Law Commons^™

Domestic And International Copyright Issues Implicated In The Compilation Of A Multimedia Product, Jane C. Ginsburg

Faculty Scholarship

Suppose an entrepreneur wishes to create an interactive multimedia product on the theme of the Exploration of Space. The multimedia work would assemble components created specially for the product, and others drawn from preexisting works. The latter might include: Leonardo da Vinci drawings of aeronautical machines, archival photographs of early airplanes, excerpts from 19th and 20th century science-fiction novels, text and photos of newspaper accounts of space flights, NASA space maps, television news clips, excerpts of motion pictures and television series, and musical compositions and recordings. Elements specially created for the product might comprise the computer program users would employ …

The "Language Of Law" And "More Probable Than Not": Some Brief Thoughts, Kent Greenawalt

Faculty Scholarship

By far the most testy moments of the conference arose out of the following problem. The Supreme Court had interpreted "knowingly" in a criminal statute regulating interstate commerce of child pornography to cover the age of participants, even though the placement of knowingly" in the statutory provision would, according to standard usages of English grammar, lead to its not being applied to that element of the crime. All participants at our conference fairly quickly acknowledged the following two truths: (1) the Court's construction did not fit ordinary English grammar, and (2) there might be appropriate (legal) reasons why statutory construction …

Banks Mcdowell, Henry P. Monaghan

Faculty Scholarship

It is very hard for me to get used to the idea that Banks McDowell is retiring from teaching. He and I were colleagues at Boston University more than two decades ago, and I knew him to be a devoted and conscientious person deeply committed to the enterprise of teaching. Banks had great affection for his students, and he took delight in whatever he was able to do to enlarge their horizons.

Cooperating Clients, Daniel Richman

Faculty Scholarship

Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to “vigorously defend and try the case.” Tarlow was up to the task but warned Lopez that it was “his general policy not to represent clients in negotiations with the government concerning cooperation,” and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations “personally[,] morally and ethically offensive.” This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison …

An Open Letter To Congressman Gingrich, Bruce Ackerman, Akhil Amar, Jack Balkin, Susan Low Bloch, Philip Chase Bobbitt, Richard Fallon, Paul Kahn, Philip Kurland, Douglas Laycock, Sanford Levinson, Frank Michelman, Michael Perry, Robert Post, Jed Rubenfeld, David Strauss, Cass Sunstein, Harry Wellington

Faculty Scholarship

We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes. This proposal violates the explicit intentions of the Framers. It is inconsistent with the Constitution's language and structure. It departs sharply from traditional congressional practice. It may generate constitutional litigation that will encourage Supreme Court intervention in an area best left to responsible congressional decision.

Unless the proposal is withdrawn now, it will serve as an unfortunate precedent for the proliferation of supermajority rules on a host of different subjects in the future. Over time, …

The Ironic State Of Religious Liberty In America, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

On Resegregating The Worlds Of Statute And Common Law, Peter L. Strauss

Faculty Scholarship

In the early afternoon of a humid, 97 degree summer day, James Gottshall was part of a crew of mostly 50- to 60-year-old men replacing track for Conrail. Michael Norvick, the crew supervisor, pressed the men to finish the work. He discouraged observance of the scheduled breaks. Richard Johns collapsed in the heat; Norvick ordered the men back to work as soon as a cold compress had revived him. Five minutes later Johns collapsed again, the victim of a heart attack. Gottshall began 40 minutes of ultimately fruitless cardiopulmonary resuscitation on Johns, his friend for 15 years. Norvick was unable …

Trade And Wages: Choosing Among Alternative Explanations, Jagdish N. Bhagwati

Faculty Scholarship

The decline in unskilled workers’ real wages during the 1980s in the United States and the increase in their unemployment in Europe (due to the comparative inflexibility of European labor markets vis-à-vis those in the United States) have prompted a search for possible explanations. This search has become more acute with the evidence that the adverse trend for the unskilled has not been mitigated during the 1990s to date.

A favored explanation, indeed the haunting fear, of the unions and of many policymakers is that international trade is a principal source of the pressures that translate into wage decline and/or …

Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt

Faculty Scholarship

As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide …

"Coming Out": The Practical Battles From Being Visible As A Lesbian, Barbara Cox

Faculty Scholarship

No abstract provided.

The Developing Role Of Non-Governmental Organizations In Global Policy And Law Making, Charlotte Ku

Faculty Scholarship

The history of international relations in the twentieth century may appear principally to be the story of the state.

At the same time, the history of international relations in the twentieth century is also one of international organizations as a means to support and strengthen the state's ability to discharge its primary functions of promoting order in the international system and ensuring the security of its own citizens.

An even more aggressive approach to meeting the needs of states is through aid programs like the UN Development Program.

These international organizations were created by governments, usually by treaty, to address …

Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen

Faculty Scholarship

The central article of faith of the traditional understanding of the Rule of Law is that precedent uniquely determines the outcome of legal cases. Skepticism about that faith, however, is widespread. Critical Legal Scholars, as well as their intellectual ancestors, the Legal Realists, have frequently attacked the legitimacy of the received model and the formalist view of the relationship between the law and its individual applications that underlies the model. The common aim of these attacks is to demonstrate that the law is indeterminate in outcome and that the supposed constraints of the Rule of Law on judges are fictions.

Regulatory Decisionmaking In The European Commission, George A. Bermann

Faculty Scholarship

As an institution variously described as the "motor" or "engine" of European integration and as the European Union's "executive branch," the Commission of the European Communities finds itself at the center of Community decisionmaking. Yet its decisional processes are still quite poorly understood, at least in the United States. The relatively poor grasp of Commission decisionmaking is certainly not due to any general lack of interest in procedure within the American audience. The problem lies more in the highly restrictive view of decisionmaking that traditionally dominates procedural accounts of the Community institutions. Those accounts have tended to reflect three preoccupations. …

Proposed Evidence Rules 413 To 415 – Some Problems And Recommendations, James S. Liebman

Faculty Scholarship

Section 320935 of the Violent Crime Control and Law Enforcement Act of 1994 proposes three new Federal Rules of Evidence-Rules 413-415 – that would liberalize the admissibility of "propensity evidence" in criminal and civil cases involving allegations of sexual assault and child molestation. This Article expresses some reservations about, and suggests some alternatives to, Proposed Rules 413-415.

U. S. Social Welfare Policy, Lance Liebman

Faculty Scholarship

Professor Alstott's paper tells an important story about the current moment in American federalism as interpreted through the lens of the social welfare system. From its beginning in 1935, Aid to Families with Dependent Children (AFDC) was the most important intellectual ingredient in the American commitment (or not) to poor families. AFDC was called an exercise in "cooperative federalism." States established and administered programs, receiving reimbursement for roughly fifty percent of their expenditures from the national government, which, however, imposed certain programmatic conditions.

Since the Republicans took control of Congress in the 1994 elections, Congress has emphasized two themes: cutting …

An Institutional Commitment To Minorities And Diversity: The Evolution Of A Law School Academic Support Program, Jackie Slotkin

Faculty Scholarship

Given the severe underrepresentation of minorities in the legal profession, law schools have begun to realize their obligation to provide minorities with access to a quality legal education. This Article profiles the ongoing efforts of one private, free-standing law school to fulfill its commitment to diversity in education.

Vampires Among Us, Floralynn Einesman

Faculty Scholarship

The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

A Hawk In The Land Of Vultures, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Revolt Of The Masses: Armed Civilians And The Insurrectionary Theory Of The Second Amendment, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Reflections On A Case (Of Motherhood), Jane M. Spinak

Faculty Scholarship

She surveyed my office for signs of conspiracy. We had had two or three telephone conversations that had conveyed my ambivalence about representing her. A former colleague had urged her to call the clinic for help but I was reluctant to accept her case for the clinic: we rarely represented foster parents and the procedural complexity of the case convinced me that I would be unable to assign students to represent this client so late in the semester. I was resigned, however, to help her find a lawyer, both because a former colleague had sent her and because the snippets …

Reframing The Debate On Health Care Reform By Replacing Our Metaphors, George J. Annas

Faculty Scholarship

Metaphors matter, as our sterile debate on the fi-nancing of health insurance demonstrates so well. In that debate the traditional metaphor of American medicine, the military metaphor, was displaced by the market metaphor in public discourse. Metaphors, which entice us to understand and experience “one kind of thing in terms of another . . . play a central role in the construction of social and political reality.” The market metaphor proved virtually irresistible in the public arena and led Congress to defer to market forces to “reform” the financing of health insurance in the United States.

This State Will Soon Have Plenty Of Laws - Lessons From One Hundred Years Of Codification In Montana, Andrew P. Morriss

Faculty Scholarship

Part II of this Article briefly sketches the codification movement in the United States and the conditions in Montana in the 1890s. The remainder of Part II tells the story of Montana's adoption of the Civil, Criminal, Political, and Civil Procedure Codes of 1895. Part III examines in detail the subsequent treatment of some of the employment law sections of the Civil Code. Part IV draws lessons from codification and the Codes' application for future legal reform efforts.

Global Use/Territorial Rights: Private International Law Questions Of The Global Information Infrastructure, Jane C. Ginsburg

Faculty Scholarship

In the private international law of intellectual property, and particularly of literary and artistic property, the basic principle is territoriality. Each country provides for its own regime of protection of works of authorship. The Berne Convention for the Protection and Literary and Artistic Works and the Universal Copyright Convention oblige their members to respect the rule of national treatment, that is, of non discrimination between domestic and foreign works from member countries. This rule reinforces the principle of territoriality, for it confirms the role of local copyright laws, by requiring that local law apply equally to the protection of local …

Bankruptcy And The Entitlements Of The Government: Whose Money Is It Anyway?, Ronald J. Mann

Faculty Scholarship

A debate between two groups of scholars has dominated bankruptcy scholarship for the past decade. The first group, often referred to as the creditors' bargain theorists, argues that creditors' agreements with debtors create entitlements to payment the proper role of the bankruptcy system, therefore should be to benefit creditors by enforcing rules to which creditors would have agreed before bankruptcy. The second group of scholars contends that the goals of the bankruptcy system should not be limited to the interests of creditors. Instead, they maintain that the bankruptcy system, as a part of our country's wider system of social protection, …

The Central Mistake Of Sex Discrimination Law: The Disaggregation Of Sex From Gender, Katherine M. Franke

Faculty Scholarship

Contemporary sex discrimination jurisprudence accepts as one of its foundational premises the notion that sex and gender are two distinct aspects of human identity. That is, it assumes that the identities male and female are different from the characteristics masculine and feminine. Sex is regarded as a product of nature, while gender is understood as a function of culture. This disaggregation of sex from gender represents a central mistake of equality jurisprudence.

Antidiscrimination law is founded upon the idea that sex, conceived as biological difference, is prior to, less normative than, and more real than gender. Yet in every way …

Legal Enforcement Of Morality, Kent Greenawalt

Faculty Scholarship

In modern Western political and legal thought, the subject of legal enforcement of morality is narrower than the literal coverage of those terms. That is because much legal enforcement of morality is uncontroversial and rarely discussed. Disagreement arises only when the law enforces aspects of morality that do not involve protecting others from fairly direct harms. More precisely, people raise questions about legal requirements (1) to perform acts that benefit others, (2) to refrain from acts that cause indirect harms to others, (3) to refrain from acts that cause harm to themselves, ( 4) to refrain from acts that offend …

Constitutional Control Over War Powers: A Common Core Of Accountability In Democratic Societies?, Lori Fisler Damrosch

Faculty Scholarship

My first opportunity to read John Hart Ely's ideas on war powers came in 1988, when he published the antecedent of one chapter of War and Responsibility as an article in the Columbia Law Review titled Suppose Congress Wanted a War Powers Act that Worked. The punctuation – without a question mark – makes an important point: The verb "suppose" invites us not to speculate about a counterfactual hypothetical, but rather to assume that Congress must want its own creation to work. Professor Ely's project was to show Congress how to fix it.

But it was already evident in 1988, …