to problems of scientific and expert evidence would be to adopt a sliding scale that attends to the use to which the evidence is put and the degree to which it has been shown to be …


Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried Jan 2001

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

Journal Articles

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.

At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic …


Change Of Control Board: Federal Preemption Of The Law Governing A Target's Directors, Samuel C. Thompson Jr. Jan 2001

Change Of Control Board: Federal Preemption Of The Law Governing A Target's Directors, Samuel C. Thompson Jr.

Journal Articles

This article sets out a proposed federal uniform standard governing the actions by the board of directors of a publicly held corporation that is the target of a change of control transaction. This proposal would apply in each of the following four merger and acquisition transactions: (1) the acquisition of a target in an arm's-length negotiated merger or acquisition; (2) the acquisition of a target in a management buyout; (3) the proposed acquisition of a target in a hostile tender offer; and (4) the acquisition by a target's controlling shareholder of the minority interests in such target in a freezeout …


Savages, Victims, And Saviors: The Metaphor Of Human Rights, Makau Wa Mutua Jan 2001

Savages, Victims, And Saviors: The Metaphor Of Human Rights, Makau Wa Mutua

Journal Articles

This article critically looks at the human rights project as a damning three-dimensional metaphor that exposes multiple complexes. It argues that the grand narrative of human rights contains a subtext which depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other. The savages-victims-saviors (SVS) construction lays bare some of the hypocrisies of the human rights project and asks human rights thinkers and advocates to become more self-reflective. The piece questions the universality and cultural neutrality of the human rights project. It calls for the construction of a truly universal human rights corpus, one …


On Castles And Commerce: Zoning Law And The Home Business Dilemma, Nicole Stelle Garnett Jan 2001

On Castles And Commerce: Zoning Law And The Home Business Dilemma, Nicole Stelle Garnett

Journal Articles

Most zoning laws severely restrict residents' ability to work from home. Some prohibit it outright. These regulations serve the ostensible purpose of protecting neighbors from externalities that might be generated by home businesses. But, home occupation restrictions also reflect in a particularly sharp way the central motivating ideology underlying all zoning laws - namely, that the good life requires the careful segregation of work and home. Today, home business regulations are being challenged by both planning theory and economic reality. At the same time that many in the academy and planning professions are calling into question zoning's pervasive segregation of …


A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett Jan 2001

A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett

Journal Articles

The government exempts religious associations from taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion - i.e., that it is a private matter - and of its proper place - i.e., in the private sphere, not …