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Articles 1 - 13 of 13

Full-Text Articles in Law

New Technologies And Old Treaties, Bryant Walker Smith Jan 2020

New Technologies And Old Treaties, Bryant Walker Smith

Faculty Publications

Every road vehicle must have a driver able to control it while in motion. These requirements, explicit in two important conventions on road traffic, have an uncertain relationship to the automated motor vehicles that are currently under development—often colloquially called “self-driving” or “driverless.” The immediate legal and policy questions are straightforward: Are these requirements consistent with automated driving and, if not, how should the inconsistency be resolved? More subtle questions go directly to international law’s role in a world that artificial intelligence is helping to rapidly change: In a showdown between a promising new technology and an entrenched ...


Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho Jan 2016

Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

Faculty Publications

Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell ...


Collaboration And Intention: Making The Collaborative Family Law Process Safe(R), Margaret Drew Jan 2016

Collaboration And Intention: Making The Collaborative Family Law Process Safe(R), Margaret Drew

Faculty Publications

Since the beginning of the collaborative family law movement, commentators from various professions have discouraged collaborative lawyers from accepting cases involving intimate partner abuse. The collaborative process, with its face to face meetings and emphasis on transparency and good faith, carries with it many risks for the partner who has been abused and who is attempting to end the relationship with the abusive partner. There may be occasions, however, when the at-risk partner believes that the collaborative process will enhance her safety or at least provide her with less exposure to future harm than other resolution processes. This article will ...


The Promise Principle And Contract Interpretation: A Suggested Approach For Maximizing Value, Juliet P. Kostritsky Jan 2012

The Promise Principle And Contract Interpretation: A Suggested Approach For Maximizing Value, Juliet P. Kostritsky

Faculty Publications

The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of Contract law, have importantly contributed to rescuing Contract law from absorption into Tort law and from the imposition of externally imposed standards that are collective in origin. It makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this essay questions whether a promise centered system derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and ...


Epstein's Razor, David G. Owen Oct 2010

Epstein's Razor, David G. Owen

Faculty Publications

Richard Epstein, over a long and distinguished career, has offered inspired insights into how a legal system should be framed to serve the goals of those it governs. In that pursuit, he has relentlessly applied a sharp logic - call it Epstein's Razor - to shave away the detritus of complexity and confusion that surround perplexing problems, leaving standing only truths unscathed by competition among ideas. Over decades of diverse writings on law and political theory, highlighted by his elegant Simple Rules for a Complex World, Professor Epstein offers a vision of law constructed on the view that simplicity in law ...


From Privacy To Liberty: The Fourth Amendment After Lawrence, Thomas P. Crocker Oct 2009

From Privacy To Liberty: The Fourth Amendment After Lawrence, Thomas P. Crocker

Faculty Publications

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court's third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties-to live in the company of others free from state surveillance ...


Reproductive Rights As Health Care Rights, B. Jessie Hill Jan 2009

Reproductive Rights As Health Care Rights, B. Jessie Hill

Faculty Publications

U.S. legal scholarship concerning reproductive rights has largely revolved around the poles of decisional autonomy, privacy, and equality, with a concomitant a tendency to de-emphasize the medical aspect of abortion rights. The medical approach has been particularly disfavored by feminist scholars, largely due to concerns about undermining the equality rationale for reproductive rights and placing too much power in the hands of physicians. In addition, American constitutional law has tended to treat reproductive-rights cases differently from other cases raising challenges to government restrictions on individuals’ rights to access certain forms of medical treatment, granting heightened judicial scrutiny to the ...


Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker Apr 2007

Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker

Faculty Publications

From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the "marketplace of ideas." Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech may be ...


Understanding Waiver, Jessica Wilen Berg Feb 2006

Understanding Waiver, Jessica Wilen Berg

Faculty Publications

Waiver plays a role in numerous areas of law, yet no one has attempted to provide a unifying theory of waiver, explaining why some rights cannot be waived and why courts and legislatures have set different standards for the validity of waivers in different circumstances. This article proposes that maximization of autonomy functions as an underlying goal of our legal system generally, and thus the concept of autonomy provides a basis for understanding waivers. It analyzes autonomy in some detail and offers an evaluative framework that functions both descriptively and normatively across different legal areas. There are two senses of ...


Constructing Competence: Formulating Standards Of Legal Competence To Make Medical Decisions, Jessica Wilen Berg Feb 2006

Constructing Competence: Formulating Standards Of Legal Competence To Make Medical Decisions, Jessica Wilen Berg

Faculty Publications

A young woman twenty-six weeks pregnant and dying from cancer lies heavily sedated and attached to a respirator. Is she competent to determine what life-prolonging measures should be taken, or to consent to an emergency cesarean section that may save her fetus but will probably shorten her life? A quadriplegic young man wishes to end his life and requests a court order granting immunity for the medical staff who will unhook his respirator and administer sedatives. Is he competent to choose to die? A person's competence will have implications for whether he or she is allowed to decide what ...


The Use Of Placebos In Clinical Trials: Responsible Research Or Unethical Practice?, Sharona Hoffman Jan 2001

The Use Of Placebos In Clinical Trials: Responsible Research Or Unethical Practice?, Sharona Hoffman

Faculty Publications

Developments in medical research have been occurring at a rapidly increasing rate during the past two decades. Expanding budgets, augmented computer capabilities, and new research tools have all dramatically enhanced research technology. Accompanying the proliferation of medical research are increasing concerns about research risks. This article focuses on placebo-controlled clinical trials. The use of placebos enables clinical investigators to compare results from subjects taking an experimental intervention to results from a group that is receiving an inactive substance, such as a sugar pill, in order to determine the efficacy of the new medication. In recent years, some surgeons have also ...


Reinvigorating Autonomy: Freedom And Responsibility In The Supreme Court's First Amendment Jurisprudence, Christina E. Wells Jan 1997

Reinvigorating Autonomy: Freedom And Responsibility In The Supreme Court's First Amendment Jurisprudence, Christina E. Wells

Faculty Publications

Part I of this Article explores the conception of autonomy that scholars have generally attributed to the Court and discusses problems with that conception. Part II sets forth an alternative, Kantian conception of autonomy and discusses its implications for a system of laws regulating free expression. Part III analyzes the Court's free speech jurisprudence and its autonomy rationale. It specifically examines both the Court's distinction between content-based and content-neutral regulations of speech and its approach to low-value speech, demonstrating that they reflect a Kantian notion of autonomy. Finally, Part IV discusses the implications of Kantian autonomy for hate ...


What's Competence Got To Do With It: The Right Not To Be Acquitted By Reason Of Insanity, Justine A. Dunlap Jan 1997

What's Competence Got To Do With It: The Right Not To Be Acquitted By Reason Of Insanity, Justine A. Dunlap

Faculty Publications

An acquittal by reason of insanity is sufficiently adverse and is in many ways more akin to a conviction than to an outright acquittal. Although not technically punishment, it involves substantial infringement of rights. The legal literature has devoted significant space to the issue of a criminal defendant’s competence to stand trial and to the issue of the insanity plea. The problem of a pretrial insanity acquittal of an incompetent defendant, on the other hand, has not been extensively examined. In undertaking that task, this article will, in Part II, review the law and practice of competency determinations. Part ...